United States v. Gonzalez-Melendez

United States Court of Appeals
For the First Circuit

No. 08-1497

UNITED STATES OF AMERICA,

Appellee,

v.

FELIX GONZALEZ-MELENDEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Lipez, Hansen * and Howard,
Circuit Judges.

Rafael F. Castro Lang for appellant.
German A. Rieckehoff, Assistant United States Attorney, with
whom Rosa E. Rodriguez Velez, United States Attorney and Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, were on brief, for appellee.

January 13, 2010

*
Of the Eighth Circuit, sitting by designation.
 HOWARD, Circuit Judge. In this opinion, we address

several issues with respect to the conviction and sentence of Felix

Gonzalez-Melendez for aiding and abetting a carjacking in violation

of 18 U.S.C. § 2219(1) and (2). Previously, we remanded a portion

of this case to the district court (we did, however, retain

jurisdiction), so that it could determine whether certain prior

out-of-court statements made by Lawrence Evans, the supervisor of

both the victim of the carjacking and the appellant, were

discoverable under the Jencks Act. See United States v. Gonzalez-

Melendez (Gonzalez-Melendez I), 570 F.3d 1, 2-3 (1st Cir. 2009)

(per curiam). In addition, we asked the district court, on remand,

to augment the record with respect to its handling of a jury note.

This note had requested copies of the indictment and the court's

instructions of law, as well as an explanation of an unspecified

issue. See id. at 3.

Now that the district court has provided the information

we sought, we proceed to decide the totality of Gonzalez-Melendez's

appeal. Although the trial leading to the appellant's conviction

was not free from infirmity, it did not suffer from a crippling

malaise. Accordingly, we affirm the conviction. The same cannot

be said about the sentence: as the government concedes in its

brief, the appellant was not afforded the opportunity to allocute

before the district court pronounced sentence. Consequently, we

vacate the sentence and remand for re-sentencing.

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 I. Facts

This case began when the appellant, 1 who was a long-time

employee of Essroc San Juan, a cement manufacturer, who had

ascended from his position as control room operator to process

engineer, was passed over for promotion to the position of

production manager. As the appellant was the only qualified

applicant within the San Juan plant who applied for the position,

management conducted a broader search and settled on Kevin

Grotheer, who was previously employed at one of Essroc's plants in

Canada, to fill the production manager position. Gonzalez-

Melendez, who had a history of difficult relations with his

colleagues, was displeased with this personnel action, and his

relationship with Grotheer was strained from the beginning.

At one point, the appellant expressed his anger at and

frustration with Grotheer to three acquaintances. He concluded

this conversation by expressing his wish that someone physically

assault Grotheer. There was further testimony that Gonzalez-

Melendez met with these three acquaintances to develop a plan to

carjack Grotheer in the hope of frightening Grotheer so thoroughly

1
The appellant does not challenge the sufficiency of the
evidence, and the facts are largely not in dispute. We thus
provide a truncated background narrative. See United States v.
Santiago, 566 F.3d 65, 67 (1st Cir. 2009). We supplement this
description with additional details as necessary to resolve issues
raised in this appeal.

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that he would leave Puerto Rico, thereby clearing the way for the

appellant to ascend to the production manager position.

A plan to effectuate this goal was eventually hatched.

As agreed, Gonzalez-Melendez called to inform his accomplices when

Grotheer left the plant one evening in November 2006. Consistent

with their plan, Gonzalez-Melendez's accomplices successfully

carjacked Grotheer using several firearms, and robbed him of

approximately $700. In addition, the accomplices left Grotheer

unharmed on the side of the road, and drove off in the company-

owned Jeep that Grotheer had been driving.

The next morning, Grotheer received a threatening voice

message from an unidentified caller, which he relayed to the

general manager of Essroc San Juan, Lawrence Evans. As a result of

receiving this message, Grotheer relocated to another part of

Puerto Rico. Even after this move Grotheer continued to fear for

his safety, and in January 2007 he left Puerto Rico due to these

safety concerns.

The police commenced an investigation of the carjacking,

and in connection therewith interviewed Gonzalez-Melendez. In the

interview, Gonzalez-Melendez implicated his accomplices and made no

secret of his anger and resentment that Grotheer was selected to

fill the production manager position. In the course of this

dialogue, Gonzalez-Melendez admitted that he hoped that Grotheer

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would suffer physical harm, which would induce him to leave Puerto

Rico.

In due course, a grand jury indicted the appellant on one

count of aiding and abetting a carjacking in violation of 18 U.S.C.

§ 2119 (1) and (2), and one count of using a firearm during and in

relation to a carjacking (which is a crime of violence), in

violation of 18 U.S.C. § 924(c).

The case proceeded to trial, during which Gonzalez-

Melendez lodged challenges to several of the district court's

rulings, including a challenge to the court's conduct of jury

selection. In addition, the defendant challenged the district

court's evidentiary rulings with respect to certain out-of-court

statements testified to by both Grotheer and Evans. Relatedly,

Gonzalez-Melendez asserted that he was entitled to discovery of

certain prior out-of-court statements that Evans had made to the

FBI, which were allegedly recorded on an FD-302 Form. Finally, the

appellant objected to the district court's handling of the first of

several notes the jury sent the judge. Specifically, Gonzalez-

Melendez contended that no attempt was made to inform him of this

note, and that, in violation of Rule 43 of the Federal Rules of

Criminal Procedure he was given no opportunity to argue for a

proposed response.

The jury convicted Gonzalez-Melendez as to the carjacking

count, but acquitted him as to the firearms count. After the

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preparation of a pre-sentence report and the submission of

sentencing memoranda and supporting documents, the district court

imposed a sentence of 121 months, which was the lowest sentence

within the Guidelines range, along with a term of three years'

supervised release. During the course of sentencing, the appellant

was not afforded an opportunity to allocute or a functionally

equivalent opportunity to address the court directly and advocate

for an appropriate sentence.

This timely appeal followed. In our initial

consideration of the case, we noted that the government conceded

that the district court had not conducted an independent review of

the FD-302 Form, and we remanded the case to permit the district

court to conduct such a review. See Gonzalez-Melendez I, 570 F.3d

at 2-3. Since a remand was already required to resolve the Jencks

Act issue, we also invited the district court to augment the record

with regard to its handling of the first jury note. See id. at 3.

On remand, the district court ordered the FD-302 Form

disclosed to appellant's trial and appellate counsel. In addition,

the court clarified that its recollection was that it had

independently reviewed the 302 Form and concluded that the 302 Form

was not a discoverable "statement," within the meaning of the

Jencks Act, 18 U.S.C. § 3500. In response to a request from the

defendant, on August 7, 2009, the district court held a hearing at

which the FBI agent who prepared the 302 Form at issue testified

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that he did not record or transcribe Evans's statement, nor did

Evans sign or adopt either the agent's notes or the 302. Based on

this testimony and its own recollection, the district court

concluded that the 302 Form was not Jencks material.

In addition, in its July 7, 2009 submission to us, the

district court explained its recollection of its handling of the

first jury note. 2 According to the district court, consistent with

its routine practice, as well as the contemporaneously-produced

Minutes of Proceedings, it discussed the jury note with counsel and

provided the jury with copies of the indictment and the charge.

II. Challenge to Jury Selection

With these additions to the record, we now address all

remaining issues in the appeal, beginning with appellant's

challenges to the conduct of jury selection.

In this case, the district court employed the so-called

"blind strike" method of jury selection. Under this method, both

parties simultaneously, rather than in alternating strikes,

exercise their peremptory challenges and thus do not know which

jurors the other has struck. E.g., United States v. Bermudez, 529

F.3d 158, 163-64 (2d Cir. 2008), cert. denied, 129 S. Ct. 956

(2009). The Rules of Criminal Procedure provide that ordinarily a

2
In this note, the jury requested copies of the indictment and
the court's instructions of law, as well as an explanation of an
unspecified issue from the district court. See Gonzalez-Melendez
I, 570 F.3d at 3.

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defendant in a non-capital felony case is entitled to ten

peremptory challenges, and the prosecution is entitled to six. Id.

at 164 (citing Fed. R. Crim. P. 24(b)(2)); see also United States

v. Brown, 510 F.3d 57, 72 n.12 (1st Cir. 2007). Should the

district court choose to seat any alternate jurors, see Fed. R.

Crim. P. 24(c)(1), the rules require that each party be given

additional peremptory challenges. Fed. R. Crim. P. 24(c)(4).

These additional peremptory challenges may only be exercised on

alternate jurors. Id.; United States v. Brown, 510 F.3d 57, 72

(1st Cir. 2007). To ensure this, the district court is required to

designate the alternate jurors at voir dire. Brown, 510 F.3d at

72.

Here, the district court chose to seat two alternate

jurors. Consistent with Rule 24(c)(4)(A), it awarded each party an

additional peremptory challenge. See Rule 24(c)(4)(A) (providing

that each party is entitled to "One Additional peremptory

challenge" when the court empanels two alternates). This gave the

defense a total of eleven peremptory challenges (ten from Rule

24(b)(2) and one from Rule 24(c)(4)(A)), and the government seven

(six from Rule 24(b)(2) and one from Rule 24(c)(4)(A)).

At voir dire, however, the court did not designate which

jurors would be alternates. Instead, it allowed each side to

exercise their peremptory strikes against an undesignated pool of

jurors. The defendant argues that this jury selection procedure

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violated Rule 24(c)'s explicit command that the additional

peremptory challenge conferred by that Rule be used only to strike

alternate jurors, and consequently, impaired his exercise of his

peremptory challenges. Our review of this argument, preserved

below, is de novo, see United States v. Gonzalez-Velez, 466 F.3d

27, 39 (1st Cir. 2006).

The district court erred when it failed to designate the

alternate jurors at voir dire. "The mandate in Rule 24(c)(4) that

'additional challenges may be used only to remove alternate jurors'

implies that these alternates must be designated at voir dire, when

the parties still have the opportunity to use peremptory challenges

to remove potential jurors . . . ." Brown, 510 F.3d at 72; United

States v. Flaherty, 668 F.2d 566, 601 (1st Cir. 1981); see also

United States v. Brewer, 199 F.3d 1283, 1287 (11th Cir. 2000);

United States v. Love, 134 F.3d 595, 601 (4th Cir. 1998).

Gonzalez-Melendez argues that this error requires

automatic reversal. He relies upon our decision in United States

v. Vargas, in which we said that "[t]he denial or impairment of the

right [to exercise peremptory challenges] is reversible error

without a showing or prejudice." 606 F.2d 341, 346 (1st Cir. 1979)

(quoting Swain v. Alabama, 380 U.S. 202, 219 (1965)). In recent

years, however, the Supreme Court has disavowed the sort of

reasoning used in Vargas and has indicated that mistaken denials of

peremptory challenges do not ordinarily warrant automatic reversal.

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See Rivera v. Illinois, 129 S. Ct. 1446, 1455 (2009); United States

v. Martinez-Salazar, 528 U.S. 304, 317 n.4 (2000). Instead, we

must ask whether the Rule 24(c)(4) error affected Gonzalez-

Melendez's substantial rights. Fed. R. Crim. P. 52(a). Under that

approach, we deem non-constitutional errors to be harmless when "it

is highly probable that the error did not influence the verdict."

United States v. Pakala, 568 F.3d 47, 52 (1st Cir. 2009) (quoting

United States v. García-Morales, 382 F.3d 12, 17 (1st Cir. 2004)).

On two previous occasions, we have held that a violation

of Rule 24(c) did not affect the defendant's substantial rights.

Brown, 510 F.3d at 72; Flaherty, 668 F.2d at 601. In both of these

decisions, we expressed skepticism about the prejudicial impact of

a Rule 24(c) violation. Brown, 510 F.3d at 73 ("[W]hile we regret

the district court's failure to follow the rule, we cannot imagine

how Brown's substantial rights could possibly have been

prejudiced."); Flaherty, 510 F.3d at 73 ("Despite the clear

transgression of the rule, we do not perceive how defendants'

exercise of their peremptory challenges was curtailed in any way.

. . We do not think that combining the regular and alternate

challenges amounts to a violation of defendants' substantial rights

. . . ."). Gonzalez-Melendez, however, distinguishes Brown and

Flaherty. Unlike in those cases, he observes, in this case an

alternate juror was actually seated. Thus, he claims, prejudice is

readily apparent in his case.

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 We do not see how that conclusion follows. It is not

evident that the composition of the jury would have differed had

the district court adhered to Rule 24(c)(4). Moreover, even if a

different venire member would have been selected as the alternate

juror, there is no basis in the record for concluding that the

alteration in jury composition had an injurious influence on the

verdict. Therefore, we conclude that the court's error was

harmless.

III. Evidentiary Objections

We turn next to the appellant's evidentiary objections.

Specifically, he argues that the testimony of Evans and Grotheer

regarding a threatening voice message Grotheer received should have

been excluded as hearsay or as unduly prejudicial given its limited

probative value under Rule 403. A district court's evidentiary

rulings, particularly those made pursuant to Rule 403, are due

considerable deference. United States v. Wyatt, 561 F.3d 49, 53 &

n.3 (1st Cir.), cert. denied, 129 S. Ct. 2818 (2009) (citation

omitted); Foster-Miller, Inc. v. Babcock & Wilcox Can., 210 F.3d 1,

7-8 (1st Cir. 2000).

We begin with the hearsay argument. In a single sentence

of his brief, Gonzalez-Melendez asserts that "[t]he testimony of

Lawrence Evans concerning the phone calls made to Kevin [Grotheer]

outside of his presence was not only hearsay but objectionable

under Fed. R. Evid. 403 since their probative value was outweighed

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by the improper prejudice caused." Aside from this, the appellant

makes no further argument about hearsay; he does not explain

whether Evan's testimony was offered for its truth, offered to show

its effect on the speaker, or was subject to any of the exceptions

or exclusions to the hearsay rule. Indeed, Gonzalez-Melendez does

not so much as cite to the relevant Rule of Evidence. In these

circumstances, the appellant's hearsay argument, which does not

explain why Evans's testimony was hearsay, lacks sufficient

developed argumentation and is therefore waived. United States v.

Cruz-Rodriguez, 541 F.3d 19, 30 (1st Cir. 2008), cert. denied, 129

S. Ct. 1017 (2009) (citing United States v. Zannino, 895 F.2d 1, 17

(1st Cir. 1990)).

The appellant's remaining evidentiary argument is that the

testimony about the voice mail was unduly prejudicial in light of

its limited probative value. When testifying about the voice mail,

neither Evans nor Grotheer identified who left the voice mail.

Accordingly, the appellant now claims that this testimony left the

jury to speculate that the appellant was somehow responsible for the

threatening voice mail.

Even assuming that the court erred in admitting the

testimony, any error was harmless. See Fed. R. Crim. P. 52(a). 3

3
Although we are treating the appellant's 403 argument as
preserved, a strong argument could be made that it was not. A
review of the record indicates that appellant's counsel did not
object to either of the witness' testimony on 403 grounds. See
United States v. Henderson, 320 F.3d 92, 102 (1st Cir. 2003) ("If

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The government presented ample evidence regarding the appellant's

animus towards Grotheer. The jury heard testimony that Gonzalez-

Melendez resented Grotheer's selection as production manager, that

he had a hostile relationship with Grotheer and other co-workers,

that he had expressed a desire to harm Grotheer, and that he hatched

a plan to carjack Grotheer with his accomplices. Under these

circumstances, we do not believe that evidence of this voice mail

affected the outcome of the trial, and therefore any error was

harmless. See United States v. Adams, 375 F.3d 108, 113 (1st Cir.

2004) ("Even if we found a violation of Rule 403, we would regard

any error as harmless because the evidentiary ruling could not have

affected the outcome."); see also United States v. Mangual-Santiago,

562 F.3d 411, 426 (1st Cir. 2009).

IV. Jencks Act Violation

On remand, the district court ordered that the appellant's

trial and appellate counsel be furnished with copies of the FD-302

Form that contained alleged "statements" of Lawrence Evans, which

purportedly should have been disclosed pursuant to the Jencks Act,

18 U.S.C. § 3500. The district court directed the defendant's

counsel to "specify docket entries or trial transcripts relevant to

the [Jencks Act] issue." Gonzalez-Melendez identified relevant

testimony, but declined to argue the matter because we retained

a new basis for objection is raised for the first time on appeal,
the ground is not subject to harmless error review, and may only be
reviewed for plain error.").

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appellate jurisdiction over the case. Based on the information

before it, the district court concluded that no Jencks Act violation

occurred. In response to the appellant's objection to this

conclusion, the district court held a hearing to examine this issue

in greater detail.

At the hearing, the district court heard testimony from

Special Agent Rubén A. Marchand-Morales, the FBI agent who prepared

the FD-302 Form, as we had suggested in our remand order. Morales

testified that he did not record or transcribe Evans's oral

statement. Rather, Morales testified that he took notes on small

scraps of paper, on which he relied to create the FD-302 Form.

Morales further clarified that Evans neither signed nor adopted

either the 302 or the notes. Based on this testimony, the district

court reaffirmed its conclusion that the FD-302 form was not a

"written statement of a witness," within the meaning of 18 U.S.C.

§ 3500(e)(1), and further found that the 302 was not a

"substantially verbatim recital of an oral statement made by a

witness," within the meaning of 18 U.S.C. § 3500(e)(2). See

Gonzalez-Melendez I, 570 F.3d at 3-4.

Review of a district court's Jencks Act determination

typically is considered to be for abuse of discretion. See United

States v. Femia, 57 F.3d 43, 45 (1st Cir. 1995) (citing United

States v. Foley, 871 F.2d 235, 239 (1st Cir. 1989)). When a

district court's decision is reviewed for abuse of discretion,

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underlying legal conclusions are reviewed de novo and findings of

fact for clear error. See, e.g., United States v. Aviles-Sierra,

531 F.3d 123, 126 (1st Cir. 2008); United States v. Guerrier, 428

F.3d 76, 79 n.1 (1st Cir. 2005). We will not find clear error

unless, after reviewing all of the evidence, we are "left with the

definite and firm conviction that a mistake has been committed."

United States v. Arbour, 559 F.3d 50, 53 (1st Cir. 2009).

We cannot say that the district court's conclusion is

clearly erroneous. To begin, there are questions as to whether the

FD-302 form was a "substantially verbatim recital of an oral

statement made by a witness" within the meaning of 18 U.S.C. §

3500(e)(2). Although the appellant points out that Morales

acknowledged that the FD-302 form was a "detailed report" that

contained 99% of what Evans told him, Morales specifically denied

that the FD-302 was a substantially verbatim recital of Evans's oral

statement and instead called it a summary. Morales's

characterization of the FD-302 is buttressed by the manner of

transcription he employed when interviewing Evans. Morales took

notes on small scraps of paper, relying on those scraps to compile

the FD-302 form. This somewhat scattered manner of transcription

puts into further doubt whether Evans's statement was captured

"substantially verbatim."

And it is even more unclear whether the FD-302 form is

discoverable under subsection (e)(1) of 18 U.S.C. § 3500. For the

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form to be discoverable under this subsection, Evans would have

needed to "adopt" or "approve" the statement he gave to Morales.

Although Morales testified that he "repeated some of the points of

the interview to [Evans]," there is nothing in the record that

suggests that Evans then adopted or approved of these points.

Goldberg v. United States, 425 U.S. 94, 110 (1976) (noting, when

remanding the case to the district court for a determination under

the Jencks Act, that "it will be necessary to determine whether the

prosecutors' notes were actually read back to Newman and whether he

adopted or approved them.") (emphasis added)); see also United

States v. Marrero-Ortiz, 160 F.3d 768, 776 (1st Cir. 1998) ("A

written summary of a witness is not a statement unless the evidence

shows that the witness adopted the notes, a phenomenon that would

occur, for example, if 'the interviewer read the statement back to

the witness and . . . the witness approved the statement.'")

(quoting United States v. Gonzalez-Sanchez, 825 F.2d 572, 586 (1st

Cir. 1987)). Gonzalez-Melendez has not argued that Evans adopted

the notes, and, on this record, we cannot say with requisite

certainty that the district court erred when finding that the 302

Form fell outside the scope of the Jencks Act. As a result, we

affirm the district court's conclusion. 4

4
Because we affirm the district court's conclusion that the
Form was not discoverable under the Jencks Act, we have no reason
to apply the especially rigorous form of harmless error review that
is required when Jencks Act material was not disclosed. See
Gonzalez-Melendez I, 570 F.3d at 5 (citing Goldberg, 425 U.S. at

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 V. Jury Note

The final trial-related challenge advanced by Gonzalez-

Melendez relates to the district court's handling of the jury's

first note. This note requested copies of the indictment and the

instructions and concluded with the ambiguous phrase "please

explain." On appeal, the defendant asserted, and the government

conceded, that the district court never informed the parties of this

note and its response to it.

Although we would not do so in the ordinary course, we

invited the district court to augment the record with respect to the

first jury note because a remand was required in any event for a

determination of the Jencks Act issue. Gonzalez-Melendez I, 570

F.3d at 3. On remand, the district court explained that its routine

practice is to provide the jury with copies of the indictment and

instructions, and cited to contemporaneously-produced Minutes of

Proceedings, which suggested that the first jury note was discussed

with counsel for both sides.

We have previously held that "[a] district court's failure

to attempt to inform defense counsel about the existence of a jury

note, and further failure to solicit defense council's input

regarding any response to such a note, violates Rule 43 of the

Federal Rules of Criminal Procedure." Gonzalez-Melendez I, 570 F.3d

at 3 (citing United States v. Ofray-Campos, 534 F.3d 1, 17 (1st

111 n.21).

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Cir.), cert. denied, 129 S. Ct. 588 (2008)). Here, although the

record contains contradictory indications, and the district court's

handling of the note did not comport with the preferred practice we

have articulated for handling notes from the jury, see Ofray-Campos,

534 F.3d at 18 (citing United States v. Maraj, 947 F.2d 520, 525

(1st Cir. 1991)), it appears likely that the defendant was informed

of the note, and the district court's response to the note was

proper. Cf. Cipes v. Mikasa, Inc., 439 F.3d 52, 56-57 (1st Cir.

2006) (explaining that judicial proceedings enjoy a presumption of

regularity and dismissing claim that district court misrepresented

contents of jury note) (citing Oulette v. United States, 852 F.2d

371, 374 (1st Cir. 1988))). Withal, any error the district court

may have made with respect to the first jury note was harmless. 5

See Cipes, 439 F.3d at 56 (noting that district court's failure to

follow prescribed procedure for handling jury note engenders

harmless error review); Maraj, 947 F.2d at 526.

5
We can be sure of the harmlessness of this error because the
note, received at the beginning of deliberations, did not suggest
that the jury suffered from substantial confusion or needed
explanation of any specific topic. Moreover, the jury continued to
deliberate and request additional materials and clarification.
Indeed, the jury sent the judge two more notes before eventually
reaching a verdict. Thus, it is likely that the jury's need for an
explanation, and any consequent jury confusion, dissipated before
it rendered a verdict. Therefore, the appellant suffered no
prejudice.

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 VI. Cumulative Error

Before we will affirm the conviction in this case, we must

be satisfied that the combination of the asserted errors, none of

which individually requires reversal, did not disfigure the

proceedings so significantly as to undermine our confidence that the

defendant received a fair trial. See United States v. Sepulveda,

15 F.3d 1161, 1195-96 (1st Cir. 1993) ("Individual errors,

insufficient in themselves to necessitate a new trial, may in the

aggregate have a more debilitating effect.") (citations omitted).

In considering a claim of cumulative error, we look to the impact

of a number of variables, such as the nature and number of the

errors, their interrelationship, if any, how the district court

dealt with the errors as they arose, the length of the trial, and

the strength of the government's case. Id. at 1196.

Here, although the district court allegedly committed

several errors with respect to jury selection, its handling of

evidentiary objections, and its handling of the jury note, these

alleged errors were all relatively benign. Moreover, the alleged

errors were generally not related to one another, which tends to

lessen our concern that the effect of any error was compounded.

Accordingly, we are satisfied that the appellant's

conviction need not be disturbed based on any of the individual

errors that he has assigned, and that these errors cumulatively do

not compel a different outcome.

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 VII. Sentencing Challenge

Having satisfied ourselves that the appellant's conviction

is sound, we turn to the sentence. Here, we find no similar

comfort. The appellant's primary contention on appeal is that he

was denied his opportunity to address the court directly and be

heard prior to sentencing. The Rules of Criminal Procedure

guarantee this right, see Fed. R. Crim. P. 32(i)(4)(A)(ii), 6 which

has long been accorded special importance at common law. See United

States v. Behrens, 375 U.S. 162, 165 (1963) (recognizing right of

allocution as "ancient in law" and codified in Rule 32); United

Sates v. De Alba Pagan, 33 F.3d 125, 129 (1st Cir. 1994). Though

such circumstances will be "few and far between," with "doubts

resolved in the defendant's favor," where the totality of the

circumstances "clearly and convincingly" show that the defendant was

afforded the right address the court on any subject of his choosing

prior to the imposition of his sentence, a sentence will stand even

in the absence of specific compliance with the imperative of Rule

32. Id. (citing Green v. United States, 365 U.S. 301, 304-05

(1961)); see also United States v. Mescual-Cruz, 387 F.3d 1, 11 (1st

Cir. 2004).

6
The text of Rule 32 provides in pertinent part that "[b]efore
imposing sentence, the court must: . . . address the defendant
personally in order to permit the defendant to speak or present any
information to mitigate the sentence." Fed. R. Crim. P.
32(i)(4)(A)(ii).

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 In the present case, the district court transgressed the

specific provision of Rule 32(i)(4)(A)(ii) by not inviting the

defendant to speak. The appellant argues that although the

transcript reveals that his counsel was permitted to address the

court, there is no indication -- let alone the powerful indication

required under our precedent -- that he was afforded the functional

equivalent of allocution. The government agrees.

Where a defendant has been denied the right to allocute,

this error can almost never be regarded as harmless. De Alba Pagan,

33 F.3d at 129-30 ("[W]e cannot dismiss the error as harmless. As

early as 1689, the common law acknowledged that a court's failure

to invite a defendant to speak before sentencing required reversal

. . . . It is settled that a failure to comply with the mandate of

Rule 32[(i)(4)(A)(ii)] ordinarily requires vacation of the sentence

imposed without a concomitant inquiry into prejudice."). Instead,

this error irremediably poisons the sentence and requires that the

proceedings be held afresh. See Mescual-Cruz, 387 F.3d at 11. When

the sentencing guidelines were still mandatory, some courts held

that a failure to permit allocution could be considered harmless

where the defendant's sentence was "already as short as it could

possibly be under the [Sentencing] Guidelines," United States v.

Carper, 24 F.3d 1157, 1162 (9th Cir. 1994). Post-Booker, this

suggestion has less force because the defendant's presentation may

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convince the court to craft a non-guidelines sentence. Accordingly,

we remand this case for re-sentencing. 7

VIII. Conclusion

Because we are satisfied that appellant's conviction

suffered from no prejudicial errors, it is affirmed. But because

Gonzales-Melendez was not afforded his right of allocution, his

sentence is vacated and the matter is remanded to the district court

for further proceedings consistent with this opinion.

7
Because we remand this case for re-sentencing, we need not
take up the appellant's remaining sentencing arguments, and note
that he is not precluded from seeking a non-guidelines sentence
during re-sentencing. See De Alba Pagan, 33 F.3d at 130 n.6.

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