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January 3, 2007

Ninth Circuit rejects right to allocute at limited Booker remand

Addressing one of the more interesting remaining Booker pipeline issues, the Ninth Circuit today in US v. Silva, No. 05-50871 (9th Cir. Jan 3, 2007) (available here), concludes that "[d]enying allocution during a remand to discern sentencing error does not infringe on a defendant's constitutional rights, and our judicial role precludes us from engrafting new requirements into the Federal Rules of Criminal Procedure."  This issue came up, because the defendant had argued "that he had a right to allocute during the limited remand proceeding" citing the Ninth Circuit's "decision in Ameline, our due process jurisprudence, and Federal Rule of Criminal Procedure 32."

January 3, 2007 at 02:54 PM | Permalink


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Sometimes I am blown away. Maybe this decision is right, I don't know. But what the heck is so wrong about letting the defendant allocute? Maybe you don't have to, buy why not? If he's abusive or long-winded cut him off, but why make more work for everyone by denying him the opportunity? It's just stupid.

Posted by: Anon | Jan 3, 2007 3:51:23 PM

The panel is Wallace, O'Scannlain, and Wardlaw, somewhat more prosecution-friendly than the Ninth's center of gravity. I wouldn't be surprised to see this one go pseudo-en-banc.

Anon, note that at the original, full sentencing hearing, the trial judge "expressly asked Silva whether he wished to comment; Silva declined to speak." The question here is whether the taxpayers (i.e., you) have to pay to transport a federal prisoner from whatever prison he happens to be in (which may be on the other side of the country) to the sentencing court for the purpose of speaking at this limited proceeding on remand.

Posted by: Kent Scheidegger | Jan 3, 2007 4:55:24 PM

In addition, anon, the more "rights" that are given defendants, the more proceedings that will be overturned--with the attendant costs. That's the hidden flaw in the "might as well do it because it cannot hurt" school of thought.

Posted by: federalist | Jan 3, 2007 5:03:52 PM

This case doesn't seek to answer the question, "what the heck is so wrong about letting the defendant allocute?"

Rather, it answers whether, in an Ameline remand for a case in which the defendant had already waived the right to speak, the sentencing court committed reversible error when it conducted this limited inquiry without giving the defendant another chance to be heard.

I think the Ninth Circuit correctly answered "no."

Posted by: Marc Shepherd | Jan 3, 2007 5:27:03 PM

I completely agree with the decision but like Kent I wonder what will happen to it. Other judges in the Circuit may view it with skepticism because of the fact that Wardlaw and O'Scannlain both wrote vigorous dissents in Ameline and Wallace did not sit on the case.

As a side note, I'm writing my law review paper on Ameline, it's due on Monday and I thought I was done with everything but fixing the cites, now I have to add this. Thanks Ninth.

Posted by: da_2_b | Jan 3, 2007 5:38:36 PM

One more thing in response to Anon's comment. Under US v. Montgomery (462 F.3d 1067), the district court is required to consider any additional written material that the defendant's attorney wants to present. If Silva really felt so guilty about what he did, he could have submitted a written allocution. I think he (or his attorney) was trying to get another bite at the sentencing apple.

Posted by: da_2_b | Jan 3, 2007 5:41:32 PM

Wow. I didn't expect that much contraversy. As I said originally, the decision that not providing a "right" to allocute at a resentencing doesn't violate a defendant's due process rights may very well be correct. But neither that nor any of the comments answered my actual question - why WOULDN'T you let the defendant allocute? Where's the harm?

The closest thing to an answer is Scheidegger's comment about cost. And I guess I can appreciate that, but I'm very wary of of not letting defendants do things because of cost. While spend the money to allow the defendant to be present at sentencing at all, or why help him get an expert witness?

You're sending a guy to prison, presumably for a long time. Is it really too much to ask that he be given a chance to speak first? I don't think so. I don't know that it's a due process right, but it just seems like common sence. Bring the guy in and let him talk if he wants to.

Posted by: Anon | Jan 3, 2007 10:43:33 PM

At least Mr. Scheidegger is being honest: everything involving criminal defendants costs money. I don’t think, however, this problem is likely too emerge too much – because, quite frankly, there are not many limited remands. On the other hand, the fact that people sentenced before Booker and Blakely had their constitutional rights violated to an egregious degree (and may never be entitled to a remedy), is also startling. As compared to the injury visited upon them, no expense is too great.

On the other hand, Federalist is being somewhat comical. I understand that he wants to put people in jail as cheaply as possible. (This doesn’t apply to people he likes, I imagine.) Heck, if I lived in fear of Americans as much as he did, I would agree with him. In this case, Federalist fears pot users or producers. However, the question isn’t so much how courts can insulate themselves from review, but rather what the state of the law is. In some cases, we MUST tolerate expense, because judgments have been made about the nature of the relationship of the individual with the state, and these judgments are greater than any expense or any risk to embarrassment about cost.

Posted by: S.cotus | Jan 4, 2007 7:11:11 AM

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