Lead Opinion
joined by KELLY, BRISCOE, MATHESON, BACHARACH, McHUGH, and MORITZ, Circuit Judges.
We granted en banc review in this case because it involves a clear failure of the trial court to ask the defendant if he had anything to say on his behalf before imposing sentence — a failure to personally address the defendant and offer an opportunity to allocute. Because our jurisprudence has been somewhat contradictory, we also chose to grant en banc rehearing in order to refine the manner in which we conduct plain-error review following such a denial. For the reasons we state hereafter, the denial of allocution in the instant case satisfies the third prong of United States v. Olano,
Pf course, the best practice is for the district court in its trial manuals and other memory prompts to always offer defendants the opportunity to allocute on their behalf. Federal Rule of Criminal Procedure 32 requires no less. Cases of this type arise only when the court and counsel forget this obvious step.
In prior cases, we have stated that a complete denial of allocution at a defendant’s initial sentencing hearing is per se or presumptively prejudicial. We now clarify that in a rare number of cases, such errors may not result in prejudice. In particular, defendants who receive the minimum permissible sentence will be unable to demonstrate that an allocution error affected their substantial rights. Further, we conclude that a formal presumption is unwarranted. Rather than shifting the burden of proof at the third prong of the plain-error test from the defendant to the government, we think it more accurate to say that in ordinary cases, defendants meet this burden simply by showing that they were denied the right to meaningfully address the court.
We adopt a similar approach with respect to the requirement that a defendant demonstrate a forfeited error seriously affected the fairness, integrity, or public reputation of judicial proceedings. That is, absent some extraordinary circumstance,
Applying these principles to the case at bar, we conclude that Miguel Bustamante-Conchas has established plain error. Accordingly, we vacate his sentence and remand for resentencing.
I
Bustamante-Conchas was charged with conspiracy to distribute one kilogram or more of a mixture and substance containing a detectable amount of heroin, possession with intent to distribute one kilogram or more of a mixture and substance containing a detectable amount of heroin, and possession of a firearm during and in relation to a drug-trafficking crime. The district court dismissed the gun charge at the close of the government’s case. A jury found Bustamante-Conchas guilty of both drug charges.
A pre-sentence investigation report (“PSR”) calculated a total offense level of 40 and a criminal history category of I, resulting in a Guidelines range of 292 to 365 months. Bustamante-Conchas objected to the PSR’s drug quantity calculations, its inclusion of enhancements for possessing a firearm and maintaining a place for distributing drugs, its allegations regarding the conspiracy’s structure, and other factual statements. He also moved for a downward variance, based largely on his difficult upbringing. The motion detailed an impoverished childhood in which Busta-mante-Conchas was sent to live with his grandparents, suffered abuse from uncles in his household, and struggled with alcohol addiction. He also submitted letters from family members and others attesting to his good character. The government urged a within-Guidelines sentence of 292 months, arguing that Bustamante-Con-chas’ childhood circumstances were not so severe as to warrant a variance. It also submitted documents to contest Busta-mante-Conchas’ claims of good character.
The district court held a sentencing hearing on January 18, 2015, at which it primarily considered drug quantity. The government summarized evidence from trial and presented supplemental evidence regarding drug quantities found at four separate locations. After considering lengthy argument from counsel, the district court accepted the government’s contention that quantities at each residence were reasonably foreseeable to Busta-mante-Conchas. The parties also disputed whether Bustamante-Conchas should be subject to the sentence enhancements recommended in the PSR. The district court concluded both enhancements were proper.
After adopting the PSR’s offense-level calculations, the district court turned to Bustamante-Conchas’ motion for a downward variance. Defense counsel requested a sentence of 120 months, pointing to potential sentencing disparities between Bus-tamante-Conchas and his co-conspirators, and arguing that defendants should not be punished for exercising their right to proceed to trial. Defense counsel also briefly noted the points raised in her motion: that Bustamante-Conchas had been abused and neglected as a child, and had struggled with alcohol addiction. The government argued for a sentence of 292 months, citing the devastating consequences of heroin addiction, the need for deterrence, and Bus-tamante-Conchas’ key role in the conspiracy. The district court questioned whether a within-Guidelines sentence would be necessary if Bustamante-Conchas was barred from returning to the country.
Bustamante-Conchas filed a timely appeal. A divided panel of this court affirmed his sentence. United States v. Bustamante-Conchas,
II
A
Under Rule 32, a district court must “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii). This Rule codifies the right of allocution, which has existed at common law for centuries. See Green v. United States,
Rule 32 provides a defendant with two rights: “to make a statement in his own behalf, and to present any information in mitigation of punishment.” Green,
Granting defendants an opportunity to personally address the court advances several ends. First, it serves an informational function by allowing defendants “to present mitigating circumstances.” Ward,
Second, allocution permits “the defendant to present personal characteristics to enable the sentencing court to craft an individualized sentence.” Ward,
Third, requiring a sentencing judge to personally engage with a defendant enhances “the appearance of fairness in the criminal justice system.” Ward,
B
Although the right to allocute is important, most circuits, including ours, have held that unpreserved allocution errors are subject to plain-error review under Fed. R. Crim. P. 52(b). See United States v. Rausch,
We do not need to tarry on the first two prongs of the plain-error test. The district court failed to “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii). Although the district court asked generally for comment before formally imposing sentence, its failure to personally address Bustamante-Conchas was “contrary to well-settled law,” United States v. Ruiz-Gea,
C
To satisfy the third prong of plain-error review, a defendant generally must demonstrate that an error was “prejudicial, meaning that there is a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” United States v. Algarate-Valencia,
The Supreme Court has held that “[n]or-mally, although perhaps not in every case, the defendant must make a specific showing of prejudice to satisfy” the third prong of plain-error review. Olano,
Our descriptions track those of the majority of our sibling circuits to have considered the issue. See United States v. Perez,
We agree, as discussed in greater detail in Section II.D, infra, that appellate courts should not speculate about the persuasive force of a hypothetical allocution. And we further agree that in the vast majority of instances in which a defendant could have received a lesser sentence, an allocution error is prejudicial. However, we think that both per se prejudice or a presumption of prejudice are technically inaccurate descriptors. Rather than adopting a per se rule or formally shifting the burden of proof from the defendant to the government, a more precise description of our jurisprudence is that a defendant who shows he has been denied the right to allocute has met his burden of demonstrating prejudice absent some extraordinary circumstance as described herein.
The Supreme Court adopted a similar framework for plain-error review in cases in which a district court improperly calculated the Guidelines range but nonetheless sentenced a defendant to a term within the correct range. See Molina-Martinez v. United States, — U.S. —,
So too here. Just as the Guidelines are ordinarily expected to have some impact on a sentence, id. at 1347, there is at least a reasonable probability that allo-cution matters in the usual case. This is so even if defendants do not identify the particular statements they wished to make. See § II.D, infra. In a survey of federal district judges, more than 80% of respondents stated that allocution was at least “somewhat important” in arriving at a final sentence. Mark W. Bennett, Last Words: A Survey and Analysis of Federal Judges’ Views on Allocution in Sentencing, 65 Ala. L. Rev. 735, 757-58 (2014).
Of course, there are some instances in which good reason for doubt exists. Several courts have held that an allocution error is not prejudicial if a defendant receives the lowest possible sentence. See United States v. Lewis,
A defendant sentenced to the statutory minimum is the clearest example of a sentence that cannot be lowered (absent a motion by the government based on substantial assistance). See United States v. A.B.,
In this case, Bustamante-Conchas received a sentence of 240 months, substantially below his Guidelines range. Yet the district court retained discretion to vary further. See 21 U.S.C. § 841(b)(1)(A) (setting ten-year mandatory minimum). And although Bustamante-Conchas’ counsel argued for a lesser sentence, such argument is no substitute for a personal statement by the defendant. See Green,
D
If a defendant satisfies the first three prongs of the plain-error test, we may correct the error “only if it seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Gonzalez-Huerta,
Some courts appear to have adopted a rule that allocution errors necessarily qualify under the fourth prong, at least for cases that satisfy the first three prongs. See Prouty,
As with the third prong, however, we decline to adopt a per se rule or a formal presumption. Instead, we conclude that absent some unusual circumstance as hereafter described, a complete denial of allocution at a defendant’s sentencing hearing will satisfy the fourth prong of the plain-error test. See United States v. Pitre,
A district court’s failure to permit allocution undermines “the legitimacy of the sentencing process.” Adams,
Even in instances in which a significantly lesser sentence is unlikely, a denial of allocution subverts other public values. In a survey of federal district judges, a large majority of respondents stated that allocution serves “other important purposes.” Bennett,
Nevertheless, there are rare circumstances in which an allocution error does not satisfy the fourth prong. In some eases, a district court makes clear — following an initial opportunity to allocute — that
Similarly, remand may not be warranted if a defendant was not wholly denied the opportunity to allocute. That is, if the defendant was offered a meaningful opportunity to address the court and present mitigating circumstances, but the district court failed to fully comply with Rule 32. For example, in United States v. Frost,
The government argues that a defendant cannot satisfy the fourth prong of the plain-error standard without proffering a proposed allocution statement on appeal. In several prior cases, we noted that defendants’ failure to proffer statements undercut their claims of plain error. See Craig,
Moreover, much of the value of an allo-cution statement lies in its ability to convey sincere remorse. “[I]t is not only the content of the defendant’s words that can influence a court, but also the way he says them.” Noel,
Applying the foregoing principles to the case at bar, we conclude that the district court’s failure to permit Busta-mante-Conchas an opportunity to allocute seriously affected the fairness, integrity, and public reputation of judicial proceedings. Bustamante-Conchas was not given a meaningful opportunity to address the court. Cf. Frost,
m
We VACATE Bustamante-Conchas’ sentence and REMAND to the district court for resentencing.
Notes
. Despite these deep roots, the denial of allo-cution is not a jurisdictional or constitutional error. Hill v. United States,
. Although the right of allocution is broad, district courts retain discretion to limit its duration and bar "irrelevancies or repetitions.” Ashe v. North Carolina,
. It is unclear whether plain-error review applies to allocution errors in the Second Circuit, compare United States v. Axelrod,
. Some courts are not clear as to the standard of review but have simply stated that an allo-cution error requires resentencing. See Walker,
. Judge Hartz’s dissenting opinion suggests that information regarding the sentences of defendants who were offered a chance to allo-cute is of little relevance because we are dealing with a different cohort of defendants: those who failed to object when they' were denied the right of allocution. (Dissenting Op., Hartz, J., at 1148-49.) He contends that among the latter category of defendants, it is more likely that counsel strategically elected against allocution. (Id. at 1149.) But this argument ignores the fact that we are concerned only with defendants whose counsel failed to object and who raise the allocution issue on appeal. There would be no reason for counsel who has determined that allocution would be harmful to a client to seek remand for the sole purpose of permitting allocution. The common-sense conclusion to draw in plain error allocution appeals is that counsel
Additionally, Judge Hartz notes that a defendant who is denied an opportunity to allo-cute might be able to raise the issue in a Fed. R. Crim. P. 35 motion, or seek habeas relief. (Id. at 1149-50, 1150 n.3.) Of course, the better practice in all plain error cases is for defense counsel to object. But Rule 52(b) permits review of forfeited errors, and we must decide these issues when they are presented on direct appeal regardless of other potential avenues for relief.
. Chief Judge Tymkovich's dissent indicates that a defendant cannot show prejudice without identifying some material information that was not presented by counsel. (Dissenting Op., Tymkovich, C.J., at 1146-47, 1147-48.) Although counsel’s arguments may satisfy some portion of the informational function of allocution, "it is not only the content of the defendant’s words that can influence a court, but also the way he says them.” United States v. Noel,
. The government has taken the position that prejudice should be presumed in considering allocution issues on plain-error review, and that Bustamante-Conchas has satisfied the third prong based on this presumption. We choose not to accept the government's position and proceed on our own analysis. If "an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.” U.S. Nat’l Bank v. Indep. Ins. Agents of Am., Inc.,
First, the question was squarely presented to this court: Bustamante-Conchas, the party with the burden of demonstrating plain error, argues that he has established prejudice because a lesser sentence was available. Second, because we granted en banc review in this case to address a recurring issue in our circuit, concerns of judicial economy counsel in favor of deciding the issue on the merits rather than relying on waiver principles. See Ohlander v. Larson,
. We are mindful that Fed. R. Crim. P. 32.1, which governs supervised release revocation hearings, differs in some respects from Rule 32. See United States v. Craig,
. Chief Judge Tymkovich's dissent agrees that a defendant should not be required to proffer a proposed allocution statement to establish plain error, but faults Bustamante-Conchas for failing to identify additional information he could have offered at sentencing. (Dissenting Op., Tymkovich, C.J., at 1147-48.) That begs the question. This dissenting opinion leaves a gap in its analysis as to how a defendant could make such a showing under its theory absent consideration of extra-record evidence or speculation.
Dissenting Opinion
dissenting, joined by HARTZ, J., HOLMES, J., and PHILLIPS, J.
This case requires us to consider the application of the plain error standard of review to the denial of a defendant’s right of allocution. I agree with the majority that an allocution error reviewed for plain error does not automatically result in reversal. I write separately to clarify the proper allocation of the burden for the third and fourth prongs of the plain error test. And, unlike the majority, I would hold Bustamante-Conchas is not entitled to relief here, because he fails to meet his burden of establishing the district court’s allocution error affected his substantial rights, or that the error seriously affected the fairness, integrity, or public reputation of the sentencing proceedings.
Therefore, I respectfully dissent.
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“[Djenial of the right to allocution ‘is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure.’ ” United States v. Rausch,
It is the defendant who bears the burden of meeting the plain error test. See United States v. Vonn,
Notwithstanding these well settled principles, the majority effectively shifts the burden to the government by recognizing a de facto presumption of prejudice for allocution errors any time the possibility remains a defendant could have received a lower sentence but for the alleged error. That is, under the majority’s approach, a defendant like Bustamante-Conchas who receives a below-guidelines sentence that is still above the statutory mandatory minimum satisfies the third prong of plain error simply because he might have received a lesser sentence. The majority does not require the defendant to make any specific showing of a reasonable probability he would have received a lower sentence absent the error. In doing so, the majority “relieves [the defendant] of his burden of proving prejudice” in what is likely the vast majority of cases and im-permissibly flips the plain error standard on its head. See United States v. Cole,
. We have previously rejected a presumption of prejudice. On plain error review, the defendant bears the burden of showing, “based on the record on appeal, that the error affected his substantial rights”— namely, resulted in cognizable, not hypothetical, prejudice. Gonzalez-Huerta,
This burden cannot and should not be shifted to the government. We have previously characterized the allocation of the burden on plain error review as “one of the essential characteristics distinguishing plain error from harmless error.” Gonzalez-Huerta,
Without the benefit of the majority’s burden-shifting approach, Bustamante-Conchas cannot satisfy the third prong of the plain error test, because he fails to provide the court any indication he would have received a lower sentence had he been permitted to allocute. Instead, he argues prejudice should be presumed for the denial of a defendant’s right of allocution, either in every circumstance or when there is some possibility a defendant could have received a lesser sentence if he had been permitted to allocute. These arguments amount to speculation at best. It is far from clear the denial of the right of allocution always results in a harsher sentence or that it did so here. In fact, “many defendants may incriminate themselves further by speaking up at sentencing.” Reyna,
The majority likewise impermissibly shifts the burden to the government on the fourth prong of plain error by adopting a rule that, “absent some extraordinary circumstance,” a defendant meets his burden if he is completely denied the opportunity to allocute at his original sentencing hearing. (Maj. Op. at 1133-34). “Under the fourth prong of plain-error review, a court may exercise its' discretion to notice a forfeited error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Gonzalez-Huerta,
The majority recognizes that “[t]he fourth prong is meant to be applied on a case-specific and fact-intensive basis.” (Maj. Op. at 1141) (quoting Puckett v. United States,
I would instead follow the Fifth Circuit’s approach. from United States v. Reyna, where the en banc court emphasized that the fourth prong of the plain-error test is a fact-specific, contextual inquiry. The court thus held it would “conduct a thorough review of the record to determine if [it] should exercise [its] discretion to correct the [allocution] error.”
And considering the district court’s error in the context of this case as a whole, I cannot agree with the majority that Busta-mante-Conchas has demonstrated the district court’s error was particularly egregious or affected the public reputation of the sentencing proceeding. The district court heard arguments regarding Busta-mante-Conchas’s defenses, and it considered his request for a low-end sentence, which was supported by numerous letters from Bustamante-Conchas’s family and friends. At the hearing, the court invited the parties to comment on the sentence multiple times. And after considering such arguments, the district court imposed a sentence well below Bustamante-Con-chas’s advisory guidelines range, varying
Like the majority, I would not require defendants to proffer a proposed allocution statement. But I would at least ask defendants to direct the court to something the defendant’s allocution could have corrected. For example, a defendant could advise us that his lawyer forgot to plead for mercy, or failed to raise family issues, or mention an unstructured childhood as grounds for a lighter sentence. Yet Bustamante-Conchas does not direct us to any additional information he would have provided to the district court had he been given the opportunity to allocute, nor does he explain why a reasonable public observer would have been left with the impression the sentencing proceedings were unfair or lacked legitimacy. On this record, I cannot agree with the majority that the district court’s denial of allocution offended core notions of justice.
* * *
In sum, I would not relieve a defendant who raises an allocution error for the first time on appeal of his burden of showing there was a reasonable probability he would have received a different sentence but for the error and the error undermined the fairness and public reputation of the sentencing proceedings. And because I would find the district court’s failure to permit Bustamante-Conchas to allocute did not rise to the level of plain error in this case, I would not remand for resen-tencing.
Dissenting Opinion
dissenting, joined by TYMKOVICH, Chief Judge, and PHILLIPS, Circuit Judge:
I join Chief Judge Tymkovich’s dissent and add a few words about the prejudice prong of plain-error review.
One requirement for obtaining relief under plain-error review is that the appellant demonstrate that there was “a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” United States v. Algarate-Valencia,
The majority opinion notes that 80% of federal district judges who responded to a survey said that allocution is at least somewhat important in sentencing. See id. at 1139-40 (citing Mark W. Bennett, Last Words: A Survey and Analysis of Federal Judges’ Views on Allocution in Sentencing, 65 Ala. L. Rev. 735, 757-58 (2014) (Bennett)).
But even if the survey evidence showed that allocution had assisted defendants frequently enough to constitute a “reasonable probability,” that would still not resolve this case. The question addressed by the article — how often has allocution assisted defendants? — is not the relevant question here. The set of defendants we should consider is not those defendants who have exefcised the opportunity to make a statement at sentencing. Rather, the relevant set of defendants is those whose attorneys did not request that the defendant be given an opportunity to make a statement after the sentencing judge neglected to address the defendant on the matter. In other words, the question we should be asking is what is the expected utility of allocution when the right to allocute has been forfeited. The answer to the question addressed by the article and the answer to the relevant question may be quite different because the failure of defense counsel to object when the sentencing judge does not call on the defendant to make a statement has significant probative value. It seems to me that if we are to indulge any presumption in this case, it should be that a defense counsel’s failure to insist on allo-cution indicates that allocution would not have been reasonably likely to materially assist the defendant.
This conclusion follows from the nature and practice of allocution. There is no need for counsel to make a snap decision about whether the defendant should address the court. As acknowledged by defense counsel at oral argument, all competent defense attorneys know the importance of allocution and prepare for it. Counsel will discuss allocution with the defendant and, if it appears that the defendant may benefit from it, prepare the defendant to make a statement. In this light, what are the possible reasons why an attorney would not insist on allocution if the trial judge neglected to call on the defendant personally? First, the defendant may have decided, regardless of what counsel advised, not to speak. Second, after hearing what the defendant could say and how the defendant would say it, defense counsel may think that the potential benefit of allocution is negligible or does not justify taking the risk of causing harm. Third, defense counsel may have prepared the defendant for allocution but forgot to insist on allocution at sentencing.
Certainly, in the first two circumstances we should not reverse for resentencing. What about the third? I suspect that such an oversight can occur. At oral argument, defense counsel suggested that trial counsel in this case forgot because of the length of the sentencing proceeding. Possibly, but if counsel believed that the defendant could be significantly assisted by making a statement to the court, one would think that1 the attorney would take precautions not to forget to do something so valuable. The likelihood of a memory lapse diminishes further when, as here, the sentencing judge provided two reminders, asking if there were any other comments on the proposed sentence and if there was any reason why the sentence should not be imposed. Perhaps more importantly, if defense, counsel had expected the defendant’s statement to be significantly helpful and the court then imposes a harsher sentence
For these reasons, I cannot agree that in the general case we should assume that when defense counsel does not object to the failure of a trial judge to ask the defendant if he or she wishes to make a statement before sentencing, there is a reasonable probability that allocution would have resulted in a lower sentence.
. Table C in the article shows that 5.3% of responding judges stated that allocution is extremely important, 22% stated that it is very important, and 53% stated that it is somewhat important. Bennett at 758.
. I recognize that the amicus brief contains a substantial list of cases in which the district court reduced the defendant's sentence after the appellate court reversed and remanded for violation of the right to allocution. But too little information about the cases is provided to know whether they show that allocution would have made a difference at the original sentencing. I examined the one case on the list that arose in this circuit. I seriously doubt that the reduced sentence in that case was the result of allocution on remand. The defendant had actually addressed the court after sentence was imposed (we reversed because that was too late). Nothing in that brief statement struck me as likely to change the court’s mind. More importantly, the government’s position changed after remand. It agreed with the defense to jointly recommend a new sentence, perhaps in exchange for the defendant's new agreement not to appeal or seek collateral relief. The judge imposed the jointly recommended sentence. Given how much time it took to check on what happened in that case, I did not attempt to determine what happened in the other cases cited by the ami-cus brief.
. My analysis suggests that if allocution would have helped a defendant, then the failure to object likely resulted from attorney incompetence. In that event, the defendant may have a claim under 28 U.S.C. § 2255, even though denial of allocution in itself is not ground for habeas relief. That claim, however, would be founded on evidence presented to the court regarding what the defendant's statement would have been and why it was not presented, rather than relying on a presumption of prejudice.