Right to Allocution

United States v. Garcia-Robles, No. 09–1980 (6^th Cir. May 10, 2011) (to be published). Panel of Judges Sutton, Griffin, and Bertelsman (E.D. Ky.). Opinion by Judge Griffin.

In Garcia-Robles, the Court held "that upon general remand, when a sentence has been vacated on direct appeal, the defendant is entitled to a resentencing hearing where he may exercise the right to be present and allocute." Slip op. at 6. The Court emphasized the right to allocute upon remand. Id. at 7. The Court expressed the importance of the right to allocute: the right to allocute at resentencing, "despite a defendant’s previous opportunity to allocute, is essential." Id. at 8. A failure to afford a defendant this right is not necessarily harmless error. Id. at 11.

The Garcia-Robles court attempted to distinguish the decision in United States v. Mosley, No. 09--2359 (6th Cir. Mar. 29, 2011) (to be published) (discussed earlier in this blog), but the two cases seem to remain somewhat at odds. The Mosley panel included Judges Boggs, Moore, and Sutton. Judge Sutton, who was on the Garcia-Robles panel, wrote the Mosley opinion.

In Mosley, the panel took a narrower view of the right to allocution. While not addressing the government's contention that there is no right to allocution at a resentencing hearing for a limited remand, the court did decide that the defendant could not show prejudice.