from the United States District Court for the Northern
District of Alabama D.C. Docket No. 2:10-cr-00278-JHH-HGD-1
ED CARNES, Chief Judge, JILL PRYOR, and RIPPLE, [*] Circuit Judges.
CARNES, Chief Judge:
pre-Booker era, we presumed prejudice from a
district court's failure to ask a defendant if he had
anything to say before sentence was pronounced, except in one
circumstance. The exception was where the defendant was
sentenced at the low end of the applicable mandatory
guidelines range. United States v. Quintana, 300
F.3d 1227, 1232 (11th Cir. 2002). The question before us is
whether that low-end exception to a presumption of prejudice
still applies in the post-Booker, advisory
guidelines era. If it does, the defendant before us is not
entitled to be resentenced with an opportunity to allocute;
but if the exception no longer applies, he is entitled to be.
FACTUAL AND PROCEDURAL BACKGROUND
Doyle pleaded guilty to possessing with intent to distribute
more than fifty grams of a substance containing a detectable
amount of cocaine base, a violation of 21 U.S.C. §
841(a)(1). He was subject to a statutory mandatory minimum
sentence of ten years and a maximum sentence of life
imprisonment. Id. § 841(b)(1)(A).
sentence hearing in December 2011, the district court
determined that Doyle's adjusted offense level was 34 and
that he had a criminal history category of VI. That yielded
an advisory guidelines range of 262 to 327 months. The court
asked Doyle's counsel if she had anything to say before
the sentence was imposed, and she used the opportunity to
argue (successfully, as it turned out) for a sentence at the
low end of the advisory guidelines range.
court did not, however, ask Doyle himself if he wished to
make a statement (or allocute, as it is called), as
sentencing courts are required to do. See Fed. R.
Crim. P. 32(i)(4)(a)(ii) ("Before imposing sentence, the
court must: . . . address the defendant personally in order
to permit the defendant to speak or present any information
to mitigate the sentence . . . ."). Doyle's counsel
did not object to the court's oversight. Throughout the
sentence hearing, Doyle made no statement other than to
answer "[y]es, sir" to three questions the court
put to him.The court sentenced Doyle to
262 months, which was the low end of the advisory guidelines
range, as well as 96 months supervised release and a special
assessment of $100.
Doyle filed a pro se motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255, claiming
that he had asked his former counsel to file a direct appeal
but that she had failed to do so, that other aspects of
counsel's performance constituted ineffective assistance
of counsel, and that his sentence violated various statutes.
The court appointed new counsel to represent Doyle in his
§ 2255 proceeding.
the district court granted Doyle's § 2255 motion
with respect to his failure to appeal claim but denied the
motion insofar as the other claims were concerned. Having
found merit in the failure to appeal claim, the court ordered
the remedy spelled out in our Phillips decision,
which is to vacate the defendant's sentence and later
re-impose the same sentence so that he can file what will
then be a timely direct appeal. United States v.
Phillips, 225 F.3d 1198, 1201 (11th Cir. 2000). Neither
the district court nor this Court granted Doyle a certificate
of appealability on the other § 2255 claims, the ones
that had been rejected.
the district court entered judgment on the § 2255 motion
and vacated Doyle's original sentence as part of the
Phillips remedy, it imposed the same sentence of 262
months imprisonment, 96 months supervised release, and a $100
special assessment. That gave Doyle
the benefit of the Phillips remedy by allowing this
direct appeal of his sentence (the same one that was
re-imposed), including errors that may have been committed at
his initial sentence proceeding, among which was the failure
to provide him with an opportunity to allocute.
sole question before us is whether Doyle's sentence must
be vacated because his right to allocute, as embodied in
Federal Rule of Criminal Procedure 32(i)(4)(a)(ii), was
violated. We have described allocution as the right of the
defendant to personally "make a final plea on his own
behalf to the sentencer before the imposition of
sentence." United States v. Prouty, 303 F.3d
1249, 1251 (11th Cir. 2002). And the Supreme Court has
explained that because "[t]he most persuasive counsel
may not be able to speak for a defendant as the defendant
might, with halting eloquence, speak for himself, "
denial of allocution has been grounds for reversal in the
common law world ...