United States of America v. Matthew Packer

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-2554
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UNITED STATES OF AMERICA
v.
MATTHEW PACKER,
Appellant
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On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. 2-20-cr -00193-001)
District Judge: Honorable R. Barclay Surrick
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Submitted Under Third Circuit L.A.R. 34.1(a)
September 11, 2023
Before: JORDAN, BIBAS and PORTER, Circuit Judges
(Filed: September 26, 2023)
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Keith M. Donoghue
Samantha K. Drake
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center – Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
Everett Witherell
Office of United States Attorney
615 Chestnut Street – Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Matthew Packer appeals the District Court’s revocation
of his supervised release and his resulting sentence of two
years’ imprisonment. He argues that the District Court denied
him his right of allocution by announcing the sentence it
intended to impose before allowing him an opportunity to
speak. Neither Packer nor his counsel raised an objection at
the sentencing hearing. We will affirm.
I. BACKGROUND
In May 2017, Matthew Packer was convicted of
conspiracy to distribute and possess with intent to distribute

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five grams or more of methamphetamine, and a substance
containing a detectable amount of cocaine, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(B) and § 846. The District Court
sentenced him to 60 months’ imprisonment followed by five
years’ supervised release.1
After Packer’s release from prison,2 the District Court
modified the conditions of Packer’s supervised release on three
occasions – first in November 2020, next in April 2021, and
again in June 2022 – each time in response to admissions by
Packer that he continued to abuse methamphetamine. On the
first occasion, the Court ordered forty-five days’ home
detention; on the second, it ordered ninety days’ home
detention; and on the third, it ordered Packer’s placement in a
halfway house for 60 days.
Then, in July 2022, his former girlfriend, Nicole Jones,
forwarded to a probation officer threatening voicemail
messages that Packer had sent to her.3 The next day, the
1 Packer was indicted and sentenced in the District of
Delaware, but following his release from prison, jurisdiction
over his supervised release was transferred to the Eastern
District of Pennsylvania.
2 Packer’s supervised release began in March 2020. The
record does not contain information regarding the Bureau of
Prison’s calculations allowing for his early release, but that has
no bearing here.
3 The government refers to Nicole Jones as “Nicole
Johnson” in its briefing, but both the record and Packer’s
briefing consistently use the surname “Jones.”

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probation office petitioned the District Court for a revocation
of Packer’s supervised release because he had committed the
“crime of terroristic threats,” a first-degree misdemeanor
punishable by up to five years’ imprisonment under
Pennsylvania law, 18 Pa. Cons. Stat. § 2706. (J.A. at 18.)
The District Court held a revocation hearing, at which
the government introduced four voicemail messages into
evidence.4 In them, Packer can be heard threatening to strangle
and kill Jones. Following testimony by Jones and the probation
officer, Packer testified in his own defense. He justified his
behavior on the grounds that Jones was using drugs in his
home, stealing his disability benefits, and having an affair with
another man. Packer also testified that Jones had no reason to
believe that he would hurt her.
Following the presentation of evidence, the Court found
that Packer had violated his supervised release. Based on the
violation and Packer’s criminal history, the Court determined
that the advisory sentencing guidelines recommended a term
of 21 to 27 months’ imprisonment. Then, before inviting
Packer to speak, the District Court stated its intention to impose
a sentence of 24 months’ imprisonment. Only afterwards did
Packer have the opportunity to address the Court.
The transcript reads as follows:
THE COURT: All right. It’s clear to this Court
that Mr. Packer, in fact, violated the terms and
4 The government introduced a recording of a fifth
voicemail message, one that Packer left for a third party just
before the hearing, in which Packer admits that he had
threatened Jones.

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conditions of his supervised release. The Court
has no question about that, based upon what I’ve
heard here this afternoon. So, under the
circumstances, I am finding that the defendant
did, in fact, violate the terms and conditions of
supervised release and the question becomes,
what is a reasonable disposition of the matter
under those circumstances? The guidelines here
are at twenty-one to twenty-seven months. I
believe that under the circumstances, the Court
should impose a sentence of twenty-four months
for the violations of the terms and conditions of
supervised release. I also believe that after that
has been served, no supervised release should
follow. So, under the circumstances, that’s how
I am going to dispose of the situation. Counsel,
anything further?
MR. WILSON: Your Honor, do you wish me to
give my client his appellate rights?
THE COURT: Excuse me?
MR. WILSON: Do you -- do you wish me to give
my client his appellate rights or would you --
your Honor –
THE COURT: No, I -- I’m going to invite your
client up here and he can say anything he wishes.
Mr. Packer, I am going to impose that sentence
on you in a few minutes, before I do that, I’ll hear
anything you want to say to me.

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THE DEFENDANT: There’s really nothing I
can say, it’s not one of my -- you know -- finer
moments, but -- ah -- I would never hurt her and
she knows that, that’s all I can say.
THE COURT: All right. The Court has
determined as I’ve indicated that you are, in fact,
in violation of -- of the terms and conditions of
supervised release. Supervised release is
revoked. You are remanded to the custody of the
Bureau of Prisons for a period of twenty-four
months. At the conclusion of that sentence, no
supervised release will follow.
(J.A. at 96-98.)
Following entry of the District Court’s sentencing
order, Packer timely appealed.
II. DISCUSSION5
At a revocation proceeding, the defendant is entitled to
“an opportunity to make a statement and present any
information in mitigation.” Fed. R. Crim. P. 32.1(b)(2)(E).
Although not a constitutional right, the defendant’s right to
make such a statement before sentencing, known as an
allocution, has a long and respected history at common law.
Green v. United States, 365 U.S. 301, 304 (1961) (plurality
5 The District Court had jurisdiction under 18 U.S.C.
§§ 3583(e) and 3231. We have jurisdiction pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1).

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opinion). The purpose of an 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.” United States v. Ward, 732 F.3d 175, 181-82
(3d Cir. 2013); see also Green, 365 U.S. at 304 (“The most
persuasive counsel may not be able to speak for a defendant as
the defendant might, with halting eloquence, speak for
himself.”).
If a district court has denied a defendant his right of
allocution, we will generally remand for resentencing. United
States v. Adams, 252 F.3d 276, 282 (3d Cir. 2001). But, if the
defendant did not raise an appropriate objection at his
sentencing hearing, we review the district court’s actions for
plain error. Id. at 278, 285. That is the case here. Because
Packer did not object to the District Court’s pre-allocution
announcement of the intended sentence, the plain error
standard applies.6 To meet that standard, an appellant must
prove that the district court erred, that the error was obvious,
and that the error affected his substantial rights, that is, the
error affected the outcome of the proceedings. Johnson v.
United States, 520 U.S. 461, 466-67 (1997). If all three of
those elements are established, there is a fourth element to
consider, namely, whether we should exercise our discretion to
award relief. Id. We exercise that discretion only in cases
where the defendant is “actually innocent” or the error
“seriously affect[s] the fairness, integrity or public reputation
6 Packer acknowledges that “[t]he issue was not
preserved.” (Opening Br. at 2.)

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of judicial proceedings.” United States v. Olano, 507 U.S. 725,
732, 736 (1993) (alteration in original).
In United States v. Adams, we explained that “[g]iven
the nature of the right [of allocution] and the difficulty of
proving prejudice from its violation, … we should presume
prejudice when a defendant shows a violation of the right and
the opportunity for such a violation to have played a role in the
district court’s sentencing decision.” 252 F.3d at 287. Such an
opportunity exists when the district court “retained discretion
to grant [the defendant] a lower sentence.” Id.; United States
v. Scripps, 961 F.3d 626, 634 (3d Cir. 2020) (quoting Adams,
252 F.3d at 287).
Even assuming Packer satisfies the first three elements
of the plain error test, however, we decline to exercise our
discretion under the fourth, as this is not a case in which the
error “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Olano, 507 U.S. at 736
(alteration in original). Although the District Court stated its
intention to impose a 24-month sentence before hearing
Packer’s allocution, it allowed him the opportunity to speak,
and Packer did not suggest any mitigating circumstances or
distinctive characteristics that should be considered in his case.
To his credit, he stated simply that he would never have hurt
his ex-girlfriend and recognized that it was not one of his “finer
moments.” (J.A. at 97.) Nor has he said to us that there are
additional mitigating factors or distinctive characteristics that
he would have stated at his revocation proceeding had the
District Court not prematurely forecasted the sentence to be
imposed.

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We disagree with Packer’s contention that “allocution
error [should be] recognized in all but extraordinary
circumstances to warrant the exercise of remedial discretion
under the plain-error standard’s fourth prong.” (Opening Br.
at 17.) He cites three cases, which, he contends, have already
so held, but he is wrong. It is true that, in United States v.
Paladino, we said that “plain error analysis is satisfied where
a violation of the right of allocution has been established.” 769
F.3d 197, 201-202 (3d Cir. 2014); see also United States v.
Plotts, 359 F.3d 247, 250 n.6 (3d Cir. 2004)
(quoting Adams, 252 F.3d at 288) (“In Adams, we stated
without qualification that denial of the right of allocution
affects the ‘fairness, integrity or public reputation of judicial
proceedings.’”). But we understand our caselaw to mean that,
when a trial court violates the right of allocution, an appellate
court may choose to deem the fourth plain error factor satisfied,
but it is not required to do so. Any other reading would strip
appellate courts of their discretion and render the fourth step in
plain error analysis a nullity. Indeed, United States v. Adams,
the first case in this line of precedent, expressly held that
violations of the right of allocution are not among the “special
category of errors” that require automatic reversal, “i.e., the
category of structural errors[.]” 252 F.3d at 286. Rather, they
are analyzed “within the Olano plain error framework.” Id.
The government also rightly observes that the defendants in
Adams, Plotts, and Paladino, unlike Packer, were not given
any opportunity to address the trial court at their sentencing
hearings.7
7 Nothing in this opinion should be understood to
undermine the importance of a defendant’s right of allocution.
District courts must continue to ensure that defendants have an
opportunity to speak for themselves at sentencing, and that

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In addition to his primary claim, Packer alleges two
additional procedural errors. He argues that the District Court
“failed to hear from counsel in mitigation,” (Opening Br. at
18), and failed to “state reasons showing ‘that the particular
circumstances of the case have been given meaningful
consideration within the parameters of § 3553(a).’” (Opening
Br. at 21 (quoting United States v. Tomko, 562 F.3d 558, 567
(3d Cir. 2009) (en banc)).) Both arguments are unavailing.
As to the first, Packer has not accurately described the
record. After the Court explained how it intended to rule, it
asked, “Counsel, anything further?” (J.A. at 97.) In response,
defense counsel did not provide any additional facts. Perhaps
that was because, as the government surmises, “any mitigating
facts were fully explored during the hearing, when [defense]
counsel addressed Packer’s conduct at length.” (Answering
Br. at 12.)
Packer’s final argument, that the sentencing factors
under § 3553(a) were given short shrift, is likewise without
adequate foundation. A district court, when imposing a
sentence for violating conditions of supervised release, “need
not make explicit findings as to each of the § 3553(a) factors if
the record makes clear that the court took the factors into
account in sentencing.” United States v. Merced, 603 F.3d 203,
215 (3d Cir. 2010) (internal quotations omitted). Rather, “[t]he
record as a whole must make clear that the district judge ‘has
considered the parties’ arguments and has a reasoned basis for
opportunity should come before sentence is pronounced, as the
allocution may influence the sentence.

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exercising his own legal decisionmaking authority.’” United
States v. Begin, 696 F.3d 405, 411 (3d Cir. 2012) (quoting
Merced, 603 F.3d at 215-16).
The record shows that the District Court considered the
parties’ arguments and had a reasoned basis for imposing the
within-guidelines sentence. It heard testimony concerning,
among other things, the nature of the supervised release
offense, Packer’s criminal history, his past substance abuse,
and his justifications of his conduct. Additionally, the
transcript makes clear that the Court reviewed the Probation
Office’s report and the sentencing guidelines. In a
“conceptually simple” case such as this, that was sufficient.
See Rita v. United States, 551 U.S. 338, 356 (2007) (holding
that the “appropriateness of brevity or length” of a judge’s
statement of reasons “depends upon circumstances”).
III. CONCLUSION
For the foregoing reasons, we will affirm.

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