In United States v. Packer, 83 F.4th 193 (3d Cir. Sept. 26, 2023), https://www2.ca3.uscourts.gov/opinarch/222554p.pdf, the Third Circuit found that the Court’s indication it would impose a certain sentence before the defendant had allocuted was not reversible plain error. In a revocation proceeding, after three prior supervision modifications for methamphetamine use, the defendant was alleged to have made terroristic threats against his girlfriend. At the revocation hearing, the probation officer and girlfriend testified and also introduced various text messages from the defendant. The Court found the defendant had violated his terms of release and faced an advisory guideline range of 21 to 27 months. The Court indicated it would impose a 24-month term of imprisonment. Then, the Court permitted the defendant to speak. Then the Court imposed the 24 months with no further supervision.
Even assuming the defendant had satisfied the first three prongs of plain error (obvious error that affected his substantial rights), the Court declined to exercise its discretion on the fourth prong, that the error “seriously affected the fairness, integrity or public reputation of judicial proceedings.” United States v. Adams, 252 F.3d 276, 282 (3d Cir. 2001), which permits a court to presume that an allocution error satisfies the fourth prong, was not dispositive. Here, unlike in Adams and other cases where the Court has reversed, the defendant was allowed to allocute and he did not add any additional mitigating factors or distinctive characteristics in that allocution.