United States Court of Appeals For the First Circuit No. 01-2062

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

NORMA BURGOS-ANDÚJAR,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

Torruella, Circuit Judge,

Kravitch,* Senior Circuit Judge,

and Lynch, Circuit Judge.

Joaquín Monserrate-Matienzo, for appellant. Francis J. Bustamante, Special Assistant U.S. Attorney, with whom Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant U.S. Attorney, Chief, Criminal Division, and Margaret A. Larrea, Special Assistant U.S. Attorney, were on brief, for appellee.

* Of the Eleventh Circuit, sitting by designation. December 19, 2001

-2- TORRUELLA, Circuit Judge. Defendant-appellant Norma Burgos-

Andújar appeals her sentence of sixty days' imprisonment after her

conviction for criminal trespass on naval property. Appellant contends

that the district court erred when it increased her sentence from forty

days to sixty days. Because we find that the district court increased

appellant's sentence in response to her continuing allocution, we

affirm.

I.

On April 28, 2001, officers of the United States Navy

arrested appellant on a small island off the coast of Vieques, Puerto

Rico for trespassing in Navy territory. On July 6, 2001, after a bench

trial, appellant was convicted of criminal trespass in violation of

. After finding the appellant guilty, the district court

gave appellant and her co-defendants an opportunity to address the

court. Thereafter, appellant made a statement.1 After appellant

concluded her statement, the court said, "Just keep in mind that you

are a lawmaker, not a lawbreaker. I'll hear the next one." To which

appellant replied, "And you have to bring us justice." After a short

recess, the court announced sentences for all the defendants, including

appellant.

1 Appellant submitted a written statement, in Spanish, which was translated and presented to the court.

-3- When announcing appellant's sentence, the court began by

explaining its rationale for the sentence. This statement focused

largely on appellant's position as a legislator in the Puerto Rican

Senate and her involvement in the movement to stop military exercises

on Vieques through civil disobedience. At one point, the court

included a reference to unknown "masked men" who had previously entered

Camp Garcia but who were not related to the current proceedings.

Shortly thereafter, as the court was still discussing its rationale for

appellant's sentence but before pronouncing any sentence, appellant

attempted to respond to the court's comments. This is evident because

the record reflects the court interrupting its statements to say, "I'll

give you a chance." After finishing its comments, the court proceeded

as follows:

With that in mind, I am sentencing you as follows: It is the judgment of this Court that Defendant, Norma Burgos, is hereby sentenced and hereby ordered committed today to a term of 40 days [and] a special monetary assessment in the amount of $10 is imposed. . . . That will be all.

After this pronouncement, appellant interjected, "You said

--." To which the court, once again, said, "That's all." At this

point, appellant again spoke, saying, "You said you were going to allow

me to speak," apparently referring to the point in the prior statement

when the court said, before imposing sentence on appellant, "I'll give

-4- you a chance." The court then allowed appellant to speak, cautioning

her to keep it brief.

Appellant then said:

I do recognize what your function is. As a Judge of the U.S. District Court here in Puerto Rico, you have to interpret and provide justice. But what justice are you imparting when you are presuming that at this point in time when you're passing sentence upon me the people who were hooded there were not people who were working for the Navy and following the orders of Navy personnel? When did they come before you in this court? What was the evidence presented before you to demonstrate that they were guilty as when they were working for the cause of Vieques? You said that you expect that the same way that I imagine that your people will seek peace and they will work and have respect for the Constitution that they uphold. That's correct? But then before this court more than 700 people to this day have come and passed before this court to be judged by all of you, you as the judges, with evidence that demonstrates that the ones who are violating the greater law are the members of the Navy. What are you waiting for in order to come and arrest them and judge them?

The court then warned the appellant to be careful, telling her, "You

are becoming defiant. I think it would behoove you to calm down and

think about what you are going to say. It does not behoove you to defy

the court." From this point forward, the record contains only the

statements of the court and appellant's lawyer. Appellant apparently

continued in Spanish, and her comments are not recorded.

-5- The record does reflect the court's attempts to stop

appellant's continuing speech with periodic interruptions that read,

"That will be all. . . .Miss Burgos, that's it. Will you please -- ."

At the apparent end of appellant's statement, the court stated, "Okay.

I'll change that sentence to 60 days." The court then had appellant

escorted from the courtroom. Appellant's attorney immediately asked

for a reconsideration which the court refused.

Appellant then sought to be released on bail during her

current appeal. The court denied her motion saying, "The longer

sentence that the Court imposed on Defendant was not based on a finding

of contempt. The Court simply exercised its discretion under

to impose a sentence of not more than six months' imprisonment.

No contempt proceedings were necessary."

Appellant then filed an appeal and motion for bail on appeal

with this Court on July 23, 2001. We granted the motion for bail on

appeal on August 10, 2001.

II.

Appellant was convicted under

which forbids

unlawful entry onto naval property, inter alia. This section also

authorizes imprisonment of offenders for terms of up to six months.

See

Appellant received a sentence of only sixty days, well below

the statutory limit. Because convictions under section 1382 are Class

B misdemeanors, see

(a)(7), and not subject to the

-6- Sentencing Guidelines, see U.S.S.G. § 1B1.9, we generally review

sentences under section 1382 to determine if they are "plainly

unreasonable."

(e)(4); see also United States v.

Sharpton,

(1st Cir. 2001) (per curiam). There is no

suggestion here that had the district court simply sentenced appellant

to sixty days that such a sentence would have been plainly

unreasonable.2 Therefore, as a threshold matter, we find no error as

to the length of appellant's sentence.

Appellant's central contention, however, is that the district

court erred when it altered her sentence from forty days to sixty days.

Generally, a sentencing court has broad discretion, and we review

sentencing determinations only for abuse of discretion. See United

States v. Jiménez-Rivera,

(1st Cir. 1988). However,

the sentencing court does have to comply with certain procedural rules,

and we review compliance with those procedural rules de novo. See

United States v. Encarnación,

(1st Cir. 2001); see

also United States v. Myers,

(5th Cir. 1998).

As a basic rule, the sentencing court must "determine whether

the defendant wishes to make a statement and to present any information

2 Appellant essentially concedes this point. In her brief to this court, appellant claims that the forty-day sentence was "inaccurate" and "disproportionate" because it exceeded the sentences of her co- defendants by ten days. However, appellant acknowledges that this sentence was legal. We see no reason why we should treat the forty-day and sixty-day sentences differently for the purposes of determining whether they are plainly unreasonable.

-7- in mitigation of sentence." Fed. R. Crim. P. 32(c)(3)(C) (emphasis

added). This is not merely a technical rule, but reflects our long

tradition of giving all defendants the right to directly address the

court and plead for mercy. See Green v. United States,

(1961); see also United States v. de Alba Pagán,

(1st Cir. 1994) ("It is designed to temper punishment with mercy in

appropriate cases, and to ensure that sentencing reflects

individualized circumstances."); see also Myers,

(stating that a remand is needed when a judge’s comments indicate that

he would be unmoved by anything the defendant might say during the

allocution). In keeping with the importance of this rule, if a

sentencing court fails to provide a defendant with the chance to

address the court, the reviewing court must remand the case for

resentencing, generally without needing to inquire into prejudice. See

de Alba Pagán,

.

To satisfy the requirements of Rule 32(c)(3)(C), we encourage

the sentencing court to address the defendant personally, see Green,

, and allow the defendant to speak on all topics which

the defendant considers relevant. See de Alba Pagán,

.

The sentencing judge must be explicit when informing the defendant of

her right to allocute. See United States v. Edgecomb,

(6th Cir. 1990) (holding it insufficient when the sentencing judge

only questioned defendant on certain aspects of the presentence

-8- report); see also United States v. Navarro-Flores,

(9th Cir. 1980) (remanding for resentencing because the judge did not

address the defendant personally); United States v. Murphy,

(4th Cir. 1976) (remanding for resentencing when the sentencing judge

engaged the defendant on a specific issue and then asked twice if there

was anything "you" want to add, to which the defense counsel and then

the prosecutor responded but never the defendant). Similarly, the

sentencing court must be clear in informing the defendant of her right

to speak broadly:

. . . the court, the prosecutor, and the defendant must at the very least interact in a manner that shows clearly and convincingly that the defendant knew he had the right to speak on any subject of his choosing prior to the imposition of his sentence.

de Alba Pagán,

(emphasis added).

There is no question here that the sentencing judge complied

with the requirements of Rule 32(c)(3)(C). Appellant made an

allocution before the judge began announcing the sentence. The issue

before us, however, is how to consider appellant's second statement to

the court. On the facts before us, in which the sentencing judge

indicated, prior to the imposition of sentence, that appellant would be

given an opportunity to respond, we hold that it was a continuation of

the allocution.

-9- The Federal Rules of Criminal Procedure do not accord a

defendant the right to a second allocution. In fact, the rules do not

even require a sentencing court to remind a defendant of the right to

allocute so long as the court clearly notifies the defendant once. See

United States v. Franklin,

(7th Cir. 1990)

(holding right to allocution not denied when judge addressed defendant

by name and asked him if he had anything to say but did not renew that

invitation after defense counsel finished speaking). However, the fact

that there is no right to a second allocution does not mean that a

sentencing court may not grant a defendant a second opportunity to

address the court.

Here, appellant interrupted the sentencing, expressing a

desire to speak again. Before the judge actually pronounced any

sentence, he acknowledged appellant's wish to speak and promised to

give her time to so respond. The judge did not need to grant

appellant's request, but he did.3 Appellant then proceeded to make her

statement, which was clearly intended to influence the length of her

sentence. She spoke about how it was unfair for the judge to conflate

3 Considering the importance of the right to allocute discussed above, the judge may have erred on the side of caution in granting appellant's request to speak again. He simply gave appellant the opportunity to discuss all matters she thought needed to be addressed in relation to her sentence. It is an example of a sentence judge applying Rule 32(c)(3)(C) "liberally." United States v. Barnes,

(7th Cir. 1991).

-10- her with the masked men because they had never been tried and their

identities never established. She said, specifically:

But what justice are you imparting when you are presuming that at this point in time when you're passing sentence upon me the people who were hooded there were not people who were working for the Navy and following the orders of Navy personnel? When did they come before you in this court?

Not only was appellant making a plea to the judge to mitigate her

sentence. She was also engaging the judge with specific references to

the judge's own concerns. This fits the purpose of the allocution

right which "envisions a personal colloquy between the sentencing judge

and the defendant." Myers,

(emphasis in original).

Unfortunately for appellant, her statement did not have the

intended effect of lowering her sentence. Rather, the judge increased

her sentence. There are several reasons why the judge may have done

this, all permissible within his discretion in sentencing. First,

appellant essentially declared herself innocent of crime and thus was

refusing to acknowledge the impact of her illegal action. Second, in

her comments, she disparaged the validity of the law she broke,

accusing the United States Navy of breaking the "greater law." Her

statements certainly suggest a lack of remorse, an attempt to avoid

responsibility for her actions, and even a likelihood of repeating her

illegal actions. Any of these reasons may have legitimately led the

sentencing judge to increase appellant's sentence.

-11- The question then becomes whether the sentencing judge

properly considered appellant's statements when he increased her

sentence.4 Rule 35(c)(3)(C) requires a judge to always consider a

defendant's allocution when imposing sentence, even if the judge had

previously announced a tentative sentence before the exercise of

defendant's right of allocution. See United States v. Mata-Grullon,

(1st Cir. 1989) (per curiam); see also United States v.

Margiotti,

(2d Cir. 1996); United States v. Wolfe,

(6th Cir. 1995); United States v. Laverne,

(9th Cir. 1992). When a judge announces a sentence before hearing an

allocution, it is fair to assume that such a sentence is tentative and

that the judge will consider the defendant's statements before imposing

a final sentence. See Mata-Grullon,

; see, e.g.,

Margiotti,

(holding that in case where the sentencing

judge forgot to give defendant opportunity to speak before announcing

a sentence but then promptly rectified the error by allowing defendant

to speak, the sentence was not imposed until after defendant

allocuted); Laverne,

(holding the right to allocute was

not violated when court announced a tentative sentence and then allowed

defendant a right of allocution).

4 At oral argument, appellant's counsel argued that the sentencing judge could have considered appellant's statement only for the purposes of lowering her sentence. There is no support for such a proposition. If the judge had the authority to adjust appellant's sentence downward, he had the authority to adjust it upward.

-12- Here, the sentencing judge granted appellant the right to

speak before he sentenced her. While so engaged, appellant interrupted

the sentencing for the purpose of refuting the judge's commentary and,

obviously, for the purpose of influencing his pronouncement. Before

continuing her sentencing, the judge indicated he would grant appellant

the opportunity to be heard again. After imposing the forty days'

sentence, the judge then allowed appellant to continue her allocution.

The sentencing judge was fully justified in considering her full

allocution, which included her comments during the second part of her

allocution. Because of the way the hearing developed, the forty-day

sentence was functionally a tentative sentence. See Mata-Grullon,

; see also Laverne,

. Thus, the sixty-day

sentence was properly imposed in response to appellant's full

allocution.

III.

Notwithstanding the sentencing court's discretion to alter

her sentence in response to her continuing allocution, appellant claims

that her sentence is invalid for two reasons.

A.

First, appellant asserts that the district court imposed an

additional twenty days because of its perceived "defiance" of the

appellant and that such a penalty is a punishment for criminal

contempt. She also contends that the district court failed to comply

-13- with the strict procedural requirements for punishing criminal

contempt. See Fed. R. Crim. P. 42(a) (requiring the court to certify

that it witnessed the contemptuous conduct and enter an order reciting

the facts). We agree with appellant's contention that the district

court did not comply with the requirements for criminal contempt under

Rule 42(a), but we disagree that the disputed twenty day increase is a

criminal contempt sanction.

Appellant points to two facts in support of her argument that

the additional twenty days' imprisonment is a criminal contempt

sanction: (1) the district court said that the appellant was becoming

"defiant" before announcing the sixty-day sentence and (2) the district

court had already announced a sentence of forty days' imprisonment.

We have held that it is necessary to look to the "purpose and

character of the sanctions imposed" and not to the name used by the

district court when evaluating whether a particular sanction is for

criminal contempt. In re Kave,

(1st Cir. 1985); see

also United States v. Winter,

(1st Cir. 1995) (holding

that the characterization of a contempt sanction is a question of law

and is not binding on this Court). While these cases deal with the

distinction between civil and criminal contempt, the label affixed by

a district court need not be controlling regardless of whether the

district court called it contempt in the first place. Hicks v. Feiock,

(1988). Here, the sentencing court was explicit that

-14- there was no contempt finding at all. When it considered appellant's

motion for bail on appeal, the court said, "The longer sentence that

the Court imposed on Defendant was not based on a finding of contempt."

However, neither of the facts cited by appellant persuades us to

overlook the district court's overt statement that there was no

contempt finding here. As discussed above, the sentencing court raised

appellant's sentence in response to her continuing allocution.

Even if appellant's behavior at sentencing had risen to the

level of clear contempt,5 the sentencing court maintains flexibility in

how to deal with such conduct. See United States v. Pina,

(1st Cir. 1988) ("The contempt power, however, is not the only

weapon available to a judge to protect the order and dignity of the

courtroom in the face of an openly contumacious defendant."). One

alternate tool is to remove the contemptuous party from the courtroom,

see

, as the judge did here. The fact that the judge

adopted alternate means to deal with a "defiant" defendant suggests

even more strongly that the increased sentence was not a contempt

sanction.

5 The district court warned appellant that she was becoming "defiant" part way through her second statement. Appellant then continued to speak, in Spanish. While we do not have a record of appellant's Spanish statements, we assume that had appellant's Spanish statements risen to the level of criminal contempt, the district court would have stopped appellant, had her comments translated for the record, and made a contempt finding. In the absence of such action by the district court, we assume that appellant said nothing which rose to the level of criminal contempt.

-15- B.

Second, appellant argues that the district court did not make

a clerical, technical, or other clear mistake when imposing the

original forty-day sentence, so it lacked authority to later alter that

sentence. See Fed. R. Crim. P. 35(c) ("The court, acting within 7 days

after the imposition of sentence, may correct a sentence that was

imposed as a result of arithmetical, technical, or other clear

error."). Rule 35(c) is a very narrow rule:

The authority to correct a sentence under this subdivision is intended to be very narrow and to extend only to those cases in which an obvious error or mistake has occurred in the sentence, that is, errors which would almost certainly result in a remand of the case to the trial court for further action under Rule 35(a). The subdivision is not intended to afford the court the opportunity . . . simply to change its mind about the appropriateness of the sentence.

Fed. R. Crim. P. 35(c) advisory committee's note; see also United

States v. Aqua-Leisure Indus., Inc.,

(1st Cir. 1998)

(noting that Rule 35 was amended to restrict the discretion of the

district court in altering a lawfully imposed sentence). We agree with

appellant that the original sentence did not suffer from any error

-16- allowing alteration under Rule 35(c).6 However, we also find that the

sentencing court did not alter her sentence under Rule 35(c).

IV.

Appellant's sentence is valid because it was imposed after

appellant's full allocution before final sentencing. Therefore, we

affirm the sixty-day sentence.

Affirmed.

6 Because we hold that there was no alteration under Rule 35(c), we find it unnecessary to address the complicated question of exactly when a sentence is imposed for purposes of Rule 35(c). Currently, there is a circuit split on this issue. Many circuits look to the oral imposition of sentence. Compare United States v. Aguirre,

(9th Cir. 2000) (holding that oral imposition of sentence begins seven day clock for Rule 35(c)); see also United States v. Morrison,

(11th Cir. 2000) (same); United States v. González,

(5th Cir. 1998) (same); United States v. Abreu-Cabrera,

(2d Cir. 1995) (same); United States v. Layman,

(4th Cir. 1994) (same); United States v. Townsend,

, 73 (10th Cir. 1994) (same); with United States v. Clay,

(7th Cir. 1994) (holding that a sentence is not imposed until judgment enters, for purposes of Rule 35(c)). This circuit has not decided this issue, but we have suggested that we will look to the date judgment enters, not oral pronouncement. See United States v. Morillo,

, 869 n.8 (1st Cir. 1993).

-17-