PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT
          ____________

             No. 17-1656
            ____________

   UNITED STATES OF AMERICA

                   v.

    MALIKI HASSAN CHAPMAN,
       a/k/a Terrence Wallace,

                              Appellant
            ____________

On Appeal from the United States District Court
    for the Middle District of Pennsylvania
       (M.D. Pa. No. 4:13-cr-00258-011)
 District Judge: Honorable Matthew W. Brann
             ____________

                Argued
             July 19, 2018
    Before: McKEE, VANASKIE* and RESTREPO, Circuit
                       Judges.

                  (Opinion filed: February 7, 2019)
                       ____________


Lisa B. Freeland
Candace Cain [ARGUED]
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222

              Counsel for Appellant

David J. Freed
George J. Rocktashel [ARGUED]
Office of United States Attorney
240 West Third Street
Suite 316
Williamsport, PA 17701

              Counsel for Appellee

*
 The Honorable Thomas I. Vanaskie retired from the Court
on January 1, 2019 after the argument and conference in this
case, but before the filing of the opinion. This opinion is filed
by a quorum of the panel pursuant to 28 U.S.C. § 46(d) and
Third Circuit I.O.P. Chapter 12.




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                         ___________

                 OPINION OF THE COURT
                      ____________

RESTREPO, Circuit Judge

       In June of 2016, Maliki Hassan Chapman pled guilty
to conspiracy to possess with the intent to distribute cocaine.
After several continuances, the District Court set a date for
Chapman’s sentencing hearing in March of 2017. On the
scheduled date, Chapman immediately informed the Court
that he was never told of the hearing due to his counsel’s error
and therefore had been unable to notify his family of his
sentencing. He requested a continuance so that his family
could be present and provide the Court with letters of support.
The District Court acknowledged that defense counsel’s error
caused Chapman’s lack of notice but denied the request,
stating that proceeding with the sentencing as scheduled
would not impact his substantive rights. We disagree. The
Court’s ruling constituted an abuse of discretion because it
interfered with Chapman’s right to allocution as codified in
the Federal Rules of Criminal Procedure, which allows a
defendant to present any information that could persuade a
court to impose a lesser sentence. Fed. R. Crim. P.
32(i)(4)(A). Because the District Court’s ruling
impermissibly contravened the principles underlying Rule 32,
we vacate Chapman’s sentence and remand the case for a re-
sentencing.




                               3
                               I.

       For several years, Chapman engaged in the selling of
narcotics in Williamsport and Harrisburg, Pennsylvania. He
would supply sellers with cocaine purchased from a source in
New Jersey. Chapman had hidden compartments installed in
his cars to facilitate the transportation of cocaine. His
business generated significant amounts of cash; on December
12, 2012, police officers recovered over $75,000 from his
hotel room in a township near Harrisburg.

        As the business progressed, Chapman supplied cocaine
to sellers working for a coconspirator, Chris Batten. In April
of 2013, Pennsylvania State Police recovered approximately
22 ounces of cocaine powder from the trunk of Chapman’s
car during a traffic stop in Lancaster County. In May of the
following year, police found $32,060 in cash in Chapman’s
car pursuant to a traffic stop in Montgomery County.

        On June 2, 2016, Chapman pled guilty to conspiracy to
possess with the intent to distribute at least three and a half,
but less than five, kilograms of cocaine. Chapman had two
prior felony convictions and qualified as a career offender.
With a three level adjustment for acceptance of responsibility,
the applicable guideline imprisonment range was 188 to 235
months. In exchange for the plea, the government agreed to
recommend a sentence of 188 months’ imprisonment. The
government also agreed that Chapman could request a
sentence lower than the guideline range, but not lower than
144 months imprisonment.




                               4
       On November 1, 2016, the District Court ordered that
Chapman’s sentencing be held November 30, 2016. On
November 29, 2016, Chapman’s counsel filed an unopposed
motion to continue sentencing until February 2017, which the
District Court granted. The parties had a status conference on
December 2, 2016 and agreed to defer sentencing for
approximately six weeks. On February 2, 2017, the day after
conferring with the parties, the District Court issued an order
setting March 10, 2017 as the date for Chapman’s sentencing.

        On that date, Chapman immediately told the District
Court that he did not know he was to be sentenced that day
and, had he known, his family would have been present in the
courtroom. He asked for a continuance of “at least a week,”
so that he “could send [the Court] letters” from both himself
and his family members. Chapman
acknowledged that the letters might not “help” him, but he
believed they would “just show [the Court] a little bit of
things about [him].” Appendix 60.1

1
    Chapman testified as follows:


         Good afternoon, Your Honor. Yes. My concern
         is that is that I didn’t know nothing about this,
         about my sentencing. . . . My family wasn’t
         notified that I had court. They support me and
         they would be here. And I have letters that
         support. And just a lot of things that I didn’t
         know about that I think maybe – I can’t say it
         would help me, but it would just show you a little
         bit of things about me.




                                 5
        The District Court acknowledged that Chapman’s
counsel “misread a prior scheduling order,” but denied the
request for a continuance. Appendix 60. The Court stated: “I
know what I think I need to know about your case,” adding
that it would grant the continuance “despite [its] irritation”
with counsel if Chapman’s substantive rights were impacted
by sentencing him as scheduled. Appendix 63. The District
Court assured Chapman that its “pique” at his counsel would
not “in any way affect” the sentence Chapman was about to
receive. Appendix 63.

        The District Court asked Chapman if he had the
opportunity to review his presentence report with his counsel,
to which Chapman responded he had not. After conferencing
with his counsel at the direction of the Court, Chapman
amended his answer and stated that he and his counsel “had a
brief discussion by telephone. Nothing in person.” Appendix



       This is just – this is, like, um – I just didn’t know
       nothing about this, Your Honor. I would ask if
       maybe I could get like a reschedule maybe for at
       least a week or something so I can send you
       letters, because I have letters that I wanted to
       send you and my family wanted to send you.

Appendix 59-60. Chapman also requested the continuance so
that he and his counsel could review the presentence memo,
which he stated they “never went over.” Appendix 60. This
grounds for a continuance was not raised as an issue on
appeal.




                                6
66. Chapman’s counsel presented two objections to the
report, both of which were overruled by the Court.

         Chapman’s counsel spoke on his behalf, referencing a
letter Chapman had sent to the District Court prior to the
sentencing. The District Court stated that it had read the
letter, twice, and then asked Chapman if he would like to
address the Court regarding what he believed it “should
consider in imposing sentence[.]” Appendix 76. Chapman
accepted the invitation and told the District Court that he had
recently finished a second letter but did not have it with him,
again stating that he was “kind of caught off guard” by the
sentencing hearing. Appendix 76.

       The District Court sentenced Chapman to a 192 month
term of imprisonment.2 Chapman appealed to this Court,
claiming the District Court’s decision to impose sentence
without allowing him to present mitigating information he
would have provided had he had notice of his sentencing
violated his right to allocution.


2
  We note that the government’s recommendation of a
sentence of 188 to 235 months’ imprisonment violated the
terms of the plea agreement, which stated that the government
would recommend a flat term of 188 months’ imprisonment.
The government acknowledges this error, but states that a
violation of the plea agreement is not an issue on appeal.
This is correct. However, given that the fairness of
Chapman’s sentencing is at issue, the government’s decision
to ask for a term of imprisonment longer than the one agreed
upon by the parties further compromises the perceived equity
of the sentencing process.




                               7
                               II.

        Initially, we find Chapman’s contemporaneous
comments to the District Court requesting a continuance
sufficient to preserve this issue on appeal. While Chapman’s
counsel did not object, Chapman himself immediately
protested once it became clear the Court intended to proceed
with sentencing. After acknowledging that Chapman’s
ignorance as to his sentencing date was his own counsel’s
fault, the Court denied Chapman’s request for a continuance,
stating that the denial did not result in a violation of his
substantive rights. In this statement, the District Court
enunciated the precise issue raised on appeal: whether
imposing sentence despite Chapman’s justified inability to
provide mitigating information he had anticipated presenting
to the Court improperly limited his right to allocution.
Accordingly, the issue is preserved. See United States v.
Feng Li, 

, 132 (5th Cir. 1997) (citing 3A Charles
Alan Wright, Federal Practice & Procedure: Criminal 2d §
851, at 294 (2d ed. 1982)).

        We review the District Court’s denial of Chapman’s
request for a continuance for abuse of discretion. United
States v. Olfano, 

, 245-246 (3d Cir. 2007)
(citations omitted). Because there is no “mechanical test [ ]”
to determine if an abuse has occurred, we examine the
particular circumstances of each case. 

v.
Sarafite, 

, 589 (1964)). When deciding a motion
for a continuance, a court should consider the efficient
administration of criminal justice, the accused's rights, and the
rights of other defendants who may be prejudiced by a
continuance. United States v. Kikumura, 

, 73 (3d




                                8
Cir. 1991) (citing United States v. Fischbach & Moore, Inc.,

, 1195 (3d Cir. 1984)).

        Upon examining the particular circumstances of this
sentencing, it is plain the District Court erred by denying
Chapman’s request to postpone his sentencing. In so doing,
the Court unfairly deprived Chapman of his right to a full and
meaningful allocution. Because preserving Chapman’s right
to allocution outweighs the other relevant considerations, the
Court’s ruling constituted an abuse of discretion.

       Having found that Chapman’s preserved claim has
merit, we review the District Court’s abuse of discretion
under the harmless error doctrine to determine whether a
substantial right was impacted. See Fed. R. Crim P. 52(a);
United States v. Adams, 

, 284 n.5 (3d Cir. 2001).
While not constitutionally protected, the right to allocution is
deemed a substantial right because it could influence a court’s
sentencing decision. United States v. Paladino, 

,
202 (3d Cir. 2014); United States v. Plotts, 

, 250
(3d Cir. 2004). Allocution is “ancient in origin, and it is the
type of important safeguard that helps assure the fairness, and
hence, legitimacy, of the sentencing process.” 

States v. 

). While defendants
have been granted additional rights and procedural safeguards
over time, “[n]one of these modern innovations lessens the
need for the defendant, personally, to have the opportunity to
present to the court his plea in mitigation.” 

(quoting Green v. United States, 

,
304 (1961) (plurality opinion)). The Supreme Court in Green
recognized that “[t]he most persuasive counsel may not be
able to speak for a defendant as the defendant might, with




                               9
halting eloquence, speak for himself.” 

.

       Congress codified the right to allocution in 1944 by
promulgating Federal Rule of Criminal Procedure 32, which
instructs that “before imposing sentence, the court must . . .
address defendant personally in order to permit the
defendant to speak or present any information to mitigate the
sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii); United States v.
Ward, 

, 181 (3d Cir. 2013) (citing 

, and 

). This Court has
determined that the “critical purpose” of allocution is
threefold: “1) to allow the defendant to present mitigating
circumstances, 2) to permit the defendant to present personal
characteristics to enable the sentencing court to craft an
individualized sentence, and (3) to preserve the appearance
of fairness in the criminal justice system.” 

. When the purpose served by allocution is
compromised, prejudice against the defendant is presumed
and a re-sentencing is warranted. 

.

       Information that could potentially mitigate a sentence
draws from a wide range of sources. Accordingly, Rule 32
grants a defendant the broad right to present “any” material he
believes might appeal to the court’s compassion. When a
court unjustifiably limits a defendant’s ability to introduce
information he reasonably believes is “the best case for
mitigating the sentence,” the purpose underlying allocution is
thwarted. United States v. Jarvi, 

, 1262 (10th
Cir. 2008). Moreover, unduly limiting allocution
compromises a court’s own ability to sentence the individual
standing before it and to “temper punishment with mercy in
appropriate cases.” United States v. Ward,




                              10


, 181 (3d Cir. 2013) (quoting United States v. De
Alba Pagan, 

, 129 (1st Cir. 1994)). Given that an
inclusive allocution better informs the sentencing decision, a
court should encourage a defendant to present all available
relevant and illuminating information.

       Of course, a defendant’s right to allocution is not
without limitations. “The sentencing judge has always
retained the discretion to place certain restrictions on what
may be presented during an allocution.” 

. A district court is entitled to require that a defendant’s
comments remain germane to determining what sentence
should be imposed. United States v. Mack, 

, 658
(9th Cir. 2000).

       But a court’s limitation as to duration and scope must
not subvert the policy goals underlying Rule 32, which are to
grant a defendant the opportunity to explain why he is worthy
of mercy. United States v. Moreno, 

(3d Cir.
2016) (quoting 

). See also Bustamante-
Conchas, 

, 1136 (10th Cir. 2017) (quoting
United States v. Barnes, 

, 329 (7th Cir. 1991))
(“The right to allocution is the right to have your request for
mercy factored into the sentencing decision.”)

        Here, Chapman was deprived of the opportunity to
fully plead his case for mercy through no fault of his own.
He testified that his family intended to provide the Court with
supportive letters, the contents of which Chapman clearly
believed had the potential to persuade the Court to temper its
sentence. Given that family members are often the best
source of information regarding a defendant’s personal




                              11
characteristics, this belief was manifestly reasonable. At a
minimum the letters could have provided further insight into
Chapman’s individualized circumstances, thereby enhancing
the Court’s ability to craft an appropriate punishment.
Because the letters could have impacted the sentence
imposed, the Court’s decision to deny their admission
infringed on Chapman’s right to allocution.

        In addition to violating Chapman’s right to present
mitigating evidence, the District Court improperly
compromised the appearance of fairness attributed to the
sentencing hearing. 

. Allocution
provides a court with insight into a defendant’s individualized
circumstances, but also “has value in terms of maximizing the
perceived equity of the process, because the defendant is
given the right to speak on any subject of his choosing prior
to the imposition of sentence.” 

(quoting De Alba 

) (emphasis added)
(internal citations and quotation marks omitted). Beyond
mere symbolic significance, granting a defendant the right to
speak instills inherent fairness into the proceeding and “lends
legitimacy to the sentencing process.” 

(quoting United States v. Myers, 

, 463-64
(5th Cir. 1998)).

        Instantly the appearance of unfairness is especially
stark because Chapman’s own counsel thwarted his
opportunity to present information he believed might best
speak to the Court’s mercy. Chapman was instead sentenced
to a substantial term of imprisonment without the benefit of
the letters his family had hoped to submit or even their
presence in the courtroom. The Court acknowledged
Chapman’s intention to produce additional mitigating




                              12
evidence but opined that his sentencing hearing had been
delayed for long enough. While it is unquestionably true that
Chapman’s sentencing had been delayed, it is also true that
judicial expediency is not served where the imposed sentence
is the result of a presumably unfair proceeding and must be
vacated. Despite the sentencing court’s mention of its
massive docket, we maintain that even “in an age of . . . an
overburdened justice system, courts must continue to be
cautious to avoid the appearance of dispensing assembly-line
justice.” United States v. Barnes, 

, 329 (7th Cir.
1991). The denial of the right to allocution, which enables the
sentencing court to craft appropriate sentences, “is not the sort
of ‘isolated’ or ‘abstract’ error that we might determine does
not impact the ‘fairness, integrity or public reputation of
judicial proceedings.’” 

(citing 

(citation omitted)). Accordingly, we grant
relief in this case.

        Finally, the government argues that Chapman is not
entitled to relief because he did not identify any “palpable
prejudice” resulting from the Court’s refusal to allow for the
submission of additional mitigating information. Under this
Court’s jurisprudence, however, prejudice will ordinarily be
presumed where a defendant’s right to allocution has been
violated. 

; 

. Prejudice resulting from a violation need not be
“palpable”; it is sufficient for a defendant to establish there
was “opportunity for such a violation to have played a role in
the district court’s sentencing decision.” 

. The Court sentenced Chapman to a sentence of 192
months’ imprisonment, more than the minimum guideline
sentence of 188 months. Chapman’s plea agreement reserved
the right to advocate for a sentence of 144 months’




                               13
imprisonment, which his counsel did at his sentencing
hearing. The Court plainly had the discretion to grant
Chapman a lower sentence than the one imposed. United
States v. Beckett, 

(3d Cir. 2000). Chapman
intended to include the letters by his family members in his
plea for mitigation, and this intention was frustrated due to
factors beyond his control. The letters might have provided
additional persuasive mitigating circumstances not otherwise
known to the Court. Regardless of whether the letters would
have in fact brought about a lesser sentence, the law – as well
as a sense of basic fairness – dictates that Chapman not be
prevented from presenting mitigating information because of
his own counsel’s oversight and the Court’s congested docket.
Accordingly, we reverse and remand the case for
resentencing.

                              III.

        A resentencing necessitated by a judge’s failure to
grant a defendant a full and meaningful allocution raises the
question as to whether the same judge should address the
resentencing upon remand. United States v. Navarro-Flores,

, 1184 (9th Cir. 1980). Although we recognize
that, in most cases in which there may be a need for
resentencing, it is our practice to remand the matter to the
originally presiding judge, we can exercise our supervisory
power to reassign the case if we deem that to be the better
course. Gov’t of the V.I. v. Walker, 

, 376 (3d
Cir. 2001). We do not doubt that, in this case, the able judge
who has handled the matter would accept whatever additional
submissions the defense might proffer in connection with a
resentencing and would endeavor in all good conscience to be
fair and impartial. But we are mindful too of the imperative




                              14
to “preserve not only the reality but also the appearance of the
proper functioning of the judiciary as a neutral, impartial
administrator of justice.” 

v. Primerica
Holdings, 

, 167 (3d Cir. 1993)).

        Here, the District Court must not only meaningfully
consider on remand the Chapman family’s letters, it must be
seen by the defendant, his family, and the public at large as
not being influenced by the prior decision that such letters
were not substantively significant. The judge is on record as
saying he already knew what he needed to know, and that
statement, unfortunately, could be understood as saying it did
not matter what Chapman or his family might say in
mitigation. Appendix 63. In this particular circumstance, we
think it best to remand to a different judge, so that the fairness
of the sentencing process cannot reasonably be questioned at
all.




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