In United States v. Lajeunesse, the Second Circuit (Leval, Chin, Lee) vacated the conviction of a criminal defendant denied an opportunity to personally address the court during his sentencing hearing.

Background

Appellant Terry Lajeunesse had been on probation for a previous child pornography offense when his ex-wife tipped off probation officers that he was having an inappropriate relationship with a minor. That turned out not to be true (the individual was 19), but it did lead to a search of his cellphone, which uncovered unlawful images. Lajeunesse moved to suppress the evidence found on his phone, but to no avail.

Accordingly, Lajeunesse pled guilty to various child pornography-related offenses. His plea agreement included a partial appellate waiver. Specifically, Lajeunesse reserved his right to appeal the district court’s denial of the suppression motion but waived his right to appeal any sentence of 210 or fewer months of imprisonment.

At his sentencing hearing, the district court judge expressly asked Lajeunesse if he understood the consequences of pleading guilty and, moreover, whether he understood that he would be unable to appeal his sentence if the court sentenced him to fewer than 210 months. Lajeunesse responded that he understood.

After hearing about mitigating factors from Lajeunesse’s attorney, the court ordered a sentence of 198 months of imprisonment. The court did not ask Lajeunesse whether there was anything he would like to say or otherwise present an opportunity for allocution as is required by Federal Rule of Criminal Procedure 32(i)(4)(A)(ii) (providing that “the court must address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence”). Lajeunesse’s attorney did not object to this omission.

Appeal

On appeal, Lajeunesse argued, inter alia, that the court erred in failing to give him an opportunity to present an allocution during the sentencing.[1]

The panel agreed with Lajeunesse and remanded for resentencing. The government’s primary argument was that Lajeunesse could not appeal his overall sentence—notwithstanding the lack of allocution—because the appellate waiver in his plea agreement barred him from appealing a sentence of fewer than 210 months of imprisonment.

The panel disagreed and held that a broadly drafted, general appellate waiver did not cover a sentencing court’s omission of an allocution. Although courts construe plea agreements using ordinary contract principles, that interpretation is limited by a special concern for procedural safeguards. For example, the panel observed that appellate waivers were not enforced in appeals concerning sentences tainted by racial bias, or in cases where the district court mistakenly believed that the defendant could appeal a relevant legal question.

In determining whether to enforce a general appellate waiver, a court must consider (1) the nature of the right that has been disregarded by the sentencing court and (2) whether the sentence was reached in a manner the plea agreement did not anticipate.

First, the panel observed that allocution is an “absolute right” with a long historical pedigree. Even if the right to an allocution is not one of a constitutional dimension, it remains “essential to the sentencing process[.]” Given the prevalence of plea agreements in criminal adjudication, an allocution is often a defendant’s only opportunity to personally address the court and share his side of the story. The panel speculated that Lajeunesse’s face-to-face conversation with the judge may have conveyed sufficient remorsefulness to impact the ultimate sentence.

Second, the panel analyzed the plea agreement in context, considering the “magnitude of the right to allocution,” and concluded that—despite the broad language—the agreement cannot reasonably be read to have deprived Lajeunesse of his right to allocution. Indeed, the agreement seems to have assumed Lajeunesse would have an opportunity to make statements to the court. Accordingly, the panel concluded that the appellate waiver in the plea agreement did not prevent Lajeunesse from appealing the denial of an allocution.

Given that conclusion, the panel decided that resentencing was warranted. On appeal, the government focused only on the appellate waiver question, and did not address whether resentencing was the appropriate remedy if the waiver did not cover the right to allocution. The panel therefore declined to rule on the appropriate standard of review when counsel for the defendant did not object to the lack of allocution during sentencing.

Analysis

The Court did not quietly reverse in a summary order, and instead issued a thoughtful opinion that gives future courts some guidelines for assessing future arguments. Two principles can be derived from this opinion.

First, that a defendant cannot waive the ability to appeal certain fundamental rights—even if the plea agreement is broadly drafted and the defendant knowingly agreed to it. The Court identified a number of different sentencing rights that are not covered by a plea agreement, and now future defendants can try to reason by analogy if there was a procedural defect at sentencing.

Second, the Court established the legal principle that an opportunity for a sentencing allocution is the type of fundamental right that can still be vindicated on appeal even if a plea bargain includes a general appellate waiver. The court did leave open the possibility, though, that an appellate waiver specifying the right to allocution might be enforceable. This raises the possibility that prosecutors will respond to this decision by updating their forms to include a specific waiver of the right to an allocution at sentencing, just as other rights are often specifically waived in a plea agreement (such as the right to have DNA evidence preserved).

[1] He also argued that the court erred in denying his motion to suppress the evidence found on his phone. The panel rejected his suppression argument on fact-specific grounds, citing the diminished expectation of privacy he had in his phone due to the terms of his probation and the police’s reasonable suspicion that he may have been violating those terms. We do not address those issues in this blog post.