2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-23-2001

United States v. Adams

Precedential or Non-Precedential:

Docket 00-1212

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Recommended Citation

"United States v. Adams" (2001). 2001 Decisions. Paper 113.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/113
Filed 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 Adams 
 Thomas 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 ess the 

defendant before imposing sentence and deter mine whether 

he wishes to make a statement or present any information 

in mitigation of the sentence. We conclude that Adams 

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 basis 

of the District Court's alleged failure to verify that 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 third issue 

raised on appeal, namely, whether the District Court 

properly refused to grant a downwar d departure from the 

Sentencing Guidelines range, because we lack jurisdiction 

over this issue.1 

_________________________________________________________________ 

1. Adams contends that the District Court misappr ehended its authority 

to depart from the Guidelines range based upon substandard 

presentence confinement conditions. Having carefully reviewed the 

record, we conclude that the District Court did understand its authority 

but declined to exercise its discretion to depart downward, and thus we 

do not have jurisdiction to review this aspect of Adams' sentence. E.g., 

United States v. Stevens, 223 F.3d 239, 247 (3d Cir. 2000). 

 2 
II. Facts and Procedural Background 

Adams pled guilty to two counts of bank robbery. At the 

sentencing hearing, his counsel voiced several objections 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 during 

one of the robberies. He further challenged the assessment 

of eleven criminal history points (which established a 

criminal history category of V) as over-r epresenting Adams' 

criminal activity, and sought a downward departure based 

upon substandard confinement conditions. In addition, he 

objected to the inclusion in the presentence r eport of 

information relating to Adams' suspected involvement 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 motion 

for a downward departure. After some discussion, the 

District Court asked, "Anything else?" Adams' counsel 

replied, "Do you want to hear me as far as sentencing is 

concerned?" The District Court responded, "I want to hear 

what you want to say about that, of course. And then I 

want to hear if the remorseful defendant has anything he 

wants to say." App., Vol. II, at 111a. 

The District Court heard argument both fr om defense 

counsel and the government with respect to sentencing 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' counsel 

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 then 

imposed a sentence of 105 months, well within the 

Sentencing Guidelines range of 92 to 115 months (which 

corresponded to an offense level of 24 and a criminal 

history of V). Id. at 111-13a. Finally, the District Court 

entertained a recommendation as to the place of service of 

 3 
sentence 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 both 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 imposed 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) (stating that 

"[p]lain errors or defects affecting substantial rights may be 

noticed although they were not brought to the attention of 

the court"); Johnson v. United States, 520 U.S. 461, 466 

(1997) (explaining that when no objection is made in the 

district court, the plain error standar d of Rule 52(b) 

governs all direct appeals from judgments of conviction in 

the federal courts, regardless of the seriousness of the error 

claimed). 

IV. Discussion 

Adams contends that the District Court's failur e to 

comply with its affirmative duty to personally address him 

requires that he be resentenced. The government, on the 

other hand, argues that resentencing is not required 

because Adams demonstrates no prejudice fr om the District 

Court's oversight, and thus there was no plain error under 

Rule 52(b) of the Federal Rules of Criminal Pr ocedure. 

As an initial matter, we note that the parties agree that 

the District Court failed to comply with Rule 32(c)(3)(C), 

which safeguards the defendant's right of allocution. The 

Rule states that, prior to imposing sentence, the district 

court must "address the defendant personally and 

determine whether the defendant wishes to make a 

statement and to present any information in mitigation of 

the sentence." The District Court was obviously aware of 

Adams' right of allocution, and specifically asked Adams' 

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

allocution?" However, the Supreme Court has held that this 

query, directed towards counsel, does not satisfy the 

requirement that the district court personally address the 

defendant himself. E.g., Green v. United States, 365 U.S. 

301, 305 (1961) (plurality opinion); id. at 307 (Black, 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 allocution 

contained in Rule 32(c)(3)(C) necessitates a r emand 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 order. 

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 enforced 

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 under Rule 32 

is highly respected. At the conclusion of sentencing, the 

trial judge had asked, "Did you want to say something?" Id. 

at 302. It was unclear from the recor d whether this 

question had been posed to the defendant, or mer ely to 

defense counsel. Id. at 304-05. Given this uncertainty, a 

plurality of the Court determined that the defendant had 

failed to meet his burden of showing that he was not 

accorded his right of allocution. Id. at 305. However, 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 the 

defendant has been issued a personal invitation to speak 

prior to sentencing."2 Id.; id. at 309 (Black, J., dissenting). 

_________________________________________________________________ 

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 and to present any 

 5 
Justice 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 common- 

 law right of allocution. As early as 1689, it was 

 recognized that the court's failure to ask the defendant 

 if he had anything to say before sentence was imposed 

 required reversal. See Anonymous, 3 Mod. 265, 266, 87 

 Eng. Rep. 175 (K.B.). Taken in the context of its 

 history, there can be little doubt that the drafters of 

 Rule 32(a) intended that the defendant be personally 

 afforded the opportunity to speak befor e imposition of 

 sentence. We are not unmindful of the r elevant major 

 changes that have evolved in criminal procedur e since 

 the seventeenth century-- the sharp decrease in the 

 number of crimes which were punishable by death, the 

 right of the defendant to testify on his own behalf, and 

 the right to counsel. But we see no reason why a 

 procedural rule should be limited to the cir cumstances 

 under which it arose if reasons for the right it protects 

 remain. None of these modern innovations lessens 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 defendant might, 

 with halting eloquence, speak for himself. W e are 

 buttressed in this conclusion by the fact that the rule 

 explicitly affords the defendant two rights: "to make a 

 statement in his own behalf," and "to pr esent any 

 information in mitigation of punishment." W e therefore 

 reject the Government's contention that merely 

_________________________________________________________________ 

information in mitigation of punishment." Green, 365 U.S. at 303 n.1. As 

a result of Green, Rule 32 was amended in 1966 to include 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 development of Rule 32). The 

current Rule 32(c)(3)(C), which is the subject of Adams' appeal, contains 

this requirement that the court personally address the defendant. 

 6 
 affording defendant's counsel the opportunity 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 allocution, as 

he took issue with the Court's decision not to grant the 

defendant relief: 

 The language of Mr. Justice FRANKFURTER'S opinion 

 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 or more, 

 based as he properly says upon the belief that,"The 

 most persuasive counsel may not be able to speak for 

 a defendant as the defendant might, with halting 

 eloquence, speak for himself." A rule so highly prized 

 for so sound a reason for so long a time deserves to be 

 rigorously enforced by this Court, not mer ely praised in 

 resounding glittering generalities calculated 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 right of 

allocution, while at the same time limiting its r each. The 

Court reinforced the right by explaining in a footnote 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 (1961). 

Hill, 368 U.S. at 429 n.6. Van Hook , in turn, is a onesentence opinion that cites Green as requiring reversal and 

remand of defendant Van Hook's case for resentencing. Van 

Hook, 365 U.S. at 609. Consequently, Hill appears to stand 

for the proposition that, on direct appeal, a defendant is 

automatically entitled to resentencing if the trial court 

violates the defendant's right of allocution by, for example, 

failing to personally address him prior to sentencing. 

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, absent 

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

trial court simply failed to comply with "the for mal 

requirements of the Rule" by, for example, neglecting to 

personally address the defendant prior to sentencing, then 

habeas relief would be inappropriate. Id. at 429. In 

declining to recognize such a violation as a basis for habeas 

relief, the Court expounded on the natur e of the right of 

allocution: 

 The failure of a trial court to ask a defendant 

 represented by an attorney whether he has anything to 

 say before sentence is imposed is not of itself an error 

 of the character or magnitude cognizable under a writ 

 of habeas corpus. It is an error which is neither 

 jurisdictional nor constitutional. It is not a 

 fundamental defect that inherently results in a 

 complete miscarriage of justice, nor an omission 

 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 contain 

no mention of Federal Rule of Criminal Procedur e 52. 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, sets forth 

the concepts of harmless error and plain error on direct 

review in the federal appellate courts. Rule 52 provides: 

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

 variance which does not affect substantial rights shall 

 be disregarded. 

 (b) Plain Error. Plain err ors or defects affecting 

 substantial rights may be noticed although they wer e 

 not brought to the attention of the court. 

Therefore, the over-arching consideration of Rule 52 is 

whether an error "affects substantial rights." In practice, 

Rule 52(a) applies when the defendant has made a timely 

objection to an error, and the court of appeals normally 

engages in a so-called "harmless err or" inquiry to determine 

 8 
whether 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). When the 

defendant has not objected in the district court, Rule 52(b) 

applies, which normally requires the same kind of inquiry 

as that dictated by Rule 52(a), with one crucial dif 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 Rule 52 

in Green, Van Hook, orHill is curious, perhaps reflecting its 

belief (at least at that time) that the Rule did not apply to 

violations of the right of allocution on dir ect appeal, and 

thus the appropriate remedy for such violations was

automatic resentencing. 

In sum, from our review of Green, Van Hook, and Hill, we 

conclude that in deciding these cases nearly four decades 

ago, the Supreme Court was of the view that a sentence 

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 tradition and 

highly respected, nonetheless it is neither constitutional 

nor jurisdictional, and thus the defendant faced a difficult 

time in collaterally attacking his sentence based on a 

violation of this right. 

Accordingly, it is not surprising that in United States v. 

Allegrucci, 229 F.2d 811 (3d Cir. 1962), we remanded for 

resentencing after the district court had failed to personally 

address the defendant prior to sentencing and inquire if he 

wished to make a statement. Id. at 815. Before sentencing 

the defendant, the trial court had simply told defendant's 

counsel to "go ahead," which clearly did not measure up to 

the standard enunciated in Green. Id. Following Green, we 

automatically vacated and remanded for r esentencing 

without any discussion of harmless err or, plain error, or 

prejudice to the defendant. Id. 

Since its decision in Hill in 1962, the Supr eme Court has 

said little regarding the right of allocution,3 but the federal 

_________________________________________________________________ 

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, 

 9 
courts have been quite active in interpreting this right and 

in fashioning various tests for determining on direct appeal 

when a violation of the right should result in resentencing.4 

_________________________________________________________________ 

165 (1963); Andrews v. United States, 373 U.S. 334, 336-37 (1963); 

Machibroda v. United States, 368 U.S. 487, 489 (1962). In addition, the 

Court discussed the right in some detail in McGautha v. California, 402 

U.S. 183 (1971), but did little more than r epeat what had already been 

said in Green and Hill. McGautha, 402 U.S. at 217-20; id. at 228 n.7, 

236-38 (Douglas, J., dissenting). 

4. We detect at least five differ ent tests that have gained favor in our 

sister circuit courts of appeal. Some courts have resolutely clung to the 

idea that when the right of allocution is violated, the defendant on 

direct 

appeal is always entitled to remand for r esentencing. E.g., United States 

v. Myers, 150 F.3d 459, 463-65 (5th Cir. 1998); United 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 not entitled to 

resentencing unless he can identify specific statements on appeal that he 

would have made at sentencing that likely would have 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 already received the 

lowest possible sentence -- i.e., if he was sentenced at the bottom of the 

applicable Sentencing Guidelines range and he had not argued in the 

trial court that the Guidelines range was incorr ect (by, for example, 

moving for a downward departure or a decr ease in either the offenselevel or criminal history category, or by ar guing against an upward 

departure or an increase in the of fense-level or criminal history 

category). E.g., United States v. Riascos-Suarez, 73 F.3d 616, 627 (6th 

Cir. 1996); United States v. Lewis, 10 F.3d 1086, 1092 (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 engaged in open-ended 

speculation about what grounds for a lesser sentence the defendant 

might have argued to the court during his allocution 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. Medrano, 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 speculation about what 

legal grounds the defendant might have raised during his allocution, 

even though he apparently did not argue such grounds on appeal). Still 

others have adopted the rather vague standar d that resentencing is 

 10 
The catalyst behind much of this activity is that in the 

years following Green, Van Hook, and Hill, the Supreme 

Court has increasingly considered the concepts of harmless 

error and plain error, set forth in Rule 52, as necessary 

inquiries on direct appeal whenever a defendant alleges 

that his rights were violated in the district court. (In this 

appeal, we are, of course, specifically concerned with the 

concept of plain error -- as opposed to har mless error -- 

because Adams did not raise an objection in the District 

Court). This emphasis on Rule 52 leads us to question 

whether we should reassess the seemingly simple directive 

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. Although Rule 

52(b) apparently did nothing more than codify the standard 

laid down by the Supreme Court in United States v. 

Atkinson, 297 U.S. 157, 160 (1936), see United States v. 

Young, 470 U.S. 1, 7 (1985), nevertheless it was unclear, at 

_________________________________________________________________ 

appropriate only if failure to do so would result in "manifest injustice." 

E.g., United States v. Rodriguez-Velasquez, 132 F.3d 698, 700 (11th Cir. 

1998). 

Adding to the complexity of these various standar ds is the 

circumstance that sometimes a single court has adopted more than one 

test, without acknowledging the conflict. This situation is perhaps the 

most pronounced in the Ninth Circuit. Compare Leasure, 122 F.3d at 

841 (holding resentencing inappropriate unless the defendant can 

identify specific statements on appeal that he would have made at 

sentencing that likely would have impacted his sentence) and Mejia, 953 

F.2d at 468 (holding resentencing not warranted if the defendant already 

received the lowest possible sentence under the Sentencing Guidelines) 

with Medrano, 5 F.3d at 1219 (adopting a rule that in practice requires 

automatic resentencing, because even though the defendant in the trial 

court had raised no grounds for a lower sentence, the court nevertheless 

remanded for resentencing based on speculation about 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 resentencing when the right of 

allocution is violated). 

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

should apply to every conceivable err or to which the 

defendant failed to object, or whether a class of rights 

existed whose violation was considered so serious that Rule 

52(b) should be bypassed in favor of automatic r eversal. As 

explained above, Green, V an Hook, and Hill would appear to 

place the right of allocution within this pr oposed class, 

because none of these opinions even mentions Rule 52 at 

all. 

However, in United States v. Olano, 507 U.S. 725 (1993), 

the Supreme Court strongly indicated that no such class of 

rights exists. The Court first observed that "[n]o procedural 

principle is more familiar . . . than that a constitutional 

right, or a right of any other sort, may be for feited in 

criminal as well as civil cases by the failur e to make timely 

assertion of the right before a tribunal having jurisdiction 

to determine it." Id. at 731 (quoting Yakus v. United States, 

321 U.S. 414, 444 (1944) (internal quotation marks 

omitted)). In a criminal matter, the Court continued, 

"Federal Rule of Criminal Procedure 52(b), which governs 

on appeal from criminal proceedings, pr ovides a court of 

appeals a limited power to correct [for feited] errors." Id. The 

Court then strongly suggested that all for feited errors in a 

criminal proceeding are subject to Rule 52(b) analysis when 

it stated broadly that "[i]f a legal rule was violated during 

the district court proceedings, and if the defendant did not 

waive the rule, then there has been an `err or' within the 

meaning of Rule 52(b) despite the absence of a timely 

objection." Id. at 733-34. In making this determination, the 

Court carefully differentiated between waiver and forfeiture: 

waiver is the "intentional relinquishment or abandonment 

of a known right," while forfeiture is the "failure to make 

the timely assertion of a right," or in other wor ds, the 

failure to object to an alleged violation. Id. at 733. 

If, in the wake of Olano, there wer e any doubt about the 

universal applicability of Rule 52(b) on dir ect appeal 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 defendant 

argued that the constitutional error in her trial proceedings, 

to which she had not objected, was so serious that Rule 

 12 
52(b) did not apply, and thus she was entitled to automatic 

reversal. Id. at 466. The Court flatly rejected that argument, 

specifically stating that "the seriousness of the error 

claimed does not remove consideration of it fr om the ambit 

of the Federal Rules of Criminal Procedur e." Id. Moreover, 

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 error. Id. 

Thus we are compelled to arrive at the conclusion that 

Adams' claim of error is subject to Rule 52(b) plain error 

analysis.5 As such, Olano provides the proper framework for 

_________________________________________________________________ 

5. It is also worth noting that had Adams raised an objection in the 

District Court, he still would not be entitled to automatic reversal, but 

instead his claim would be subject to Rule 52(a) har 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 appeals from judgments 

of conviction in the federal system." Johnson , 520 U.S. at 466. More 

specifically, the Court has repeatedly declar ed that Rule 52(a) harmless 

error inquiry applies whenever the defendant has raised an objection in 

the district court. E.g., Neder v. United States, 527 U.S. 1, 7 (1999) 

(stating that Rule 52(a) "by its terms applies to all 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 Rule 52(a) harmless 

error review to a claim of prosecutorial misconduct, and observing that 

"[i]t follows that Rule 52 is, in every pertinent respect, as binding as 

any 

statute duly enacted by Congress, and federal courts have no more 

discretion to disregard the Rule's mandate than they do to disregard 

constitutional or statutory provisions"); United States v. Lane, 474 U.S. 

438, 448 n.11 (1986) (rejecting the notion that Rule 52(a) can be 

selectively applied, explaining that "on its face, Rule 52(a) admits of no 

broad exceptions to its applicability. Any assumption 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 deemed harmless. E.g., 

Neder, 527 U.S. at 8 (describing the class of structural 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). 
 13 
analyzing Adams' claim. Before we can grant Adams relief, 

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 met, we 

"ha[ve] [the] authority to" corr ect the District Court, "but 

[we are] not required to do so," because Olano makes clear 

that we should exercise our discretion to correct the error 

only if it "seriously affect[s] the fairness, integrity or public 

reputation of judicial proceedings." Id. at 735-36. This 

involves an examination of the seriousness of the error in 

the context of the entire case. Johnson, 520 U.S. at 469; 

see also Young, 470 U.S. at 15-16 (explaining that 

reviewing courts must assess an alleged err or "against the 

entire record" so as to deter mine whether such error 

"seriously affect[s] the fair ness, integrity or public 

reputation of judicial proceedings"). 

Normally, in order for an error to"affect substantial 

rights" under the third prong of the Olano test, the error 

must have been "prejudicial" -- in other words, "[i]t must 

have affected the outcome of the district court proceedings." 

Olano, 507 U.S. at 734. It is the defendant who bears 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. Furthermore, 

there may be a special category of forfeited errors that can 

be corrected "regardless of their effect on the outcome."6 

Id. 

Notwithstanding this guidance, the federal cir cuit courts 

of appeal have been inconsistent in their application of 

Olano when reviewing violations of the right of allocution on 

direct appeal to which no objection was raised in the 

district court.7 As explained above, in our view, a fair 

_________________________________________________________________ 

6. Here, the Court is apparently r eferring to "structural" 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 raised in the district 

court. E.g., United States v. Patterson, 128 F.3d 1259, 1260-61 (8th Cir. 

1997); United States v. Carper, 24 F .3d 1157, 1162 (9th Cir. 1994). 

 14 
reading of Olano dictates that when a defendant fails to 

object to a violation of his right of allocution, his claim on 

appeal is reviewed for plain error -- which requires the 

defendant to make a specific showing of pr ejudice,8 unless 

he can show that the error should be pr esumed prejudicial, 

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 violation of 

the right of allocution in United States v. Beckett, 208 F.3d 

140 (3d Cir. 2000). Following the lead of the United States 

Court of Appeals for the Fourth Circuit in United States v. 

Lewis, 10 F.3d 1086 (4th Cir. 1993), we held that "even 

were we to assume that [the defendant] was denied the 

right of allocution," he was not entitled to automatic 

resentencing because he was not prejudiced by the denial 

in light of the fact that "he was sentenced to the 

_________________________________________________________________ 

Others have cited the Olano plain err or framework, but have 

implemented it in a curious fashion by ostensibly placing the burden of 

proving prejudice on the defendant, yet in fact implicitly presuming 

prejudice whenever the defendant did not r eceive the lowest possible 

sentence under the Sentencing Guidelines. E.g. , United 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.3d 616, 627 (6th Cir. 

1996); United States v. Alba Pagan, 33 F .3d 125, 129-30 (1st Cir. 1994); 

United States v. Maldonado, 996 F.2d 598, 599 (2d Cir. 1993). 

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

federal 

courts of appeal, neither of which is a majority opinion, appear to 

implement the Olano framework in this manner by placing the burden of 

demonstrating prejudice on the defendant. Myers, 150 F.3d at 465-67 

(Davis, J., concurring) (placing the burden of persuasion with respect to 

prejudice on the defendant, and noting that the defendant 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 address the possibility that 

the defendant might be explicitly relieved of the burden 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 Johnson), nor 

did we use the term "plain error ," even though it is clear 

from the opinion that the defendant had raised no objection 

to the trial court's failure to observe the right of 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 the 

defendant's right of allocution -- and ther efore one could 

argue that our ruling in Beckett cr eates a conflict in our 

circuit precedent. 

Significantly, however, we do not consider Beckett as an 

improper departure from our cir cuit precedent in Allegrucci. 

In Beckett, we considered prejudice to the defendant rather 

than automatically remanding for resentencing. 

Accordingly, we view Beckett as r eflective of intervening 

Supreme Court case law (such as Olano and Johnson) that 

has highlighted the presence and importance of applying 

Rule 52 on direct appeal. As such, Beckett has superceded 

Allegrucci. See, e.g., Reich v. D.M. Sabia Co., 90 F.3d 854, 

858 (3d Cir. 1996) (observing that "[a]lthough a panel of 

this court is bound by, and lacks authority to overrule, 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 Patterson 

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). Still, we will 

attempt to flesh out what we did not specifically state in 

Beckett, and therefore we will analyze Adams' claim within 

the Olano plain error framework. 

Applying this framework, we first find, as explained 

above, that the District Court committed "err or" when it 

failed to personally address Adams prior to sentencing. 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 

 16 
inquire whether this failure affected Adams' "substantial 

rights." Olano, 507 U.S. at 734. Nor mally, this would 

require Adams to show that the trial court's error was 

prejudicial, or in other words, that it"affected the outcome 

of the district court proceedings." Id. 

We note that this would be an onerous burden for Adams 

to meet. In order to prove that the err or actually "affected 

the outcome of the district court proceedings," Adams 

would have 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. In this context, as the First Circuit observed in 

United States v. Alba Pagan, 33 F.3d 125 (1st Cir. 1994), 

"the impact of the omission on a [judge's] discretionary 

[sentencing] decision is usually enormously difficult to 

ascertain."9 Id. at 130. But as the Supreme Court explained 

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 prejudice 

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 should 

presume prejudice when a defendant shows a violation of 

the right and the opportunity for such a violation to have 

played a role in the district court's sentencing decision. 

Adams has met that standard here. W e have, of course, 

already determined that his right of allocution was violated. 

And the opportunity existed for this violation to have played 

a role in the District Court's sentencing decision, because 

Adams was sentenced roughly in the middle of the 

_________________________________________________________________ 

9. This "enormous difficulty" at least partially explains why several 

courts have implicitly presumed pr ejudice if the defendant has not 

received the lowest possible sentence under the Sentencing 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. 1994); United States v. 

Medrano, 5 F.3d 1214, 1219 (9th Cir . 1993). Without this presumption, 

defendants would face an uphill battle in their attempt to obtain relief 

for violations of the right of allocution -- a r esult that few courts 

have 

been willing to tolerate. 

 17 
applicable Guidelines range, supra p. 3, and therefore the 

District Court clearly retained discretion to grant Adams a 

lower sentence. 

While this is the most obvious way in which the District 

Court retained discretion to give Adams a lower sentence, 

it is by no means the only way. For instance, the District 

Court also retained the discretion, had Adams spoken on 

his own behalf, to reconsider its rejection of defense 

counsel's earlier arguments against a two-level upward 

adjustment for making a threat during one of the bank 

robberies, against the criminal history category as overrepresenting Adams' criminal activity, and in favor of a 

downward departure based on substandar d confinement 

conditions. Moreover, as a general matter, we believe that 

the proper standard for us to follow is that an opportunity 

exists for a violation of the right of allocution to 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 -- whenever a 

searching review of the district court r ecord 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 r educed the 

applicable Guidelines range or the defendant's ultimate 

sentence.10 

Our conclusion that we should presume pr ejudice here, 

where Adams' right of allocution was violated, follows 

_________________________________________________________________ 

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 about what grounds for 

a lesser sentence the defendant might have ar gued to the trial court 

during his allocution had he been given the opportunity, even when such 

grounds had not been raised at any other point in the district court 

proceedings. Id. at 999. We think the better approach is that when the 

defendant is sentenced at the bottom of a Guidelines range, there is no 

opportunity for a violation of the right of allocution to have played a 

role 

in the district court's sentencing decision unless there were disputed 

facts actually at issue at sentencing, or ar guments made 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. 

 18 
logically from Supreme Court precedent. As the Court 

explained in Green, the right of allocution is premised on 

the idea that "[t]he most persuasive counsel may not be 

able to speak for a defendant as the defendant might, with 

halting eloquence, speak for himself." Gr een, 365 U.S. at 

304. Thus, denying Adams his right of allocution was 

tantamount to denying him his most persuasive and 

eloquent advocate. And the District Court was likewise 

denied the opportunity to take into consideration Adams' 

unique perspective on the circumstances r elevant to his 

sentence, delivered by his own voice. In such a situation, 

we find it appropriate to presume pr ejudice because the 

sentencing process itself was render ed presumptively 

unreliable. See, e.g., id. at 304-05; cf., e.g., United States v. 

Cronic, 466 U.S. 648, 659 (1984) (observing that courts 

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 the 

fairness, and hence legitimacy, of the sentencing process. 

See, e.g., Green, 365 U.S. at 304-05; see also United States 

v. Myers, 150 F.3d 459, 463-64 (5th Cir . 1998) (observing 

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 Pagan, 33 

F.3d at 129 (noting that the right of allocution "is designed 

to temper punishment with mercy in appr opriate cases, and 

to ensure that sentencing reflects individualized 

circumstances," and that the right "has value in terms of 

maximizing the perceived equity of the pr ocess"). When this 

legitimacy is called into question -- as it was when the 

District Court did not personally address Adams and

inquire if he wished to speak on his own behalf-- prejudice 

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 our 

discretion to correct the District Court's error only if it 

"seriously affect[s] the fair ness, integrity or public 

reputation of judicial proceedings." Olano, 507 U.S. at 736. 

 19 
As explained above, the legitimacy of the sentencing 

process was called into question when Adams' right of 

allocution was violated. Moreover, a defendant's allocution 

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 judicial 

proceedings." Young, 470 U.S. at 15-16. Therefore, we have 

little difficulty concluding that it is appr opriate 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 plain 

error that should be corrected when it failed to personally 

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 District 

Court's error, because here we consider the trial court's 

violation of Rule 32(c)(3)(C) as one of those situations in 

which prejudice should be presumed. Mor eover, as a

general matter, we conclude that prejudice should be 

presumed whenever the opportunity exists for this violation 

to have played a role in the district court's sentencing 

decision. Our resolution of this case follows naturally 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 emanded for 

resentencing. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 20