United States of America v. James Read

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-3207
___________________________
United States of America
Plaintiff - Appellee
v.
James Read
Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Arkansas - Harrison
____________
Submitted: April 15, 2022
Filed: August 4, 2022
[Unpublished]
____________
Before LOKEN, KELLY, and KOBES, Circuit Judges.
____________
PER CURIAM.
James Read waived indictment and pleaded guilty to one count of making a
false statement, in violation of 18 U.S.C. § 1001(a)(3); one count of money
laundering, in violation of 18 U.S.C. § 1957; and one count of wire fraud, in
violation of 18 U.S.C. § 1343. He appeals his sentence and the district court’s denial
of his request to present an allocution by video at his sentencing hearing. We agree

-- 1 of 6 --

-2-
that his sentence on the false statement count exceeded the statutory maximum, but
we otherwise affirm.
I.
According to his plea agreement, Read used falsified information to apply for
government-guaranteed loans that were intended to aid businesses and individuals
affected by the COVID-19 pandemic. Through various loan applications, Read
requested $589,350 and ultimately received $277,827.
Read consented to appear by video conference for sentencing. Based on a
total offense level 26 and a criminal history category I, the district court determined
that Read’s advisory United States Sentencing Guidelines range was 63 to 78 months
of imprisonment. Read requested a downward variance to 12 months and a day,
based on his family obligations, lack of criminal history, mental and physical health
concerns, and gambling addiction, which Read suggested factored into his decision
to apply for the loans. The government argued for a Guidelines sentence. The
district court1 sentenced Read to 63 months’ imprisonment on each count, to run
concurrently, followed by three years of supervised release on each count, also
running concurrently, and ordered Read to pay $277,827 in restitution. Read timely
appealed.
II.
Read first argues that the district court erred by refusing to permit him to play
a pre-recorded video allocution at sentencing.
Federal Rule of Criminal Procedure 32 provides that, “[b]efore imposing a
sentence, the court must,” among other things, “address the defendant personally in
1 The Honorable P.K. Holmes, III, United States District Judge for the Western
District of Arkansas.

-- 2 of 6 --

-3-
order to permit the defendant to speak or present any information to mitigate the
sentence.” Fed. R. Crim. P. 32(i)(4)(A). “The denial of the right to presentence
allocution is a significant procedural error” that is generally reviewed de novo,2
United States v. Thurmond, 914 F.3d 612, 614 (8th Cir. 2019) (quoting United States
v. Hoffman, 707 F.3d 929, 937 (8th Cir. 2013)), and “the failure to give the defendant
the right of allocution is clear error that requires a reversal,” United States v.
Hernandez-Espinoza, 890 F.3d 743, 747 (8th Cir. 2018). “This strict rule applies in
cases where a defendant never gets a chance to allocute at all.” Id. However,
“[c]ourts are not nearly as strict when a defendant allocutes at some point during
sentencing if that allocution retains the potential to affect the sentence.” Id.; see also
United States v. Braman, 33 F.4th 475, 480 (8th Cir. 2022) (“There is ‘no error as
long as the court gives the defendant an opportunity to speak prior to the imposition
of sentence.’” (quoting Hoffman, 707 F.3d at 937–38)).
At the sentencing hearing, defense counsel stated that Read had recorded a
seven-minute allocution, explaining that Read “has an awful lot of anxiety” and that
it may be difficult for him “to provide much of an allocution today” without using
the video.3 The district court denied Read’s request to play the video and instead
gave him the “opportunity to speak just like . . . every other defendant.” Read
apologized and accepted responsibility for his conduct, acknowledging that he had
made some “bad decisions.” Citing his gambling addiction, Read explained that he
had been “desperate” and “couldn’t stop,” but added that he was seeking help for his
addiction. Read also told the court that his “mind [was] scattered,” so he was
2 The government argues that plain error review should apply because Read
did not object at sentencing and thus failed to preserve his lack-of-allocution claim.
Because we find that Read’s appeal fails under either standard of review, we do not
address this argument.
3 At the hearing, Read’s counsel stated that he had previously informed the
court about his intent to play a video allocution, but the district judge responded that
he “didn’t have notice of [Read’s] intent to do that.” On appeal, Read does not
identify when or how he gave notice, and we are unable to find any notice on the
district court docket.

-- 3 of 6 --

-4-
“probably missing a lot,” and explained that was “why [he] put the video together.”
When Read concluded, the district court stated, “Okay. Thank you, Mr. Read,” and
proceeded with sentencing.
On appeal, Read argues that the district court treated his allocution as a
“meaningless formality” and that the court’s refusal to view his pre-recorded
allocution denied him the right of effective allocution. However, Read was given
an opportunity to speak freely and offer information to mitigate his sentence, and the
record shows that he did so. See Hernandez-Espinoza, 890 F.3d at 747. The district
court did not intimidate Read or cut off his statement. See United States v. Li, 115
F.3d 125, 131–33 (2d Cir. 1997) (district court repeatedly interrupted defendant
during her allocution, leaving her “intimidated and confused” and without an
opportunity to speak meaningfully about the factors she thought relevant to
mitigation of her sentence). And, importantly, Read has not stated—either to the
district court or on appeal—what his recorded allocution contained or what it would
have added to the allocution he gave in open court.4 There may be a case on a
different record in which a defendant is effectively denied the right to allocution if
not permitted to present his allocution in an alternative format. But Read has not
shown that his is such a case.
4 Citing United States v. Bustamante-Conchas, 850 F.3d 1130, 1139 (10th Cir.
2017), Read asserts that a “proffered allocution statement” is not required to
establish the need for resentencing. However, in Bustamante-Conchas, the
defendant was denied the right to allocution entirely, and the Tenth Circuit declined
to speculate about what the defendant would have said in a hypothetical allocution.
See 850 F.3d at 1139. See generally United States v. Walker, 896 F.2d 295 (8th Cir.
1990) (remanding for resentencing where district court did not inform defendant of
right to allocution and did not provide an opportunity for her to speak); United States
v. Patterson, 128 F.3d 1259 (8th Cir. 1997) (holding that deprivation of the right of
allocution altogether was not a harmless error). In contrast, Read was provided an
opportunity to speak, his alternative allocution had already been recorded on video,
and he does not now explain how the two statements differ.

-- 4 of 6 --

-5-
III.
Read also challenges his sentence, arguing first that the total length is
substantively unreasonable and second that the term of imprisonment for his false
statement conviction exceeds the statutory maximum. We review the substantive
reasonableness of a sentence for abuse of discretion. United States v. Merrett, 8
F.4th 743, 751 (8th Cir. 2021). “The district court abuses its discretion if it ‘fails to
consider a relevant factor which should have received significant weight; gives
significant weight to an improper or irrelevant factor; or considers the appropriate
factors but commits a clear error of judgment.’” Id. at 751–52 (quoting United States
v. Davis, 859 F.3d 572, 574 (8th Cir. 2017)). Although the district court must
consider all of the 18 U.S.C. § 3553(a) factors, “it retains ‘wide latitude to weigh the
§ 3553(a) factors in each case and to assign some factors greater weight than
others.’” United States v. Williams, 30 F.4th 796, 800 (8th Cir. 2022) (quoting
United States v. Harrell, 982 F.3d 1137, 1141 (8th Cir. 2020)).
Read argues that his total sentence is substantively unreasonable because the
district court overstated the seriousness of his offenses and failed to properly credit
mitigating factors. Specifically, Read asserts that the district court viewed his
offense conduct as more serious than it was, incorrectly suggesting that his
fraudulent loan applications hurt other, legitimate businesses that needed pandemic-
related assistance. Read notes that the loans were guaranteed by the federal
government, which meant no bank suffered the loss, and that there was no evidence
the funds were depleted. As for mitigating factors, Read contends that the district
court recognized his gambling addiction only as a reason Read needed money, not
as an underlying factor that contributed to his overall conduct, and that the court
failed to sufficiently consider his ongoing health problems.
The district court gave several reasons for characterizing Read’s conduct as
serious. The court explained that Read engaged in the fraudulent scheme for more
than a year and that “[i]t took so much planning in order to carry out this fraud,”
noting that Read falsified the loan applications, nature of his business, tax return

-- 5 of 6 --

-6-
forms, and bank accounts. The court also expressed concern that Read involved his
wife and mother-in-law in the scheme by filing fraudulent applications on their
behalf. Read even submitted an additional fraudulent application after his interview
with federal investigators. These facts led the court to conclude that Read’s conduct
was “one of the more egregious fraud cases” it had seen. Moreover, although the
district court recognized Read’s mitigating factors, including his gambling addiction
and health issues, it also noted that Read had demonstrated an ability to earn income
from his current and prior legitimate businesses. The district court did not abuse its
discretion in imposing a sentence at the bottom of Read’s Guidelines range. See
Harrell, 982 F.3d at 1141 (“[T]he fact that the district court weighed these factors
differently, and then imposed a bottom-of-the-Guidelines range sentence, does not
mean it abused its discretion.”); United States v. DeMarrias, 895 F.3d 570, 574 (8th
Cir. 2018) (“We presume a sentence within the Guidelines range is reasonable.”).
Read also argues—and the government agrees—that the district court plainly
erred in imposing a sentence of 63 months’ imprisonment for Read’s false statement
conviction because the statutory maximum sentence for that offense is 60 months.
Read did not make this objection at sentencing but, where plain error exists, “the
court of appeals should exercise its discretion to correct the forfeited error if the error
‘seriously affects the fairness, integrity or public reputation of judicial
proceedings.’” Molina-Martinez v. United States, 578 U.S. 189, 194 (2016)
(quoting United States v. Olano, 507 U.S. 725, 736 (1993)); see also 18 U.S.C.
§1001(a) (maximum term of imprisonment of “not more than 5 years” for knowingly
and willfully making a materially false statement). Therefore, we correct Read’s
sentence on Count 1 to 60 months’ imprisonment, to run concurrently with his
sentences on Counts 2 and 3, but otherwise affirm the judgment of the district court.
______________________________

-- 6 of 6 --