Depape

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-3458 D.C. No. Plaintiff - Appellee, 3:22-cr-00426-

JSC-

v.

DAVID WAYNE DEPAPE,

OPINION

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of California Jacqueline Scott Corley, District Judge, Presiding

Argued and Submitted December 10, 2025 San Francisco, California

Filed March 25, 2026

Before: Patrick J. Bumatay, Anthony D. Johnstone, and Ana de Alba, Circuit Judges.

Opinion by Judge Bumatay SUMMARY *

Criminal Law

Affirming David Wayne DePape’s sentence, the panel held that, where the sentencing court violates Fed. R. Crim. P. 32 by not affording a defendant the right to allocute, the sentencing court can correct the error as an “arithmetical, technical, or other clear error” under Fed. R. Crim. P. 35(a). Failing to afford a defendant his Rule 32 allocution right is unquestionably erroneous and is thus correctable as “other clear error” under Rule 35(a). The district court therefore properly re-sentenced DePape under Rule 35(a) after giving him a chance to personally address…