Revised August 24, 1998

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-30316

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

VERSUS

MERRICK D. MYERS,

also known as Merrick Myers,

Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

August 6, 1998

Before POLITZ, Chief Judge, and DAVIS and DUHÉ, Circuit Judges.

JOHN M. DUHÉ, JR., Circuit Judge:

In this case we address whether a district court’s failure to

comply wi t h F ED .R.C RIM .P. 32(c)(3)(C), which requires the court

d uring sentencing to address the defendant personally and to

determine whether the defendant has any stateme nt to make or

information to present in mitigation of his sentence, is amenable

to a harmless error analysis. We find that it is not, and we

therefore reverse and remand for resentencing.1 Perhaps skeptical of the validity of Myers’s appeal waiver, the

government has specifically waived any reliance on it here. See,

e.g.

, U.S. v. Baty

, 980 F.2d 977, 979 (5th Cir. 1992)(“[A]

defendant’s waiver of her right to appeal deserves and, indeed,

requires the special attention of the district court.”). We thus

need not decide whether Myers’s instant appeal would fall within

the scope of the waiver.

2 BACKGROUND

Merrick Myers (“Myers”) pled guilty to conspiracy to

distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and

846 . Myers’s Presentence Report indicated that he cooked powder

cocaine into crack for his brother and arranged and conducted drug

transactions at a New Orleans apartment in March and April, 1995.

When FBI agents searched that apartment on May 1, 1995, they found

a loaded semi-automatic rifle under Myers’s bed.

In connection with his guilty plea, Myers “expressly waiv[ed]

the right to appeal his sentence on any ground,” subject to

narrowly specified exceptions. At the plea hearing on August 10,

1995, the district court asked Myers whether he had entered into

any plea agreement with the government. Myers stated that he had

not; then he stated that he had. Myers then reviewed the plea

agreement and con firmed that it represented his bargain with the

government. Notwithstanding the appeal waiver contained in the

plea agree ment, however, at the sentencing hearing on March 20,

1996, the district judge asked Myers: “[D]o you understand you

have the right to appeal the sentence I’m about to impose?”

(Emphasis added). Myers responded that he did. 13

Based on the amount of crack involved (17 grams), Myers’s base

offense level was 26. U.S. S E NTENCING G UIDELINES M ANUAL (“U.S.S.G.”),

§ 2D1.1(c)(1995). Myers received a two-level increase because he

had possessed a firearm during the drug-trafficking conspiracy ( see

U.S.S.G. § 2D1.1(b)(1)), but also received a three-level decrease

for acceptance of responsibility ( see U.S.S.G. § 3E1.1(a) and (b)),

making his total offense level 25. Myers had no criminal history

points, placing him in criminal history category I and establishing

a sentencing range of 57 to 71 months. S ee U.S.S.G. Chapter 5, Pt.

A (Sentencing Table). Myers’s offense, however, carried a

statutory minimum s entence of 5 years. 21 U.S.C. §§ 846 and

841(a)(1).

Prior to sentencing, the government moved for a downward

departure in Myers’s sentence, pursuant to U.S.S.G. § 5K1.1. The

court denied the motion with the following strong language:

... I am not granting the [5K] motions,

because I think the recommendations by the

U.S. Attorney’s Office to put dangerous drug

dealers back into our community after serving

reduced sentences are a disgrace to the

judicial system. I think it’s a serious

problem in this case. This is a very serious

group of drug dealers.

* * * * *

Because your participation in this drug

dealing has ruin ed your community and it is

ruining our cit y and it must stop, and the

only way to stop it is to put the drug dealers

in jail. That’s what we’re doing. All right?

And you can help us do that, and you’ve helped

to some extent, and if you contin ue to help,

then maybe the community will be saved.4 But, at t his point I’m not honoring the 5K

reductions, which were grossly

disproportionate and I think a disgrace.

The court went on to overrule Myers’s objections to the two-level

enhancement for possession of a firearm and to deny his request for

a two-level decrease for being a “minor player” in the conspiracy.

See U.S.S.G. § 3B 1.2. Finally, the court ruled that Myers could

not benefit from the “safety valve” provision of U.S.S.G. § 5C1.2,

because Myers had “possess[ed] a firearm

... in connection with the

offense.” S ee U.S.S.G. § 5C1.2(2). The court then sentenced Myers

to the statutory minimum of 5 years.

DISCUSSION

I.

Rule 32(c)(3)(C) of the Feder al Rules of Criminal Procedure

states that the court must , before imposing sentence,

address the defendant personally and determine

whether the defendant wishes to make a

statement and to present any information in

mitigation of the sentence.

F ED .R.C RIM .P. 32(c)(3)(C)(West 1998). Myers contends he was denied

this statutory right to speak “in mitigation of the sentence,” and,

furthermore, that such an error is not harmless and necessitates

remand. Myers posits that, had he been allowed to speak on his own

behalf, he “may have been able to persuade the court ” either to

grant the government’s § 5K1.1 motion or to change its mind

regarding the firearm enhancement.

A.5

Initially, we must decide whether Myers was, in fact, denied

the so-called “right of allocution” secured him by R ule 32. We

review de novo whether a district court complied with a Federal

Rule of Criminal Procedure. U .S. v. Scott

, 987 F.2d 261, 264 (5th

Cir. 1993). The government contends that Myers was indeed afforded

his allocution rights because (1) t he court invited Myers to

explain why the firearm enhancement should not apply, and (2)

through defense counsel

, Myers was able to argue that he had

cooperated with the government and that he was a minor participant

in the conspiracy. Further, the government contends that a remand

is, in any case, not warranted since Myers received the lowest

sentence possible. We reject the government’s arguments as

meritless.

First, we observe that thirty-seve n years ago the Supreme

Court, in Green v. United States

, 365 U.S. 301 (1961), rejected the

a rgument that a defendant’s right of allocution may be satisfied

through his counsel. In Green the Court stated:

The most persuasive counsel may not be able to

speak for a defendant as the defendant might,

with halting eloquence, speak for himself. We

are buttressed in this conclusion by the fact

that the Rule explicitly affords the defendant

two rights: “to make a statement on his own

behalf,” and “to present any information in

mitigation of his sentence.” We therefore

reject the Government’s contention that merely

affording defendant’s counsel the opportunity2 The su b stance of present Rule 32(c)(3)(C) appeared in

F ED .R.C RIM .P. 32(a)(1)(C) prior to amendment by Pub.L. 98-473, eff.

Nov. 1, 1987. S ee F ED .R.C RIM .P. 32 (West 1998)(Rule Applicable to

Offenses Committed Prior to Nov. 1, 1987).

3 To comply with Rule 32, “it is not enough that the sentencing

court addresses a defendant on a particular issue, affords counsel

the right to speak, or hears the defendant’s specific objections to

th e presentence report.” D e Alba Pagan

, 33 F.3d at 129, citing

, inter alia

, U.S. v. Posner

, 868 F.2d 720, 724 (5th Cir. 1989)(other

citations omitted).

6

to speak fulfills the dual role of Rule 32(a). 2

Green , 365 U.S. at 304. As the Supreme Court recognized, Rule 32

envisions a personal colloquy between the sentencing judge and the

defendant. S ee U.S. v. Anderson

, 987 F.2d 251, 261 (5th Cir.

1993); U .S. v. Dominguez-Hernandez

, 934 F.2d 598, 599 (5th Ci r

.

1991). The arguments of Myers’s counsel therefore did not satisfy

Rule 32.

Second, the court’s two questions to Myers regarding the

firea rm enhancement were patently inadequate to meet the plain

requirements of Rule 32. By its own terms, Rule 32 mandates that

a defendant be given the opportunity “to make a statement and []

present any information in mitigation of sentence.” F E D .R.C RIM .P.

32(c)(3)(C)(emphasis added). The court questioned Myers merely to

confirm that there was a factual basis for the firearm enhancement.

Those inquiries were not even an arguable attempt to give Myers the

broad-ranging opportunity to speak embodied in Rule 32. S ee, e.g.

,

U.S. v. Sparrow

, 673 F.2d 862, 864 (5th Cir. 1982); see also

, U.S.

v. De Alba Pagan , 33 F.3d 125, 129 (1st Cir. 1994). 34 The Court, by a 5 to 4 majority, held that Green had, in fact,

b een afforded his right of allocution. G reen

, 365 U.S. at 305.

Justice Stewart concurred in the judgment of the Court, but

believed that Rule 32(a) did not “clearly

... require a district

judge in every case to volunteer to the defendant an opportunity

personally to make a statement, when the defendant has a lawyer at

his side who speaks fully on his behalf.” Green , 365 U.S. at 306

(Stewart, J., concurring). It bears noting, however, that Justice

Stewart was the only member of the Green Court who read Rule 32(a)

thus. The eight other Justices all read Rule 32(a) as commanding

a district judge to give a defendant an opportunity to speak

personally in mitigation of his sentence. See Green , 365 U.S. at

304 (Harlan, J., joined by Frankfurter , Clark & Whittaker, JJ.),

and 365 U.S. at 307 (Black, J., joined by Warren, C.J., and Douglas

& Brenna n, JJ., dissenting). The four dissenting Justices

concluded, contra ry to the majority, that Green had not been

adequately afforded his Rule 32(a) rights. S ee Green

, 365 U.S. at

307-08 (Black, J., dissenting).

7 We also reject the government’s assertion that, because Myers

received the lowest sentence possible, a remand for resentencing

would be a useless act. We pretermit discussion of that issue,

however, until the next section. See discussion infra Part I.B.

In sum, in order to satisfy the command of Rule 32(c)(3)(C),

the court, the prosecutor, and the defendant

must at the very least interact in a manner

that shows clearly and convincingly that the

defendant knew he had a right to speak on any

subject of his choosing prior to the

imposition of sentence.

De A lba Pagan , 33 F.3d at 129, c iting Green

, 365 U.S. at 304-05.

Buttressed by our own independent review of the record, we reject

the government’s claim that Myers was afforded his Rule 32 right of

allocution.

B.

We now must turn to a question left undecided 4 by the Supreme5 The gov e rnment consistently maintains that Myers was in fact

afforded his allocution rights. At no time does the government

explicitly offer the alternative argument that, if Myers had been

denied allocution, then the error would in any case have been

harmless and a remand unnecessary. Confusingly, however, the

government goes on to argue that a remand would be useless because

Myers already received the lowest sentence possible. That argument

makes sense only if we assume that Myers was not given the

opportunity to speak in mitigation of sentence. Further clouding

its argument, the government then cites us to two cases, U.S. v.

Cole , 27 F.3d 996, 998-99 (4th Cir. 1994), and U.S. v. DominguezHernandez

, 934 F.2d 598, 599 (5th Cir. 1991), in which the

defendants were denied their allocution rights. In sum, because of

the internal inconsistency in the government’s presentation of its

argument, we are constrained to say that the government

“implicitly” advocates a harmless error app roach to the Rule 32

error.

8 Court in Green : whether denial of a defendant’s Rule 32 right of

allocution requir es an automatic reversal and remand for

resentencing, or whether such an error can be deemed “harmless” if

the record s hows that, regardless what the defendant might have

said in his own behalf, the court would not have imposed a lower

sentence. The government implicitly 5 contends that a harmless

error analysis should apply when it urges that “remand is not

warranted because there is no possibility that a lower sentence

would have been imposed by the district court.” Citing our

decision in Dominguez-Hernandez

, the government maintains that

remanding Myers’s c ase for resentencing would therefore be a

“useless bow to procedural nicety.” D ominguez-Hernandez

, 934 F.2d

at 599.

The government misconstrues Dominguez-Hernandez

, a case that,

we must obs erve, entirely refutes the government’s position. In6 “Even if what Sparrow intended to say would not influence the

judge, under Rule 32 the District Court is required to address the

defendant personally, an obligation that it failed to comply with

in this case.” Id

.

9 Dominguez-Hernandez

, we reaffirmed the settled principle that “[i]f

the district court fails to provide the [Rule 32] right of

allocution, resentencing is required .” D ominguez-Hernandez

, 934

F.2d at 599, citing U.S. v. Posner

, 868 F.2d 720, 724 (5th Cir.

1989)(emphasis added). We remanded for resentencing even though

the defendant (1) had not raised the error to the district court,

and (2) did not even assert that, on resentencing, he wished to

exercise his right of allocution. D ominguez-Hernandez

, 934 F.2d at

599. It was in view of the latter point in particular that we

observed remand could “well be a useless bow to procedural nicety.”

Id

. Nonetheless, we found that failure to afford the defendant his

allocution rights nece ssitated r emand; our precedents dictated,

and continue to dictate, such a res ult. S ee, e.g.

, U.S. v.

Anderson , 987 F.2d 251, 261 (5th Cir. 1993); U.S. v. Sparrow , 673

F.2d 862, 864-65 (5th Cir. 1982).

Because it is apposite to Myers’s case, we add that a remand

is necessary even when the judge’s comments, at the sentencing

hearing or elsewhere, indicate that the judge would remain unmoved

in the face of anything the defendant has to say. S ee Sparrow

, 673

F.2d at 865. 6 The right of allocution embodied in Rule 32 does not

exist merely to give a convicted defendant one last-ditch7 Thus, this case does not, as the government contends, present

the situation where M yers has received the “lowest sentence

possible.” The court, in its discretion, could have granted the §

5K1.1 motion and departed b eneath the statutory minimum. S ee

U.S.S.G. § 5K1.1, comment. (n.1) (“[S]ubstantial assistance in the

investigation or prosecution of another person who has committed an

10 opportunity to thro w himself on the mercy of the court. To be

sure, one important function of allocution is “to temper punishment

with mercy in appropriate cases, and to ensure that sentencing

reflects individualized circumstances.” D e Alba Pagan

, 33 F.3d at

129. But the practice of allowing a defendant to speak before

sentencin g

, which dates back as far as 1689 to the case of

Anonymous

, 3 Mod. 265, 266, 87 Eng.Rep. 175 (K.B. 1689), has

symbolic, in addition to functional, aspects. As a sister Circuit

has observed, “ [a]ncient in law, allocution is both a rite and a

right. ...[A]llocution has value in terms of maximizing the

perceived equity of the [sentencing] process.” De Alba Pagan , 33

F.3d at 129 (citations and internal quotes omitted). The right of

allocution, then, is one “deeply embedded in our jurisp rudence”;

both its longevity and its symbolic role in the sentencing process

counsel against application of a harmless er ror analysis in the

event of its denial. Id

.

M yers’s case illustrates why a remand would vindicate t h e

“perceived equity” of the proceedings and ensure that his

sentencing reflects his individual circumstances. The government

itself made a § 5K1.1 motion on Myers’s behalf, urging the court to

depart below the statutory mi nimum sentence, 7 on the grounds thatoffense may justify a sentence below a statutorily required minimum

sentence .”)(emphasis added).

8 The treatment of the Ru le 11 plea colloquy by the Rules of

Criminal Procedure sheds some light on the question before us.

Rule 11(h) explicitly applies harmless error analysis to any error

in the Rule 11 colloquy S ee F ED .R.C RIM .P. 11(h)(eff. Aug. 1, 1983).

Before its extensive revision in 1975, Rule 11 “required only a

brief procedure during which the chances of a minor, insignificant

11 Myers had played a minor role in the drug conspiracy and that he

had provided substantial assistance in it s prosecution. At oral

argument, counsel for the govern ment admitted that such motions

w ere not frequent and were usually honored by sentencing cour ts.

All that notwithstanding, the sentencing court harshly rebuked the

government for requesting a downward departure and refused to honor

its § 5K1.1 motion.

The district court was well within its discretion in rejecting

the § 5K1.1 motion and also, as we will below demonstrate, in

subjecting Myers to the firearm enhancement. S ee discussion infra

Part II. All we say, however, is that Myers should have been

invited to speak freely in his own behalf prior to sentencing. A

hypothetical observer to the proceedings, then, would have been

left with no doubt that Myers’s sentence reflected the sentencing

court’s considered judgment about the gravity o f his individual

par ticipation in the drug conspiracy. Such benefits, although

perhaps intangible, could have been bought at the relatively cheap

cost of complying with the simple, clear language of Rule

32(c)(3)(C)

. 8 As we have already observed, the burden of suchand inadvertent deviation were relativ ely slight.” F E D .R.C RIM .P.

11 advisory committee notes (1983 Amendme nt). Thus, the Supreme

Court held, in McCarthy v. U.S.

, 394 U.S. 459, 471 (1969), that

“prejudice inheres in a failure to comply with Rule 11" -- i.e.,

that a Rule 11 error could never be harmless error.

But given the “more elaborate and lengthy procedures” under the

post-1 975 Rule 11, the advisory committee believed that “the

chances of a truly harmless error

... are much greater under

present Rule 11 than under the version before the Court in

McCarthy .” F E D .R.C RIM .P. 11 advisory committee notes (1983

amendment). Rule 11(h) was inserted in 1983 to make explicit that

“[a]ny variance from t he procedures required by [Rule 11] which

does not affect substantial rights shall be disr egarded.”

F ED .R.C RIM .P. 11(h); s ee also U .S. v. Johnson , 1 F.3d 296, 302

(5th Cir. 1993)(en banc).

The present Rule 11 colloquy, then, involves relatively complex

and carefully delineated procedures. Rule 32 allocution, by

contrast, simply requir es a sentencing court to communicate

unequivocally to a defendant that he has the right to speak in his

behalf on any subject he wishes. As discussed above, it was the

complexity of the amended Rule 11 procedures which led the advisory

committee to apply harmless error analysis to all Rule 11 errors.

While the 1983 addition of Rule 11(h) does not conclusively

establish that a Rule 32 error is never “harmless,” the difference

in complexity between Rule 11 and Rule 32 procedures certainly

points in that direction.

The Rule 11 plea colloquy also serv es a different purpose than

the Rule 32 right of allocution. The safeguards of Rule 11 are

designed to ensure that a defendant who pleads guilty (1) has not

been coerced into doing so, (2) understands the nature of the

charges, and (3) understands the consequences of his plea. S ee

Johnson

, 1 F.3 d at 300. The Rule 32 right of allocution, by

contrast, is not concerned with the voluntariness of a defendant’s

plea; instead, as we have discussed above, the law allows a

defendant to speak person ally before sentencing to encourage a

court to tailor sentences to individual circumstances and also to

increase the “perceived equity” of the sentencing process. S ee De

Alba Pagan , 33 F.3d at 129.

We thus believe our en banc decision in Johnson

, supra , (where

we recognized that all Rule 11 errors

-- even those implicating socalled “core concerns”

-- were subject to harmless error analysis)

does not in any way call into question Sparrow or DominguezHernandez

, supra

.

12 compliance falls upon the sentencing co urt, and not upon the

convicted defendant. See Dominguez-Hernandez , 934 F.2d at 599.13

We recognize that our holding today puts us at odds with some

of our sister Circuits. For example, the Fourth, Sixth and Ninth

Circuits apply some variation of harmless error analysis to the

denial of a defendant’s Rule 32 allocution rights. S ee, e.g.

, U.S.

v. Cole

, 27 F.3d 996, 999 (4th Cir. 1994); U.S. v. Riascos-Suarez

,

73 F.3d 616, 627 (6th Cir.), cert. denied , 117 S.Ct 136 (1996);

U.S. v. Leasure , 122 F.3d 837, 840 (9th Cir. 1997), cert. denied

,

118 S.Ct. 731 (1998)

. On the other hand, the First Circuit, in D e

Alba Pagan

, sup ra , squarely held that such an error could not be

harmless. D e Alba Pagan

, 3 3 F.3d at 129; s ee also U.S. v.

Patterson

, 128 F.3d 1259, 1261 (8th Cir. 1997), citing U.S. v.

Walker , 896 F.2d 295, 301 (8th Cir. 1990).

As is evident from our opinion here, we believe the First

C ircuit’s approach to be more prudent. Besides vindicating the

policy conc erns embodied in Rule 32(c)(3)(C), s ee supra

, we also

note that a bright-line rule requiring remand will help to avoid

speculative exercises like the one performed by the Fourth Circuit

in Cole

, supra

. There, in determining that the district court’s

denia l of Cole’s right of allocution affected his “substantial

rights,” a panel of the Fourth Circuit hypothesized that Cole “may

have be en able to persuade the court that he was accountable for

less than the 6 grams of crack” attributable to him. C ole

, 27 F.3d

at 999. While the appellate court may have accurately forecasted

Cole’ s persuasiveness had he been able to plead his own cause at

sentencing, we prefer a rule which forecloses such chancy9 Regarding paragraph 44 of the PSR (the firearm enhancement), the

court only stated that it “adopt[ed] the remainder of the probation

officer’s recommendations as undisputed,” and, further, that “a two

level enhancement for possession of a firearm is appropriate and

that the Defendant is not entitled to the safety valve under

Guideline [§] 5C1.2(2).”

14 inquiries. We recognize that our Circuit’s rule will require the

occasional “vain and useless” act wherein a defendant is allowed,

on remand, to speak in his own behalf, only to receive an identical

sentence. We believe, however, that the benefits gained from such

an approach outweigh the costs -- costs that, we note in closing,

can be avoided by vigilant compliance with Rule 32.

II.

As stated above, Myers received a two-level enhancement under

U.S.S.G. § 2D1.1(b)(1) for possessing a firearm in the course of

the drug conspiracy. During the execution of a search warrant on

Myers’s residence, police found a loaded semi-automatic rifle under

Myers’s bed. Myers objected to the firearm enhancement because he

maintained he “had no knowledge of it being there.” The court

heard Myers’s objections but applied the enhancement anyway,

without making an explicit “finding” regarding Myers’s possession

of or knowledge about the rifle. 9 On appeal, Myers contends the

court erred by not making a specific factual finding, for example,

that Myers possessed the gun during the conspiracy and knew it was

under his bed. Since the error Myers complains of again regards10 “For eac h matter controverted [at sentencing], the court must

make either a finding on the allegation or a determination that no

finding is necessary because the controverted matter will not be

taken into account in, or will not affect, sentencing.”

F ED .R.C RIM .P. 32(c)(1).

11 Section 5C1.2(2) permits sentencing without regard to statutory

minima for certain offenses if the defendant meets five criteria,

one of which is that “the defendant did not ... possess a firearm

or other dangerous weapon

... in connection with the offense.”

U.S.S.G. § 5C1.2(2).

15 the application of F ED .R.C RIM .P. 32, 10 our review is de novo

. S cott

,

987 F.2d at 264.

We reject Myers’s argument. The district court’s adoption of

paragraph 44 of th e PSR was an implicit finding that Myers knew

about, and possessed, the rifle in the course of the conspiracy.

That part of the PSR re ferred to by the court provides us with a

sufficiently clear factual basis for the firearm enhancement. S ee

U.S. v. Carreon

, 11 F.3d 1225, 1231 (5th Cir. 1994). We therefore

affirm the two-level firearm enhancement and necessarily affirm the

district court’s finding that Myers was not eligible for the

“safety valve” provision of U.S.S.G. § 5C1.2(2). 11

CONCLUSION

For the foregoing reasons, we AFFIRM the d istrict court’s

application of the firearm enhancement, but we VACATE Myers’s

sentence because of the district court’s failure to accord Myers

his Rule 32 right of allocution. We must therefore REMAND FOR

RESENTENCING.

AFF IRMED IN PART; VACATED IN PART AND REMANDED FOR16

RESENTENCING.

ENDRECORD17

DAVIS, J. (specially concurring).

I agree with my colleagues that our precedents require us to

remand this case for resentencing because the Defendant was denied

his right to allocution before his sentence was imposed. Our cases

require a remand in this circumstance without regard to whether the

Defendant suffered prejudice. I write separately to observe that

in reaching this result, our decisions have completely ignored Rule

52 of the Rules of Criminal Procedure. Rule 52 states:

(a) Harmless Error. Any error, defect, irregularity or

variance which does not affect substantial rights

shall be disregarded.

(b) Plain Error. Plain errors or defects affecting

substantial rights may be noticed although they

were not brought to the attention of the court.

F ED

. R. C RIM

. P. 52.

Rule 52(a)

Under Rule 52(a), the government bears the burden of

persuasion to demonstrate that the court 's failure to allow

allocution was harmless error. U.S. v. Olano , 507 U.S. 725, 727-

729 (1993).

As my colleagues point out, it is theoretically possible that

the Defendant could have persuaded the judge to give him a

reduction in sentence for his cooperation pursuant to the

government's § 5K1.1 motion . However, the judge considered

counsel's argument on this issue and adamantly refused to grant18

this reduction. In addition, the Defendant gives us no insight

i nto what he would have told the judge to change her mind. In

light of the judge's strong feelings on the subject, I believe that

the likelihood that the Defendant could have persuaded the district

court to grant him a § 5K1.1 reduction is extremely remote. In the

absence of some concrete information that Myers planned to provide

the judge to ch ange her mind on the 5K1.1 reduction, I would

conclude that the failure to grant allocution was harmless error.

We need not rely on the harmless error standard of Rule 52(a),

however, because the plain error standard we are required to apply

under Rule 52(b) presents a much more compelling case for refusing

the remand.

Rule 52(b)

Neither Myers nor his attorney raised any obj ection in the

trial court to the district court's denial of his right of

allocution. In this day of longer, more complex sentencing

proceedings and extended exchanges between the court, counsel and

the Defendant, it is easier for a court to overlook allocution.

Rule 52, wisely in my view, requires us to review this unpreserved

error under the lens of plain error. As my colleagues note, some

of our cases may be read to exempt the right to allocution from the

strictures of Rule 52(b). I see no principled legal basis on which

these decisions can be supported.

The Supreme Court in Arizona v. Fulminante

, 499 U.S. 279, 306-

07 (1991), recognized that Rule 52 applies to a number of errors19

involving the denial of constitutional and statutory rights that

most would agree are more important than a defendant's right to

allocution. These errors include issuing an erroneous jury

instruction; misstating an element of the offense; erroneously

excluding a defendant's testimony about the circumstances of his

confession; unconstitutionally commenting on the defendant's

silence at trial; failing to instruct the jury on the presumption

of innocence; admitting evidence obtained in violation of the

Fourth Amendment; and u n constitutionally denying counsel at a

preliminary hearing. S ee Hill v. United States

, 368 U.S. 424, 428

(1962), in which the Court in a habeas case held that denial of

defendant's r ight to allocution does not violate a right

sufficiently substanial or fundamental to be cognizable in habeas.

In U.S. v. Olano , 113 S. Ct. 1770 (1993), the Supreme Court

set forth a four-prong test for determining whether errors to which

no objection is made can nevertheless serve as grounds for

appellate reversal. Under Olano , reversal is not required unless

there is: (l) clear error; (2) that is clear or plain; (3) that

affec ts substantial rights; and (4) that seriously affects the

fairness, integrity or public reputation of judicial proceedings.

Id

. 113 S. Ct. at 1779. Assuming that the district court committed

error, there is no basis to conclude that Myers' substantial rights

were affected.

In Olano , the Supreme Court held that the requirement that

substantial rights be affected "in most cases

. . . means that the20

error must have been prejudicial: it must have affected the outcome

o f the district court proceedings." I d

., 113 S. Ct. 1778. In

demonstrati ng prejudice "it is the defendant rather than the

government who bears the burden of persuasion with respect to the

prejudice." Id

.

Myers makes no claim, nor could he, that he has met this

burden. As stated above, he did not tell us what information or

argument he would have supplied the district court that might have

persuaded her t o change her mind and give him a reduced sentence

under Guideline § 5K1.1.

CONCLUSION

If I were free to disregard our precedents, I would decline to

remand this case for resentencing because Myers has not carried his

burden of persuasion to demonstrate prejudice, which he is required

to do under Olano 's explanation of how we should apply the plain

error standard of review under Rule 52 Fed. R. Crim. P.

I have no doubt that the district judge's failure to invite

Myers to speak at sentencing was an oversight and she would have

granted him this statutory right if counsel had made a simple

objecti on. There is no justification for excusing counsel from

lodging an objection in this circumstance.

If I were free to do so, I would join the Fourth, Sixth and

Ninth Circuits in holding that Rule 52 of the Federal Rul es of

Criminal Procedure applies to the trial court's failure to afford1 2 See, e.g.

, United States v. Cole

, 27 F.3d 996, 998 (4th Cir.

1994); United States v. Riascos-Suarez

, 73 F.3d 616, 627 (6th

Cir.), c ert. denied

, 117 S. Ct. 136 (1996) (implicitly applying

Rule 52 by reversing for resentencing because the allocution “could

have had an effect on his sentence”); United States v. Leasure

, 122

F.3d 837, 840 (9th Cir. 1997), cert. denied

, 118 S. Ct. 731 (1998).

21 a defendant the right to allocution. 12