United States v. Adams

Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit

5-23-2001

United States v. Adams
Precedential or Non-Precedential:

Docket 00-1212

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Filed May 23, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 00-1212

UNITED STATES OF AMERICA

v.

MICHAEL ANTHONY ADAMS,
Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 99-cr-00708-1)
District Judge: Honorable Stewart Dalzell

Argued November 6, 2000

Before: ROTH, RENDELL, and STAPLETON,
Circuit Judges.

(Filed: May 23, 2001)

Robert Epstein [ARGUED]
Defender Association of Philadelphia
Federal Court Division
Curtis Center, Independence
Square West
Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
Michael Anthony Adams
 Thomas M. Zaleski [ARGUED]
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
Counsel for Appellee
United States of America

OPINION OF THE COURT

RENDELL, Circuit Judge.

I. Introduction

We are asked to determine whether the appellant,
Michael Anthony Adams, is entitled to resentencing
because the District Court failed to observe the r equirement
of Federal Rule of Criminal Procedure 32(c)(3)(C), which
mandates that the District Court personally addr ess the
defendant before imposing sentence and deter mine whether
he wishes to make a statement or present any information
in mitigation of the sentence. We conclude that Adams
should be resentenced, and accordingly will vacate the
judgment of the District Court and remand for
resentencing.

We note that Adams also seeks resentencing on the basis
of the District Court's alleged failure to verify that Adams
and his defense counsel had read and discussed the
presentence report, as requir ed under subsection (A) of the
same Rule. However, the resentencing r emedy which we
afford Adams based upon subsection (C) obviates the need
to decide that issue. Also, we will not reach the third issue
raised on appeal, namely, whether the District Court
properly refused to grant a downwar d departure from the
Sentencing Guidelines range, because we lack jurisdiction
over this issue.1
_________________________________________________________________

1. Adams contends that the District Court misappr ehended its authority
to depart from the Guidelines range based upon substandard
presentence confinement conditions. Having carefully reviewed the
record, we conclude that the District Court did understand its authority
but declined to exercise its discretion to depart downward, and thus we
do not have jurisdiction to review this aspect of Adams' sentence. E.g.,
United States v. Stevens, 223 F.3d 239, 247 (3d Cir. 2000).

2
II. Facts and Procedural Background

Adams pled guilty to two counts of bank robbery. At the
sentencing hearing, his counsel voiced several objections to
the presentence report. He objected to a two-level upward
adjustment recommended by the report based upon a
threat that Adams had made towards a bank teller during
one of the robberies. He further challenged the assessment
of eleven criminal history points (which established a
criminal history category of V) as over-r epresenting Adams'
criminal activity, and sought a downward departure based
upon substandard confinement conditions. In addition, he
objected to the inclusion in the presentence r eport of
information relating to Adams' suspected involvement in
three other bank robberies that wer e not charged. Finally,
he challenged the restitution amount recommended in the
report.

The District Court sustained the objection to the
information in the presentence report as to Adams'
suspected involvement in other bank robberies, but
otherwise overruled the objections and denied the motion
for a downward departure. After some discussion, the
District Court asked, "Anything else?" Adams' counsel
replied, "Do you want to hear me as far as sentencing is
concerned?" The District Court responded, "I want to hear
what you want to say about that, of course. And then I
want to hear if the remorseful defendant has anything he
wants to say." App., Vol. II, at 111a.

The District Court heard argument both fr om defense
counsel and the government with respect to sentencing and
next inquired of Adams' counsel: "Okay. W ould your client
like to exercise his right of allocution?" After a pause,
Adams' counsel replied, "No." Id. at 113a. Adams' counsel
did not object to the District Court's failur e to address
Adams personally to inquire if he wished to make a
statement on his own behalf. The District Court then
imposed a sentence of 105 months, well within the
Sentencing Guidelines range of 92 to 115 months (which
corresponded to an offense level of 24 and a criminal
history of V). Id. at 111-13a. Finally, the District Court
entertained a recommendation as to the place of service of

3
sentence and advised Adams personally with r espect to his
right to appeal. Id. at 115-16a.

III. Jurisdiction and Standard of Review

We have jurisdiction over this appeal pursuant to both 28
U.S.C. S 1291, which provides for r eview of final decisions
of the district courts, and 18 U.S.C. S 3742(a)(1), which
provides for review of final sentences allegedly imposed in
violation of law.

Because Adams did not raise an objection at his
sentencing hearing, we review the District Court's failure to
comply with Federal Rule of Criminal Procedur e 32(c)(3)(C)
for plain error. See Fed. R. Crim. P. 52(b) (stating that
"[p]lain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of
the court"); Johnson v. United States, 520 U.S. 461, 466
(1997) (explaining that when no objection is made in the
district court, the plain error standar d of Rule 52(b)
governs all direct appeals from judgments of conviction in
the federal courts, regardless of the seriousness of the error
claimed).

IV. Discussion

Adams contends that the District Court's failur e to
comply with its affirmative duty to personally address him
requires that he be resentenced. The government, on the
other hand, argues that resentencing is not required
because Adams demonstrates no prejudice fr om the District
Court's oversight, and thus there was no plain error under
Rule 52(b) of the Federal Rules of Criminal Pr ocedure.

As an initial matter, we note that the parties agree that
the District Court failed to comply with Rule 32(c)(3)(C),
which safeguards the defendant's right of allocution. The
Rule states that, prior to imposing sentence, the district
court must "address the defendant personally and
determine whether the defendant wishes to make a
statement and to present any information in mitigation of
the sentence." The District Court was obviously aware of
Adams' right of allocution, and specifically asked Adams'

4
counsel: "Would your client like to exer cise his right of
allocution?" However, the Supreme Court has held that this
query, directed towards counsel, does not satisfy the
requirement that the district court personally address the
defendant himself. E.g., Green v. United States, 365 U.S.
301, 305 (1961) (plurality opinion); id. at 307 (Black, J.,
dissenting); see also United States v. Allegrucci, 299 F.2d
811, 815 (3d Cir. 1962). Accordingly, the District Court
erred, and thus we are squarely pr esented with the
question whether a violation of the right of allocution
contained in Rule 32(c)(3)(C) necessitates a r emand for
resentencing.

In addressing the issue before us, we do not write on a
clean slate. At the same time, the writing that is currently
on the slate is not particularly clear: ther e are old markings
still visible along with the new ones, and we will attempt to
reconcile the two. A historical perspective is in order.

In 1961 and 1962, the Supreme Court issued thr ee
opinions that characterized the right of allocution as an
important safeguard that should be strictly enforced
according to its terms. In Gr een v. United States, 365 U.S.
301 (1961), the Justices could not have expr essed more
clearly their view that the right of allocution under Rule 32
is highly respected. At the conclusion of sentencing, the
trial judge had asked, "Did you want to say something?" Id.
at 302. It was unclear from the recor d whether this
question had been posed to the defendant, or mer ely to
defense counsel. Id. at 304-05. Given this uncertainty, a
plurality of the Court determined that the defendant had
failed to meet his burden of showing that he was not
accorded his right of allocution. Id. at 305. However, eight
of the Justices agreed that, in the futur e, trial judges
should "unambiguously address themselves to the
defendant" and thus "leave no room for doubt that the
defendant has been issued a personal invitation to speak
prior to sentencing."2 Id.; id. at 309 (Black, J., dissenting).
_________________________________________________________________

2. In fashioning this requirement, the Green Court interpreted Federal
Rule of Criminal Procedure 32(a), which at the time simply stated that
"[b]efore imposing sentence the court shall afford the defendant an
opportunity to make a statement in his own behalf and to present any

5
Justice Frankfurter, writing for the four -Justice plurality,
eloquently described why the right of allocution is held in
high esteem:

The design of Rule 32(a) did not begin with its
promulgation; its legal provenance was the common-
law right of allocution. As early as 1689, it was
recognized that the court's failure to ask the defendant
if he had anything to say before sentence was imposed
required reversal. See Anonymous, 3 Mod. 265, 266, 87
Eng. Rep. 175 (K.B.). Taken in the context of its
history, there can be little doubt that the drafters of
Rule 32(a) intended that the defendant be personally
afforded the opportunity to speak befor e imposition of
sentence. We are not unmindful of the r elevant major
changes that have evolved in criminal procedur e since
the seventeenth century-- the sharp decrease in the
number of crimes which were punishable by death, the
right of the defendant to testify on his own behalf, and
the right to counsel. But we see no reason why a
procedural rule should be limited to the cir cumstances
under which it arose if reasons for the right it protects
remain. None of these modern innovations lessens the
need for the defendant, personally, to have the
opportunity to present to the court his plea in
mitigation. The most persuasive counsel may not be
able to speak for a defendant as the defendant might,
with halting eloquence, speak for himself. W e are
buttressed in this conclusion by the fact that the rule
explicitly affords the defendant two rights: "to make a
statement in his own behalf," and "to pr esent any
information in mitigation of punishment." W e therefore
reject the Government's contention that merely
_________________________________________________________________

information in mitigation of punishment." Green, 365 U.S. at 303 n.1. As
a result of Green, Rule 32 was amended in 1966 to include the direction
that the court address the defendant personally and ask if he wishes to
make a statement. See Fed. R. Crim. P . 32 advisory committee's note to
1966 Amendment; see also United States v. Phillips, 936 F.2d 1252,
1255-56 (11th Cir. 1991) (discussing the development of Rule 32). The
current Rule 32(c)(3)(C), which is the subject of Adams' appeal, contains
this requirement that the court personally address the defendant.

6
 affording defendant's counsel the opportunity to speak
fulfills the dual role of Rule 32(a).

Green, 365 U.S. at 304.

Justice Black in dissent, joined by three Justices, wrote
even more forcefully in support of the right of allocution, as
he took issue with the Court's decision not to grant the
defendant relief:

The language of Mr. Justice FRANKFURTER'S opinion
does not jibe with the harsh result reached in refusing
to accord to petitioner the benefit of Rule 32(a). As he
points out, that Rule embodies the practice of the
English-speaking world for three centuries or more,
based as he properly says upon the belief that,"The
most persuasive counsel may not be able to speak for
a defendant as the defendant might, with halting
eloquence, speak for himself." A rule so highly prized
for so sound a reason for so long a time deserves to be
rigorously enforced by this Court, not mer ely praised in
resounding glittering generalities calculated to soften
the blow of nonenforcement.

Id. at 311 (Black, J., dissenting).

One year later, in Hill v. United States , 368 U.S. 424
(1962), the Supreme Court again bolster ed the right of
allocution, while at the same time limiting its r each. The
Court reinforced the right by explaining in a footnote that
the appropriate remedy on direct appeal for a trial court's
failure to honor the right of allocution in Rule 32 is set
forth in Van Hook v. United States, 365 U.S. 609 (1961).
Hill, 368 U.S. at 429 n.6. Van Hook , in turn, is a one-
sentence opinion that cites Green as requiring reversal and
remand of defendant Van Hook's case for resentencing. Van
Hook, 365 U.S. at 609. Consequently, Hill appears to stand
for the proposition that, on direct appeal, a defendant is
automatically entitled to resentencing if the trial court
violates the defendant's right of allocution by, for example,
failing to personally address him prior to sentencing.

At the same time, the Hill Court limited the right of
allocution by holding that violations of the right could not
be redressed by way of a habeas corpus petition, absent

7
aggravating circumstances. Hill, 368 U.S. at 428-29. If the
trial court simply failed to comply with "the for mal
requirements of the Rule" by, for example, neglecting to
personally address the defendant prior to sentencing, then
habeas relief would be inappropriate. Id. at 429. In
declining to recognize such a violation as a basis for habeas
relief, the Court expounded on the natur e of the right of
allocution:

The failure of a trial court to ask a defendant
represented by an attorney whether he has anything to
say before sentence is imposed is not of itself an error
of the character or magnitude cognizable under a writ
of habeas corpus. It is an error which is neither
jurisdictional nor constitutional. It is not a
fundamental defect that inherently results in a
complete miscarriage of justice, nor an omission
inconsistent with the rudimentary demands of fair
procedure. It does not present "exceptional
circumstances where the need for the r emedy afforded
by the writ of habeas corpus is apparent."

Id. at 428.

It is noteworthy that Green, V an Hook, and Hill contain
no mention of Federal Rule of Criminal Procedur e 52. Rule
52, which has remained unchanged since its adoption in
1944 and was intended as a restatement of existing law,
see Fed. R. Crim. P. 52 advisory committee notes, sets forth
the concepts of harmless error and plain error on direct
review in the federal appellate courts. Rule 52 provides:

(a) Harmless Error. Any error, defect, irregularity or
variance which does not affect substantial rights shall
be disregarded.

(b) Plain Error. Plain err ors or defects affecting
substantial rights may be noticed although they wer e
not brought to the attention of the court.

Therefore, the over-arching consideration of Rule 52 is
whether an error "affects substantial rights." In practice,
Rule 52(a) applies when the defendant has made a timely
objection to an error, and the court of appeals normally
engages in a so-called "harmless err or" inquiry to determine

8
whether the error was prejudicial to the defendant, with the
government bearing the burden of persuasion on the issue
of prejudice. E.g., United States v. Olano, 507 U.S. 725, 734
(1993) (discussing the application of Rule 52). When the
defendant has not objected in the district court, Rule 52(b)
applies, which normally requires the same kind of inquiry
as that dictated by Rule 52(a), with one crucial dif ference:
it is the defendant rather than the government who bears
the burden of persuasion with respect to prejudice. Id. Yet
the Supreme Court's omission of any refer ence to Rule 52
in Green, Van Hook, orHill is curious, perhaps reflecting its
belief (at least at that time) that the Rule did not apply to
violations of the right of allocution on dir ect appeal, and
thus the appropriate remedy for such violations was
automatic resentencing.

In sum, from our review of Green, Van Hook, and Hill, we
conclude that in deciding these cases nearly four decades
ago, the Supreme Court was of the view that a sentence
imposed without the trial court's having personally afforded
the defendant the right of allocution was gr ounds for
remand for resentencing on direct appeal. And while the
right of allocution is deeply rooted in our legal tradition and
highly respected, nonetheless it is neither constitutional
nor jurisdictional, and thus the defendant faced a difficult
time in collaterally attacking his sentence based on a
violation of this right.

Accordingly, it is not surprising that in United States v.
Allegrucci, 229 F.2d 811 (3d Cir. 1962), we remanded for
resentencing after the district court had failed to personally
address the defendant prior to sentencing and inquire if he
wished to make a statement. Id. at 815. Before sentencing
the defendant, the trial court had simply told defendant's
counsel to "go ahead," which clearly did not measure up to
the standard enunciated in Green. Id. Following Green, we
automatically vacated and remanded for r esentencing
without any discussion of harmless err or, plain error, or
prejudice to the defendant. Id.

Since its decision in Hill in 1962, the Supr eme Court has
said little regarding the right of allocution,3 but the federal
_________________________________________________________________

3. The Court has mentioned the right four times in passing. Groppi v.
Leslie, 404 U.S. 496, 501 (1972); United States v. Behrens, 375 U.S. 162,

9
courts have been quite active in interpreting this right and
in fashioning various tests for determining on direct appeal
when a violation of the right should result in resentencing.4
_________________________________________________________________

165 (1963); Andrews v. United States, 373 U.S. 334, 336-37 (1963);
Machibroda v. United States, 368 U.S. 487, 489 (1962). In addition, the
Court discussed the right in some detail in McGautha v. California, 402
U.S. 183 (1971), but did little more than r epeat what had already been
said in Green and Hill. McGautha, 402 U.S. at 217-20; id. at 228 n.7,
236-38 (Douglas, J., dissenting).

4. We detect at least five differ ent tests that have gained favor in our
sister circuit courts of appeal. Some courts have resolutely clung to the
idea that when the right of allocution is violated, the defendant on
direct
appeal is always entitled to remand for r esentencing. E.g., United States
v. Myers, 150 F.3d 459, 463-65 (5th Cir. 1998); United States v. Walker,
896 F.2d 295, 301 (8th Cir. 1990). On the opposite end of the spectrum
are those courts that hold that the defendant is not entitled to
resentencing unless he can identify specific statements on appeal that he
would have made at sentencing that likely would have changed the trial
court's determination of his sentence. E.g., United States v. Leasure, 122
F.3d 837, 841 (9th Cir. 1997). Several others have concluded that
resentencing is not required if the defendant has already received the
lowest possible sentence -- i.e., if he was sentenced at the bottom of the
applicable Sentencing Guidelines range and he had not argued in the
trial court that the Guidelines range was incorr ect (by, for example,
moving for a downward departure or a decr ease in either the offense-
level or criminal history category, or by ar guing against an upward
departure or an increase in the of fense-level or criminal history
category). E.g., United States v. Riascos-Suarez, 73 F.3d 616, 627 (6th
Cir. 1996); United States v. Lewis, 10 F.3d 1086, 1092 (4th Cir. 1993);
United States v. Mejia, 953 F.2d 461, 468 (9th Cir. 1992). Similarly, some
courts have fashioned a test that, on the sur face, appears to hold that
resentencing is not necessary if the defendant has already received the
lowest possible sentence. However, in r eality this particular test always
dictates resentencing because these courts have engaged in open-ended
speculation about what grounds for a lesser sentence the defendant
might have argued to the court during his allocution had he been given
the opportunity, even if such grounds had not been raised at any other
point in the litigation. E.g., United States v. Medrano, 5 F.3d 1214, 1219
(9th Cir. 1993); see also United States v. Cole, 27 F.3d 996, 999 (4th
Cir.
1994) (remanding for resentencing based on speculation about what
legal grounds the defendant might have raised during his allocution,
even though he apparently did not argue such grounds on appeal). Still
others have adopted the rather vague standar d that resentencing is

10
The catalyst behind much of this activity is that in the
years following Green, Van Hook, and Hill, the Supreme
Court has increasingly considered the concepts of harmless
error and plain error, set forth in Rule 52, as necessary
inquiries on direct appeal whenever a defendant alleges
that his rights were violated in the district court. (In this
appeal, we are, of course, specifically concerned with the
concept of plain error -- as opposed to har mless error --
because Adams did not raise an objection in the District
Court). This emphasis on Rule 52 leads us to question
whether we should reassess the seemingly simple directive
of Green, Van Hook, and Hill (and Allegrucci) that on direct
appeal the defendant is automatically entitled to
resentencing when he is not affor ded his right of allocution.
We think that such a reexamination is appropriate.

As noted above, Rule 52(b) was adopted in 1944 and sets
forth the standard for plain error r eview. Although Rule
52(b) apparently did nothing more than codify the standard
laid down by the Supreme Court in United States v.
Atkinson, 297 U.S. 157, 160 (1936), see United States v.
Young, 470 U.S. 1, 7 (1985), nevertheless it was unclear, at
_________________________________________________________________

appropriate only if failure to do so would result in "manifest injustice."
E.g., United States v. Rodriguez-Velasquez, 132 F.3d 698, 700 (11th Cir.
1998).

Adding to the complexity of these various standar ds is the
circumstance that sometimes a single court has adopted more than one
test, without acknowledging the conflict. This situation is perhaps the
most pronounced in the Ninth Circuit. Compare Leasure, 122 F.3d at
841 (holding resentencing inappropriate unless the defendant can
identify specific statements on appeal that he would have made at
sentencing that likely would have impacted his sentence) and Mejia, 953
F.2d at 468 (holding resentencing not warranted if the defendant already
received the lowest possible sentence under the Sentencing Guidelines)
with Medrano, 5 F.3d at 1219 (adopting a rule that in practice requires
automatic resentencing, because even though the defendant in the trial
court had raised no grounds for a lower sentence, the court nevertheless
remanded for resentencing based on speculation about what the
defendant might have said during allocution had he been given the
chance) and United States v. Navarro-Flor es, 628 F.2d 1178, 1184 (9th
Cir. 1980) (automatically remanding for resentencing when the right of
allocution is violated).

11
least until recently, whether on direct appeal Rule 52(b)
should apply to every conceivable err or to which the
defendant failed to object, or whether a class of rights
existed whose violation was considered so serious that Rule
52(b) should be bypassed in favor of automatic r eversal. As
explained above, Green, V an Hook, and Hill would appear to
place the right of allocution within this pr oposed class,
because none of these opinions even mentions Rule 52 at
all.

However, in United States v. Olano, 507 U.S. 725 (1993),
the Supreme Court strongly indicated that no such class of
rights exists. The Court first observed that "[n]o procedural
principle is more familiar . . . than that a constitutional
right, or a right of any other sort, may be for feited in
criminal as well as civil cases by the failur e to make timely
assertion of the right before a tribunal having jurisdiction
to determine it." Id. at 731 (quoting Yakus v. United States,
321 U.S. 414, 444 (1944) (internal quotation marks
omitted)). In a criminal matter, the Court continued,
"Federal Rule of Criminal Procedure 52(b), which governs
on appeal from criminal proceedings, pr ovides a court of
appeals a limited power to correct [for feited] errors." Id. The
Court then strongly suggested that all for feited errors in a
criminal proceeding are subject to Rule 52(b) analysis when
it stated broadly that "[i]f a legal rule was violated during
the district court proceedings, and if the defendant did not
waive the rule, then there has been an `err or' within the
meaning of Rule 52(b) despite the absence of a timely
objection." Id. at 733-34. In making this determination, the
Court carefully differentiated between waiver and forfeiture:
waiver is the "intentional relinquishment or abandonment
of a known right," while forfeiture is the "failure to make
the timely assertion of a right," or in other wor ds, the
failure to object to an alleged violation. Id. at 733.

If, in the wake of Olano, there wer e any doubt about the
universal applicability of Rule 52(b) on dir ect appeal of a
criminal conviction when no objection was raised in the
district court, this doubt was erased by Johnson v. United
States, 520 U.S. 461 (1997). In Johnson, the defendant
argued that the constitutional error in her trial proceedings,
to which she had not objected, was so serious that Rule

12
52(b) did not apply, and thus she was entitled to automatic
reversal. Id. at 466. The Court flatly rejected that argument,
specifically stating that "the seriousness of the error
claimed does not remove consideration of it fr om the ambit
of the Federal Rules of Criminal Procedur e." Id. Moreover,
the Court continued, Rule 52 "by its terms governs direct
appeals from judgments of conviction in the federal system,
and therefore governs this case." Id. Consequently, the
Court had "no authority" to carve out an exception to Rule
52(b) based simply on the gravity of the char ged error. Id.

Thus we are compelled to arrive at the conclusion that
Adams' claim of error is subject to Rule 52(b) plain error
analysis.5 As such, Olano provides the proper framework for
_________________________________________________________________

5. It is also worth noting that had Adams raised an objection in the
District Court, he still would not be entitled to automatic reversal, but
instead his claim would be subject to Rule 52(a) har mless error review.
The Supreme Court's opinion in Johnson (even though it dealt with plain
error and not harmless error) says as much when it explains, as noted
above, that Rule 52 "by its terms gover ns direct appeals from judgments
of conviction in the federal system." Johnson , 520 U.S. at 466. More
specifically, the Court has repeatedly declar ed that Rule 52(a) harmless
error inquiry applies whenever the defendant has raised an objection in
the district court. E.g., Neder v. United States, 527 U.S. 1, 7 (1999)
(stating that Rule 52(a) "by its terms applies to all errors where a
proper
objection is made at trial") (emphasis in original); Bank of Nova Scotia
v.
United States, 487 U.S. 250, 255 (1988) (applying Rule 52(a) harmless
error review to a claim of prosecutorial misconduct, and observing that
"[i]t follows that Rule 52 is, in every pertinent respect, as binding as
any
statute duly enacted by Congress, and federal courts have no more
discretion to disregard the Rule's mandate than they do to disregard
constitutional or statutory provisions"); United States v. Lane, 474 U.S.
438, 448 n.11 (1986) (rejecting the notion that Rule 52(a) can be
selectively applied, explaining that "on its face, Rule 52(a) admits of no
broad exceptions to its applicability. Any assumption that once a
`substantial right' is implicated it is inher ently `affected' by any
error
begs the question raised by Rule 52(a)"). The only exception to the
applicability of harmless error r eview is in the "very limited class" of
"structural" constitutional errors that"infect the entire trial process"
and
therefore are so serious that they can never be deemed harmless. E.g.,
Neder, 527 U.S. at 8 (describing the class of structural constitutional
errors, which includes complete denial of counsel, a biased trial judge,
racial discrimination in selection of a grand jury, denial of self-
representation at trial, denial of a public trial, and a defective
reasonable-doubt jury instruction).
13
analyzing Adams' claim. Before we can grant Adams relief,
the District Court must have committed (1) "err or" (2) that
is "plain" (3) that "affect[s] substantial rights." Olano, 507
U.S. at 732. If all three of these conditions are met, we
"ha[ve] [the] authority to" corr ect the District Court, "but
[we are] not required to do so," because Olano makes clear
that we should exercise our discretion to correct the error
only if it "seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings." Id. at 735-36. This
involves an examination of the seriousness of the error in
the context of the entire case. Johnson, 520 U.S. at 469;
see also Young, 470 U.S. at 15-16 (explaining that
reviewing courts must assess an alleged err or "against the
entire record" so as to deter mine whether such error
"seriously affect[s] the fair ness, integrity or public
reputation of judicial proceedings").

Normally, in order for an error to"affect substantial
rights" under the third prong of the Olano test, the error
must have been "prejudicial" -- in other words, "[i]t must
have affected the outcome of the district court proceedings."
Olano, 507 U.S. at 734. It is the defendant who bears the
burden of persuasion with respect to pr ejudice. Id.
However, the Supreme Court has cautioned that some
errors to which no objection was made should be
"presumed prejudicial" if the defendant cannot make a
specific showing of prejudice. Id. at 735. Furthermore,
there may be a special category of forfeited errors that can
be corrected "regardless of their effect on the outcome."6
Id.

Notwithstanding this guidance, the federal cir cuit courts
of appeal have been inconsistent in their application of
Olano when reviewing violations of the right of allocution on
direct appeal to which no objection was raised in the
district court.7 As explained above, in our view, a fair
_________________________________________________________________

6. Here, the Court is apparently r eferring to "structural" constitutional
errors. Johnson, 520 U.S. at 468-69.

7. For example, some courts have applied har mless error -- rather than
plain error -- review, even when no objection was raised in the district
court. E.g., United States v. Patterson, 128 F.3d 1259, 1260-61 (8th Cir.
1997); United States v. Carper, 24 F .3d 1157, 1162 (9th Cir. 1994).

14
reading of Olano dictates that when a defendant fails to
object to a violation of his right of allocution, his claim on
appeal is reviewed for plain error -- which requires the
defendant to make a specific showing of pr ejudice,8 unless
he can show that the error should be pr esumed prejudicial,
or that the error belongs in a special category of errors that
should be corrected regardless of pr ejudice (i.e., the
category of structural errors).

We recently had the opportunity to addr ess a violation of
the right of allocution in United States v. Beckett, 208 F.3d
140 (3d Cir. 2000). Following the lead of the United States
Court of Appeals for the Fourth Circuit in United States v.
Lewis, 10 F.3d 1086 (4th Cir. 1993), we held that "even
were we to assume that [the defendant] was denied the
right of allocution," he was not entitled to automatic
resentencing because he was not prejudiced by the denial
in light of the fact that "he was sentenced to the
_________________________________________________________________

Others have cited the Olano plain err or framework, but have
implemented it in a curious fashion by ostensibly placing the burden of
proving prejudice on the defendant, yet in fact implicitly presuming
prejudice whenever the defendant did not r eceive the lowest possible
sentence under the Sentencing Guidelines. E.g. , United States v. Cole, 27
F.3d 996, 999 (4th Cir. 1994). Still others appear to have ignored Olano
altogether. E.g., United States v. Myers, 150 F.3d 459, 462-64 (5th Cir.
1998); United States v. Rodriguez-Velasquez, 132 F.3d 698, 700 (11th
Cir. 1998); United States v. Riascos-Suarez, 73 F.3d 616, 627 (6th Cir.
1996); United States v. Alba Pagan, 33 F .3d 125, 129-30 (1st Cir. 1994);
United States v. Maldonado, 996 F.2d 598, 599 (2d Cir. 1993).

8. Surprisingly, our research r eveals that only two opinions in the
federal
courts of appeal, neither of which is a majority opinion, appear to
implement the Olano framework in this manner by placing the burden of
demonstrating prejudice on the defendant. Myers, 150 F.3d at 465-67
(Davis, J., concurring) (placing the burden of persuasion with respect to
prejudice on the defendant, and noting that the defendant cannot satisfy
this burden simply by pointing out that he did not receive the lowest
possible sentence under the Sentencing Guidelines); Cole, 27 F.3d at
999-1002 (Luttig, J., dissenting) (same). However , even these opinions
are arguably incomplete, because they fail to address the possibility that
the defendant might be explicitly relieved of the burden of proving
prejudice when a trial court violates the right of allocution, and instead
prejudice may be presumed. See infra pp. 17-19.

15
[Sentencing] Guidelines minimum" sentence. Beckett, 208
F.3d at 148.

While the ultimate result in Beckett is sound,
nevertheless our reasoning is somewhat cryptic due in part
to its brevity. We did not mention Olano (or Johnson), nor
did we use the term "plain error ," even though it is clear
from the opinion that the defendant had raised no objection
to the trial court's failure to observe the right of allocution
at sentencing. And we did not refer to our earlier decision
in Allegrucci -- in which we automatically vacated and
remanded for resentencing based on a violation of the
defendant's right of allocution -- and ther efore one could
argue that our ruling in Beckett cr eates a conflict in our
circuit precedent.

Significantly, however, we do not consider Beckett as an
improper departure from our cir cuit precedent in Allegrucci.
In Beckett, we considered prejudice to the defendant rather
than automatically remanding for resentencing.
Accordingly, we view Beckett as r eflective of intervening
Supreme Court case law (such as Olano and Johnson) that
has highlighted the presence and importance of applying
Rule 52 on direct appeal. As such, Beckett has superceded
Allegrucci. See, e.g., Reich v. D.M. Sabia Co., 90 F.3d 854,
858 (3d Cir. 1996) (observing that "[a]lthough a panel of
this court is bound by, and lacks authority to overrule, a
published decision of a prior panel, a panel may r eevaluate
a precedent in light of intervening authority and
amendments to statutes or regulations"); see also Patterson
v. McLean Credit Union, 491 U.S. 164, 173 (1989)
(explaining that precedent may be overruled when
intervening development of law has "weakened the
conceptual underpinnings" of prior precedent). Still, we will
attempt to flesh out what we did not specifically state in
Beckett, and therefore we will analyze Adams' claim within
the Olano plain error framework.

Applying this framework, we first find, as explained
above, that the District Court committed "err or" when it
failed to personally address Adams prior to sentencing. In
light of the District Court's clear duty to do so, e.g., Green,
365 U.S. at 305, this error was "plain," because it was
"clear" or "obvious," Olano, 507 U.S. at 734. Next, we must

16
inquire whether this failure affected Adams' "substantial
rights." Olano, 507 U.S. at 734. Nor mally, this would
require Adams to show that the trial court's error was
prejudicial, or in other words, that it"affected the outcome
of the district court proceedings." Id.

We note that this would be an onerous burden for Adams
to meet. In order to prove that the err or actually "affected
the outcome of the district court proceedings," Adams
would have to point to statements that he would have made
at sentencing, and somehow show that these statements
would have changed the sentence imposed by the District
Court. In this context, as the First Circuit observed in
United States v. Alba Pagan, 33 F.3d 125 (1st Cir. 1994),
"the impact of the omission on a [judge's] discretionary
[sentencing] decision is usually enormously difficult to
ascertain."9 Id. at 130. But as the Supreme Court explained
in Olano, there may be some err ors "that should be
presumed prejudicial if the defendant cannot make a
specific showing of prejudice." Olano , 507 U.S. at 735. Thus
the question for us becomes: should we presume prejudice
when a district court violates a defendant's right of
allocution?

Given the nature of the right and the difficulty of proving
prejudice from its violation, we conclude that we should
presume prejudice when a defendant shows a violation of
the right and the opportunity for such a violation to have
played a role in the district court's sentencing decision.
Adams has met that standard here. W e have, of course,
already determined that his right of allocution was violated.
And the opportunity existed for this violation to have played
a role in the District Court's sentencing decision, because
Adams was sentenced roughly in the middle of the
_________________________________________________________________

9. This "enormous difficulty" at least partially explains why several
courts have implicitly presumed pr ejudice if the defendant has not
received the lowest possible sentence under the Sentencing Guidelines.
E.g., United States v. Riascos-Suarez , 73 F.3d 616, 627 (6th Cir. 1995);
United States v. Cole, 27 F.3d 996, 999 (4th Cir. 1994); United States v.
Medrano, 5 F.3d 1214, 1219 (9th Cir . 1993). Without this presumption,
defendants would face an uphill battle in their attempt to obtain relief
for violations of the right of allocution -- a r esult that few courts
have
been willing to tolerate.

17
applicable Guidelines range, supra p. 3, and therefore the
District Court clearly retained discretion to grant Adams a
lower sentence.

While this is the most obvious way in which the District
Court retained discretion to give Adams a lower sentence,
it is by no means the only way. For instance, the District
Court also retained the discretion, had Adams spoken on
his own behalf, to reconsider its rejection of defense
counsel's earlier arguments against a two-level upward
adjustment for making a threat during one of the bank
robberies, against the criminal history category as over-
representing Adams' criminal activity, and in favor of a
downward departure based on substandar d confinement
conditions. Moreover, as a general matter, we believe that
the proper standard for us to follow is that an opportunity
exists for a violation of the right of allocution to have played
a role in the district court's sentencing decision -- even
when a defendant is sentenced at the bottom of the
Guidelines range thought to be applicable -- whenever a
searching review of the district court r ecord reveals that
there are any disputed facts at issue at sentencing, or any
arguments raised in connection with sentencing, that if
resolved in the defendant's favor would have r educed the
applicable Guidelines range or the defendant's ultimate
sentence.10

Our conclusion that we should presume pr ejudice here,
where Adams' right of allocution was violated, follows
_________________________________________________________________

10. In adopting this standard, we explicitly reject the reasoning employed
in United States v. Medrano, 5 F.3d 1214 (9th Cir. 1993), in which the
Ninth Circuit engaged in open-ended speculation about what grounds for
a lesser sentence the defendant might have ar gued to the trial court
during his allocution had he been given the opportunity, even when such
grounds had not been raised at any other point in the district court
proceedings. Id. at 999. We think the better approach is that when the
defendant is sentenced at the bottom of a Guidelines range, there is no
opportunity for a violation of the right of allocution to have played a
role
in the district court's sentencing decision unless there were disputed
facts actually at issue at sentencing, or ar guments made in connection
with sentencing, that if resolved in the defendant's favor would have
reduced the applicable Guidelines range or the defendant's ultimate
sentence.

18
logically from Supreme Court precedent. As the Court
explained in Green, the right of allocution is premised on
the idea that "[t]he most persuasive counsel may not be
able to speak for a defendant as the defendant might, with
halting eloquence, speak for himself." Gr een, 365 U.S. at
304. Thus, denying Adams his right of allocution was
tantamount to denying him his most persuasive and
eloquent advocate. And the District Court was likewise
denied the opportunity to take into consideration Adams'
unique perspective on the circumstances r elevant to his
sentence, delivered by his own voice. In such a situation,
we find it appropriate to presume pr ejudice because the
sentencing process itself was render ed presumptively
unreliable. See, e.g., id. at 304-05; cf., e.g., United States v.
Cronic, 466 U.S. 648, 659 (1984) (observing that courts
should presume prejudice when the adversary process itself
has been rendered presumptively unr eliable).

Furthermore, while the right of allocution is not
constitutional, nonetheless it is ancient in origin, and it is
the type of important safeguard that helps assure the
fairness, and hence legitimacy, of the sentencing process.
See, e.g., Green, 365 U.S. at 304-05; see also United States
v. Myers, 150 F.3d 459, 463-64 (5th Cir . 1998) (observing
that the practice of allowing a defendant to speak before
sentencing has both functional and symbolic meaning that
lends legitimacy to the sentencing process); Alba Pagan, 33
F.3d at 129 (noting that the right of allocution "is designed
to temper punishment with mercy in appr opriate cases, and
to ensure that sentencing reflects individualized
circumstances," and that the right "has value in terms of
maximizing the perceived equity of the pr ocess"). When this
legitimacy is called into question -- as it was when the
District Court did not personally address Adams and
inquire if he wished to speak on his own behalf-- prejudice
presumptively follows.

Finally, having concluded that the forfeited error in this
case "affects substantial rights," we must address the last
prong of the Olano framework. W e should exercise our
discretion to correct the District Court's error only if it
"seriously affect[s] the fair ness, integrity or public
reputation of judicial proceedings." Olano, 507 U.S. at 736.

19
As explained above, the legitimacy of the sentencing
process was called into question when Adams' right of
allocution was violated. Moreover, a defendant's allocution
plays a crucial part in the sentencing process, and thus a
denial of this right is not the sort of "isolat[ed]" or "abstract"
error that we might determine does not impact the
"fairness, integrity or public reputation of judicial
proceedings." Young, 470 U.S. at 15-16. Therefore, we have
little difficulty concluding that it is appr opriate for us to
exercise our discretionary authority to correct the error in
this case, and that Adams must be resentenced.

In sum, we hold that the District Court committed plain
error that should be corrected when it failed to personally
address Adams prior to sentencing, in violation of Federal
Rule of Criminal Procedure 32(c)(3)(C). Adams need not
point to specific prejudice resulting fr om the District
Court's error, because here we consider the trial court's
violation of Rule 32(c)(3)(C) as one of those situations in
which prejudice should be presumed. Mor eover, as a
general matter, we conclude that prejudice should be
presumed whenever the opportunity exists for this violation
to have played a role in the district court's sentencing
decision. Our resolution of this case follows naturally from
Supreme Court jurisprudence and is consistent with our
previous ruling in Beckett.

In accordance with the foregoing, the judgment of
conviction and sentence of the District Court enter ed on
March 17, 2000, will be vacated and the case r emanded for
resentencing.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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