Introduction

In United States v. Thomas (No. 24-30159, 5th Cir. Dec. 4, 2024) (per curiam) (unpublished), the Fifth Circuit vacated a revocation sentence and remanded for resentencing because the district court failed to afford the defendant, Ashton A’qumartez Thomas, the right to speak in mitigation before the court imposed sentence. The panel concluded that the denial of allocution was plain error and that, on this record, it seriously affected the fairness, integrity, or public reputation of the proceedings.

The case arises from a supervised-release revocation proceeding following Thomas’s conviction for possession of a stolen firearm. During supervision, the Probation Office alleged new criminal conduct, including domestic abuse battery and aggravated assault. After finding a violation, the district court immediately imposed the statutory maximum sentence—24 months’ imprisonment—at the top of the advisory range and with no additional term of supervision. Critically, the court did so without ever addressing Thomas personally and without hearing mitigation from defense counsel.

On appeal, Thomas argued that the district court’s failure to allow allocution required reversal. Applying plain-error review, the Fifth Circuit agreed and vacated the sentence.

Summary of the Opinion

The Fifth Circuit held that the district court committed an obvious error by not allowing Thomas to allocute at the revocation sentencing and, given that the sentence was at the statutory maximum and top of the advisory range, prejudice is generally presumed. For the final plain-error prong—whether the error seriously affected the fairness, integrity, or public reputation of judicial proceedings—the court emphasized:

• Defense counsel was never permitted to present mitigation; counsel’s presentation focused only on whether a violation occurred.
• Thomas proffered specific mitigating facts he would have presented, including contextual details about the incident and positive progress on supervision (employment, sobriety, compliance).
• Allocution is uniquely personal and not a substitute for counsel’s statements; the government’s suggestion that the judge had heard “enough” via counsel was rejected.
• Even if a court could view some of Thomas’s statements as aggravating, the standard does not require certainty of a different outcome on remand—only that the denial undermined the fairness and integrity of the proceeding.

The court therefore vacated and remanded for resentencing so that Thomas could be afforded his right to allocute.

Analysis

Precedents Cited

The panel’s reasoning builds on a line of Fifth Circuit and Supreme Court authority addressing allocution error and plain-error review:

• Puckett v. United States, 556 U.S. 129 (2009): Supplies the four-part plain-error framework: (1) error; (2) that is clear or obvious; (3) affecting substantial rights; and (4) seriously affecting the fairness, integrity, or public reputation of judicial proceedings. The court tracked this framework in full.
• United States v. Reyna, 358 F.3d 344 (5th Cir. 2004) (en banc): Establishes that when allocution rights are denied, the first three plain-error prongs are frequently satisfied, and courts will “ordinarily remand for resentencing” when the fourth prong is met. Reyna provides the remedial posture the panel embraced.
• United States v. Magwood, 445 F.3d 826 (5th Cir. 2006): Confirms that failure to allow allocution is “obvious or plain” error and recognizes a presumption of prejudice where the sentence exceeds the statutory minimum or the bottom of the Guidelines range. The panel relied on Magwood to find prongs one to three met. Magwood also illustrates circumstances where courts have declined vacatur if mitigation was adequately developed through counsel—a distinction the panel drew here because no mitigation was allowed.
• United States v. Chavez-Perez, 844 F.3d 540 (5th Cir. 2016): Another case declining relief where defense counsel presented mitigating arguments. The panel distinguished Thomas’s case because neither counsel nor Thomas offered mitigation before sentencing.
• United States v. Figueroa-Coello, 920 F.3d 260 (5th Cir. 2019) (per curiam): Explains that a defendant must present an “objective basis” showing the district court would probably have changed its mind had the defendant been allowed to speak. It emphasizes the “specificity allocution provides” and notes that counsel cannot always substitute for a defendant’s own words. The panel leaned heavily on this rationale in crediting Thomas’s proffer.
• United States v. Palacios, 844 F.3d 527 (5th Cir. 2016): Describes the “highly fact-specific” nature of the fourth-prong inquiry and recognizes that defendants may satisfy it by proffering what they would have said, such as rehabilitation plans and prior good works. The panel cited Palacios in concluding Thomas’s proffer supported remand.
• United States v. Avila-Cortez, 582 F.3d 602 (5th Cir. 2009): Notes that some panels consider whether a defendant had a prior opportunity to allocute; remand was appropriate there because the defendant was denied the chance to present plans that could mitigate sentence. The panel here observed the record was silent on prior allocution and, even if Thomas had allocuted at his original sentencing years earlier, that would not foreclose relief given the changed circumstances and the passage of time.

Legal Reasoning

The court’s analysis proceeds in four steps under Puckett’s plain-error framework:

1. Error: A court must personally address a defendant at sentencing and permit a statement and presentation of mitigation. That did not happen: the district court neither addressed Thomas nor invited mitigation, and it proceeded directly to impose a maximum, top-of-range sentence. This is error.
2. Clear or obvious: Fifth Circuit law makes the error plain. The panel cited Reyna and Magwood in concluding that failure to allow allocution is an “obvious or plain” error.
3. Affecting substantial rights: The panel applied the Fifth Circuit’s general presumption of prejudice when the sentence is above the statutory minimum or above the bottom of the guidelines range. Thomas received the statutory maximum and the top of the advisory range, satisfying this prong.
4. Seriously affecting fairness, integrity, or public reputation: This factor is “highly fact-specific.” The panel emphasized two features:
   • Defense counsel was not allowed to argue mitigation at all. That fact distinguishes cases denying relief where the judge had the benefit of counsel’s mitigation.
   • Thomas proffered the specific mitigation he would have offered: a more nuanced account of the altercation (including attempts to leave, the need to wait for transportation, a reactive rather than aggressive possession of a knife, and a denial of intent to harm) and his positive trajectory on supervision (employment, no drug use, continued progress).
   Against the government’s suggestion that the proffer might be viewed as aggravating because it shifts blame, the court explained that the standard doesn’t require certainty of a reduced sentence—only an objective basis that the denial undermined the fairness and integrity of the proceeding. The right to allocute exists precisely because a defendant’s own words may add mitigating detail that counsel cannot replicate.

Given these factors, the panel concluded that vacatur and remand were appropriate to restore the integrity of the sentencing process.

Impact

Although unpublished and therefore nonprecedential under Fifth Circuit Rule 47.5, the opinion carries significant persuasive force for revocation sentencings within the Circuit:

• District judges: Should expressly afford allocution at revocation sentencing and invite mitigation from both counsel and the defendant. Proceeding directly from violation findings to pronouncement of sentence—especially at the top of the advisory range or statutory maximum—creates a substantial risk of vacatur on appeal.
• Defense counsel: If the court does not invite allocution, request it on the record. If the error occurs, preserve a detailed proffer for appeal that explains exactly what the defendant would have said and why it could matter to sentencing (e.g., rehabilitation efforts, plans, remorse, context). The absence of any mitigation by counsel materially strengthens the case for remand.
• Prosecutors: Arguments that counsel’s litigation of the violation sufficed will generally fail where no mitigation was heard. The opinion underscores that allocution is uniquely personal and is not replaced by counsel’s remarks about culpability or the violation itself.
• Scope of “prior opportunity”: The panel’s dicta signals that a defendant’s allocution at an original sentencing years earlier will rarely preclude relief at a later revocation, given altered circumstances and the individualized nature of allocution.
• Presumption of prejudice reinforced: Where the sentence exceeds the bottom of the advisory range or statutory minimum, the Fifth Circuit will “generally assume prejudice” for prong three. This reduces the government’s room to argue harmlessness on the prejudice prong when allocution was denied and the sentence is high.
• Practical result: Expect more robust allocution colloquies at revocation proceedings and more remands where judges skip straight to pronouncement, particularly if the record lacks mitigation argument by counsel and a defendant can proffer meaningful mitigating information post hoc.

Complex Concepts Simplified

• Allocution: A defendant’s right to speak directly to the judge before sentencing is imposed—to accept responsibility, explain circumstances, describe rehabilitation, or ask for leniency. In revocation cases, this is recognized in the federal rules governing revocation proceedings and, within the Fifth Circuit, in caselaw treating denial as plain error.
• Supervised Release Revocation: After serving a prison term, a defendant may be on supervised release with conditions. Violations can lead to revocation and a new term of imprisonment, guided by Chapter 7 policy statements and 18 U.S.C. § 3553(a) factors.
• Plain-Error Review: When a defendant did not object in the district court, an appellate court applies a strict four-part test (from Puckett). Even clear errors are not automatically corrected—there must also be a showing that the error undermines the fairness or integrity of the proceeding.
• Advisory Range and Statutory Maximum: The Sentencing Guidelines provide an advisory range. For revocations, policy statements in Chapter 7 guide the range, and the court cannot exceed the statutory maximum term authorized for the revocation. A “top-of-range” or “statutory maximum” sentence is a high-end outcome that can support a presumption of prejudice when allocution is denied.
• “Objective basis” for remand (Fourth Prong): The defendant need not prove the judge would certainly have imposed a lower sentence; it suffices to identify specific, plausible mitigation the judge never heard that could reasonably matter to sentencing.

Conclusion

The Fifth Circuit’s decision in United States v. Thomas reinforces a core procedural protection at revocation sentencings: the defendant’s right to speak personally in mitigation. The district court’s failure to invite allocution—coupled with the absence of any mitigation argument from counsel and the imposition of a top-of-range, statutory-maximum sentence—met all four prongs of plain-error review. The panel emphasized that allocution has unique value beyond counsel’s submissions, that prejudice is generally presumed for high-end sentences, and that even a past allocution at an earlier sentencing would not bar relief years later when circumstances have changed.

Key takeaways:

• Denial of allocution at revocation sentencing is plain error.
• Prejudice is generally presumed when the sentence exceeds the bottom of the advisory range or statutory minimum.
• Where neither the defendant nor counsel offered mitigation, the fairness and integrity of the proceeding is seriously affected, warranting vacatur.
• Detailed, defendant-specific proffers of what would have been said are critical in satisfying the fourth prong on appeal.

Although unpublished, Thomas provides a clear, practical blueprint for district courts and practitioners in the Fifth Circuit: always elicit allocution at revocation sentencings, build a mitigation record, and recognize that the defendant’s own voice is a central component of a fair sentencing process.

Note: The opinion is not designated for publication and is nonprecedential under 5th Cir. R. 47.5, but it is persuasive authority within the Circuit on allocution at revocation sentencings and the application of plain-error review.