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State v. Keathly5/21/2003
meet strictures of Fed. R. Crim. P. 32(a)(1)(A) and (C)). This is so precisely because the impact of the omission on a discretionary decision is usually enormously difficult to ascertain.
In line with this virtually unbroken skein of authorities, we hold, that if the trial court fails to afford a defendant either the right of allocution conferred by Rule 32(a)(1)(C) or its functional equivalent, vacation of the ensuing sentence must follow automatically. Id. (footnotes omitted).
The Pagan court also noted, "This is not necessarily so, of course, when the sentence is the minimum possible." Id. at 130 n.5. Thus, courts have "undertaken harmless-error analysis in certain cases in which a defendant has been denied his right to allocution, limited, however, to instances in which a sentence is `already as short as it could possibly be. . . .'" Id. (quoting United States v. Carper, 24 F.3d 1157, 1162 (9th Cir. 1994); see also United States v. Ortega-Lopez, 988 F.2d 70, 72-73 (9th Cir. 1993)).
In addition, we hold that reversible error may not always occur when, as here, a defendant is placed under oath and subjected to cross-examination. However, in the present the case, the error was not harmless. The Appellant was placed under oath and gave the following statement:
Thank you, Your Honor, for allowing me to address the Court at this time. I deeply regret all that has happened, which has brought me to this point. I honestly never intended that my actions would result in bodily injury to anyone. This brings tremendous shame and embarrassment to me, since I have devoted my entire adult life to service to my country and its youth.
Growing up in this area, I joined the Scouts at age ten, going on to become an Eagle Scout. I was then employed as a full time professional executive by the Boy Scouts of America and served for the next thirty nine years. As a result of this case, I have had to take early retirement.
In addition to my work with the Scouts, I volunteered in the Reserve as a Naval Officer in 1964 and also retired this year as a Navy Captain. I spent twenty seven of those years in law enforcement as an NIS, Navy Investigative Service, holding top secret clearance and undergoing in depth background checks every five years.
Yes, Your Honor, I agree I should have known better. This has been a devastating lesson for me, but I have learned from it. I am determined it will never happen again.
After seeking professional counseling for my depression after the accident, I turned to the church for strength. I have improved my life orientation by not having one single drink of alcohol in fourteen months.
In retirement I plan to continue my life-long desire to give volunteer service to others. For the past eighteen years as Area Director for the Boy Scouts, I served one hundred thousand youth members per year in Tennessee, Kentucky and Georgia. I have tried my best to be a role model and a morally upright person. I have not had a chargeable accident in my BSA lease car on the job, even though I have driven more than one million miles visiting Boy Scout Councils.
The Court will find my driving record five years prior to this accident totally clean and I have driven forty thousand miles in the past fourteen months after the accident without a single incident or problem.
Again, I support the laws and the Court in Tennessee and appreciate Your Honor's objective consideration in this matter. I beg for understanding, mercy and compassion.
Thank you, Your Honor. I wrote this from my heart without the assist or additions from my attorneys.
The Appellant was then
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