United States v. Christopher Leo Miller, 849 F.2d 896 (4th Cir. 1988). · Go Syfert
United States v. Christopher Leo Miller, 849 F.2d 896 (4th Cir. 1988). Cases Citing This Book View Copy Cite
70 citation events (13 in the last 25 years) across 16 distinct courts.
Strongest positive: United States v. Dwayne Stallings (ca4, 2019-03-18) · Strongest negative: United States v. Roberto Rangel-Arreola (ca10, 1993-05-05)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Top citers, strongest first. 34 distinct citers. How cited ↗
discussed Cited "but see" United States v. Roberto Rangel-Arreola (2×) also: Cited as authority (rule)
10th Cir. · 1993 · signal: but see · confidence high
See Stevens, 851 F.2d at 144 (although the district court failed to make the determination that defendant had an opportunity to discuss the presentence report with counsel, the Sixth Circuit did not remand because the defendant suffered no prejudice); but see Miller, 849 F.2d at 898, n. 1 (the Fourth Circuit stated, in dicta, that the defendant "is not required to establish prejudice in order to secure his rights under Rule 32”).
cited Cited as authority (rule) United States v. Dwayne Stallings
4th Cir. · 2019 · confidence medium
United States v. Miller, 849 F.2d 896, 897-98 (4th Cir. 1988); Fed.
discussed Cited as authority (rule) Baires v. United States
E.D. Va. · 2010 · confidence medium
The critical requirement is that the sentencing court ascertain that “a defendant has had the opportunity to read and discuss the [PSR] with his counsel.” United States v. Miller, 849 F.2d 896, 897-98 (4th Cir.1988).
discussed Cited as authority (rule) United States v. Daniels
4th Cir. · 2010 · confidence medium
While the requirement is most easily satisfied by expressly asking whether the report has been read and discussed, Rule 32 is also satisfied if “a statement by counsel or defendant ... unequivocally demonstrate^] that the report has been read and discussed by them,” or if court records “allow the district court to infer that defendant and defense counsel signed out the report and discussed it together.” United States v. Miller, 849 F.2d 896, 898 (4th Cir.1988).
discussed Cited as authority (rule) United States v. Bynum
4th Cir. · 2008 · confidence medium
While the district court must determine the defendant has had an opportunity to review the PSR with counsel, this determination can be made by asking “[the] defendant, his lawyer, or both.” See United States v. Miller, 849 F.2d 896, 897-98 (4th Cir.1988).
discussed Cited as authority (rule) State v. Schaefer
Haw. App. · 2008 · confidence medium
See United States v. Buckley, 847 F.2d 991, 1002 (1st Cir.1988); United States v. Adams, 252 F.3d 276, 279 (3d Cir.2001); United States v. Miller, 849 F.2d 896, 897 (4th Cir.1988); United States v. Riascos-Suarez, 73 F.3d 616, 627 (6th Cir.1996); United States v. Thomas, 875 F.2d 559, 561 (6th Cir.1989); United States v. Van Drunen, 501 F.2d 1393, 1399 (7th Cir.1974); United States v. Walker, 896 F.2d 295, 300-01 (8th Cir.1990); United States v. Medrano, 5 F.3d 1214, 1219 (9th Cir.1993); United States v. Phillips, 936 F.2d 1252, 1255-56 (11th Cir.1991).
discussed Cited as authority (rule) United States v. Zehrbach
4th Cir. · 2004 · confidence medium
Thus, that argument may have been waived, and is subject only to plain error review. 26 In any event, Federal Rule of Criminal Procedure 32 requires that the district court “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.” Fed.R.Crim.P. 32(i)(4)(A)(ii) (2003); United States v. Cole, 27 F.3d 996 (4th Cir.1994); United States v. Miller, 849 F.2d 896, 897 (4th Cir.1988).
discussed Cited as authority (rule) State v. Keathly
Tenn. Crim. App. · 2003 · signal: cf. · confidence medium
See United States v. Maldonado, 996 F.2d 598, 599 (2d Cir.1993); Barnes, 948 F.2d at 332 ; Phillips, 936 F.2d at 1256 ; Walker, 896 F.2d at 301 ; Posner, 868 F.2d at 724 ; United States v. Buckley, 847 F.2d 991, 1002 (1st Cir.1988), cert. denied, 488 U.S. 1015 , 109 S.Ct. 808 , 102 L.Ed.2d 798 (1989); United States v. Navarro-Flores, 628 F.2d 1178, 1184 (9th Cir.1980); cf. United States v. Miller, 849 F.2d 896, 897-98 (4th Cir.1988) (remanding for failure to meet strictures of Fed.R.Crim.P. 32(a)(1)(A) and (Q).
cited Cited as authority (rule) United States v. Battle
4th Cir. · 2002 · confidence medium
United States v. Miller, 849 F.2d 896, 897 (4th Cir.1988).
discussed Cited as authority (rule) State ex rel. Aaron v. King
W. Va. · 1997 · confidence medium
United States v. McManus, 23 F.3d 878, 884-85 (4th Cir.1994) (quoting United States v. Miller, 849 F.2d 896, 897-98 (4th Cir.1988)). “[T]he simplest and most direct way for the [circuit] court to make this determination is simply to ask the defendant, his lawyer, or both. [However, we do not require that the circuit court] must always expressly ask whether the report has been read and discussed.
cited Cited as authority (rule) United States v. Leroy Lockhart, Jr.
4th Cir. · 1995 · confidence medium
United States v. Miller, 849 F.2d 896, 897-98 (4th Cir.1988). [Fjunctional equivalency [to an express inquiry by the district court] should not lightly be assumed.
discussed Cited as authority (rule) United States v. De Alba Pagan
1st Cir. · 1994 · signal: cf. · confidence medium
See Barnes, 948 ___ ______ F.2d at 330-31; see also Walker, 896 F.2d at 300. ___ ____ ______ 10 1984); cf. United States v. Miller, 849 F.2d 896, 897-98 (4th ___ ______________ ______ Cir. 1988) (remanding for failure to meet strictures of Fed.
discussed Cited as authority (rule) United States v. De Alba Pagan
1st Cir. · 1994 · signal: cf. · confidence medium
See United States v. Maldonado, 996 F.2d 598, 599 (2d Cir.1993); Barnes, 948 F.2d at 332 ; Phillips, 936 F.2d at 1256 ; Walker, 896 F.2d at 301 ; Posner, 868 F.2d at 724 ; United States v. Buckley, 847 F.2d 991, 1002 (1st Cir.1988), cert. denied, 488 U.S. 1015 , 109 S.Ct. 808 , 102 L.Ed.2d 798 (1989); United States v. Navarro-Flores, 628 F.2d 1178, 1184 (9th Cir.1980); cf. United States v. Miller, 849 F.2d 896, 897-98 (4th Cir.1988) (remanding for failure to meet strictures of Fed.R.Crim.P. 32(a)(1)(A) and (C)).
discussed Cited as authority (rule) United States v. Janice McManus United States of America v. Alton Ray Truesdale, United States of America v. Tennison Alexander Harris, United States of America v. Alvin Truesdale, United States of America v. Connell Robinson, III
4th Cir. · 1994 · confidence medium
The rule provides that the sentencing court shall "determine that the defendant and defendant's counsel have had the opportunity to read and discuss the presentence investigation report...." In United States v. Miller, 849 F.2d 896, 897-98 (4th Cir.1988), we interpreted this Rule as mandating a bright-line approach: 23 The district court must, without exception, determine that a defendant has had the opportunity to read and discuss the presentence investigation report with his counsel.
discussed Cited as authority (rule) United States v. McManus
4th Cir. · 1994 · confidence medium
The rule provides that the sentencing court shall “determine that the defendant and defendant’s counsel have had the opportunity to read and discuss the presentenee investigation report....” In United States v. Miller, 849 F.2d 896, 897-98 (4th Cir.1988), we interpreted this Rule as mandating a blight-line approach: The district court must, without exception, determine that a defendant has had the opportunity to read and discuss the pre-sentence investigation report with his counsel.
discussed Cited as authority (rule) United States v. Arundel Deverre Worrell
4th Cir. · 1994 · confidence medium
The Rule requires that "[b]efore imposing sentence, the court shall ... determine that the defendant and defendant's counsel have had the opportunity to read and discuss the presentence investigation report ... or summary thereof...." The Rule does not require, however, that the district court expressly ask whether the defendant has read and discussed the report. "[O]ften a statement by counsel or defendant will unequivocally demonstrate that the report has been read and discussed by them, or court records may allow the district court to infer that defendant and defense counsel signed out the …
cited Cited as authority (rule) United States v. George C. Daniel
4th Cir. · 1993 · confidence medium
United States v. Miller, 849 F.2d 896, 897-98 (4th Cir.1988).
discussed Cited as authority (rule) United States v. William Reid Morris, United States of America v. William Bryson Morton
4th Cir. · 1993 · confidence medium
We recognize that often a statement by counsel or defendant will unequivocally dem onstrate that the report has been read and discussed by them, or court records may allow that the district court to infer that the defendant and defense counsel signed out and discussed it together. 32 United States v. Miller, 849 F.2d 896, 897-98 (4th Cir. 1988) (emphasis added). 33 The circuit courts take a broad spectrum of approaches as to when a violation of Rule 32 should be found.
cited Cited as authority (rule) United States v. Nestor Fernando Manrique, A/K/A Freddy
1st Cir. · 1992 · confidence medium
Appellant also cites supporting precedent from the Fourth Circuit in United States v. Miller, 849 F.2d 896, 898 (4th Cir.1988).
discussed Cited as authority (rule) United States v. Robert Phillips
11th Cir. · 1991 · confidence medium
United States v. Walker, 896 F.2d 295, 300-01 (8th Cir.1990); United States v. Thomas, 875 F.2d 559, 561 (6th Cir.1989); United States v. Miller, 849 F.2d 896, 897 (4th Cir.1988); United States v. Buckley, 847 F.2d 991, 1002 (1st Cir.1988); United States v. Van Drunen, 501 F.2d 1393, 1399 (7th Cir.1974).
discussed Cited as authority (rule) United States v. R. Randall Walker, United States of America v. Trula A. Walker
8th Cir. · 1990 · confidence medium
See United States v. Posner, 868 F.2d 720, 724 (5th Cir.1989); United States v. Miller, 849 F.2d 896, 897 (4th Cir.1988); United States v. Buckley, 847 F.2d 991, 1002 (1st Cir.1988), cert. denied, - U.S. -, 109 S.Ct. 808 , 102 L.Ed.2d 798 (1989); Moore v. United States, 329 F.2d 821, 822 (8th Cir.), cert. denied, 379 U.S. 858 , 85 S.Ct. 114 , 13 L.Ed.2d 61 (1964); cf. United States v. Thomas, 875 F.2d 559, 561 (6th Cir.) (recognizing need for strict compliance with rule 32(a)(1)(C)), cert. denied, - U.S. -, 110 S.Ct. 189 , 107 L.Ed.2d 144 (1989); Pope v. United States, 372 F.2d 710, 727 (8th C…
cited Cited as authority (rule) United States v. Karl Robert Byers, Jr.
4th Cir. · 1989 · confidence medium
United States v. Miller, 849 F.2d 896, 897 (4th Cir.1988).
discussed Cited as authority (rule) United States v. Juan Reyna Victoria
5th Cir. · 1989 · confidence medium
United States v. Stevens, 851 F.2d 140, 143 (6th Cir.1988); United States v. Miller, 849 F.2d 896, 898 (4th Cir.1988); United States v. Cortez, 841 F.2d 456, 460 (2d Cir.), cert. denied, — U.S. -, 108 S.Ct. 2829 , 100 L.Ed.2d 929 (1988); United States v. Aleman, 832 F.2d 142 , 144 n. 6 (11th Cir.1987); United States v. Mays, 798 F.2d 78, 80 (3d Cir.1986). 8 .See, e.g., Miller, 849 F.2d at 898 .
discussed Cited as authority (rule) Cir.1995) (quoting United States v. Miller, 849 F.2d 896, 897-98 (4th Cir.1988)) (alteration in original). Where, as here, a
unknown court · confidence medium
Under Fed.R.Crim.P. 32(i)(l)(A), the district court “must verify that the defendant and the defendant’s attorney have read and discussed the presentence report and any addendum to the report.” However, the court “need not expressly ask whether the defendant has read the presentence report and discussed it with [her] counsel, provided ‘there is evidence in the record from which one could reasonably infer’ that the defendant and [her] counsel have read and discussed the report.” United States v. Lockhart, 58 F.3d 86, 88 (4th Cir.1995) (quoting United States v. Miller, 849 F.2d 896,…
cited Cited "see" United States v. Tapp
4th Cir. · 2007 · signal: see · confidence high
See United States v. Miller, 849 F.2d 896, 897-98 (4th Cir.1988).
cited Cited "see" United States v. Hyman
4th Cir. · 1998 · signal: see · confidence high
See United States v. Miller, 849 F.2d 896, 897 (4th Cir. 1988).
discussed Cited "see" United States v. Najera-Ojeda
5th Cir. · 1996 · signal: see · confidence high
See United States v. Victoria, 877 F.2d 338, 340 (5th Cir. 1989) (stating that “a court may draw reasonable inferences from court documents, the defendant’s statements, and counsel’s statements when determining whether a defendant has ‘had the opportunity to read and discuss’ the PSIR with his counsel”) (quoting United States v. Miller, 849 F.2d 896, 898 (4th Cir. 1988)).
cited Cited "see" United States v. Tyrone Eugene Johnson, A/K/A Jap, United States of America v. Kevin Terrell Jackson
4th Cir. · 1995 · signal: see · confidence high
See United States v. Miller, 849 F.2d 896, 897-98 (4th Cir.1988).
discussed Cited "see" United States v. William Jay Cole (2×)
4th Cir. · 1994 · signal: see · confidence high
Moreover, the court appeared to discourage Cole from speaking--"Ask your counsel before you say anything"--and his counsel, though not certain what his client wanted to say, answered for him. "[T]rial judges should leave no room for doubt that the defendant has been issued a personal invitation to speak prior to sentencing." Green, 365 U.S. at 304-05 , 81 S.Ct. at 655-56 ; see United States v. Miller, 849 F.2d 896 (4th Cir.1988); United States v. Phillips, 936 F.2d 1252, 1256 (11th Cir.1991) (collecting cases).
discussed Cited "see" United States v. Charles Dwight Coleman
4th Cir. · 1994 · signal: see · confidence high
See United States v. Miller, 849 F.2d 896, 897 (4th Cir.1988). 6 Finally, the court failed to make the requisite explicit factual findings concerning the amount owed and the financial resources, needs, and earning ability of the defendant. 18 U.S.C.A.Sec. 3664(a) (West Supp.1993); United States v. Bruchey, 810 F.2d 456, 459 (4th Cir.1987).
cited Cited "see" United States v. Danny Myers
4th Cir. · 1993 · signal: see · confidence high
See United States v. Miller, 849 F.2d 896 (4th Cir. 1988).
cited Cited "see" United States v. Thomas Dennis, United States of America v. Raymond E. Johnson, United States of America v. Marcus Antonio Hughes
4th Cir. · 1990 · signal: see · confidence high
See United States v. Mays, 798 F.2d 78, 80 (3 Cir.1986) ("the court need only somehow determine that the defendant has had this opportunity"). 19 849 F.2d at 897-98 (emphasis added).
cited Cited "see" United States v. Larry Thomas (87-1623), Anthony L. Gaston (87-1634), and Eddie Gaston (87-1697)
6th Cir. · 1989 · signal: see · confidence high
See United States v. Miller, 849 F.2d 896, 898 (4th Cir.1988). 2 .
discussed Cited "see, e.g." Gary Stewart Boardman v. Wayne Estelle, Warden (2×)
9th Cir. · 1992 · signal: see also · confidence medium
"We think that when a defendant effectively communicates his desire to the trial judge to speak prior to the imposition of sentence, it is a denial of due process not to grant the defendant's request." Id. at 336; see also United States v. Miller, 849 F.2d 896, 897 (4th Cir.1988) (citing Ashe for proposition that defendant must be permitted to speak for reasonable amount of time). 27 Other circuits have also found the right of allocution to be Constitutionally guaranteed, although none has engaged in even the brief analysis of Ashe.
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Christopher Leo MILLER, Defendant-Appellant
87-6129.
Court of Appeals for the Fourth Circuit.
Jun 20, 1988.
849 F.2d 896
1988 U.S. App. LEXIS 8332
1988 WL 61330
Cheryl J. Sturm, for defendant-appellant., Glenda G. Gordon, Asst. U.S. Atty. (Breckinridge L. Willcox, U.S. Atty., Baltimore, Md., on brief) for plaintiff-appellee.
Winter, Sprouse, Ramsey.
Cited by 53 opinions  |  Published
HARRISON L. WINTER, Chief Judge:

Defendant Christopher L. Miller appeals from the district court’s judgment and commitment order sentencing him to two concurrent six-year terms for two violations of federal drug laws. He contends the district court did not comply with Rule 32 of the Federal Rules of Criminal Procedure because the court failed to offer him an opportunity to address the district court directly during his sentencing hearing and failed to determine that he had already discussed the presentence investigation report with his counsel. We agree. We therefore vacate Miller’s sentence and remand for resentencing in compliance with Fed.R.Crim.P. 32(a)(1).

[*897] I.

Miller plead guilty to conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). At Miller’s sentencing hearing, several witnesses testified in his behalf. Miller also took the stand on his own behalf. However, the district court did not personally address Miller during the sentencing hearing to offer him an opportunity to address the court directly. After sentencing, Miller requested correction and reduction of his sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure on the grounds that the district court failed to determine if he and his counsel had discussed the presentence report, an omission which allegedly occurred, and because he was not afforded his right to allocution. The district court denied the motion, and denied Miller’s motion for reconsideration, reasoning:

You should be informed that there is no set form by which allocution can be had. In this case, Mr. Miller desired to be called as a witness instead of the Court asking him questions. This, under the law, suffices as allocution.

II.

We think Fed.R.Crim.P. 32(a)(1)(C) requires more. See United States v. Murphy, 530 F.2d 1, 2 (4 Cir.1976) (per curiam) (sentencing court must address the defendant personally; counsel’s examination of defendant is not sufficient). It is true, as the government notes, that Miller repeatedly made his feelings known to the district court and in fact wrote a personal letter to the district court. Despite the extensive nature of the sentencing hearing the district court conducted, we decline to depart from the clear language of Rule 32(a)(1)(C):

(a) Sentence.
Imposition of Sentence____ Before imposing sentence the court shall
(C) address the defendant personally and ask the defendant if the defendant wishes to make a statement in the defendant’s own behalf and to present any information in mitigation of punishment.

The Supreme Court has unambiguously cautioned trial judges that Rule 32 allocution procedures are to be complied with strictly:

[T]o avoid litigation arising out of ambiguous records in order to determine whether the trial judge did address himself to the defendant personally, we think the problem should be, as it readily can be, taken out of the realm of controversy. This is easily accomplished. Trial judges before sentencing should, as a matter of good judicial administration, unambiguously address themselves to the defendant. Hereafter trial judges should leave no room for doubt that the defendant has been issued a personal invitation to speak prior to sentencing.

Green v. United States, 365 U.S. 301, 304-05, 81 S.Ct. 653, 655-56, 5 L.Ed.2d 670 (1961) (emphasis added). See also Ashe v. State of North Carolina, 586 F.2d 334, 336-37 (4 Cir.1978) (defendant must be personally given opportunity to speak for a reasonable amount of time), cert. denied, 441 U.S. 966, 99 S.Ct. 2416, 60 L.Ed.2d 1072 (1979); Murphy, 530 F.2d at 2.

III.

Rule 32 also provides that before sentence is imposed, the district court shall “determine that the defendant and the defendant’s counsel have had the opportunity to read and discuss the presentence investigation report ... or summary thereof....” Rule 32(a)(1)(A). Miller alleges that he recalls reading the report but that he saw the report just before the sentencing hearing and did not have the opportunity to discuss the report with counsel. The district court did not expressly inquire as to whether Miller had discussed the report with counsel, and there is no evidence in the record from which one could reasonably infer that such a discussion took place.

Once again, we think that a bright-line approach is mandated by the clear language of Rule 32. The district court must, without exception, determine that a defend[*898] ant has had the opportunity to read and discuss the presentence investigation report with his counsel. Of course the simplest and most direct way for the district court to make this determination is simply to ask defendant, his lawyer, or both.

This is not to say that the district court must always expressly ask whether the report has been read and discussed. We recognize that often a statement by counsel or defendant will unequivocally demonstrate that the report has been read and discussed by them, or court records may allow the district court to infer that defendant and defense counsel signed out the report and discussed it together. See United States v. Mays, 798 F.2d 78, 80 (3 Cir.1986) (“the court need only somehow determine that the defendant has had this opportunity”). However, in the absence of information in the record from which the district court could determine that the report had been read and discussed, the district court cannot fulfill its duties under Rule 32(a)(1)(A) without inquiring as to whether defendant had the opportunity to read and discuss the presentence investigation report with defense counsel. [1]

IV.

Miller contends that, should we decide to vacate his sentence, his case should be remanded for resentencing before a different district court judge. We disagree. The record before us does not reveal any evidence of impermissible bias on the part of the judge who presided in Miller’s sentencing hearing. [2] We therefore vacate Miller’s sentence and remand to the district court for resentencing.

REVERSED AND REMANDED.

1

. Miller contends that the presentence investigation report contains an error as to the amount of cocaine which he distributed, and that as a result of that error, he is less likely to receive an early parole under the parole guidelines for distribution of cocaine. While Miller is not required to establish prejudice in order to secure his rights under Rule 32, we note that this is the sort of information which conceivably might have been presented to the district court for consideration, had Miller discussed the report with his counsel or had Miller had an opportunity to address the court personally.

The government represents that the Probation Office sent the defendant and his counsel a memorandum "several days" before the hearing stating that the report had been completed and was available for review. We note that in the future sentencing courts will be required to take affirmative steps to ensure that the defendant has ample opportunity to review the report. In a statutory provision which became effective November 1, 1987, after the district court’s February 1987 sentencing, Congress has provided:

The court shall assure that a report filed pursuant to this section is disclosed to the defendant, the counsel for defendant, and the attorney for the Government at least ten days prior to the date for sentencing, unless this minimum period is waived by the defendant.

18 U.S.C. § 3552(d). Section 3552 was adopted as part of the Sentencing Reform Act of 1984, Pub.L. No. 98-473, Title II, c. II, § 212, 98 Stat. 1837, 1987, and its effective date was delayed until late 1987. See Pub.L. 98-473, Title II, §§ 212(a)(1), (2), 235(a)(1), Oct. 12, 1984, 98 Stat. 1987, 2031, as amended by Pub.L. 99-217, § 4, Dec. 26, 1985, 99 Stat. 1728 (the first day of the first calendar month beginning thirty-six months after Oct. 12, 1984).

2

. Contrary to Miller’s argument, the district court did not demonstrate bias from an extrajudicial source in denying Miller’s motion to reconsider the district court’s denial of his motion for correction and reduction in sentence. The district court merely stated: "In view of my denial of the request for reconsideration, it is obvious that the Court does not, in this case, intend to reduce Mr. Miller’s sentence.”