In the

United States Court of Appeals

For the Seventh Circuit

____________________ 

No. 23-3169 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

ANDRE BOWYER, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the

Western District of Wisconsin. 

No. 3:23CR00056-001 — William M. Conley, Judge. 

____________________ 

ARGUED JUNE 5, 2024 — DECIDED SEPTEMBER 17, 2024 

____________________ 

Before EASTERBROOK, BRENNAN, and JACKSON-AKIWUMI,

Circuit Judges. 

BRENNAN, Circuit Judge. Andre Bowyer, a national of Jamaica, pleaded guilty to the crime of re-entering the 

United States without permission after previously being removed. 8 U.S.C. § 1326(a). During his sentencing allocution, 

Bowyer sought to stress the ties he had formed to a family 
2 No. 23-3169 

here during the year or so between his unlawful reentry and 

his arrest on new criminal charges. The district judge interrupted and at great length characterized Bowyer’s account as 

lacking insight and unconvincing. After the judge’s comments took up much of Bowyer’s allocution, he asked if 

Bowyer had more to say, and Bowyer demurred. In the end, 

Bowyer received a below-guidelines sentence. 

Bowyer appeals, arguing that there was a violation of his 

right at sentencing to make his own statement, in his own 

words, and in his own way. Bowyer concedes he did not object in the district court, so our review is limited by the plainerror standard. Bowyer does not offer what he would have 

argued had he spoken more during his allocution, or how 

those arguments would have led to a lower sentence. So even 

if the judge erred (a question we do not answer), Bowyer has 

not shown that the error was plain, that it violated his substantial rights, or that it seriously affected the fairness of the 

proceedings.

I. Background

We begin long before the sentencing hearing in dispute

here. Bowyer was born in Jamaica, where he had a relationship with a woman who he believed was the mother of his 

child. He discovered later that he was not the child’s father. 

He sought to maintain contact with the child, but the mother 

stopped responding. 

In 2013 Bowyer and others began to perpetrate a phone 

scam, falsely telling victims they had won a lottery and 

needed to wire tax payments on the winnings to various accounts in Jamaica. In 2016 Bowyer came to the United States 

for the first time. He was charged with and pleaded guilty to 
No. 23-3169 3

conspiracy to commit mail fraud in federal court in Louisiana 

and in 2017 he received a 78-month prison sentence. 

After Bowyer was released he was removed to Jamaica in 

2022 and forbidden to reenter the U.S. for 10 years. That same 

year he re-entered anyway using fake identification documents. In the spring of 2022, Bowyer met Elixsa Diaz and her

family of seven children. He moved into their home in Grant 

County, Wisconsin, and he says he formed a strong paternal 

bond with the children. Within a year of moving in Bowyer

came to government attention on suspicion of again committing mail fraud. That he was in this country illegally also came 

to light. He pleaded guilty to unlawfully entering the United 

States after prior removal in violation of 8 U.S.C. § 1326(a). 

Of course, we were not present at the sentencing hearing, 

and our window into the events before, during, and after the 

allocution is limited to the transcript. That record of the proceedings relays that Bowyer was invited to give his allocution. 

At the same time the judge said he read a letter Bowyer had 

written to the court, which detailed his poverty in Jamaica

and his longing to be a father to someone, especially because 

the child he thought was his was not.1 During his allocution, 

Bowyer stressed his remorse, his love for the Diaz children, 

and his depth of feeling at serving as their father figure when 

(according to Bowyer) he was likely unable to have biological 

children. Diaz and her children also wrote letters in support, 

although their relationship status is unclear, as Bowyer was 

not living in their home for two weeks before his arrest. 

1 The four-page letter, which we have reviewed, is in the record at 

district court DE 19-1.
4 No. 23-3169 

The district judge’s statements focused on his opinion of 

Bowyer’s motivation in engaging in the relationship with 

Diaz. The judge offered his evaluation of the relationship as 

manipulative, both of the family and, in presenting it as a factor at sentencing, of him. The judge characterized it as “more 

... of a relationship ... of convenience [for Bowyer] than it is 

for Ms. Diaz or her family.” Under the sentencing factors the 

judge had to consider, he saw little relevance in this part of 

Bowyer’s life. The “worst part” of the allocution to the judge 

was that Bowyer “seem[ed] to be still thinking that I’m going 

to reduce your sentence because of it.” He sought to disabuse 

Bowyer of this notion, saying “I have a responsibility to sentence under factors that are clear under the statute, and you’re 

crying about not being able to be a biological father. Can you 

understand why this isn’t really pertinent right now?” In the 

judge’s view, Bowyer “had to be aware that ... the relationship was going to end” because he was not here legally, he 

had previously been removed for breaking the law, and he 

had apparently started engaging in new acts that constituted 

or resembled fraud, thus further increasing his risk of discovery. Despite this Bowyer had permitted the children to become attached to and reliant on him. 

The judge’s comments dominated Bowyer’s allocution. As 

soon as Bowyer began speaking the judge started talking and

made lengthy comments for most of the allocution. Measured 

by pages and lines in the transcript, the judge spoke for more 

than 80% of the allocution portion of the sentencing hearing. 

As a result, Bowyer argues, he was never able to expand on 

his argument for very long. 

Our understanding of the allocution is limited to the transcript. So far as we know, Bowyer was able to speak long 
No. 23-3169 5

enough to communicate his theory of mitigation. The effect 

on Bowyer of the frequency and tone of the judge’s comments 

is unclear. Bowyer’s statements and interjections in response 

to the judge’s remarks did get shorter. When the judge asked 

if there was anything else Bowyer would like to add, Bowyer’s final statement was: “Your Honor, I just want to say I’m 

sorry to Ms. Diaz. I’m really sorry. I really do—really do.” The 

record yields no reason to conclude that Bowyer had more 

comments to offer, on this mitigation argument or other topics. Whether this is a result of Bowyer’s feeling cowed or of 

his having nothing more to say is not plain. 

II. Analysis

Because he did not object at sentencing, Bowyer concedes 

we review for plain error. See United States v. Cunningham, 

883 F.3d 690, 698 n.21 (7th Cir. 2018); United States v. Luepke, 

495 F.3d 443, 448 (7th Cir. 2007). To warrant reversal for plain 

error, we must reach four conclusions: that an error occurred, 

that it was plain, that it affected substantial rights, and that 

the error seriously affected the “fairness, integrity, or public 

reputation” of judicial proceedings. Greer v. United States, 

593 U.S. 503, 507–08 (2021); see FED. R. CRIM. P. 52(b). 

If the first and second prongs are satisfied in a denial-ofallocution case, this circuit presumes that the error affected 

substantial rights (the third prong). Luepke, 495 F.3d at 451. 

While this presumption has been called into question, 

see United States v. Noel, 581 F.3d 490, 505 (7th Cir. 2009) 

(Easterbrook, C.J., concurring), we treat the presumption as 

rebuttable. None of our case law suggests that it cannot be 

overcome by countervailing evidence in a particular case. 
6 No. 23-3169 

We first consider whether an error occurred, a question we 

leave unresolved. The parties cite United States v. Covington, 

in which there was no error even when the district judge interrupted repeatedly during a defendant’s allocution. 681 

F.3d 908 (7th Cir. 2012). Important to that case was that the 

interjections were phrased neutrally with the purpose of returning the allocution from stray topics back to the defendant’s arguments in mitigation. Id. at 909. Here, some of the 

district court’s interruptions were to tell Bowyer why the relationship with Diaz and her children was not relevant. But in 

Covington the defendant was able to speak for quite some 

time—around six pages of the transcript—before the first interruption. Id. at 911. And some of the district judge’s remarks 

here were more than friendly questions to keep him on-topic. 

They veered into a running commentary during Bowyer’s 

time to allocute. A de novo review of Bowyer’s sentencing, 

then, might pose difficult questions. 

Our review, however, is limited to plain error, and some

factors weigh against Bowyer’s interpretation of his exchanges with the district judge. Despite the frequency of the 

interruptions, the judge never attempted to end the allocution 

early or tell Bowyer he could not speak. The judge also solicited further comments at the end of the allocution, and 

Bowyer briefly responded. Bowyer has not noted additional 

arguments he wanted to make during the allocution but omitted because of how much the judge spoke. Cf. United States v. 

Greer, 593 U.S. 503, 509 (2021) (observing, in context of challenge to conviction, that defendants on plain-error review 

may demonstrate prejudice in their appellate briefs by explaining what else they could have shown the district court if 

given a chance). Ultimately, the record is unclear as to 

whether Bowyer was so daunted that the chance to speak 
No. 23-3169 7

further was meaningless, or he had said all he wished. Thus, 

we would struggle to conclude, especially from the blackand-white of a transcript, whether there was error here. 

Even if there was error (again, which we do not decide), 

we conclude that it is not plain. Error can be “plain” only 

when unambiguous case law instructs the court against it. 

See Noel, 581 F.3d at 502 (concluding error of not personally 

addressing defendant was plain because Supreme Court had 

explicitly instructed district courts to do so). Our court has not 

explicitly stated when error is plain in this circumstance. A 

fellow circuit has held in an allocution case that any possible 

error was not plain because it did not contradict settled precedent from the Supreme Court or prior in-circuit cases. United 

States v. Jimenez, 61 F.4th 1281, 1289 (10th Cir. 2023) (affirming 

sentence when district judge stops short of “definitively announcing” sentence before allocution but implicitly limiting 

scope of allocution). The same is true here. The dearth of law 

on circumstances like these precludes any potential error 

from being “plain.” As Bowyer’s skillful counsel argued before us, this case is unique. Covington is the only case with 

somewhat similar circumstances of frequent interruptions, 

and there was no error in that case. 681 F.3d at 911. 

Even if there was plain error, Bowyer’s appeal falters on 

the third and fourth prongs of the plain-error test, regardless 

of a presumption of prejudice applying to the third prong. 

That presumption stems from the difficulty of discerning the 

effect on a sentence of a colloquy that never happened. Luepke, 

495 F.3d at 451. That is not a concern here: Bowyer described 

his theory of mitigation, orally and in writing, so the judge 

could evaluate it. Without speculation, we know that the 

judge saw Bowyer building a relationship under threat of 
8 No. 23-3169 

removal as manipulative and damaging for the children, who 

grew attached to a man who could not remain in the country 

after his prior removal for criminal activity. With no indication in the record or on appeal that Bowyer had any further 

arguments, we can conclude that further allocution along 

these lines would not have convinced a judge who already 

thought the contention was irrelevant. Cf. Greer, 593 U.S. at 

509. 

Allocution is a keystone of criminal procedure, see generally FED. R. CRIM. P. 32(i)(4)(A)(ii), with a long and important 

history in the common law. Green v. United States, 365 U.S. 

301, 304 (1961). As the Court noted, notwithstanding major 

changes in criminal procedure since the seventeenth century, 

the procedural rule permitting allocution has never been 

limited, nor has the need been lessened for the defendant to 

personally “present to the court his plea in mitigation.” Id. Important to the Court was that this criminal rule afforded the 

defendant the opportunity to speak as well as to present mitigating information. Id. Revisions to the rule have not altered 

those two prerogatives. 

As a formal chance to speak directly to the judge, allocution allows a defendant to (among other things) express 

remorse, accept responsibility, and explain personal circumstances. Allocution should be construed broadly so defendants have the latitude to address any information that might 

mitigate their sentence. Covington, 681 F.3d at 910. Hearing arguments directly from the defendant may convince a sentencing judge in a way that a polished argument from counsel 

could not. Green, 365 U.S. at 304. 

Even so, our precedents hold that denial of the right to allocution is “not a fundamental defect” automatically—so we 
No. 23-3169 9

may look to the facts to see if the proceedings were seriously

damaged. United States v. Pitre, 504 F.3d 657, 663 (7th Cir. 

2007) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). 

Here, we cannot conclude that the proceedings were fundamentally unfair. Bowyer’s opportunity to allocute was not 

completely overlooked or affirmatively withheld. See Noel, 

581 F.3d at 504. He spoke for about 40 lines in the transcript 

(a little over a page and a half). The defense also had opportunities outside the allocution to offer arguments in mitigation. As an example, before the hearing, Bowyer submitted 

the detailed four-page letter that the district judge considered. 

See United States v. Yankey, 56 F.4th 554, 558 (7th Cir. 2023) (acknowledging that reading defendant’s sentencing letter can 

be evidence that arguments in mitigation were considered).

Once both parties had agreed on the guidelines range, the 

prosecutor made a brief statement and Bowyer’s counsel 

made a longer argument, in which he also mentioned Diaz. 

Although the district judge was critical of defense counsel’s 

arguments and interjected several times, the transcript shows 

the judge was listening closely. He responded to the defense 

raising Diaz and her children as a factor in mitigation, remarking that it made him feel “manipulated and used.” The 

judge also gave counsel a chance to respond to these criticisms, and the judge was attentive to any further arguments, 

raising with counsel that there was a “third thing” counsel 

had previously wanted to mention but had not. Finally, the 

sentence Bowyer received was below the guidelines range, indicating Bowyer did receive some of the clemency he asked 

for. We also see no reasonable prospect of a greater downward variance. So as to the fourth prong, the asserted error 

did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. 
10 No. 23-3169 

This opinion, constrained by the plain-error standard, 

should not be read as accepting frequent and lengthy interruptions of a defendant during allocution. Without being present at the sentencing, we cannot assess the “mood in the 

room.” Just so, district judges should hesitate to leave an impression, even in a transcript, of impatience or discouragement during the important moment the defendant addresses 

the judge. Defendants must be shown that they are free to 

speak to the court whose sentence will determine their liberty. 

See Covington, 681 F.3d at 911. District judges may certainly 

ask questions, see id. at 909, and sometimes they may feel obligated to do so, including to ensure the topics in an allocution 

remain relevant. But care should be taken to ensure that judicial comments do not dominate the time for allocution or repeatedly criticize an argument that a defendant has offered, 

especially after the judge’s point has been well established. 

For these reasons, we conclude that Bowyer has not met 

the plain-error test for reversal.

AFFIRMED. 
No. 23-3169 11 

JACKSON-AKIWUMI, Circuit Judge, dissenting. At a sentencing hearing, the court must respect the defendant’s need to 

“be personally afforded the opportunity to speak” and “present to the court his plea in mitigation.” Green v. United States, 

365 U.S. 301, 304 (1961). The Federal Rules of Criminal Procedure codify this entitlement in Rule 32(i)(4)(A)(ii) by requiring the sentencing court to “permit the defendant to speak or

present any information to mitigate the sentence” (emphasis 

added). Focusing only on the right to present mitigating arguments, my colleagues conclude that, even if the court erred

by repeatedly and contentiously interrupting defendant Andre Bowyer, that error was not plain; did not prejudice him; 

and did not affect the fairness, integrity, or public reputation 

of judicial proceedings. But the majority opinion views the 

sentencing transcript too generously while defining Bowyer’s 

right of allocution—which has a history dating back to 

1689 — too narrowly. See Green, 365 U.S. at 304 (noting the 

common-law right of allocution). “When it comes to allocution—the defendant’s own chance to tell his story—it is hard 

to see how incessant interruptions from the court could ever 

be helpful.” United States v. Covington, 681 F.3d 908, 912 (7th 

Cir. 2012) (Wood, J., dissenting). I therefore respectfully dissent.

Beginning with the first element of the plain-error standard, the majority opinion evades the conclusion that the 

court’s frequent interruptions constituted error. In my view, 

the sentencing transcript makes a conclusion of error unavoidable. As my colleagues note, the judge speaks for 80% of 

what should be Bowyer’s opportunity for allocution. But 

worse is that, just as Bowyer begins to speak, the judge interjects to address Elixsa Diaz by stating how unfortunate it is 

that Bowyer has defrauded her. This is after Bowyer says only 
12 No. 23-3169 

13 words and before he can complete a single sentence. And 

the rest of Bowyer’s attempt at allocution is no different. The 

judge berates Bowyer repeatedly and at length—calling him 

“manipulat[ive]” and saying he was “painting a picture . . . that has nothing to do with the true reality”—despite 

Bowyer’s profuse attempts to apologize for the harm he had 

caused. 

The court violated Rule 32(i)(4)(A)(ii) and deprived Bowyer of his right to a meaningful allocution. The majority opinion equivocates because Bowyer does not explain what more 

he would have said, because the judge never told Bowyer he 

could not speak, and because perhaps the judge was attempting to keep Bowyer focused on topics the judge felt were more 

relevant. I believe these arguments do not affect whether error 

occurred for two reasons. First, the majority conflates the error and prejudice prongs of plain-error review: the court’s actions are the error, and whatever else Bowyer was prevented 

from saying can inform whether that error prejudiced him. 

Second, even if the court were trying to guide Bowyer to topics the court believed more relevant, the right of allocution is 

not just a right to present arguments in mitigation; it separately entitles a defendant to “speak for himself.” Green, 

365 U.S. at 304. Although the court did not say in so many 

words that Bowyer had to stop speaking, its frequent, confrontational interruptions had the same effect. In doing so, the 

court “reduced to a formality” Bowyer’s right of allocution, 

United States v. Barnes, 948 F.2d 325, 331 (7th Cir. 1991), and 

“did not afford him a meaningful opportunity to address the 

court prior to the imposition of sentence,” United States v. 

Luepke, 495 F.3d 443, 444 (7th Cir. 2007) (emphasis added).

Bowyer’s allocution was over almost as soon as it began.
No. 23-3169 13

Even if the court did err, the majority opinion says, that 

error was not plain. I respectfully disagree. My colleagues rely 

on an out-of-circuit decision, United States v. Jimenez, 61 F.4th 

1281 (10th Cir. 2023), for the proposition that an error is not 

plain unless it directly offends past precedent. Id. at 1289. But 

no such requirement to have on-point precedent exists: an error is plain so long as it is “clear or obvious, rather than subject to reasonable dispute.” Puckett v. United States, 556 U.S. 

129, 135 (2009). It is in the qualified immunity context where 

a closely analogous case is required; neither the Supreme 

Court nor this court has ever equated a “clear or obvious” error with the violation of “clearly established” law that negates 

qualified immunity. An error can be plain or obvious for reasons other than running afoul of prior judicial decisions. It 

could, as in this case, be plain because it conflicts with the 

Federal Rules. The court did not “permit the defendant to 

speak” or to “present any information to mitigate the sentence” in any meaningful way. FED. R. CRIM. P. 32(i)(4)(A)(ii).

As the judge acknowledged on the record, Bowyer was crying 

by the end of his frustrated allocution. The constant, needless 

interruptions deprived Bowyer of the right to express himself.

Further, the court’s actions affected Bowyer’s substantial 

rights. My colleagues say that Bowyer cannot enjoy the presumption of prejudice that we have recognized for a defendant deprived of the right of allocution. Luepke, 495 F.3d at 451. 

Here again the majority focuses on Bowyer’s inability to identify “further arguments” he would have made at sentencing 

were he allowed to complete a sentence, which leads the majority to “conclude that further allocution . . . would not have 

convinced a judge.” But the presumption exists precisely to 

“avoid[] our speculation about what the defendant might 

have said had the right been properly afforded him.” Id.
14 No. 23-3169 

Therefore, we have concluded previously that even where a 

defendant-appellant “has not submitted that he would have 

said anything different” during allocution, the plain error still 

affects substantial rights. See United States v. Noel, 581 F.3d 

490, 503 (7th Cir. 2009) (citing Green, 365 U.S. at 304). 

Even if Bowyer’s letter and his stymied efforts at allocution mentioned all the topics he wished to cover—he was not 

obliged to tell us if that is so—the plain error prejudiced him. 

“[I]t is not only the content of the defendant’s words that can 

influence a court, but also the way he says them.” Id. But before Bowyer even began speaking, the judge remarked, “I did 

read your letter with some care, and I don’t—I don’t know if 

you’re lying to yourself or to me.” Bowyer thus faced hostility

ahead of, and during, his allocution; was prevented from 

speaking at any length; and ultimately gave up. In my view, 

this is “hard evidence of prejudice,” Covington, 681 F.3d at 914 

(Wood, J., dissenting), even though in this situation, prejudice 

ought to be presumed. 

The nature of the right at issue leads to another form of 

prejudice when it is trampled. The error insults the defendant’s dignity when he is at his most vulnerable—poised to 

learn how long he will lose his liberty. Bowyer’s right to speak 

was not limited to articulating arguments that the court 

would find persuasive. Rather, we have conceived of the right 

of allocution as a “personal one.” Luepke, 495 F.3d at 449. Allocution can also allow defendants to “speak their mind,” and 

it has a humanizing function, independent of any mitigatory 

purpose. See Kimberly A. Thomas, Beyond Mitigation: Towards 

a Theory of Allocution, 75 FORDHAM L. REV. 2641, 2667 (2007). 

Alternatively framed as a “right to be heard,” it is “minimally 

invasive” and gives the defendant “a few moments of court 
No. 23-3169 15

time” during one of the court’s “weighty responsibilit[ies].” 

Barnes, 948 F.2d at 331. 

Finally, the majority concludes that any error here is not 

the kind that seriously affects the fairness, integrity, or public 

reputation of judicial proceedings. This cannot be squared 

with what we have said about the value of the right of allocution: it “maximiz[es] the perceived equity of the process,” permits the defendant to “plead for mercy,” and “enable[s] our 

system of justice to mete out punishment in the most equitable fashion possible.” Id. at 328. My colleagues say that this is 

the “rare” case in which the infringement of the right of allocution “did not implicate these core values,” Luepke, 495 F.3d 

at 452, because Bowyer was able to submit a written letter and 

because the judge was attentive at sentencing. But neither of 

those facts is responsive to whether Bowyer received the expressive benefits of a meaningful allocution. Moreover, a defendant whose words have been ridiculed could surely fear

that, if he continued to speak, he could detrimentally affect 

his sentence. So too could a member of the public sitting in the 

gallery come away with an unfavorable impression about the 

fairness and integrity of sentencing proceedings. 

The majority ends by cautioning that the plain-error 

standard drives its decision, which should not be read to condone frequent or lengthy interruptions. True, my colleagues 

do not endorse the court’s actions, but their application of the 

standard is not consistent with the gravity of a right “so 

highly prized for so sound a reason for so long a time [which] 

deserves to be rigorously enforced.” Green, 365 U.S. at 311 

(Black, J., dissenting). Today’s decision dilutes the right of allocution and “soften[s] the blow of nonenforcement.” Id. For 

this reason, I respectfully dissent.