Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-24-2004

USA v. Carney
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1687




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"USA v. Carney" (2004). 2004 Decisions. Paper 984.
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                                                    NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    ___________

                        No. 03-1687
                        ___________

              UNITED STATES OF AMERICA

                               v.

                    HASSAN CARNEY,
                        a/k/a Boo-Boo,
                    a/k/a Willie Timmons,
                     a/k/a Shawn Carney,
                      a/k/a William Butts

                                        Appellant

                        ___________

       On Appeal from the United States District Court
          for the Eastern District of Pennsylvania

   District Court Judge: The Honorable Judge John P. Fullam
                 (D.C. Civil No. 02-cr-00282-1)
                          ___________

                  Argued: January 27, 2004


Before: NYGAARD, FUENTES & STAPLETON, Circuit Judges.

              (Opinion Filed: February 24, 2004)


                                    Brett G. Sweitzer (argued)
                                    Federal Court Division
                                    Defender Association of Philadelphia
                                    Suite 540 West - Curtis Center
                                    Independence Square West
                                    Philadelphia, PA 19106
                                                 Attorney for Appellant

                                                 Thomas P. Hogan, Jr. (argued)
                                                 Office of the United States Attorney
                                                 615 Chestnut Street
                                                 Philadelphia, PA 19106

                                                 Attorney for Appellee


                              ________________________

                               OPINION OF THE COURT
                              ________________________




FUENTES, Circuit Judge:

       Appellant Hassan Carney pleaded guilty in September 2002 to one count of illegal

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On February 25, 2003, the

District Court held a sentencing hearing, during which the Court took testimony and

heard argument from counsel on both sides. At the outset of the hearing, the Court

informed Carney that he would be given an opportunity to speak in mitigation of his

sentence:

       THE COURT:           Mr. Carney, before imposing sentence, I’ll hear
                            anything which you or your lawyer may have to
                            say. And before we get to that, we’ll discuss the
                            various objections to the presentence report. Who
                            wishes to go first?

Appendix 21a. The Court then heard argument from counsel regarding several disputed

sentencing issues, which, since we write solely for the parties, we need not describe in

detail here.


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       In arriving at the specific sentence, the Court determined that Carney’s range under

the Sentencing Guidelines was 110-137 months. However, the statutory maximum, 120

months, shortened the range to 110-120. After setting forth the Guidelines range, the

Court stated:

       THE COURT:           I will now hear any further argument anybody
                            wants to make as to what the correct sentence
                            should be.

Appendix 37a. Defense counsel responded by arguing in favor of a sentence at the

bottom of the range. When defense counsel finished, the Court asked the government

attorney for his view, and the government attorney argued in favor of the maximum

sentence. The Court then made the following observations:

       [I]t seems to me that the defendant’s past history is much worse than
       the record would make it appear. I draw the inference from the – his
       history – of prosecution in the Court of Common Pleas of Philadelphia,
       that the defendant was frequently committing offenses, but then
       persuading witnesses not to test – not to appear against him at court.
       And that is part of the pattern that he seems to have followed for the –
       most of his life.

Appendix 22a. The Court also noted that Carney had engaged in egregious behavior

during his incarceration, and had threatened a police officer on a previous occasion.

Taking all the circumstances into account, the Court sentenced Carney to 120 months’

imprisonment (the statutory maximum), followed by 36 months of supervised release.

Carney filed a notice of appeal. The District Court had jurisdiction over this case under

18 U.S.C. § 3231. This Court exercises jurisdiction over a final judgment pursuant to 28




                                             3
U.S.C. § 1291 and 18 U.S.C. § 3742(a) as an appeal of a sentence imposed under the

Sentencing Reform Act of 1984.

                                               II.

       Carney raises three issues on appeal. First, he argues that the District Court failed

to satisfy its obligation under the Federal Rules of Criminal Procedure to personally

address Carney during sentencing and invite him to speak on his own behalf. Second,

Carney argues that the District Court improperly considered certain aspects of Carney’s

criminal history, specifically, the alleged instances of witness intimidation. Third, Carney

argues that the District Court erred in granting the government’s request for an

enhancement based on reckless endangerment of his arresting police officers. For the

reasons that follow, we conclude that the District Court violated Federal Rule of Criminal

Procedure 32(i)(4)(A)(ii). We will therefore vacate and remand for re-sentencing.

       Because no objection was raised during sentencing, we review Carney’s claim that

he was denied his right of allocution for plain error. F ED.R.C RIM .P. 52(b); United States

v. Adams, 

, 284 (3d Cir. 2001). Under that standard, “before an appellate

court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and

(3) that affect[s] substantial rights. If all three conditions are met, an appellate court may

then exercise its discretion to notice a forfeited error, but only if (4) the error seriously

affect[s] the fairness, integrity, or public reputation of judicial proceedings.” United

States v. Vasquez, 

, 99 (3d Cir. 2001) (citations omitted).




                                                4
       Rule 32(i)(4)(A)(ii) requires the court, before imposing sentence, to “address the

defendant personally in order to permit the defendant to speak or present any information

to mitigate the sentence.” FED.R.C RIM .P. 32(i)(4)(A)(ii). The rule is an outgrowth of the

Supreme Court’s decision in Green v. United States, 

(1961), in which the

Court held that the sentencing judge must personally address the defendant before

sentencing him. The Court, which was divided on the question of whether the defendant

in Green had actually been denied his right of allocution (before sentencing, the judge

asked “[d]id you want to say something?”), stated:

       Trial judges before sentencing should, as a matter of good judicial
       administration, unambiguously address themselves to the defendant.
       Hereafter trial judges should leave no room for doubt that the defendant
       has been issued a personal invitation to speak prior to sentencing.

       The parties agree that the sentencing hearing unfolded as we described above.

Their dispute concerns the proper interpretation of what occurred. We agree with Carney:

the Court’s comments at the outset of the hearing, although unambiguously directed at

him, did not satisfy the Court’s duty under Rule 32. The purpose of the Court’s directive

appears to have been intended to notify Carney that later in the hearing he would be

invited to speak. The government concedes that the District Court’s exhortation later in

the proceedings to hear from “anybody” was not the sort of personal address

contemplated by Rule 32. The government argues, however, that the initial comment

directed at Carney constituted the invitation to speak, and that therefore the Court was not

required to renew its request to hear from the defendant. But the government does not


                                             5
explain why the District Court did not wait to see whether Carney wished to say

something before moving on to “discuss the various objections to the presentence report”

as it so quickly did at the outset of the sentencing hearing. It is apparent to us that the

Court did not intend for Carney to speak when it addressed him initially. We therefore

reject the government’s contention that this case falls into the category of cases in which

the court did not violate Rule 32 when it invited the defendant to speak early on, but then

failed to renew that invitation later in the proceeding. See, e.g., United States v.

Hernandez, 

, 315 (5th Cir. 2002) (The district court did not violate Rule 32

when, on the first day of the sentencing hearing, the court stated “[a]t this time I would

invite counsel and [defendant] to make any statement they wish,” but did not later renew

the invitation). We conclude that at no time during the sentencing hearing did the District

Court personally address Carney and invite him to speak on his behalf.

       Accordingly, we conclude that the District Court committed error and that the error

was plain. See 

(Having found that the district court committed

error when it failed to personally address the defendant, this Court stated that “[i]n light

of the District Court’s clear duty to do so, this error was ‘plain’ because it was ‘clear’ or

obvious.’”) (internal citations omitted).

       The remainder of our inquiry is largely dictated by our decision in Adams. There

we stated that a violation of Rule 32(i)(4)(A)(ii) should generally be presumed to be

prejudicial, because requiring the defendant to prove that the error affected the outcome

of the court proceedings “would be an onerous burden . . . to 

.



                                               6
Given this difficulty, we stated that prejudice should be presumed when a defendant

shows both a violation of the right and “the opportunity for such a violation to have

played a role in the district court’s sentencing decision.” 

case, as in Adams,

prejudice is presumed because Carney, without having an opportunity to address the

Court, was sentenced to the maximum within his range.

       Finally, we must consider whether the District Court’s error affected the fairness,

integrity or public reputation of judicial proceedings. Again, Adams is instructive:

       [A] defendant’s allocution plays a crucial part in the sentencing
       process, and thus denial of this right is not the sort of “isolat[ed] or
       “abstract” error that we might determine does not impact the “fairness,
       integrity or public reputation of judicial proceedings.”

The Court noted that although Rule 32(i)(4)(A)(ii) does not have a basis in the

Constitution, it is a rule of ancient origin and an important safeguard in the sentencing

process. 

was amended after the Supreme Court’s decision in Green to

remove ambiguity from the process, and we believe that the integrity of this and future

sentencing proceedings will be strengthened by a strict interpretation of the rule.

Although we recognize that the District Court’s error may not have been flagrant, and that

the Court may very well impose the same sentence after providing Carney the opportunity

to speak, based on our case law and the import of Rule 32, we will vacate the sentence

here and remand for further proceedings.

       Carney raises two further issues on appeal concerning his sentencing. He contends

that the District Court erred in enhancing his sentence based on Carney’s reckless conduct

(fleeing with a loaded handgun), and he claims that the District Court improperly took


                                              7
into account alleged witness intimidation by Carney. Both issues are committed to the

Court’s sound discretion. After carefully reviewing the record, however, we discern no

abuse of discretion.1

       For the reasons stated herein, we will vacate the District Court’s judgment and

order of sentence and remand for resentencing.




  1
       Judge Stapleton would hold there is no reasonable basis for the District Court’s
conclusion that the “defendant was frequently committing offenses, but then persuading
witnesses not to testify.” Because obstruction of justice is a serious criminal offense,
Judge Stapleton is unwilling to assume that the sentencing decision was unaffected by the
judge’s speculation that the defendant was guilty of a series of such offenses.

                                            8
NYGAARD, J., concurring.



       I concur in the result reached by the majority. I am not at all sure that the DC

erred. Moreover, from appellant’s extensive record one could surmise that he knows as

much about sentencing procedure as I do. At oral argument, the government conceded

that neither the initial comment nor the later opportunity for “further argument . . . as to

what the correct sentence should be,” taken in isolation, would satisfy Rule

32(i)(4)(A)(ii)’s requirement of a personal address to the defendant. I find that

concession determinative.




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