United States v. Sylvan Abney, 957 F.3d 241

Abney pled guilty in 2007 to possession with intent to distribute crack; initially received a 10-year mandatory minimum in 2010, and after an earlier appeal and the Fair Sentencing Act resentencing received an 8-year term in 2016.
After release Abney violated supervised release several times; the district court revoked his supervision again on November 8, 2019.
At the 2019 revocation hearing the government recommended 4 months; Abney asked for 6 months in a halfway house to keep working.
While the judge announced a harsher sentence (6 months imprisonment, 2 months halfway house, 18 months supervised release), Abney interrupted asking "May I say something?" The judge completed sentencing without first inviting allocution, then later allowed Abney to speak but did not treat those remarks as mitigating prior to imposing sentence.
Abney appealed on the ground the district court denied his right of presentence allocution; he also sought reassignment on remand. The Court of Appeals vacated the sentence and remanded for resentencing, denying reassignment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Abney preserved a claim that the court denied presentence allocution	Abney: his timely interruption "May I say something?" preserved the claim under Rule 51(b)	Government: claim was not preserved; at most plain-error review applies	Court: preserved — Abney's request sufficed to inform the court; reviewed de novo (and alternatively found plain error)
Whether Rule 32.1's allocution right applies at revocation before imposing sentence	Abney: Rule 32.1 entitles defendants to allocute before revocation sentencing	Government: timing ambiguous; the court ultimately allowed Abney to speak so no error	Court: Rule 32.1 and Rule 32 require allocution before sentence at revocation; timing is essential
If unpreserved, whether the error is plain and requires vacatur	Abney: failure was clear and prejudicial because the court imposed a harsher-than-requested sentence	Government: error (if any) not plain or not prejudicial	Court: error was plain, affected substantial rights, prejudicial, and correction is warranted; vacatur and remand for resentencing
Whether reassignment to a different judge is required on remand	Abney: prior judge expressed views making reassignment necessary to preserve appearance of impartiality	Government: reassignment not warranted	Court: reassignment denied — judge can set aside prior views and proceed with an open mind

Holguin-Hernandez v. United States, 140 S. Ct. 762 (U.S. 2020) (simple request can preserve sentencing claims)
Olano, United States v., 507 U.S. 725 (U.S. 1993) (plain-error review framework)
Green v. United States, 365 U.S. 301 (U.S. 1961) (allocution requirement and its historical roots)
Bustamante-Conchas v. United States, 850 F.3d 1130 (10th Cir. 2017) (allocution-error review and prejudice discussion)
De Alba Pagan v. United States, 33 F.3d 125 (1st Cir. 1994) (vacatur on failure to afford allocution)
Daniels v. United States, 760 F.3d 920 (9th Cir. 2014) (allocution applies at supervised-release revocation)
Gonzalez v. United States, 529 F.3d 94 (2d Cir. 2008) (allocution at revocation proceedings)
Vonn v. United States, 535 U.S. 55 (U.S. 2002) (Rule 52(b) plain-error applies to certain Rule-based obligations)
Molina-Martinez v. United States, 136 S. Ct. 1338 (U.S. 2016) (Guidelines errors often require plain-error review)
Rosales-Mireles v. United States, 138 S. Ct. 1897 (U.S. 2018) (complexity of Guidelines and plain-error principles)
Margiotti v. United States, 85 F.3d 100 (2d Cir. 1996) (circumstances where belated allocution may be cured)
Barnes v. United States, 948 F.2d 325 (7th Cir. 1991) (preservation and efficacy of allocution requests)
Luepke v. United States, 495 F.3d 443 (7th Cir. 2007) (allocution-error uncured in some cases)