Following a plea of guilty to a charge of conspiracy to distribute and to possess with intent to distribute 50 grams or more of methamphetamine, see 21 U.S.C. §§ 841(b)(1)(B), 846, Michael Luepke was sentenced by the district court to 240 months’ imprisonment. He timely appeals his sentence. Because the district court did not afford him a meaningful opportunity to address the court prior to the imposition of sentence, we must vacate the sentence imposed and remand the case to the district court for a new sentencing proceeding.
I
BACKGROUND
At his plea hearing, Mr. Luepke admitted to conspiring to distribute significant quantities of methamphetamine. Specifically, he admitted to traveling to Chisago City, Minnesota and to purchasing eight ounces of methamphetamine, six of which he distributed to other individuals before returning to his home in Rice Lake, Wisconsin. He also admitted that, during a several month period in 2004 and 2005, he regularly had sold methamphetamine in quantities ranging from 1.75 grams to % ounce to another couple in the Rice Lake area. 1
At Mr. Luepke’s sentencing hearing, the district court heard argument from counsel about the findings of the pre-sentence report, the proper advisory guidelines calculation and whether any deviation from the advisory guideline range would be appropriate. Mr. Luepke’s counsel focused pri *445 marily on Ms client’s susceptibility to methamphetamine addiction because of his attention deficit hyperactivity disorder (“ADHD”). Counsel contended that methamphetamine use had improved Mr. Luepke’s functional level without certain side effects brought on by his prescription medications. He also contended that, because Mr. Luepke had received no significant financial gain from his enterprise, the court should conclude that his sale of methamphetamine simply supported an addiction precipitated by his efforts to control his disorder. Mr. Luepke’s attorney further urged the court to reduce the offense level for Mr. Luepke’s acceptance of responsibility in pleading guilty to the offense.
The district court agreed with the recommendations of the pre-sentence report about drug quantity, as well as its conclusion that Mr. Luepke’s conduct warranted an obstruction enhancement and no reduction for acceptance of responsibility. With the offense level thus calculated to be 36, and based on a criminal history category of II, the court concluded that the appropriate advisory guidelines range was 210 to 262 months. Having announced the sentencing guidelines range, the district court then “call[ed] upon counsel for those comments as it relates to that sentence to be imposed.” Id. at 9. Mr. Luepke’s counsel declined to make further argument.
The court then considered certain of Mr. Luepke’s counsel’s prior arguments regarding Mr. Luepke’s ADHD, but found that none lessened Mr. Luepke’s culpability for the admitted conduct. The court noted that Mr. Luepke “appears to have become one of the largest distributors in the Rice Lake area” and that such conduct could not be attributable solely to his addiction. Id. at 10. Turning to the statutory sentencing factors, see 18 U.S.C. § 3553(a), the court concluded that a sentence in the middle of the applicable guidelines range was appropriate to hold the defendant accountable, to serve us a deterrent and to promote respect for the law.
Without further presentations from counsel and without inviting any comment from Mr. Luepke about the appropriate sentence, the court then stated, “[a]ccordingly, as to Count 1 of the indictment it is adjudged the defendant is committed to the custody of the Bureau of Prisons for imprisonment for a term of 240 months.” Id. at 13. The court immediately detailed the terms of confinement and supervised release. Id. at 13-14.
Having announced the sentence in these seemingly conclusive terms, the court next said, “[b]efore imposing any sentence in this matter I will call upon the. defendant for those matters which he would like to bring to the Court’s attention.” Id. at 14 (emphasis added). Mr. Luepke gave a short response: “Nothing. I’m just sorry for everything that’s been done and the outcome of this.” Id. at 15. The court then turned to defense counsel and asked whether, “[b]efore then imposing the sentence as previously announced,” there was anything further. Id. (emphasis added). After a brief colloquy with Mr. Luepke’s counsel on points not relevant to this appeal, counsel told the court that he had nothing further. The court then stated, “[w]e’re not through yet. I haven’t imposed the sentence.” Id. at 16 (emphasis added). Briefly noting that it had not considered certain disputed evidence offered by the Government in reaching its sentence, the court concluded, “[a]ll right .... the Court does impose that sentence as previously announced.” Id. at 17.
Mr. Luepke timely filed this appeal.
II
DISCUSSION
Mr. Luepke submits that the district court erred in denying him the right to a *446 meaningful allocution. See Fed.R.Crim.P. 32(i)(4)(A)(ii). He also claims that his sentence is unreasonable. 2 Because we believe that the sequence of events at Mr. Luepke’s sentencing hearing denied him the right to allocution and that resentenc-ing is required on this basis, we do not reach the reasonableness of the sentence imposed.
A.
As an initial matter, the parties dispute the appropriate standard of review. The Government asserts that, because no timely objection was interposed to the district court’s announcement of a sentence before inviting Mr. Luepke to speak, Mr. Luepke has forfeited this issue for appeal. In the Government’s view, Federal Rule of Criminal Procedure 52(b) requires that we apply the plain error standard.
See United States v. Olano,
There is disagreement among the circuits about the proper standard of review for claims regarding the denial of the right to allocution when no contemporaneous objection is made at the sentencing hearing.
3
Although our court has not had the occasion to address the matter directly, we believe that the majority of the circuits have determined correctly that the right of allocution set forth in Rule 32 of the Federal Rules of Criminal Procedure is subject to forfeiture and therefore to plain error review. One case in this circuit, albeit in
dicta,
suggested that, when a rule imposes the duty to comply with its mandate squarely on the district court, as Rule 32 does regarding the right to allocution, the right should not be considered subject to forfeiture.
See United States v. Chatmon,
The reasoning in
Reyna
is not without substantial force.
4
Moreover, we believe that our decision in
United States v. Barnes,
*448 It is unpersuasive, considering the realities of the court room setting, to suggest that [the defendant] should have attempted to address the court after sentencing, to say, in effect, “now that you have imposed sentence, let me share some mitigating circumstances you may wish to consider in meting out my punishment.” Generally, to address the court after sentencing does not serve the purpose underlying the rule.
Id. at 331 (emphasis in original). We hastened to add:
However, a trial judge, realizing after sentencing that the right of allocution has been neglected, may rectify the situation by, in effect, setting aside the sentence, reopening the proceeding, and inviting the defendant to speak. See Gordon v. United States,438 F.2d 858 (5th Cir.1971); Sandroff v. United States,174 F.2d 1014 , 1020 (6th Cir.1949); Hardy v. United States,159 F.Supp. 208 (S.D.N.Y.1957), aff'd,252 F.2d 780 (2d Cir.), cert. den.,356 U.S. 944 ,78 S.Ct. 791 ,2 L.Ed.2d 819 (1958). Under this approach, the trial court must genuinely reconsider the sentence in light of the elicited statement. See United States v. Pelaez,930 F.2d 520 (6th Cir.1991) (remanding case in which defendant granted opportunity to speak after sentence determination); United States v. Byars,290 F.2d 515 (6th Cir.1961) (same). This approach is not at issue here because the trial judge never had occasion to rectify the omission of Barnes’ right of allocution.
In short, in Barnes, although stressing that repair would not be easy, we did perceive that, the denial of the right to allocute could be cured by the district court if timely objection was made by counsel. Therefore, we believe that the failure of the counsel to object, especially when, as here, the court invites counsel to speak, requires that we consider the right subject to forfeiture and therefore to the plain error rule.
B.
Having determined that plain error is the appropriate standard of review, we now must determine whether, on the record before us, the defendant has established that plain error exists.
Plain error review requires us to determine: (1) that error occurred; (2) that the error was plain; and (3) that the error affected the defendant’s substantial rights.
United States v. Simpson,
1.
There is little question that the district court erred in “adjudging” a definitive sentence before permitting the defendant to address the court. Federal Rule of Criminal Procedure 32 reads, in pertinent part:
(4) Opportunity to Speak.
(A) By a party. Before imposing sentence, the court must:
(i) provide the defendant’s attorney an opportunity to speak on the defendant’s behalf;
(ii) address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence; and
(iii) provide an attorney for the government an opportunity to speak *449 equivalent to that of the defendant’s attorney.
Fed.R.CriimP. 32(i)(4)(A) (emphasis added).
In
Green v. United States,
The following year, the Supreme Court again addressed the allocution right and noted, in the course of describing
Green,
that “eight members of the Court concurred in the view that Rule 32(a)
requires
a district judge before imposing sentence to afford every convicted defendant an opportunity
personally to
speak in his own behalf. There thus remains no doubt as to what the Rule commands.”
Hill v. United States,
Since these Supreme Court decisions, we have considered, on numerous occasions, a defendant’s right to allocute and to present evidence in mitigation to support a plea for a lower sentence.
See, e.g., United States v. Aquilla,
*450
The record before us reveals that the standard announced by the Supreme Court and acknowledged as binding in our cases was not followed in this case. We do not believe that the district court’s belated invitation to Mr. Luepke to speak after the announcement of the sentence alters, in any significant way, the detriment to the defendant from the court’s earlier error. In
Barnes,
we acknowledged that, when a district court commits error by not affording the defendant an opportunity to speak before the imposition of sentence, the situation can sometimes be remedied: A district could “set[] aside the sentence, reopen[] the proceeding, and invit[e] the defendant to speak.”
Barnes,
To rectify omission of the right of allocution, the remedy must ensure that the original purposes of the right of allocution are served.
Barnes
makes clear, in no uncertain terms, that we shall not presume those purposes have been protected simply because,
at some point
before the close of a sentencing proceeding, a defendant is invited to speak. Instead, the district court actually must take steps to
communicate
effectively to the deféndant that, through his statement, he has a meaningful opportunity to influence the sentence. As we noted in
United States v. Williams,
Just as we attribute to a judicial officer the professional ability and integrity to hear inadmissible evidence in the course of trial but not to consider it, we also must credit the judicial officer’s statement that he is willing to put aside an earlier decision and judge a matter de novo. When the record reflects that the judicial officer took such steps to ensure, such a de novo review and explicitly assured the defendant that the sentence would be considered de novo on the basis of his statement, the error has been corrected.
The district court’s handling of the matter in this proceeding did not contain any such assurances to the defendant. Whatever the distinction the court meant to draw between “adjudging” and “imposing” a sentence, a reasonable defendant—with ears likely still ringing from a definitively pronounced twenty-year prison term— would not have been able to parse the terms so finely. Under these circumstances, as Barnes suggests, the defendant had little incentive to share his thoughts on the matter of a sentence that he had every reason to believe had already been decided. Indeed, it would be quite reasonable for a defendant in such a situation to conclude that a manifestation of any disagreement with the court at that juncture would be interpreted as disrespectful and warranting additional sanctions. Accordingly, we must conclude that the district court erred in announcing a definitive sentence without first inviting Mr. Luepke to speak. We also conclude that the district court’s later invitation to speak cannot be characterized as an adequate repair of the damage. Given the explicit guidance in Barnes, this error is plain.
2.
We now must consider whether this plain error affected Mr. Luepke’s substantial rights. The Supreme Court has stated that, in the ordinary case, a defendant’s burden of showing that substantial rights were affected by an error requires
*451
him to demonstrate prejudice.
See Olano,
There is a division among the circuits on whether a court of appeals ought to presume prejudice when a violation of the right to allocute is established.
See United States v. Adams,
In a
post-Booker
world, in which sentencing determinations are left to the sentencing court’s reasonable exercise of discretion, guided by the statutory criteria of 18 U.S.C. § 3553(a), this approach has even more to recommend it than it had in the age of binding guidelines. It would be almost impossible to determine whether, in the context of the advisory guidelines and the court’s balancing of the statutory sentencing factors, a defendant’s statement, that was never made, would have altered the conclusions of the sentencing court. That the right to allocution, properly afforded,
could have
had such influence is the most we reasonably can expect a defendant to demonstrate.
Cf. United States v. Thornton,
3.
Having determined that the elements of plain error are satisfied, we turn to our final inquiry, whether, in the exercise of discretion, we should correct the error. We shall reverse on the basis of plain error only if we conclude that it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”
Johnson v. United States,
We believe that, in the vast majority of cases, the denial of the right to allocution is the kind of error that undermines the fairness of the judicial process. As we said in
Barnes,
“[a]side from its practical role in sentencing, the' right has value in terms of maximizing the
perceived equity
of the process.”
Conclusion
We conclude that the district court plainly erred in pronouncing its sentence without affording Mr. Luepke a prior opportunity to speak and in failing to correct the error in a manner recognized by this court’s precedent. Because this error was prejudicial and affected the fairness of the proceeding, we must vacate the sentence imposed and remand the case to the district court for a new sentencing proceeding. Circuit Rule 36 shall apply.
Vacated and Remanded
Notes
. According to the conversion tables included in the federal Sentencing Guidelines, see U.S.S.G. § 2D1.1, cmt. 10 (Measurement Conversion Table), one ounce is the equivalent of 28.35 grams.
. In his brief, Mr. Luepke also contended that the presumption of reasonableness accorded to within-Guidelines sentences in this court is unconstitutional. Briefing and oral argument in this case predated the Supreme Court's decision in
Rita v. United States,
- U.S. -,
.
See United States v. Muhammad,
. The circuits that have concluded that de novo review is appropriate have not employed uniform reasoning. The Sixth Circuit noted first that it is extremely unlikely that a defendant will object, given the realities of sentencing; this fact, coupled with the purely legal error that a denial of allocution claim asserts, justified de novo review.
Wolfe,
. Changes to the rule following
Green v. United States,
.
But see United States v. Reyna,