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. e du/thir dc ir c uit_2001/113Filed May 23, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 00-1212

UNITED STATES OF AMERICA

v.

MICHAEL ANTHONY ADAMS, Appellant

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

Argued November 6, 2000

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

(Filed: May 23, 2001)

Robert Epstein [ARGUED] Defender Association of Philadelphia
Federal Court Division Curtis Center, Independence Square West
Suite 540 West Philadelphia, PA 19106 Counsel for Appellant Michael Anthony AdamsThomas M. Zaleski [ARGUED]

Office of United States Attorney

615 Chestnut Street Philadelphia, PA 19106 Counsel for Appellee
United States of America

OPINION OF THE COURT

RENDELL, Circuit Judge.

I. Introduction

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

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

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1. Adams contends that the District Court misappr e hended its authority to depart from the Guidelines range based upon subs tandard presentence confinement conditions. Having carefull y reviewed the record, we conclude that the District Court did und erstand its authority but declined to exercise its discretion to depart d ownward, and thus we do not have jurisdiction to review this aspect of A dams' sentence. E.g., United States v. Stevens, 223 F.3d 239, 247 (3d Cir . 2000).

2II. Facts and Procedural Background

Adams pled guilty to two counts of bank robbery. At the sentencing hearing, his counsel voiced several obje ctions to the presentence report. He objected to a two-level upward adjustment recommended by the report based upon a

threat that Adams had made towards a bank teller du ring one of the robberies. He further challenged the ass essment of eleven criminal history points (which establishe d a criminal history category of V) as over-r epresenti ng Adams' criminal activity, and sought a downward departure based upon substandard confinement conditions. In additio n, he objected to the inclusion in the presentence r epor t of information relating to Adams' suspected involvemen t in three other bank robberies that wer e not charged. Finally, he challenged the restitution amount recommended in the report.

The District Court sustained the objection to the information in the presentence report as to Adams' suspected involvement in other bank robberies, but otherwise overruled the objections and denied the m otion for a downward departure. After some discussion, th e District Court asked, "Anything else?" Adams' couns el replied, "Do you want to hear me as far as sentenci ng is concerned?" The District Court responded, "I want t o hear what you want to say about that, of course. And the n I want to hear if the remorseful defendant has anythi ng he wants to say." App., Vol. II, at 111a.

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

3sentence and advised Adams personally with r espect to his

right to appeal. Id. at 115-16a.

III. Jurisdiction and Standard of Review

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

Because Adams did not raise an objection at his sentencing hearing, we review the District Court's failure to comply with Federal Rule of Criminal Procedur e 32( c)(3)(C) for plain error. See Fed. R. Crim. P. 52(b) (statin g that "[p]lain errors or defects affecting substantial ri ghts may be noticed although they were not brought to the atten tion of the court"); Johnson v. United States, 520 U.S. 461 , 466 (1997) (explaining that when no objection is made i n the district court, the plain error standar d of Rule 5 2(b) governs all direct appeals from judgments of convic tion in the federal courts, regardless of the seriousness o f the error claimed).

IV. Discussion

Adams contends that the District Court's failur e t o comply with its affirmative duty to personally addr ess him requires that he be resentenced. The government, on the other hand, argues that resentencing is not require d because Adams demonstrates no prejudice fr om the D istrict Court's oversight, and thus there was no plain erro r under Rule 52(b) of the Federal Rules of Criminal Pr oced ure.

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

4counsel: "Would your client like to exer cise his r ight of

allocution?" However, the Supreme Court has held th at this query, directed towards counsel, does not satisfy t he requirement that the district court personally addr ess the defendant himself. E.g., Green v. United States, 36 5 U.S. 301, 305 (1961) (plurality opinion); id. at 307 (Bl ack, J., dissenting); see also United States v. Allegrucci, 299 F.2d 811, 815 (3d Cir. 1962). Accordingly, the District Court erred, and thus we are squarely pr esented with the question whether a violation of the right of allocu tion contained in Rule 32(c)(3)(C) necessitates a r eman d for resentencing.

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

In 1961 and 1962, the Supreme Court issued thr ee opinions that characterized the right of allocution as an important safeguard that should be strictly enforce d according to its terms. In Gr een v. United States, 365 U.S. 301 (1961), the Justices could not have expr essed more clearly their view that the right of allocution und er Rule 32 is highly respected. At the conclusion of sentencin g, the trial judge had asked, "Did you want to say somethi ng?" Id.
at 302. It was unclear from the recor d whether thi s question had been posed to the defendant, or mer el y to
defense counsel. Id. at 304-05. Given this uncertai nty, a plurality of the Court determined that the defendan t had failed to meet his burden of showing that he was no t accorded his right of allocution. Id. at 305. Howev er, eight of the Justices agreed that, in the futur e, trial judges should "unambiguously address themselves to the

defendant" and thus "leave no room for doubt that t he defendant has been issued a personal invitation to speak prior to sentencing."2 Id.; id. at 309 (Black, J., dissenting).

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

5Justice Frankfurter, writing for the four -Justice plurality,

eloquently described why the right of allocution is held in high esteem:

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

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information in mitigation of punishment." Green, 36 5 U.S. at 303 n.1. As a result of Green, Rule 32 was amended in 1966 to i nclude the direction that the court address the defendant personally and ask if he wishes to make a statement. See Fed. R. Crim. P . 32 advisory committee's note to 1966 Amendment; see also United States v. Phillips, 936 F.2d 1252, 1255-56 (11th Cir. 1991) (discussing the developmen t of Rule 32). The current Rule 32(c)(3)(C), which is the subject of A dams' appeal, contains this requirement that the court personally address the defendant.

6affording defendant's counsel the opportunit y to speak

fulfills the dual role of Rule 32(a).

Green, 365 U.S. at 304.

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

The language of Mr. Justice FRANKFURTER'S op inion does not jibe with the harsh result reached in refusing to accord to petitioner the benefit of Rule 32(a). As he points out, that Rule embodies the practice of the English-speaking world for three centuries o r more, based as he properly says upon the belief th at,"The most persuasive counsel may not be able to s peak for a defendant as the defendant might, with hal ting eloquence, speak for himself." A rule so hig hly prized for so sound a reason for so long a time des erves to be rigorously enforced by this Court, not mer e ly praised in resounding glittering generalities calculate d to soften

the blow of nonenforcement.

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

One year later, in Hill v. United States , 368 U.S. 424 (1962), the Supreme Court again bolster ed the righ t of allocution, while at the same time limiting its r e ach. The Court reinforced the right by explaining in a footn ote that the appropriate remedy on direct appeal for a trial court's failure to honor the right of allocution in Rule 32 is set forth in Van Hook v. United States, 365 U.S. 609 (1 961). Hill, 368 U.S. at 429 n.6. Van Hook , in turn, is a onesentence opinion that cites Green as requiring reve rsal and
remand of defendant Van Hook's case for resentencin g. Van Hook, 365 U.S. at 609. Consequently, Hill appears to stand for the proposition that, on direct appeal, a defen dant is automatically entitled to resentencing if the trial court violates the defendant's right of allocution by, fo r example, failing to personally address him prior to sentenci ng.

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

7aggravating circumstances. Hill, 368 U.S. at 428-29 . If the

trial court simply failed to comply with "the for m al requirements of the Rule" by, for example, neglecti ng to personally address the defendant prior to sentencin g, then habeas relief would be inappropriate. Id. at 429. I n declining to recognize such a violation as a basis for habeas relief, the Court expounded on the natur e of the r ight of
allocution:

The failure of a trial court to ask a defend ant represented by an attorney whether he has an ything to say before sentence is imposed is not of its elf an error of the character or magnitude cognizable und er a writ of habeas corpus. It is an error which is ne ither jurisdictional nor constitutional. It is not a fundamental defect that inherently results i n a complete miscarriage of justice, nor an omis sion inconsistent with the rudimentary demands of fair procedure. It does not present "exceptional circumstances where the need for the r emedy afforded by the writ of habeas corpus is apparent."

Id. at 428.

It is noteworthy that Green, V an Hook, and Hill co ntain
no mention of Federal Rule of Criminal Procedur e 5 2. Rule 52, which has remained unchanged since its adoption in 1944 and was intended as a restatement of existing law, see Fed. R. Crim. P. 52 advisory committee notes, s ets forth the concepts of harmless error and plain error on d irect review in the federal appellate courts. Rule 52 pro vides:

(a) Harmless Error. Any error, defect, irreg ularity or
variance which does not affect substantial r ights shall be disregarded.

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

Therefore, the over-arching consideration of Rule 5 2 is whether an error "affects substantial rights." In p ractice, Rule 52(a) applies when the defendant has made a ti mely objection to an error, and the court of appeals nor mally engages in a so-called "harmless err or" inquiry to determine

8whether the error was prejudicial to the defendant, with the

government bearing the burden of persuasion on the issue of prejudice. E.g., United States v. Olano, 507 U.S . 725, 734 (1993) (discussing the application of Rule 52). Whe n the defendant has not objected in the district court, R ule 52(b) applies, which normally requires the same kind of i nquiry as that dictated by Rule 52(a), with one crucial di f ference: it is the defendant rather than the government who bears the burden of persuasion with respect to prejudice. Id. Yet the Supreme Court's omission of any refer ence to R ule 52 in Green, Van Hook, orHill is curious, perhaps refl ecting its belief (at least at that time) that the Rule did no t apply to violations of the right of allocution on dir ect ap peal, and thus the appropriate remedy for such violations was automatic resentencing.

In sum, from our review of Green, Van Hook, and Hil l, we conclude that in deciding these cases nearly four d ecades ago, the Supreme Court was of the view that a sente nce imposed without the trial court's having personally afforded the defendant the right of allocution was gr ounds for remand for resentencing on direct appeal. And while the right of allocution is deeply rooted in our legal t radition and highly respected, nonetheless it is neither constit utional nor jurisdictional, and thus the defendant faced a difficult time in collaterally attacking his sentence based o n a violation of this right.

Accordingly, it is not surprising that in United St ates v. Allegrucci, 229 F.2d 811 (3d Cir. 1962), we remande d for resentencing after the district court had failed to personally address the defendant prior to sentencing and inqui re if he
wished to make a statement. Id. at 815. Before sent encing the defendant, the trial court had simply told defe ndant's counsel to "go ahead," which clearly did not measur e up to the standard enunciated in Green. Id. Following Gre en, we automatically vacated and remanded for r esentencin g without any discussion of harmless err or, plain er ror, or prejudice to the defendant. Id.

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

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

9courts have been quite active in interpreting this right and

in fashioning various tests for determining on dire ct appeal when a violation of the right should result in rese ntencing.4

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165 (1963); Andrews v. United States, 373 U.S. 334, 336-37 (1963); Machibroda v. United States, 368 U.S. 487, 489 (196 2). In addition, the Court discussed the right in some detail in McGauth a v. California, 402 U.S. 183 (1971), but did little more than r epeat w hat had already been said in Green and Hill. McGautha, 402 U.S. at 217-2 0; id. at 228 n.7, 236-38 (Douglas, J., dissenting).

4. We detect at least five differ ent tests that ha ve gained favor in our sister circuit courts of appeal. Some courts have r esolutely clung to the idea that when the right of allocution is violated, the defendant on
direct appeal is always entitled to remand for r esentenci ng. E.g., United States v. Myers, 150 F.3d 459, 463-65 (5th Cir. 1998); Uni ted States v. Walker, 896 F.2d 295, 301 (8th Cir. 1990). On the opposite end of the spectrum
are those courts that hold that the defendant is no t entitled to resentencing unless he can identify specific statem ents on appeal that he would have made at sentencing that likely would hav e changed the trial court's determination of his sentence. E.g., United States v. Leasure, 122 F.3d 837, 841 (9th Cir. 1997). Several others have concluded that resentencing is not required if the defendant has a lready received the lowest possible sentence -- i.e., if he was sentenc ed at the bottom of the applicable Sentencing Guidelines range and he had n ot argued in the trial court that the Guidelines range was incorr ec t (by, for example, moving for a downward departure or a decr ease in e ither the offenselevel or criminal history category, or by ar guing against an upward departure or an increase in the of fense-level or c riminal history category). E.g., United States v. Riascos-Suarez, 7 3 F.3d 616, 627 (6th Cir. 1996); United States v. Lewis, 10 F.3d 1086, 1 092 (4th Cir. 1993); United States v. Mejia, 953 F.2d 461, 468 (9th Cir. 1992). Similarly, some courts have fashioned a test that, on the sur face, appears to hold that resentencing is not necessary if the defendant has already received the lowest possible sentence. However, in r eality this particular test always dictates resentencing because these courts have eng aged in open-ended speculation about what grounds for a lesser sentenc e the defendant might have argued to the court during his allocutio n had he been given the opportunity, even if such grounds had not been raised at any other point in the litigation. E.g., United States v. Med rano, 5 F.3d 1214, 1219 (9th Cir. 1993); see also United States v. Cole, 27 F.3d 996, 999 (4th
Cir. 1994) (remanding for resentencing based on speculat ion about what legal grounds the defendant might have raised durin g his allocution, even though he apparently did not argue such ground s on appeal). Still others have adopted the rather vague standar d that resentencing is

10The catalyst behind much of this activity is that i n the

years following Green, Van Hook, and Hill, the Supr eme Court has increasingly considered the concepts of h armless error and plain error, set forth in Rule 52, as nec essary inquiries on direct appeal whenever a defendant all eges that his rights were violated in the district court . (In this appeal, we are, of course, specifically concerned w ith the concept of plain error -- as opposed to har mless e rror -- because Adams did not raise an objection in the Dis trict Court). This emphasis on Rule 52 leads us to questi on whether we should reassess the seemingly simple dir ective of Green, Van Hook, and Hill (and Allegrucci) that on direct appeal the defendant is automatically entitled to resentencing when he is not affor ded his right of allocution. We think that such a reexamination is appropriate.

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

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

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

11least until recently, whether on direct appeal Rule 52(b)

should apply to every conceivable err or to which t he defendant failed to object, or whether a class of r ights
existed whose violation was considered so serious t hat Rule 52(b) should be bypassed in favor of automatic r ev ersal. As explained above, Green, V an Hook, and Hill would a ppear to place the right of allocution within this pr oposed class, because none of these opinions even mentions Rule 5 2 at

all.

However, in United States v. Olano, 507 U.S. 725 (1 993), the Supreme Court strongly indicated that no such c lass of rights exists. The Court first observed that "[n]o procedural principle is more familiar . . . than that a consti tutional right, or a right of any other sort, may be for fei ted in criminal as well as civil cases by the failur e to make timely assertion of the right before a tribunal having jur isdiction to determine it." Id. at 731 (quoting Yakus v. Unit ed States, 321 U.S. 414, 444 (1944) (internal quotation marks omitted)). In a criminal matter, the Court continue d, "Federal Rule of Criminal Procedure 52(b), which go verns on appeal from criminal proceedings, pr ovides a co urt of appeals a limited power to correct [for feited] err ors." Id. The Court then strongly suggested that all for feited e rrors in a criminal proceeding are subject to Rule 52(b) analy sis when it stated broadly that "[i]f a legal rule was viola ted during the district court proceedings, and if the defendan t did not waive the rule, then there has been an `err or' wit hin the meaning of Rule 52(b) despite the absence of a time ly objection." Id. at 733-34. In making this determina tion, the Court carefully differentiated between waiver and f orfeiture: waiver is the "intentional relinquishment or abando nment of a known right," while forfeiture is the "failure to make the timely assertion of a right," or in other wor d s, the failure to object to an alleged violation. Id. at 7 33.

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

1252(b) did not apply, and thus she was entitled to a utomatic

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

Thus we are compelled to arrive at the conclusion t hat Adams' claim of error is subject to Rule 52(b) plai n error analysis.5 As such, Olano provides the proper frame work for

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5. It is also worth noting that had Adams raised an objection in the District Court, he still would not be entitled to a utomatic reversal, but instead his claim would be subject to Rule 52(a) ha r mless error review. The Supreme Court's opinion in Johnson (even though it dealt with plain error and not harmless error) says as much when it explains, as noted above, that Rule 52 "by its terms gover ns direct a ppeals from judgments of conviction in the federal system." Johnson , 520 U.S. at 466. More specifically, the Court has repeatedly declar ed th at Rule 52(a) harmless error inquiry applies whenever the defendant has ra ised an objection in the district court. E.g., Neder v. United States, 5 27 U.S. 1, 7 (1999) (stating that Rule 52(a) "by its terms applies to a ll errors where a

proper objection is made at trial") (emphasis in original) ; Bank of Nova Scotia

v. United States, 487 U.S. 250, 255 (1988) (applying R ule 52(a) harmless error review to a claim of prosecutorial misconduct , and observing that "[i]t follows that Rule 52 is, in every pertinent r espect, as binding as

any statute duly enacted by Congress, and federal court s have no more discretion to disregard the Rule's mandate than the y do to disregard constitutional or statutory provisions"); United St ates v. Lane, 474 U.S. 438, 448 n.11 (1986) (rejecting the notion that Rul e 52(a) can be selectively applied, explaining that "on its face, Rule 52(a) admits of no broad exceptions to its applicability. Any assumpti on that once a `substantial right' is implicated it is inher ently `affected' by any

error begs the question raised by Rule 52(a)"). The only exception to the applicability of harmless error r eview is in the " very limited class" of
"structural" constitutional errors that"infect the entire trial process"

and therefore are so serious that they can never be dee med harmless. E.g., Neder, 527 U.S. at 8 (describing the class of struc tural constitutional errors, which includes complete denial of counsel, a biased trial judge, racial discrimination in selection of a grand jury, denial of selfrepresentation at trial, denial of a public trial, and a defective reasonable-doubt jury instruction).13analyzing Adams' claim. Before we can grant Adams r elief,

the District Court must have committed (1) "err or" (2) that is "plain" (3) that "affect[s] substantial rights." Olano, 507
U.S. at 732. If all three of these conditions are m et, we "ha[ve] [the] authority to" corr ect the District C ourt, "but [we are] not required to do so," because Olano make s clear
that we should exercise our discretion to correct t he error only if it "seriously affect[s] the fairness, integ rity or public reputation of judicial proceedings." Id. at 735-36. This
involves an examination of the seriousness of the e rror in the context of the entire case. Johnson, 520 U.S. a t 469; see also Young, 470 U.S. at 15-16 (explaining that reviewing courts must assess an alleged err or "aga inst the
entire record" so as to deter mine whether such err or "seriously affect[s] the fair ness, integrity or pu blic reputation of judicial proceedings").

Normally, in order for an error to"affect substanti al rights" under the third prong of the Olano test, th e error must have been "prejudicial" -- in other words, "[i ]t must have affected the outcome of the district court pro ceedings." Olano, 507 U.S. at 734. It is the defendant who bea rs the burden of persuasion with respect to pr ejudice. Id

. However, the Supreme Court has cautioned that some errors to which no objection was made should be "presumed prejudicial" if the defendant cannot make a specific showing of prejudice. Id. at 735. Furtherm ore, there may be a special category of forfeited errors that can be corrected "regardless of their effect on the out come."6

Id.

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

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

7. For example, some courts have applied har mless error -- rather than plain error -- review, even when no objection was r aised in the district court. E.g., United States v. Patterson, 128 F.3d 1 259, 1260-61 (8th Cir. 1997); United States v. Carper, 24 F .3d 1157, 1162 (9th Cir. 1994).

14reading of Olano dictates that when a defendant fai ls to

object to a violation of his right of allocution, h is claim on appeal is reviewed for plain error -- which require s the defendant to make a specific showing of pr ejudice, 8 unless he can show that the error should be pr esumed prej udicial, or that the error belongs in a special category of errors that should be corrected regardless of pr ejudice (i.e., the category of structural errors).

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

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Others have cited the Olano plain err or framework, but have implemented it in a curious fashion by ostensibly p lacing the burden of proving prejudice on the defendant, yet in fact imp licitly presuming prejudice whenever the defendant did not r eceive t he lowest possible sentence under the Sentencing Guidelines. E.g. , Un ited States v. Cole, 27 F.3d 996, 999 (4th Cir. 1994). Still others appear to have ignored Olano altogether. E.g., United States v. Myers, 150 F.3d 459, 462-64 (5th Cir. 1998); United States v. Rodriguez-Velasquez, 132 F. 3d 698, 700 (11th Cir. 1998); United States v. Riascos-Suarez, 73 F.3 d 616, 627 (6th Cir. 1996); United States v. Alba Pagan, 33 F .3d 125, 1 29-30 (1st Cir. 1994); United States v. Maldonado, 996 F.2d 598, 599 (2d C ir. 1993).

8. Surprisingly, our research r eveals that only tw o opinions in the

federal courts of appeal, neither of which is a majority op inion, appear to implement the Olano framework in this manner by pla cing the burden of demonstrating prejudice on the defendant. Myers, 15 0 F.3d at 465-67 (Davis, J., concurring) (placing the burden of pers uasion with respect to prejudice on the defendant, and noting that the def endant cannot satisfy this burden simply by pointing out that he did not receive the lowest possible sentence under the Sentencing Guidelines); Cole, 27 F.3d at 999-1002 (Luttig, J., dissenting) (same). However , even these opinions are arguably incomplete, because they fail to addre ss the possibility that the defendant might be explicitly relieved of the b urden of proving prejudice when a trial court violates the right of allocution, and instead prejudice may be presumed. See infra pp. 17-19.

15[Sentencing] Guidelines minimum" sentence. Beckett, 208

F.3d at 148.

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

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

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

16inquire whether this failure affected Adams' "subst antial

rights." Olano, 507 U.S. at 734. Nor mally, this wo uld require Adams to show that the trial court's error was prejudicial, or in other words, that it"affected th e outcome of the district court proceedings." Id.

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

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

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9. This "enormous difficulty" at least partially ex plains why several courts have implicitly presumed pr ejudice if the d efendant has not received the lowest possible sentence under the Sen tencing Guidelines. E.g., United States v. Riascos-Suarez , 73 F.3d 616 , 627 (6th Cir. 1995); United States v. Cole, 27 F.3d 996, 999 (4th Cir. 1 994); United States v. Medrano, 5 F.3d 1214, 1219 (9th Cir . 1993). Withou t this presumption, defendants would face an uphill battle in their att empt to obtain relief for violations of the right of allocution -- a r es ult that few courts

have been willing to tolerate.

17applicable Guidelines range, supra p. 3, and theref ore the

District Court clearly retained discretion to grant Adams a

lower sentence.

While this is the most obvious way in which the Dis trict Court retained discretion to give Adams a lower sen tence, it is by no means the only way. For instance, the D istrict Court also retained the discretion, had Adams spoke n on his own behalf, to reconsider its rejection of defe nse counsel's earlier arguments against a two-level upw ard adjustment for making a threat during one of the ba nk robberies, against the criminal history category as overrepresenting Adams' criminal activity, and in favor of a downward departure based on substandar d confinemen t conditions. Moreover, as a general matter, we belie ve that the proper standard for us to follow is that an opp ortunity exists for a violation of the right of allocution t o have played a role in the district court's sentencing decision -- even when a defendant is sentenced at the bottom of the Guidelines range thought to be applicable -- whenev er a searching review of the district court r ecord reve als that there are any disputed facts at issue at sentencing , or any arguments raised in connection with sentencing, tha t if
resolved in the defendant's favor would have r educ ed the applicable Guidelines range or the defendant's ulti mate
sentence.10

Our conclusion that we should presume pr ejudice he re, where Adams' right of allocution was violated, foll ows

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10. In adopting this standard, we explicitly reject the reasoning employed in United States v. Medrano, 5 F.3d 1214 (9th Cir. 1993), in which the Ninth Circuit engaged in open-ended speculation abo ut what grounds for a lesser sentence the defendant might have ar gued to the trial court during his allocution had he been given the opportu nity, even when such grounds had not been raised at any other point in t he district court proceedings. Id. at 999. We think the better approa ch is that when the
defendant is sentenced at the bottom of a Guideline s range, there is no opportunity for a violation of the right of allocut ion to have played a

role in the district court's sentencing decision unless there were disputed facts actually at issue at sentencing, or ar gument s made in connection with sentencing, that if resolved in the defendant' s favor would have reduced the applicable Guidelines range or the defe ndant's ultimate

sentence.

18logically from Supreme Court precedent. As the Cour t

explained in Green, the right of allocution is prem ised on the idea that "[t]he most persuasive counsel may no t be able to speak for a defendant as the defendant migh t, with halting eloquence, speak for himself." Gr een, 365 U.S. at 304. Thus, denying Adams his right of allocution wa s tantamount to denying him his most persuasive and eloquent advocate. And the District Court was likew ise denied the opportunity to take into consideration A dams' unique perspective on the circumstances r elevant t o his sentence, delivered by his own voice. In such a sit uation, we find it appropriate to presume pr ejudice becaus e the sentencing process itself was render ed presumptive ly unreliable. See, e.g., id. at 304-05; cf., e.g., Un ited States v. Cronic, 466 U.S. 648, 659 (1984) (observing that co urts should presume prejudice when the adversary process itself has been rendered presumptively unr eliable).

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

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

19As explained above, the legitimacy of the sentencin g

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

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

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

A True Copy:

Teste:

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

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