USA V. DEPAPE
Split Score
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Case Summary
Disposition
Affirmed
The Ninth Circuit held that a district court may use Federal Rule of Criminal Procedure 35(a) to correct its earlier failure to give a defendant the personal right of allocution required by Rule 32. Concluding that such a failure constitutes "other clear error," the court affirmed David Wayne DePape's resentencing and overall sentence.
Circuit Split Identified
Legal Issue
Whether a district court may use Federal Rule of Criminal Procedure 35(a) to correct its failure to afford a defendant the right of allocution guaranteed by Rule 32(i)(4)(A)(ii).
Circuit Positions
Rule 32 allocution violation is "other clear error" correctable under Rule 35(a).
"Other clear error" under Rule 35(a) is limited to errors akin to arithmetic or technical mistakes; allocution violations are not correctable under the rule.
Conflict Summary
The Third Circuit interprets Rule 35(a)'s phrase "other clear error" narrowly, limiting it to mistakes comparable to arithmetic or technical sentencing errors and thus would not permit a court to reopen a sentence solely to cure a missed allocution opportunity. In contrast, the Fifth and Ninth Circuits hold that deprivation of the Rule 32 allocution right is an unquestionably erroneous procedural defect that fits within Rule 35(a)'s "other clear error," allowing the sentencing court to correct the error within 14 days.