David Wayne DePape was convicted of attempting to kidnap a federal officer and assaulting a family member of a federal official. During his initial sentencing hearing, the district court heard arguments from both the government and defense counsel but failed to ask DePape if he wished to speak personally, as required by Federal Rule of Criminal Procedure 32. The court then imposed a sentence of 240 months on the first count and 360 months on the second. Later that same day, the government realized the procedural omission and moved to reopen sentencing under Rule 35(a) to correct the error. DePape opposed the motion, arguing that Rule 35(a) did not authorize the court to re-sentence him after the initial judgment was entered. The district court granted the motion, vacated the sentence, and held a new hearing eleven days later. At the second hearing, DePape was allowed to allocute and apologized for his actions. The court then reimposed the identical sentence. DePape appealed, challenging the district court's authority to modify the sentence under Rule 35(a).
The panel, writing for the court, began with the plain text of Federal Rule of Criminal Procedure 35(a), which permits a court to correct a sentence resulting from 'arithmetical, technical, or other clear error' within 14 days of sentencing. The court defined 'arithmetical' errors as numerical mistakes and 'technical' errors as those involving strict legal interpretation. It then analyzed the phrase 'other clear error,' defining it as an 'unquestionably erroneous' decision distinct from the first two categories. The court reasoned that the failure to afford a defendant the right to allocute under Rule 32(i)(4)(A)(ii) is 'unquestionably erroneous' and thus falls squarely within the 'other clear error' category. Citing precedent from the Ninth Circuit and sister circuits, the opinion noted that Rule 32 violations are so clear that they often trigger a presumption of prejudice. The court rejected DePape's argument that 'other clear error' should be limited to errors akin to arithmetical or technical mistakes, such as miscalculating guidelines or failing to impose mandatory terms. The panel explained that denying allocution is a procedural error readily discernible from the record, similar to other errors correctable under Rule 35(a). Furthermore, the court addressed DePape's claim that correcting the error required re-exercising sentencing discretion, which he argued was outside Rule 35(a)'s scope. The panel clarified that correcting an arithmetical error often requires reapplying discretionary factors under 18 U.S.C. § 3553(a), so the potential for discretion does not exclude a Rule 32 violation from Rule 35(a). Finally, the court found no due process violation, noting that the district court provided DePape with notice, a four-day window to respond to the government's motion, and a reasoned order addressing his opposition before reopening the hearing.
This decision clarifies that sentencing courts have the authority to correct the omission of the allocution right under Rule 35(a) within the 14-day window. It establishes that such an error is 'clear' and correctable even if it involves a procedural step that requires the defendant to speak. The ruling allows districts to fix these errors by vacating the initial sentence and re-sentencing the defendant, provided the defendant is given a fresh opportunity to allocute. The decision leaves open the question of whether this correction applies if the defendant is not given a chance to speak at the re-sentencing, but in this case, the error was rendered harmless because DePape was allowed to speak and received the same sentence.
Podcast (federal-narrative-summaries): Play in new window | Download