David Wayne DePape was sentenced to concurrent terms of 240 and 360 months for attempting to kidnap a federal officer and assaulting a family member of a federal official following a jury trial. During his initial sentencing hearing, the district court failed to ask DePape if he wanted to personally address the court before imposing sentence, violating Federal Rule of Criminal Procedure 32. The government caught the error later that afternoon and moved to reopen sentencing under Rule 35(a), which DePape opposed.
Writing for the three-judge panel, Circuit Judge Patrick J. Bumatay found that denying a defendant's right to allocution constitutes 'other clear error' correctable under Rule 35(a). 'Failing to afford a defendant his Rule 32 allocution right is unquestionably erroneous and falls within Rule 35(a)'s other clear error,' Bumatay wrote, noting that multiple circuit courts have described such violations as 'clear.' The judge rejected DePape's argument that Rule 35(a) should be limited to errors akin to arithmetical or technical mistakes.
After the district court granted the government's motion and scheduled a new sentencing hearing, DePape was given the opportunity to allocute and apologized for his actions. The district court then reimposed an identical sentence. DePape appealed, arguing the court lacked authority to resentence him under Rule 35(a), but the Ninth Circuit panel reviewed the issue de novo and found the district court acted properly.
The ruling clarifies that allocution violations fall squarely within Rule 35(a)'s correction authority, potentially affecting how similar procedural errors are handled in future sentencings. The panel also affirmed DePape's underlying convictions in a separate memorandum disposition filed the same day, bringing finality to the high-profile case.