After pleading guilty to defrauding the United States in violation of 18 U.S.C. § 286 and serving 30 months in prison, Sidney Dowl violated his supervised release by failing to pay his fines, contacting his co-defendant, and neglecting to inform his probation officer of contact with the police. As a result, the court sentenced Dowl to eleven months in prison for the violation.
During the revocation of supervised release hearing, the district court allowed Dowl to explain his actions. He did so. The court additionally presented Dowl the opportunity to raise any objections to the hearing. He did not. Dowl appealed the revocation of his supervised release, arguing that the district court denied him a constitutional right to allocution.
On appeal, the Sixth Circuit first considered whether which standard of review would be proper. While Dowl argued for de novo review under United States v. Wolfe, 71 F.3d 611, 614 (6th Cir. 1995), the appellate court rejected the argument for two reasons. First, Wolfe involved an appeal of an original sentence, whereas Dowl appealed the revocation of supervised release. The court explained that sentencing and revocation hearings differ in important ways. Namely, the defendant does not have the same broad rights in a revocation of supervised release hearing that they enjoy at sentencing. Supervised release may be revoked for non-criminal conduct, without a jury, and by a preponderance of the evidence. Conversely, a sentencing hearing requires the district court to follow strict guidelines and ensure that the defendant is fully aware of his or her rights. The court recognized too sharp a distinction and found that Wolfe was not informative of the proper standard of review.
Moreover, the Sixth Circuit decided to apply plain error review due to forfeiture. The court reasoned that a defendant forfeits a claim of error on appeal if he or she does not timely object in the district court. When a claim has been forfeited, the defendant must prove plain error upon appeal. Although there is a very small class of errors that are not forfeited after a failure to object, denial of allocution is not one of those errors. Ultimately, allocution is not a constitutional right, but rather is a right recognized by the Federal Rules of Criminal Procedure.
Because Dowl forfeited the claim for appeal and because defendants do not enjoy the bevy of rights during a revocation of supervised release that they would at sentencing, the court applied plain error review. To be successful on appeal under a plain error standard of review, the appellant must first prove that an error occurred. After identifying the error, the appellant must then demonstrate that the error was plain, show that the error affected his substantial rights, and prove that the error seriously affected the fairness, integrity, or public reputation of the justice system.
The appellate court then reviewed the merits of the claim by first finding that an error, much less one that was plain, did not occur. In doing so, the court referenced the Fed. R. Crim. P. 32 and 32.1. Rule 32 requires the district court to specifically ask the defendant if they would like to make a mitigating statement during a sentencing hearing, whereas Rule 32.1 merely states that a defendant has the right to present mitigating information in a revocation of supervised release context. The court found that the differences in language indicates that the district court must give the defendant an opportunity to allocute during sentencing, but the same requirement is not present in a revocation hearing.
Next, the court found that any error that may have occurred did not prejudice Dowl because he was given ample opportunity to present his position. In fact, Dowl explained some of his life experiences leading to his convictions and presented a justification for contacting his codefendant during the hearing. As a result, the court held that while an error did not occur, any error did not amount to a denial of substantial rights. Dowl failed to meet a plain error standard, and the Sixth Circuit affirmed his revocation.
This decision reveals the importance of timely objections toward preserving a record as well as the narrow breadth of defendant rights in revocation of supervised release hearings.
