The Seventh’s Circuit opinion last week in United States v. Noel (No. 07-2468) reveals a substantial division over how to handle violations of a defendant’s right to address the court at sentencing.  As now codified in Federal Rule of Criminal Procedure 32, the Supreme Court has held that defendants must be personally invited to address the court before being sentenced; it is not enough for defense counsel to be given an opportunity to speak.  I have long thought this right of allocution to be a Rorschach test of sorts, revealing fundamental disagreements in the way that criminal procedure rights are conceptualized. 

Since separate state and federal prosecutions are permissible for the same criminal act, federal law appropriately permits district judges to impose federal sentences so that they run concurrently with states sentences; that way, defendants can be protected from what would otherwise amount to double punishment for the same crime.  But what if federal prosecution is delayed, and the state sentence has already been served by the time sentencing occurs in federal court?  The federal sentence cannot be made concurrent in those circumstances.  Is it permissible then for the district judge to reduce the federal sentence length in light of the missed opportunity for a concurrent sentence?

At least three circuits have answered the question in the affirmative, but the Seventh Circuit has not yet provided its answer.  Last week, though, the court came close, holding in United States v. Villegas-Miranda (No. 08-2308) (Williams, J.) that district judges must at least respond when a “consecutive sentences” argument is one of a defendant’s principal arguments for a reduced sentence.