USA v. Domingo Gonzalez

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11362
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOMINGO MARTINEZ GONZALEZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:89-cr-00110-WFJ-MAP-1
____________________
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2 Opinion of the Court 23-11362
Before J ORDAN, L AGOA, and B RASHER , Circuit Judges.
PER CURIAM:
Domingo Gonzalez appeals the district court’s revocation of
his supervised release and the resulting sixty-month sentence. The
district court did not err in revoking his supervised release. But be-
cause it plainly erred by failing to extend to him personally an op-
portunity to allocute, we must vacate his sentence and remand for
resentencing.
I.
Three-and-a-half decades ago, Gonzalez was sentenced to
just under sixteen years in prison and five years of supervised re-
lease, for conspiracy to possess crack cocaine with intent to distrib-
ute. After being released from prison, he began supervised release.
Supervision started strong. But old habits returned. Six
months in, he tested positive for cocaine. He was ordered to par-
ticipate in drug treatment. He didn’t. After a month or two, he was
found in possession of more crack cocaine. He also struggled with
other aspects of supervised release, namely in communicating with
his probation officer. He didn’t submit written monthly reports.
He didn’t update his probation officer about changes in his resi-
dence. He didn’t inform the officer about any dealings with law
enforcement, like being arrested or questioned.
Things escalated. Gonzalez had a pending drug case in state
court for which he failed to appear. He abandoned supervision and
was at large. The probation office recommended that his
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23-11362 Opinion of the Court 3
supervision be revoked and that he be sentenced to the statutory
maximum of five years in prison. A warrant for his arrest was is-
sued.
Eighteen years later, the warrant was executed. The district
court held a revocation hearing. There were five alleged super-
vised-release violations. Four of them involved the breakdown in
communication between probation and Gonzalez as well as his fail-
ure to participate in drug treatment. He pleaded guilty to those
four.
The last alleged violation concerned him committing addi-
tional drug crimes and then fleeing. He denied that one. After con-
sidering the evidence, including affidavits, reports, and testimony,
the district court found him guilty of that violation as well. It sen-
tenced him to the statutory maximum of sixty months in prison.
This appeal followed. Gonzalez broadly makes three points.
First, he argues that the district court erred in revoking his super-
vised release because it made numerous errors in the proceedings
concerning that last supervised-release violation. Second, he ar-
gued that the district court erred in imposing the sentence because
it failed to personally extend to him the right to allocute. Third, he
says the sentence it imposed is procedurally and substantively un-
reasonable. The government cedes the second point but opposes
the other two.
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4 Opinion of the Court 23-11362
II.
We review a district court’s revocation of supervised release
for an abuse of discretion. United States v. Frazier, 26 F.3d 110, 112
(11th Cir. 1994). Because Gonzalez did not clearly object to the
court’s failure to extend to him his right to allocute, we review that
issue for plain error. See United States v. Vandergrift, 754 F.3d 1303,
1307 (11th Cir. 2014)
III.
Gonzalez challenges the revocation of his supervised release
and the resulting sentence. We will address each in turn.
A.
Before revoking a defendant’s supervised release, a district
court needs to find one violation of his supervised-release condi-
tions. See id. At that point, any possible error in considering other
alleged violations becomes harmless. United States v. Brown, 656
F.2d 1204, 1207 (5th Cir. Unit A Sep. 1981).1 There are different
grades of supervised-release violations: a grade-A violation includes
any controlled substance offense, and a grade-C violation includes
any other violation of the supervised-release conditions. U.S.
Sent’g Guidelines Manual § 7B1.1(a)(1)(ii)–(a)(3)(B).
1 We are bound by decisions of the United States Court of Appeals for the Fifth
Circuit issued before October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc).
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23-11362 Opinion of the Court 5
Gonzalez asserts that the district court erred in revoking his
supervised release because it allegedly relied on hearsay evidence
to determine that he committed a grade-A violation, without en-
gaging in the required balancing test under United States v. Frazier,
26 F.3d 110 (11th Cir. 1994). We need not determine whether that
argument has any merit. Gonzalez separately admitted that he
committed four grade-C violations. Those violations inde-
pendently support the revocation of his supervised release. So the
district court did not err in revoking his supervised release.
B.
“Before imposing [a] sentence” a district court must “address
the 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). This right, called the right of allocution, is ancient;
a court’s failure to extend that right to the defendant constitutes
plain error. United States v. Carruth, 528 F.3d 845, 846 (11th Cir.
2008). Even if a defendant’s counsel declines on the defendant’s be-
half, a district court must still ask the defendant personally whether
he wishes to allocute. United States v. Perez, 661 F.3d 568, 584 (11th
Cir. 2011) (citing Gordon v. United States, 518 F.3d 1291, 1299 (11th
Cir.2008); United States v. Prouty, 303 F.3d 1249, 1251 n. 1 (11th
Cir.2002)). We have held that when “the defendant was not af-
forded the opportunity to allocute and the court did not impose the
lowest sentence under the guidelines,” we presume prejudice and
manifest injustice under the plain-error standard and must vacate
the sentence. See Prouty, 303 F.3d at 1252–53.
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6 Opinion of the Court 23-11362
The district court here asked Gonzalez’s counsel whether
Gonzalez wished to allocute. His counsel answered no. The district
court accepted his counsel’s answer without asking Gonzalez. The
district court moved on to impose a sentence within the guidelines,
though not the lowest. But the law commands that the defendant
also be asked personally whether he wishes to allocute. Failure to
do that is plain error. And when a lower guidelines sentence exists,
we presume prejudice and manifest injustice. So we must vacate
Gonzalez’s sentence and remand for resentencing.
But this resentencing need not retread old ground. Gonzalez
“is entitled to an opportunity to allocute and have the court resen-
tence him after he says what he wishes to say to the judge,” but he
is not entitled to relitigate all issues related to his sentence at that
proceeding. See United States v. Doyle, 857 F.3d 1115, 1121 (11th Cir.
2017). Instead, he will be sent back in time to the moment of the
district court’s error, and “[h]is sentencing hearing will . . . resume
with the district court addressing him personally,” asking him if he
wishes to allocute. Perez, 661 F.3d at 586. Then, the district court
will impose a new sentence.
Although Gonzalez additionally objects that his sentence
was procedurally and substantively unreasonable, because we
must vacate the district court’s sentence, we will not review it for
reasonableness.
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23-11362 Opinion of the Court 7
IV.
For the above reasons, the district court’s revocation of Gon-
zalez’s supervised release is AFFIRMED, but its sentence is
VACATED. We REMAND for resentencing.
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