FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN FITZGERALD DANIELS,

Defendant-Appellant.

No. 13-50331

D.C. No.

2:90-cr-00652-SVW-5

OPINION

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted

June 6, 2014—Pasadena, California

Filed July 23, 2014

Before: Ronald M. Gould and N.R. Smith, Circuit Judges,

and Edward R. Korman, Senior District Judge.*

Opinion by Judge Gould

* The Honorable Edward R. Korman, Senior District Judge for the U.S.

District Court for the Eastern District of New York, sitting by designation.
2 UNITED STATES V. DANIELS

SUMMARY**

Criminal Law

Vacating a sentence imposed after revocation of

supervised release and remanding for resentencing, the panel

held that Fed. R. Crim. P. 32.1(b)(2)(E) requires a court to

address a supervised releasee personally to ask if he wants to

speak before the court imposes a post-revocation sentence,

and that a district court that does not offer a supervised

releasee the chance to exercise that right commits plain error.

COUNSEL

K. Elizabeth Dahlstrom (argued), Deputy Federal Public

Defender, Santa Ana, California; Sean K. Kennedy, Federal

Public Defender; Brianna Fuller Mircheff, Deputy Federal

Public Defender, Los Angeles, California, for DefendantAppellant.

Mónica M. Ramírez (argued), Assistant United States

Attorney; André Birotte, Jr., United States Attorney; Robert

E. Dugdale, Assistant United States Attorney, Los Angeles,

California, for Plaintiff-Appellee.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. DANIELS 3

OPINION

GOULD, Circuit Judge:

Defendant-Appellant John FitzgeraldDaniels (“Daniels”)

appeals a 40-month sentence imposed by the district court

after revocation of his supervised release. Daniels contends

that the district court violated Federal Rule of Criminal

Procedure 32.1(b)(2)(E) when it did not affirmatively offer

him an opportunity to allocute before imposing its sentence. 

We have jurisdiction under 18 U.S.C. § 3742(a) and

28 U.S.C. § 1291, and we vacate and remand for

resentencing.

I

In February 1991, Daniels was sentenced to 20 years in

federal prison, to be followed by 10 years of supervised

release, after pleading guilty to possession with intent to

distribute cocaine, in violation of 21 U.S.C. § 841. He served

more than 17 years of his sentence before being released in

June 2008, when his term of supervised release began.1

In October 2012, Los Angeles police officers pulled over

a vehicle driven by Daniels. During a search, the officers

found marijuana, drug trafficking paraphernalia such as

plastic bags and digital scales, and other indicia of drug

trafficking including cell phones and cash. Daniels admitted

to the arresting officers that he was driving on a suspended

license and that he sold small quantities of marijuana “to

make extra cash from time to time.” Daniels faced charges

1 The conditions of Daniels’ supervised release were twice

modified—first in August 2010, and again in October 2012.
4 UNITED STATES V. DANIELS

for (1) being a convicted felon in possession of a firearm, see

Cal. Penal Code § 29900(a)(1); (2) transporting marijuana,

see Cal. Health & Safety Code § 11360(a); (3) possessing

marijuana for sale, see id. § 11359; and (4) driving a motor

vehicle when his driving privilege was suspended or revoked,

see Cal. Veh. Code § 14601.1(a).2

On February 4, 2013, the United States Probation Office

filed a petition in the district court to revoke Daniels’

supervised release based on allegations (1) through (4) above,

as well as his failure to complete a court-ordered residential

recovery program (“allegation (5)”). Daniels admitted

allegations (1), (2), and (5), but denied allegations (3) and (4). 

At a July 15, 2013, evidentiary hearing, the district court

found that the Government had established allegations (3) and

(4) by clear and convincing evidence, and sentenced Daniels

to 40 months imprisonment and 20 months of supervised

release “under the same terms and conditions previously

imposed.” To justify its sentence, the district court reasoned

that it had considered factors other than the Sentencing

Guidelines, including “the defendant’s history, the need for

deterrence and, of course, respect for the law and the fact that

these crimes were committed while he was on supervised

release, and there was a series of crimes, and in order to justly

punish and uphold the respect for law.” Daniels did not ask

to speak before sentencing, and the district court did not

affirmatively tell him that he could speak. This appeal

followed.

 

2

 Daniels pleaded guilty to charges (1) and (2) in California state court

on January 28, 2013.
UNITED STATES V. DANIELS 5

II

Daniels and the Government disagree about the

appropriate standard of review on Daniels’ claim that the

district court violated Rule 32.1. We generally review de

novo a district court’s compliance with the Federal Rules of

Criminal Procedure. See United States v. Pineda-Doval,

614 F.3d 1019, 1040 (9th Cir. 2010). There is no dispute,

however, that Daniels did not contemporaneously object to

the district court’s failure affirmatively to offer him a chance

to allocute before sentencing.

Where a defendant raises a particular objection to his

sentence for the first time on appeal, our review is usually for

plain error. See United States v. Gonzalez-Aparicio, 663 F.3d

419, 426 (9th Cir. 2011) (applying “the well-established plain

error standard of review with respect to alleged sentencing

errors not raised below”); United States v. Waknine, 543 F.3d

546, 551 (9th Cir. 2008) (reviewing for plain error a

defendant’s sentencing objections raised for the first time on

appeal). And yet, Daniels contends that our precedent

commands a harmless error analysis in denial-of-allocution

cases—even in revocation sentencing proceedings, and even

where the objection was not raised below. See United States

v. Carper, 24 F.3d 1157, 1162 (9th Cir. 1994) (“We review

the district court’s failure to afford appellant his right of

allocution for harmless error.”); see also United States v.

Gunning, 401 F.3d 1145, 1147 (9th Cir. 2005) (same). The

Government acknowledges that we have in the past reviewed

such cases for harmless error, but contends that intervening

Supreme Court decisions clarifying the broad scope of plain

error review require us now to apply that standard. See

United States v. Marcus, 560 U.S. 258 (2010); Puckett v.

United States, 556 U.S. 129 (2009).
6 UNITED STATES V. DANIELS

Because we conclude that Daniels would prevail under

either standard, we need not resolve that question here. See

United States v. Young, 470 U.S. 1, 16 n.14 (1985) (clarifying

that a plain error is, by definition, not harmless, and that there

can be no “harmless plain errors”). For purposes of this

appeal, then, we assume without deciding that plain error

review applies.

A plain error is one “that affects substantial rights.” Fed.

R. Crim. P. 52(b). To establish that the district court’s Rule

32.1 error was plain, Daniels must “show that the district

court made (1) an error (2) that was clear or obvious, (3) that

affected substantial rights, and (4) that seriously affected the

fairness, integrity or public reputation of judicial

proceedings.” United States v. Castillo-Marin, 684 F.3d 914,

918 (9th Cir. 2012). Any error affected Daniels’ substantial

rights only if it was “prejudicial” and “affected the outcome

of the district court proceedings.” United States v. Olano,

507 U.S. 725, 734 (1993).

III

The Federal Rules of Criminal Procedure require a court,

before imposing its sentence, to “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). In United States v. Carper, we held that this

requirement applies with equal force “to sentencing after

revocation of supervised release when the district court

imposes a new sentence based on conduct that occurred
UNITED STATES V. DANIELS 7

during supervised release.” 24 F.3d at 1162.3 But Carper

was decided in 1994, when Rule 32.1 by its terms gave

supervised releasees facing revocation no more than “an

opportunity to appear and to present evidence in [their]

behalf.” Fed. R. Crim. P. 32.1(a)(2)(C) (1994). In 2005,

Rule 32.1 was amended to give supervised releasees “an

opportunity to make a statement and present any information

in mitigation” at their revocation proceedings. Id. R.

32.1(b)(2)(E) (2006). That language is in force today. See id.

R. 32.1(b)(2)(E). The advisory committee note

accompanying the 2005 amendment clarifies that “[t]he

amended rule recognizes the importance of allocution,” and

states that “the court is required to give the defendant the

opportunity to make a statement and present any mitigating

information.” Id. R. 32.1 advisory committee’s note (2005

amend.). And in 2007, we said that “sentencing procedures

for probation and supervised release violations are primarily

governed by Rule 32.1 of the Federal Rules of Criminal

Procedure, not Rule 32.” United States v. Leonard, 483 F.3d

635, 638–39 (9th Cir. 2007).

Daniels contends that the district court violated Rule

32.1(b)(2)(E) when it did not affirmatively offer him an

opportunity to allocute before imposing its sentence. The

Government, on the other hand, acknowledges that the district

court did not personally ask Daniels whether he wanted to

speak before sentencing him, but argues that Rule

32.1(b)(2)(E) does not mandate “a personal invitation to

speak before the imposition of a sentence.” Rather, the

Government suggests, the Rule’s allocution provision is

3 The version of the Rule to which we referred in Carper—Rule

32(a)(1)(C)—has since become Rule 32(i)(4)(A)(ii). The meaning of the

two versions, however, is substantially the same.
8 UNITED STATES V. DANIELS

passive; it “requires only an opportunity to make a statement

and present any information in mitigation during the

revocation hearing.”4 The Government’s position is, in

essence, that a court should honor a supervised releasee’s

request to allocute, but need not tell him of his right to do so

before imposing its sentence.

The Government misreads the Rule. The 2005

amendment to Rule 32.1 did not detract from our holding in

Carper that a district court errs “by failing to address [a

supervised releasee] personally to determine if he wishe[s] to

speak on his own behalf before imposing sentence.” 24 F.3d

at 1162. The drafters of the Federal Rules of Criminal

Procedure intended for Rule 32.1(b)(2)(E) to require courts

“to give the defendant the opportunity to make a statement

and present any mitigating information.” Fed. R. Crim. P.

32.1 advisory committee’s note (2005 amend.).

Allocution by a supervised releasee gives the court more

information on which to base its sentence. It also encourages

the supervised releasee to participate in post-revocation

sentencing, enhancing his dignity. As one commentator has

said, “allocution provides offenders the opportunityto contest

any disputed factual bases for sentencing and persuade the

judge to choose a favored sentence alternative.” Arthur W.

Campbell, Law of Sentencing § 9:18 (2013). Indeed,

allocution “‘is much more than an empty ritual: it represents

4 According to the Government, “[i]t does not matter . . . that the district

court did not address [Daniels] personally and invite him to speak before

imposing sentence.” Because the district court did afford

Daniels—through his counsel—multiple opportunities to speak before

sentencing, the Government’s theory runs, the district court did not violate

Rule 32.1.
UNITED STATES V. DANIELS 9

a defendant’s last opportunity to plead his case or express

remorse.’” Id. (quoting State v. Green, 738 N.E.2d 1208,

1221 (Ohio 2000)). We hold that Rule 32.1(b)(2)(E) requires

a court to address a supervised releasee personally to ask if he

wants to speak before the court imposes a post-revocation

sentence.

In so holding, we reject the Government’s suggestion that

Rule 32.1 requires only that a supervised releasee’s lawyer

may speak before imposition of sentence. Such a narrow

reading would stand in stark contrast to our precedent under

Rule 32, see United States v. Navarro-Flores, 628 F.2d 1178,

1184 (9th Cir. 1980) (noting that Rule 32 “is not complied

with when the sentencing judge affords only to counsel the

opportunity to speak”), and would do nothing to further the

interests of justice or the dignity of the individual who is

being sentenced.

We also reject the Government’s contention that the

district court satisfied its obligations under Rule 32.1 when it

sentenced Daniels. Nothing in the record resembles the kind

of personal invitation that Rule 32.1 commands. The

Government alludes to the district court’s colloquy with

Daniels’ counsel, citing it as evidence that Daniels had an

opportunity to make a statement and to present mitigating

information before he was sentenced. That Daniels’ counsel

was able to argue for his client, however, is an inadequate

substitute for Daniels’ right to allocute on behalf of himself. 

See Green v. United States, 365 U.S. 301, 304 (1961) (“The

most persuasive counsel may not be able to speak for a

defendant as the defendant might, with halting eloquence,

speak for himself.”).
10 UNITED STATES V. DANIELS

Our holding confirms our statement in United States v.

Whitlock, 639 F.3d 935 (9th Cir 2011), that the 2005

amendment to Rule 32.1 “effectively codif[ied] the holding

in Carper by explicitly enumerating the right to allocution at

supervised release revocation sentencing hearings,” id. at 940. 

And it comports with the views of our sister circuits that have

addressed this issue since 2005. See, e.g., United States v.

Gonzalez, 529 F.3d 94, 97 (2d Cir. 2008) (“This right of

presentence allocution applies to sentences imposed for

revocation of supervised release.”); United States v. Carruth,

528 F.3d 845, 847 (11th Cir. 2008) (per curiam) (“[T]he right

to allocute under Rule 32.1 is clearly not substantively

different from the right to allocute under Rule 32. . . . The

court must personally extend to the defendant the right of

allocution.”); United States v. Pitre, 504 F.3d 657, 661–62

(7th Cir. 2007) (“Rule 32.1 requires a district court to ask the

defendant if she wishes to make a statement for the court to

consider before imposing a term of reimprisonment following

revocation of supervised release.”); cf. United States v.

Robertson, 537 F.3d 859, 862 (8th Cir. 2008) (questioning the

reasoning of United States v. Carruth and United States v.

Pitre, but assuming without deciding that Rule 32.1 “at least

requires the district court . . . to address the defendant

personally and make it clear he has a right to make a

statement and present anyinformation in mitigation” (internal

quotation marks omitted)).

IV

The district court erred when it did not personally address

Daniels to inquire whether he wished to speak before

sentencing. To show that this error was plain, Daniels must

demonstrate that it (1) was “clear or obvious”; (2) “affected

substantial rights”; and (3) “seriously affected the fairness,
UNITED STATES V. DANIELS 11

integrity or public reputation of judicial proceedings.” 

Castillo-Marin, 684 F.3d at 918.

We recognize that Rule 32.1’s allocution provision does

not mirror its Rule 32 counterpart. Compare Fed. R. Crim. P.

32.1(b)(2)(E) (stating that a supervised releasee is entitled to

“an opportunity to make a statement and present any

information in mitigation”), with id. R. 32(i)(4)(A)(ii)

(requiring a sentencing court to “address the defendant

personally in order to permit the defendant to speak or present

any information to mitigate the sentence”). Nonetheless, we

conclude that the district court’s error was “clear or obvious.”

 See Castillo-Marin, 684 F.3d at 918. We do so because the

plain language of Rule 32.1—and particularly of the advisory

committee note accompanying the 2005 amendment to that

Rule—make clear that, despite the linguistic differences

between Rules 32 and 32.1, a court engaging in postrevocation sentencing must personally address a supervised

releasee to ask if he wants to speak before sentencing. See

Fed. R. Crim. P. 32.1 advisory committee’s note (2005

amend.) (“[T]he court is required to give the defendant the

opportunity to make a statement and present any mitigating

information.”).

An error affects substantial rights only if it was

“prejudicial” and “affected the outcome of the district court

proceedings.” Olano, 507 U.S. at 734. In the sentencing

context, we have held that “when a plain error may have led

to a sentence that was . . . longer than necessary . . . that error

affects substantial rights.” United States v. Joseph, 716 F.3d

1273, 1280 (9th Cir. 2013) (internal quotation marks

omitted). More specifically, our denial-of-allocution

precedent is “quite clear: when a district court could have

lowered a defendant’s sentence, we have presumed prejudice
12 UNITED STATES V. DANIELS

and remanded, even if we doubted that the district court

would have done so.” Gunning, 401 F.3d at 1149 (collecting

cases).

Daniels argues that because the district court had

discretion to sentence him to a term of fewer than 40 months,

its failure to offer him a personal invitation to allocute before

sentencing was prejudicial. The Government, by contrast,

suggests that “remand would be pointless” because (1) there

is no indication that Daniels “would have even availed

himself of an invitation to orally supplement his defense

counsel’s statements and argument had the district court

offered one,” and (2) Daniels cannot show “that the district

court would have given him a lighter sentence if he actually

had supplemented defense counsel’s statements and

argument.” Indeed, the Government theorizes that “nothing

that [Daniels] might have said during an oral allocution

would have been likely to motivate the court to impose an

even shorter sentence.”

That argument is pure conjecture. But even if it were

true, it would not be controlling. The district court had

“discretion to impose a sentence shorter than the one it

selected.” Carper, 24 F.3d at 1162. It could have sentenced

Daniels to a term of fewer than 40 months. The

Government’s speculative suggestion that the district court

would not have further reduced Daniels’ sentence even if it

had heard directly from him, then, is beside the point. The

district court’s denial of Daniels’ right to allocute was

“prejudicial” and “affected the outcome of the . . .

proceedings,” Olano, 507 U.S. at 734, precisely because the

district court could have imposed a more lenient sentence

after hearing Daniels speak, see Gunning, 401 F.3d at 1149. 
UNITED STATES V. DANIELS 13

In our view, the district court’s plain error affected Daniels’

substantial rights. See Joseph, 716 F.3d at 1280.

“In exercising the right to allocution, a defendant has the

right to fully present all available accurate information

bearing on mitigation of punishment, and the district court

has a duty to listen and give careful and serious consideration

to such information.” United States v. Mack, 200 F.3d 653,

658 (9th Cir. 2000). Daniels was denied this right—and the

district court did not fulfill its duty—when Daniels was not

told of his right to speak before sentencing.

We do not know what Daniels might have said if the

district court had offered him a chance to speak before

imposing its sentence. But whether he would have said

something to elicit a lower sentence is of no moment. See

United States v. Medrano, 5 F.3d 1214, 1219 (9th Cir. 1993). 

The right to allocute, and to be told that allocution is an

option, is both important to the person being sentenced and

fundamental to our criminal justice system. Supervised

releasees—like criminal defendants—have an absolute right

to speak before the penalty imposed by law is handed down. 

A district court that does not offer a supervised releasee the

chance to exercise that right commits plain error.

We vacate Daniels’ sentence and remand to the district

court for proceedings consistent with our opinion.5

VACATED and REMANDED.

5 Because we vacate and remand Daniels’ sentence based on the district

court’s violation of Rule 32.1(b)(2)(E), we need not reach Daniels’

alternative argument that the district court committed procedural error.