In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-1559

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

BERNARD J. O’HALLAREN, III,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 CR 43—George W. Lindberg, Judge.

____________

ARGUED SEPTEMBER 14, 2007—DECIDED OCTOBER 2, 2007

____________

Before BAUER, EVANS, and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge. Appellant O’Hallaren appeals

from a final order and judgment from the United States

District Court for the Northern District of Illinois,

Eastern Division, that revoked O’Hallaren’s supervised

release and sentenced him to 28 months in a federal

prison. We vacate the district court’s sentence and

remand for a new sentencing proceeding.

I. Background

Appellant O’Hallaren was released from the Bureau of

Prisons on July 24, 2006 after serving time for interstate
2 No. 07-1559

transportation of stolen property. As part of that original

sentence, the district court ordered O’Hallaren to serve

36 months of supervised release after his detention in

the federal prison. Terms of this supervised release

included that O’Hallaren: (1) must not possess any controlled substance not prescribed to him by a physician;

(2) must report in person to the Probation Office within

72 hours of being released from custody; (3) must participate in a program of drug aftercare as directed by the

Probation Office; and (4) must subject himself to drug

testing by the Probation Office.

O’Hallaren did not comply with these terms of supervised release for long. On his first and only meeting with

a probation officer, O’Hallaren submitted to the required

drug test and tested positive for cocaine. By September 5,

2006, the Probation Office filed a Special Report requesting a hearing for a rule to show cause why O’Hallaren’s

supervised release should not be revoked. In the Special

Report, the Probation Office cited five grounds for revocation: (1) failure to report to the probation officer and

submit a truthful written report; (2) failure to participate

in a drug aftercare program as directed; (3) unlawful use

of cocaine; (4) failure to submit to mandatory drug testing; and (5) failure to follow the instructions of the probation officer.

Judge Lindberg scheduled multiple hearings on the

supervised release revocation, but a substantive hearing

on the issue did not occur until February 7, 2007. At this

hearing, O’Hallaren’s counsel suggested an alternative

sentencing proposal that involved a voluntary drug

treatment program with a success rate comparable

to most other drug treatment programs. The government

stated that this would be acceptable as long as it was

followed by a 120-day outpatient program where

O’Hallaren would be required to live at the Salvation

Army. However, the Probation Office maintained the
No. 07-1559 3

1 O’Hallaren’s counsel at oral argument pointed out that the

violations were admitted only in the context and for the purpose of reaching an agreement with the government for the

alternative drug treatment program, and not with the anticipation of those being used against O’Hallaren beyond the agreement context.

position that O’Hallaren should be detained in a federal

prison because he continued to use drugs, past treatment

programs have not worked for him, he continued to

disobey the law with fraudulent behavior, and in light

of all of these issues, he posed a risk to the public. The

hearing was continued again to another date when

O’Hallaren was able to have a witness testify to the

validity and appropriateness of the suggested drug treatment program in lieu of confinement. After O’Hallaren,

the government, and the Probation Office had spoken,

Judge Lindberg scheduled the hearing to reconvene for

his decision and sentencing on February 20, 2007.

At the February 20, 2007 hearing, Judge Lindberg

reviewed the history of the case and the allegations

against O’Hallaren and acknowledged that O’Hallaren

had admitted to all five violations of his supervised release as charged.1

 Immediately after reciting the extensive criminal record of O’Hallaren and the sentencing

recommendations of the parties and the Probation Office,

Judge Lindberg revoked O’Hallaren’s supervised release

and sentenced O’Hallaren to two 14-month sentences to

be served consecutively with no supervised release to

follow. At no point before the revocation of O’Hallaren’s

supervised release or the imposition of his 28-month

prison sentence was O’Hallaren or his counsel offered an

opportunity to address the court. After the sentence was

pronounced, O’Hallaren’s counsel objected to the consecutive feature of the sentence. In response, Judge

Lindberg said “All right, so noted. Anybody else?” Other
4 No. 07-1559

2 In this case, we determined that Rule 32 and Rule 32.1 require

the same formalities in a case currently pending in the Court.

This opinion adopts Judge Ripple’s well-reasoned opinion on that

issue.

than this belated request, no opportunity to address the

court was presented during this hearing.

II. Discussion 

O’Hallaren first asserts that the district court denied

him his right to allocution when it failed to allow him or

his attorney an opportunity to address the court prior

to revoking his supervised release and imposing a new

sentence. See Fed. R. Crim. P. 32.1(b)(2)(E).

A defendant’s right to allocution at a supervised release

revocation sentencing is codified at Federal Rule of

Criminal Procedure 32.1(b)(2)(E), which states that a

defendant is entitled to “an opportunity to make a statement and present any information in mitigation.” Before

imposing a term of reimprisonment following the revocation of supervised release, Rule 32.1 requires that a

district court ask the defendant if he or she would

like to make a statement for the court to consider in determining his or her sentence. United States v. Pitre,

No. 06-3935 at *6 (7th Cir., argued July 10, 2007)2

; see

Green v. United States, 365 U.S. 301, 304 (1961) (Rule 32

requires explicit invitation to defendant to speak prior

to imposing a sentence); United States v. Luepke, No.

06-3285, 2007 WL 2091227, slip op. at 11-12 (7th Cir.

Jul. 24, 2007) (same).

There is little question as to whether O’Hallaren had

an opportunity to address the district court prior to

the imposition of his sentence. At no point during the

February 20, 2007 revocation and sentencing hearing did
No. 07-1559 5

Judge Lindberg make any invitation to the O’Hallaren or

his counsel to make a statement in mitigation. Judge

Lindberg’s inquiry of “Anybody else?” following defense

counsel’s objection to the consecutive nature of the sentence was imposed failed to satisfy O’Hallaren’s right to

allocution under Rule 32.1(b)(2)(E) both in timing and

in form. Luepke, slip op. at 9, 12-13 (quoting United States

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

States v. Clemmons, 48 F.3d 1020, 1025 (7th Cir. 1995)

(“Denial of the right to allocution or compliance by a

judge in form only is ground for the vacation or reversal

of a sentence.”), overruled on other grounds by United

States v. Allender, 62 F.3d 909 (7th Cir. 1995); see also

Barnes, 948 F.2d at 331 (defendant must be allowed to

make a statement before the judge imposes a sentence).

As to whether this error affected O’Hallaren’s substantial rights, we presume prejudice when there is any

possibility that the defendant would have received a lesser

sentence had the district court allowed him to speak

before imposing a sentence. Luepke, slip op. at 15-16; see

United States v. Reyna, 358 F.3d 344, 351-52 (5th Cir.

2004); see also United States v. Adams, 252 F.3d 276, 285-

86, 289 (3d Cir. 2001). As this Court discussed at length

in Luepke, we cannot speculate as to the persuasive

ability of anything O’Hallaren may have said in his statement to the court.

For the sake of argument only, we consider what

O’Hallaren may have said to the district court judge if

he had the opportunity. O’Hallaren asserts that he

would have made a statement that included the following sympathetic points: that O’Hallaren contacted his

probation officer to request help because he was slipping

back into his old drug habits; that O’Hallaren independently identified the proposed alternative drug treatment

program before his supervised release was revoked; and,
6 No. 07-1559

that the government agreed with O’Hallaren’s counsel

that O’Hallaren should be given one last chance before

being re-incarcerated for his non-violent crimes. Even if

we were to speculate as to O’Hallaren’s persuasive abilities, we certainly could not say with any assurance that

the denial of his right to allocution did not affect

O’Hallaren’s sentence.

When there has been an error at the sentencing phase,

we reverse if the error “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.”

Johnson v. United States, 520 U.S. 461, 467 (1997); United

States v. Simpson, 479 F.3d 492, 496 (7th Cir. 2007). Along

those lines, remand is generally required when a defendant has been denied the right to allocution. Luepke, slip

op. at 16-17; Barnes, 948 F.2d at 328 (adherence to the

right to allocution maximizes the perceived equity of the

process). “Absent some rare indication from the face of

the record that the denial of this right did not implicate

these core values in our sentencing process, resentencing

is the appropriate judicial response.” See Luepke, slip op.

at 16-17. We see no such circumstances here, therefore

we exercise our discretion to remand the case for a

new sentencing proceeding to provide O’Hallaren the

rights accorded him under Rule 32.1(b)(2)(E).

Because the sentence imposed by Judge Lindberg is

vacated, we need not discuss the reasonableness of that

sentence.

III. Conclusion

For the reasons stated herein, the district court’s

judgment is vacated and this case is remanded to the

district court for resentencing. Circuit Rule 36 shall

apply on remand. 

The mandate shall issue forthwith.
No. 07-1559 7

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-2-07