United States v. Paul Silva

We must decide whether a defendant has a right to allocute during a limited remand to the district court from a sentencing appeal.

I

A jury in the Southern District of California convicted appellant Paul Silva of importation of marijuana and possession of marijuana with intent to distribute. The district judge held a sentencing hearing, in which he considered the Probation Officer’s Report, Silva’s Sentencing Memorandum and Departure Request, the Addendum to the Probation Officer’s Report, and the Government’s Sentencing Summary Chart. He expressly asked Silva whether he wished to comment; Silva declined to speak.

In determining Silva’s sentence, the district judge applied the then-mandatory Federal Sentencing Guidelines. He declined to depart downward based on diminished capacity, after finding that Silva was voluntarily intoxicated and might endanger the public if released sooner. He calculated a criminal history score, but reduced it, after concluding that “the criminal history [wa]s overrepresented by one level.” Sentencing Silva to 77 months in prison and three years of supervised release, he recommended that Silva be housed near his relatives and enrolled in a drug…