US v. Vernon Leslie, Jr., No. 08-4330 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4330 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VERNON GRAY LESLIE, JR., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:07-cr-00132-BO-1) Submitted: January 12, 2009 Decided: February 5, 2009 Before MICHAEL, KING, and AGEE, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Vernon Gray Leslie, Jr., appeals from the thirty- seven-month sentence imposed following his guilty plea to two counts of larceny of United States Postal Service money orders and one count of receiving, concealing, and retaining stolen United States Postal Service money orders, in violation of 18 U.S.C. § 641 (2006). On appeal, Leslie contends that the district court erred by not allowing him or his attorney the chance to proposed be heard upward after the departure court and adopted denying the Government s Leslie s right to allocution prior to imposition of sentence. Before address the imposing defendant sentence, personally the in district order to court permit shall the defendant to speak or present any information to mitigate the See Fed. R. Crim. P. 32(i)(4)(A)(ii). sentence. In United States v. Cole, 27 F.3d 996 (4th Cir. 1994), we held that the denial of allocution constitutes plain error on direct appeal warranting a remand for resentencing in those instances in which there is sentence. a possibility the defendant could receive a lower We noticed the error in Cole, finding that [w]hen a defendant was unable to address the court before being sentenced and the possibility remains that an exercise of the right of allocution could have led to a sentence less than that received, we are of the firm opinion that fairness and integrity of the 2 court proceedings would be brought into serious disrepute were we to allow the sentence to stand. Id. at 999; see also United States v. Muhammed, 478 F.3d 247 (4th Cir. 2007). Likewise could have here, convinced there the was court to a possibility impose a that lower Leslie sentence. Specifically, Leslie and counsel could have argued against the upward departure determined by the court, could have argued in favor of Leslie s motion for downward departure based on his health issues, and could have addressed the 18 U.S.C. § 3553(a) (2006) sentencing factors. Accordingly, while we affirm the convictions, we vacate the sentence and remand for resentencing to give Leslie the opportunity to allocute. We dispense with oral argument adequately because presented in the the facts and materials legal before contentions the court are and argument would not aid the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 3
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