Harmless Allocution Error in Unlawful Reentry Sentencing: Clarifying Plain Error Review under Fed. R. Crim. P. 32

Introduction

This commentary examines United States v. Rudys Osvaldo Torres, No. 24-1042 (3d Cir. May 2, 2025), in which the Third Circuit affirmed an 84-month sentence for unlawful reentry under 8 U.S.C. § 1326(a) and granted defense counsel’s Anders withdrawal motion. Torres, a Dominican national and former lawful permanent resident, reentered the United States multiple times after deportations triggered by drug and kidnapping convictions. Key issues include the validity of his guilty plea, the procedural and substantive reasonableness of his within-Guidelines sentence, and a technical allocution error—namely, that counsel rather than the district judge prompted Torres’s right to speak under Federal Rule of Criminal Procedure 32(i)(4)(A)(ii).

Summary of the Judgment

The Third Circuit granted counsel’s Anders & California withdrawal motion and affirmed the sentence.
The court found no non-frivolous issues regarding:
- Plea validity—colloquy complied with Rule 11 and constitutional requirements.
- Sentence reasonableness—procedurally correct and substantively appropriate within an 84–105 month Guidelines range.
- Allocution error—although the district judge did not personally invite allocution, any error was plain but harmless.
Pro se challenges to jurisdiction, indictment defects, commerce-clause nexus, and Title 18’s constitutionality were deemed frivolous.

Analysis

1. Precedents Cited

Anders v. California (386 U.S. 738 (1967))—Permits counsel withdrawal when an appeal is wholly frivolous, subject to court scrutiny.
Simon v. Government of the Virgin Islands (679 F.3d 109 (3d Cir. 2012))—Two-step inquiry for Anders motions (local-rule compliance and independent record review).
Youla (241 F.3d 296 (3d Cir. 2001))—Requires Anders briefs to demonstrate thorough record examination and explain frivolity of issues.
Ward (732 F.3d 175 (3d Cir. 2013)) and Greenspan (923 F.3d 138 (3d Cir. 2019))—Allocution must be personally addressed by the judge; failure is procedural error.
Puckett v. United States (556 U.S. 129 (2009))—Outlines plain‐error review for unpreserved sentencing errors.
Schweitzer (454 F.3d 197 (3d Cir. 2006)) & Fed. R. Crim. P. 11—Standards for plea colloquy.
Tomko (562 F.3d 558 (3d Cir. 2009)) & Flores-Mejia (759 F.3d 253 (3d Cir. 2014))—Framework for procedural and substantive reasonableness review.
Kleindienst v. Mandel (408 U.S. 753 (1972)) & Chae Chan Ping (130 U.S. 581 (1889))—Congress’s plenary immigration power.

2. Legal Reasoning

The Third Circuit proceeded through a structured analysis:

Anders Procedure: Counsel certified the absence of non-frivolous issues and moved to withdraw. The court confirmed compliance with Third Circuit L.A.R. 109.2 and conducted an independent review.
Plea Validity: Reviewed under plain-error standard. The district court clearly explained rights, elements, penalties, immigration consequences, and secured an interpreter. No error in accepting the plea.
Sentence Reasonableness: The court calculated the Guidelines range (84–105 months), considered § 3553(a) factors, heard family allocution, and imposed an 84-month sentence—well below the statutory maximum of 20 years and within the advisory Guidelines range.
Allocution Error: Acknowledged that Rule 32(i)(4)(A)(ii) requires the judge to personally invite allocution. The error was plain but harmless because Torres freely spoke about remorse, family impact, and request for mercy—the core purpose of allocution was fulfilled.
Pro Se Challenges: Pro se jurisdictional and constitutional attacks were waived by plea or lacked legal merit, especially given Congress’s uncontested plenary power over immigration.

3. Impact

This decision reinforces several important principles:

Counsel may withdraw under Anders only when the record contains no arguable issue, and courts will independently verify counsel’s analysis.
Allocution errors, though “plain” under Rule 32, will not automatically warrant reversal absent prejudice to fairness or integrity of the proceeding.
District courts must meticulously conduct plea colloquies in compliance with Rule 11, particularly with non-native English-speaking defendants.
Unlawful reentry sentencing under § 1326 remains squarely within federal jurisdiction and subject to standard sentencing discretion.

Complex Concepts Simplified

Anders Brief: A document in which defense counsel argues there are no meritorious issues on appeal and requests permission to withdraw.
Plain-Error Review: A deferential standard for unpreserved errors, requiring (1) error, (2) clear or obvious, (3) affects substantial rights, and (4) seriously affects fairness, integrity, or public reputation of judicial proceedings.
Allocution: The defendant’s right to address the court before sentencing—intended to allow a personal plea for mercy or explanation.
Guidelines Range: A recommended sentencing range based on offense level and criminal history under the U.S. Sentencing Guidelines.
Section 3553(a) Factors: Statutory sentencing factors including seriousness of offense, history and characteristics of defendant, need for deterrence, and protection of the public.

Conclusion

United States v. Torres confirms that:

Courts will uphold a defendant’s guilty plea when the Rule 11 colloquy is thorough, even for non-English speakers.
An within-Guidelines sentence, when procedurally sound and justified by § 3553(a) factors, is presumptively reasonable.
A technical allocution error does not mandate reversal when the substance of allocution is honored and no prejudice ensues.
Anders withdrawals require careful court oversight to ensure no meritorious appellate issues are overlooked.

As a result, the Third Circuit both safeguards defendants’ procedural rights and preserves sentencing discretion, shaping the contours of plain-error and allocution jurisprudence in unlawful reentry cases.