1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-3689

_____________

UNITED STATES OF AMERICA

v.

ROBERT PALADINO, 

 Appellant

_____________

On Appeal from the United States District Court 

for the Western District of Pennsylvania

(D.C. Crim. Action No. 2-04-cr-00172-001)

District Judge: Hon. David S. Cercone

Argued: June 24, 2014

_________________

Before: FUENTES, GREENAWAY, JR., and NYGAARD,

Circuit Judges.

(Filed: October 8, 2014)

Sarah S. Gannett (Argued)

Federal Community Defender Office
2

For the Eastern District of Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Attorney for Appellant

Rebecca Ross Haywood, Esq.

Michael L. Ivory (Argued)

United States Attorney’s Office

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

Attorneys for Appellee

__________________

OPINION

__________________

GREENAWAY, JR., Circuit Judge.

Robert Paladino appeals the District Court’s judgment

revoking supervised release and imposing a sentence of 

imprisonment. Because Paladino was denied the right of 

allocution at sentencing, we vacate and remand to the District 

Court for resentencing.
3

I.

In June 2004, Appellant Robert Paladino responded to 

an internet advertisement placed by an undercover federal 

agent that offered videotapes of young boys engaged in 

graphic and explicit sexual conduct. Following a number of 

e-mail conversations, Paladino agreed to provide the 

undercover agent with videos of minor age boys engaged in 

sexually explicit conduct in exchange for those offered by the 

undercover agent. Later that month, after Paladino picked 

up the package delivered by the undercover agent, law 

enforcement tried to arrest Paladino, but he resisted arrest and 

fled. After a reckless and dramatic car chase, during which 

Paladino struck several cars and discarded the package 

containing the videos, Paladino was apprehended. Law 

enforcement then executed a search warrant at Paladino’s 

residence, and recovered videotapes, compact discs, and a 

laptop computer. A search of the laptop computer revealed 

that it contained 5,201 files with images of child 

pornography.

On November 21, 2006, Paladino pled guilty to one 

count of distributing material depicting the sexual 

exploitation of a minor, in violation of 18 U.S.C. § 

2252(a)(1). In his plea agreement, Paladino also agreed to 

waive his “right to take a direct appeal from his conviction or 

sentence.” United States v. Paladino, 286 F. App’x 803, 803 

(3d Cir. 2008). 

On April 20, 2007, the District Court sentenced 

Paladino to one hundred twenty months’ imprisonment, to be 
4

followed by a ten-year term of supervised release, and a 

special assessment in the amount of one hundred dollars.

1

Paladino filed a direct appeal. On August 15, 2008, 

this Court affirmed Paladino’s sentence because “Paladino 

waived his right to appeal his sentence in his plea agreement” 

and none of the exceptions to that waiver were applicable. Id. 

On April 24, 2013, Paladino was released from 

custody and the Probation Office for the Western District of 

Pennsylvania began supervising him. 

Between July and August 2013, Paladino’s probation 

officer filed two petitions reporting that Paladino had violated 

three supervised release conditions—namely the “condition 

 

1 At that time, the District Court also imposed conditions of 

Paladino’s supervised release, including that Paladino not 

“possess any materials, including pictures, photographs, 

books, writings, drawings, videos or video games depicting 

and/or describing child pornography as defined by 18 U.S.C. 

Section [] 2256(8).” (App. 104.) In October 2012, Paladino 

agreed to a modification of certain supervised release 

conditions, including a modification stating that the 

“defendant shall not possess or access with intent to view any 

materials, including pictures, photographs, books, writings, 

drawings, videos, or video games depicting and/or describing 

child pornography as defined at 18 U.S.C. § 2256(8), or 

obscene visual representations of the sexual abuse of children 

as defined at 18 U.S.C. §1466A.” (App. 113.)

 
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obligating Defendant not to associate with persons convicted 

of a felony,” the “condition obligating Defendant to abide by 

all provisions of the Computer Restriction and Monitoring 

Program,” and the “condition obligating the Defendant to 

participate in a mental health treatment program and/or sex 

offender treatment program as directed by his probation 

officer.”

2

 

On August 12, 2013, at Paladino’s revocation hearing, 

the District Court first asked defense counsel if Paladino 

contested any of the violations alleged in the probation 

officer’s petitions. In response, Paladino’s counsel stated that 

Paladino challenged the missed treatment violation, as “Mr. 

Paladino indicates [that] it’s a misunderstanding,” and, at 

another point in time, defense counsel stated that another 

“thing we don’t agree on is whether this Defendant can selfreport as he has requested . . . for a day or so.” (App. 121-

22.) The record reflects that there was no further discussion 

of Paladino’s challenge to the missed treatment violation or to 

 

2 Specifically, the petitions argued that Paladino violated 

those three conditions because Paladino had been “discharged 

from [the Veterans Administration Domiciliary Program] due 

to accessing what they believed to be child pornography,” 

“admitted to viewing boys in their underwear” on “the 

computers at the Carnegie Library,” “admitted . . . to 

contact[ing] felons that are incarcerated in various 

correctional institutions,” had been deceptive during a 

polygraph examination when asked if he had engaged in 

inappropriate sexual conduct, and “failed to show up or 

cancel” a treatment appointment on June 24, 2013. (App. 

116, 118.)
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his self-reporting request. Ultimately, the District Court 

denied the self-reporting request.

The District Court also asked whether the parties had 

“reached a joint recommendation as to the new sentence to be 

imposed.” (Id.) The Government and defense counsel

indicated their agreement to “a period of imprisonment of 

eight months to be followed by the continued supervision of 

the ten years.” (Id.) The District Court then asked “Mr. 

Paladino, is that your understanding?” and Paladino 

responded “Yes.” (Id. at 122.) The record reflects that this 

was the only point at which the District Court personally 

addressed Paladino at the revocation hearing.

At the end of the revocation hearing, the District Court 

sentenced Paladino to eight months’ imprisonment to be 

followed by a term of supervised release of one hundred 

sixteen months, which is ten years of supervised release 

“minus the amount of time [Paladino] has already spent on 

supervised release.” (Id. at 122-23.) In addition, the District 

Court imposed the original and modified “conditions that 

were part of [Paladino’s] supervised release” for the child 

pornography conviction. (Id. at 123.) Paladino’s counsel 

made no objection to the supervised release conditions that 

the District Court imposed.

Paladino now appeals, and in so doing, makes two 

arguments. First, Paladino argues that the District Court 

committed plain error by failing 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), and therefore we should vacate and remand 

for resentencing. 
7

Second, Paladino challenges the supervised release 

condition, imposed at his revocation hearing, which required 

Paladino to “not possess or access with intent to view any 

materials, including pictures, photographs, books, writings, 

drawings, videos or video games depicting and/or describing 

child pornography as defined by 18 U.S.C. § 2256(8), or 

obscene visual representation of the sexual abuse of children 

as defined at 18 U.S.C. § 1466A.” (App. 113.) Specifically, 

Paladino argues that this condition of supervised release is

unconstitutionally overbroad and vague, and was imposed 

without any justification.

II.

The District Court had jurisdiction under 18 U.S.C. § 

3231. We have jurisdiction under 28 U.S.C. § 1291. 

Given Paladino’s failure to preserve his two objections 

by raising them at the revocation hearing, we review his 

objections for plain error. Puckett v. United States, 556 U.S. 

129, 135 (2009) (unpreserved errors are reviewable for plain 

error, pursuant to Rule 52(b) of the Federal Rules of Criminal 

Procedure); United States v. Plotts, 359 F.3d 247, 248-49 (3d 

Cir. 2004); see also Fed. R. Crim. P. 52(b). 

III.

Rule 32(i)(4)(A)(ii) of the Federal Rules of Criminal 

Procedure requires 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). 

Though codified in the twentieth century, the “design of [this 

rule] did not begin with its promulgation; its legal provenance 
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was the common-law right of allocution,” which was 

recognized “[a]s early as 1689.” Green v. United States, 365 

U.S. 301, 304 (1961). While “major changes . . . have 

evolved in criminal procedure” since the seventeenth century 

and additional rights have been accorded to defendants since 

that time, “[n]one of these modern innovations lessens the 

need for the defendant, personally, to have the opportunity to 

present to the court his plea in mitigation,” for the “most 

persuasive counsel may not be able to speak for a defendant 

as the defendant might, with halting eloquence, speak for 

himself.” Id.

In United States v. Adams, this Court recounted the 

historical and contemporary significance of the right of 

allocution and established that, at a sentencing hearing, a 

district court’s denial of the right of allocution will generally 

result in resentencing under plain error review. 252 F.3d 276, 

289 (3d Cir. 2001). Three years later, in United States v. 

Plotts, this Court pronounced that “a defendant’s right of 

allocution extends to revocation hearings.” 359 F.3d 247, 

250 (3d Cir. 2004).

3

“For reversible plain error to exist, there must be (1) an 

error; (2) that is plain; (3) that affects substantial rights; and 

(4) which seriously affects the fairness, integrity, or public 

reputation of judicial proceedings.” United States v. Tai, 750 

 

3 The Federal Rules of Criminal Procedure were subsequently 

amended to expressly provide allocution rights at revocation 

hearings. See Fed. R. Crim. P. 32.1(b)(2)(E) (providing that 

defendants at revocation hearings are entitled to “an 

opportunity to make a statement and present any information 

in mitigation”). 
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F.3d 309, 313-14 (3d Cir. 2014) (citing Johnson v. United 

States, 520 U.S. 461, 466-67 (1997)).

In Adams and Plotts, this Court concluded that the 

district court committed “error” by failing to address the 

defendant personally prior to sentencing. Adams, 252 F.3d at 

286; Plotts, 359 F.3d at 250-51. We also concluded that the 

error was “plain” because it was “clear or obvious.” Adams, 

252 F.3d at 286 (“[W]hen [the District Court] failed to 

personally address Adams prior to sentencing[] . . . . [despite 

the] clear duty to do so, this error was ‘plain,’ because it was 

‘clear’ or ‘obvious.’” (citations omitted)); Plotts, 359 F.3d at 

251 (finding that the district court’s error was “clear and 

obvious” where “the weight of appellate authority” indicated 

that violation of the allocution right constitutes plain error); 

see also Olano, 507 U.S. at 737. 

With respect to the third element in the plain error 

review analysis— which asks whether the error “affects 

substantial rights,” or put another way, was prejudicial—this 

Court indicated that, in the context of violations of the right 

of allocution, “as a general matter . . . prejudice should be 

presumed whenever the opportunity exists for this violation to 

have played a role in the district court’s sentencing decision.” 

Adams, 252 F.3d at 289 (emphasis added).

4

 Lastly, “[i]n 

Adams, we stated without qualification that denial of the right 

 

4 We made this pronouncement because, inter alia, any other 

rule, such as one requiring the defendant 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,” would place “an 

onerous burden” on the defendant. Adams, 252 F.3d at 287.
10

of allocution affects the ‘fairness, integrity or public 

reputation of judicial proceedings,’” Plotts, 359 F.3d at 250 

n.6 (quoting Adams, 252 F.3d at 288), such that the fourth, 

discretionary element in the plain error analysis is satisfied 

where a violation of the right of allocution has been 

established. 

* * * * * * * * *

Against this backdrop, we assess Paladino’s argument 

that, as in Plotts, the District Court here committed plain error 

at his revocation hearing by “failing to offer Mr. Paladino the 

chance to speak on his own behalf” and “den[ying] him the 

opportunity to influence his term of imprisonment, his term of 

supervised release, or his conditions of supervised release.” 

See, e.g., Appellant Br. 13. We agree.

While the record reflects that the District Court did 

address Paladino once—to ask whether Paladino understood

that he and the Government agreed to an eight-month term of 

imprisonment—the parties do not dispute that the District 

Court did not address Paladino at any other time during the 

revocation hearing. See, e.g., Appellee Br. 11 (stating that 

“[i]n the present matter the trial court asked Paladino whether 

the terms of the agreement he had reached with the 

government had been accurately stated on the record” and 

that the “court did not invite Paladino to make any additional 

statements”); Appellant Br. 14 (“At Mr. Paladino’s revocation 

hearing, the court never allowed Mr. Paladino the opportunity 

to make a statement or present any information in 

mitigation.”). 

As the Supreme Court has previously indicated, 

however, district courts must “unambiguously address 
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themselves to the defendant” and “leave no room for doubt 

that the defendant has been issued a personal invitation to 

speak prior to sentencing.” Green v. United States, 365 U.S. 

301, 305 (1961); see also Adams, 252 F.3d at 279-80 (right of 

allocution violated when district court asked defense counsel, 

but not defendant himself, whether defendant wished to 

exercise his right of allocution).

Therefore, we find that the District Court here

committed an “error” and that error was “plain” because “the 

weight of appellate authority”—including our

pronouncements in Plotts and Adams about the importance of 

the right of allocution and the resentencing remedy that may 

result from establishing a violation of that right—“is 

sufficient to render the District Court’s error clear and 

obvious.” Plotts, 359 F.3d at 250-51; see also Adams, 252 

F.3d at 286. 

Second, “we . . . conclude that prejudice to ‘substantial 

rights’ may be presumed in this case because allocution could 

have played a role in the [District] Court’s sentencing 

decision.” Plotts, 359 F.3d at 251 (citing Adams, 252 F.3d at 

287). Specifically, as in Plotts, federal statutory law did not 

require the District Court here to impose any minimum term 

of imprisonment upon revocation of supervised release. See

18 U.S.C. § 3583(e)(3) (permitting imprisonment for “all or 

part” of the term of defendant’s supervised release); id. § 

3583(h); Plotts, 359 F.3d at 251. Furthermore, as Paladino 

argues, the District Court imposed upon him a sentence of 

eight months, which is in the middle of the Guidelines range 

of five to eleven months. See, e.g., Appellant Reply Br. 1-6. 

Thus, had Paladino been afforded the opportunity to “speak 

or present any information to mitigate the sentence,” Fed. R. 

Crim. P. Rule 32(i)(4)(A)(ii), Paladino’s statements may have 
12

prompted the District Court to exercise its discretion, in 

accordance with federal law, to impose a lesser sentence or, 

indeed, no term of imprisonment at all. See, e.g., Adams, 252 

F.3d at 287 (finding that, because defendant “was sentenced 

roughly in the middle of the applicable Guidelines range . . . 

the District Court clearly retained discretion to grant Adams a 

lower sentence”).

Appellee argues that the presumption of prejudice 

applied in Plotts and Adams does not apply here because the 

parties essentially entered into a plea agreement pursuant to 

Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure

that was binding on the District Court, such that any 

allocution on the part of Paladino could not possibly have 

affected the sentence. See Appellee Br. at 13-15. This 

argument must fail. Even assuming that the oral plea 

agreement here implicated Rule 11(c)(1)(C) in particular—a 

proposition for which we find no support in the record—a 

district court still retains discretion to accept or reject such an 

agreement. See, e.g., Freeman v. United States, 131 S. Ct. 

2685, 2692 (2011) (“Rule 11(c)(1)(C) permits the defendant 

and the prosecutor to agree on a specific sentence, but that 

agreement does not discharge the district court’s independent 

obligation to exercise its discretion.”). Thus, any argument 

that Paladino’s statements could have no impact on the 

District Court—because its hands were essentially tied and 

there were no decisions left for it to make—must fail.5 

 

5 Contrary to the Government’s assertions, the agreed-upon 

term of imprisonment is not the only relevant matter upon 

which a defendant might speak. As we indicated in Adams, 

allocution may play a role in a district court’s sentencing 

decision “whenever a searching review of the district court 
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Having found that the first three conditions of the plain 

error analysis are met, we also find that “denial of the right of 

allocution is not the sort of ‘isolated’ or ‘abstract’ error that 

we might determine does not impact the ‘fairness, integrity or 

public reputation of judicial proceedings.’” Plotts, 359 F.3d 

 

record 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 reduced the applicable Guidelines range or the 

defendant’s ultimate sentence.” Adams, 252 F.3d at 287; id.

(indicating that, even when a defendant is sentenced at the 

bottom of the Guidelines range, this Court can still find that 

the opportunity existed for a different sentencing outcome).

The record reflects that, at the very least, Paladino’s 

counsel challenged the missed treatment violation, indicating 

that there had been a misunderstanding, but this disputed 

issue remained unresolved at the time when the District Court 

sentenced Paladino. Adams counsels against unresolved fact 

disputes and arguments—particularly those to which a 

defendant might speak. Furthermore, had Paladino exercised 

the right of allocution, he might have anticipated that the 

District Court could impose supervised release conditions and 

might have spoken so as to influence that sentencing decision. 

Here, the District Court, at the behest of the Government, 

issued the original and modified conditions imposed upon 

Paladino for his prior child pornography conviction, without 

any personal solicitation of Paladino’s statements relating to 

these sentencing decisions.
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at 251 (quoting Adams, 252 F.3d at 288). As such, this is an 

appropriate case in which to grant relief.

Thus, we conclude that the District Court committed 

plain error in denying Paladino’s right of allocution at his 

revocation hearing, and we will therefore remand this case for 

resentencing on this ground. As for Paladino’s second 

argument regarding the constitutionality of a particular 

condition of supervised release, our “resentencing remedy . . . 

obviates the need to decide that issue.” Adams, 252 F.3d at

277.

6

V.

In accordance with the foregoing, we will vacate the 

District Court’s order, entered on August 20, 2013, and 

remand for resentencing.

 

6 Here, the District Court set forth no reasons for its 

imposition of the condition challenged in this appeal (nor did 

it set forth any reasons for any of the other conditions it 

imposed at the revocation hearing). “While the district court 

has broad discretion in fashioning conditions of supervised 

release,” when resentencing Paladino we advise the District 

Court to “state the reasons in open court for imposing [its] 

particular sentence.” United States v. Loy, 191 F.3d 360, 371 

(3d Cir. 1999).