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United States v. Doyle

United States Court of Appeals, Eleventh Circuit

May 25, 2017

ANTHONY EUGENE DOYLE, Defendant-Appellant.

         Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 2:10-cr-00278-JHH-HGD-1

          Before ED CARNES, Chief Judge, JILL PRYOR, and RIPPLE, [*] Circuit Judges.

          ED CARNES, Chief Judge:

         In the 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.


         Anthony 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).

         At the 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.

         The 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.[1]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.

         Thereafter 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.

         Later 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.

         After 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.[2] 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.

          II. ANALYSIS

         The 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 ...

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