The court heard oral argument regarding defendant's appeal of his sentence on March 31, 2011. Scott Radcliffe, Certified Student Attorney with the Office of the Federal Defender, appeared for appellant. Catherine R. Chyi, Certified Student Attorney with the Office of the U.S. Attorney, appeared for the government as appellee. Having carefully reviewed the parties' briefing, considered the arguments made at hearing, and good cause appearing, the court FINDS and ORDERS as follows:
On July 13, 2010, the government charged appellant in an information with possession of marijuana in violation of 21 U.SC. § 844, a Class A misdemeanor. On August 11, 2010, appellant pled guilty to the charge, without a plea agreement. On November 3, 2010, the presiding magistrate judge sentenced appellant to one year supervised probation with conditions, a $1,000 fine and the mandatory $25.00 special assessment.
On November 18, 2010, appellant filed his notice of appeal, and the parties' briefing on the appeal followed. The issue presented on appeal is whether this court "must remand for resentencing because the magistrate judge erred in denying Mr. Michael prejudgment probation under 18 U.S.C. § 3607 on the ground that he failed to request it before sentencing rather than during the sentencing hearing." Appellant's Opening Brief at 1.
At the sentencing hearing, appellant's counsel argued for imposition of a fine and unsupervised probation, with probation to terminate upon payment of the fine. After the magistrate judge denied the request, and after the judge had read the bulk of his intended sentence into the record, appellant's counsel requested that the sentence be converted to one of prejudgment probation under 18 U.S.C. § 3607(a). While the judge initially indicated he would accept the suggestion and impose prejudgment probation, after hearing from the government and the Probation Officer covering the hearing, and after further discussion with defense counsel, the judge confirmed the sentence he had initially decided to impose. See Tr. at 18:8-29:24.
It is undisputed that appellant qualifies for prejudgment probation because he has no prior drug convictions. As reported in the presentence report, during his interview with the Probation Office for the purposes of preparation of the presentence report, the Probation Officer asked appellant if he wished to participate in a program of prejudgment probation; appellant declined. At hearing, defense counsel argued that, "The idea that he would voluntarily participate at the time of the interview and at the time of the plea meant that he would have to give up his right to argue to Your Honor, to make the mitigating argument that he shouldn't be under supervision, and he wanted the opportunity to come here and present that argument to the Court . . ." Tr. at 23:1-7. Regarding the fact that the government had made a plea offer incorporating a sentence of prejudgment probation, and responding to the judge's concern about appellant wanting a "second bite at the apple," defense counsel noted, "if this is two bites in the apple, then what you're telling us is these defendants are only going to get DEJ [deferred entry of judgment] if they agree to whatever the offer is from the government that -- what the conditions of probation under DEJ should be." Tr. at 24:18-22;*fn1 see also Tr. at 23:20-24:12 (judge asks about "classic two bites at the apple" and timing of request just "before the bell has finally rung").
Before confirming the sentence, the judge repeatedly expressed concern about the timing of appellant's request. Tr. at 20:22-23 ("how much are we unringing  the bell here?"), 22:15-16 (probation's position regarding "someone of this late date  converting this to a prejudgment probation"?), 25:11-24 (request never raised before, and raised only once arguments that were made did not prevail), 26:15-25 (referring back to defendant's sentencing memorandum in which there was "no setting forth of . . . alternative position"); see also id. at 29:15-24. In confirming the sentence, the judge stated the following:
. . . I am not going to revisit at this point. . . I by no means . . . [am] holding you hostage or making an example. . . . but what I'm doing is I'm looking at the record before me in this case and I have -- that's part of the reason I give an opportunity for counsel to be heard, for you to be herd, as well as to consider everything that has been filed with the Court. . . . I have listened to the defendant's arguments with regard to the defendant's condition. I have -- as well as the government's positions about what has or has not been provided to the Court in that regard. I have also heard probation's concerns. As I indicated, I took all of those positions into account in imposing sentence.
And again, . . . I'm by no means seeking to unduly penalize [appellant], but it comes back to the position of he has pled guilty. There are consequences to that plea. I agree with probation's recommendations.
This court reviews the magistrate judge's sentence for abuse of discretion, and focuses on whether the sentence is reasonable. Gall v. United States, 552 U.S. 38, 51 (2007). It "must first ensure that the [sentencing] court committed no significant procedural error. . ." Id. (noting that such errors can include "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553 factors,*fn2 selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence").
Appellant argues that the sentencing court committed procedural error by "barr[ing] him from pre-judgment probation because he requested it at sentencing rather than as an alternative sentence in his sentencing memorandum." Appellant's Opening Brief at 3. Appellant relies on the language of the prejudgment probation statute, which he argues does not require that its application be requested before sentencing. ...