United States v. Luepke, Michael E. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3285
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL E. LUEPKE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 06 CR 91—John C. Shabaz, Judge.
____________
ARGUED APRIL 2, 2007—DECIDED JULY 24, 2007
____________
Before RIPPLE, ROVNER and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. 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’ imprison-
ment. 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.
2 No. 06-3285
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 methamphet-
amine, 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 ½ 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 calcula-
tion and whether any deviation from the advisory guide-
line range would be appropriate. Mr. Luepke’s counsel
focused primarily on his client’s susceptibility to metham-
phetamine 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.
1
According to the conversion tables included in the federal
Sentencing Guidelines, see U.S.S.G. § 2D1.1, cmt. 10 (Measure-
ment Conversion Table), one ounce is the equivalent of 28.35
grams.
No. 06-3285 3
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 as a deterrent and to
promote respect for the law.
Without further presentations from counsel and without
inviting any comment from Mr. Luepke about the appro-
priate 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
4 No. 06-3285
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 every-
thing 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 meaningful allocution. See Fed.
R. Crim. P. 32(i)(4)(A)(ii). He also claims that his sentence
No. 06-3285 5
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 resentencing 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 Proce-
dure 52(b) requires that we apply the plain error standard.
See United States v. Olano, 507 U.S. 725, 734 (1993). Mr.
Luepke counters that, because the district court gave him
no real opportunity to object, we should determine whether
the district court erred and, if so, whether the error can be
characterized as harmless. According to Mr. Luepke, the
district court’s method of proceeding up to the point when
the sentence was “adjudged” did not put Mr. Luepke on
notice that he was about to be sentenced without first
being offered an opportunity to speak on his own behalf.
2
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, No. 06-5754 (U.S. June 21, 2007), which affirmed that the
circuit courts of appeals may apply such a non-binding pre-
sumption on review of sentencing after United States v. Booker,
543 U.S. 220 (2005). Rita, slip op. at 6.
6 No. 06-3285
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, 324 F.3d
889, 892 (7th Cir. 2003) (discussing the district court’s duty
to make findings of fact at sentencing and analogizing to
the right of allocution); cf. United States v. Barnes, 948 F.2d
325, 331 (7th Cir. 1991) (noting that the defendant in that
3
See United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007)
(reviewing allocution claim for plain error); United States v.
Magwood, 445 F.3d 826, 828 (5th Cir. 2006) (same); United States
v. Plotts, 359 F.3d 247, 250 (3d Cir. 2004) (same); United States
v. Prouty, 303 F.3d 1249, 1251 (11th Cir. 2002) (same); see also
United States v. Carter, 355 F.3d 920, 926 & n.3 (6th Cir. 2004)
(same in cases alleging not total denial, but inappropriate
limitation). But see United States v. Griggs, 431 F.3d 1110, 1114 &
n.4 (8th Cir. 2005) (noting circuit conflict but declining to
revisit whether harmless error approach taken in United States
v. Patterson, 128 F.3d 1259, 1261 (8th Cir. 1997), was correct);
United States v. Wolfe, 71 F.3d 611, 614 (6th Cir. 1995) (reviewing
de novo when the claim is a total denial of the right); United
States v. Carper, 24 F.3d 1157, 1162 (9th Cir. 1994) (reviewing for
harmless error).
No. 06-3285 7
case had not waived the right to allocution in part because
the obligation of the rule is imposed directly on the dis-
trict court). However, we believe that the United States
Court of Appeals for the Fifth Circuit, in its en banc
decision in United States v. Reyna, 358 F.3d 344 (5th Cir.
2004), has answered effectively that view. In Reyna, the en
banc court sat to address precisely the issue of the applica-
ble standard of review for claims that a sentencing court
had not complied with the requirements of Rule 32 and the
right to allocution had been denied. That court thoroughly
examined the history and purposes of Rule 32 and con-
cluded that, although “the right of allocution is deeply
rooted in our legal tradition and an important, highly
respected right,” it is “neither constitutional nor juris-
dictional.” Id. at 349. The court then noted that, although
the Supreme Court has said little about the right in recent
times, it has clarified substantially the scope of plain error
review. Specifically, the Fifth Circuit relied upon the
Supreme Court’s statement in United States v. Olano, 507
U.S. 725, 731 (1993), that a “ ‘constitutional right or right of
any other sort’ may be forfeited by the failure to make a
timely objection,” to suggest that all errors in a criminal
proceeding are subject to Rule 52(b) analysis. Reyna, 358
F.3d at 350. Reyna went on to note that, after Olano, the
Supreme Court has confirmed that the seriousness of
claimed errors does not operate to remove them from Rule
52(b). See id. (discussing Johnson v. United States, 520 U.S.
461, 466 (1997)). Reyna also observed that, in United States
v. Vonn, 535 U.S. 55 (2002), the Supreme Court had applied
plain error review to a district court’s acceptance of a
guilty plea without addressing the defendant personally
as Rule 11 requires.
8 No. 06-3285
The reasoning in Reyna is not without substantial force.4
Moreover, we believe that our decision in United States v.
Barnes, 948 F.2d 325 (7th Cir. 1991), supplies clear support
for the decision reached by our colleagues in the Fifth
Circuit in Reyna. In Barnes, we examined the contours of
4
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, 71 F.3d at 614. The Ninth
Circuit, in reviewing a habeas challenge to a state court con-
viction, concluded that harmless error was appropriate after
determining that the right to allocution was constitutionally
protected, but was not a structural error requiring automatic
reversal. It did not consider whether plain error would be
appropriate because the defendant was affirmatively denied
the right to speak. Broadman v. Estelle, 957 F.2d 1523, 1530 (9th
Cir. 1992). Since adopting harmless error in this context, the
Ninth Circuit has continued to apply it in federal criminal cases
where no objection was made to the denial of the right. See, e.g.,
United States v. Gunning, 401 F.3d 1145, 1148 & n.6 (9th Cir. 2005)
(noting the possibility of plain error review, but further noting
that the Ninth Circuit has “never applied that analysis . . .
[p]erhaps because the error is so plainly plain that it falls
within the category of errors that should be presumed prejudi-
cial” (citing United States v. Adams, 252 F.3d 276, 287 (3d Cir.
2001)). The Eighth Circuit has employed harmless error review
with citation to Ninth Circuit precedent. Patterson, 128 F.3d at1261 (citing Carper, 24 F.3d at 1162). Although it has since
noted the circuit conflict on the issue, that court has declined to
decide whether harmless or plain error should be applied going
forward. See Griggs, 431 F.3d at 1114 & n.4.
No. 06-3285 9
the right of allocution. In the course of that discussion,
we emphasized that the rule did not intend to place on
the defendant the burden of changing the judge’s mind
after the judge had reached a firm decision:
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 (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 deter-
mination); 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 omis-
sion of Barnes’ right of allocution.
948 F.2d at 331 n.5 (parallel citations omitted).
10 No. 06-3285
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 there-
fore 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, 479 F.3d 492, 496 (7th Cir. 2007). If these
criteria are met, we may reverse, in an exercise of discre-
tion, if we determine that the error “seriously affects the
fairness, integrity, or public reputation of judicial proceed-
ings.” Id.; see also Olano, 507 U.S. at 732.
1.
There is little question that the district court erred in “ad-
judging” a definitive sentence before permitting the de-
fendant to address the court. Federal Rule of Criminal Pro-
cedure 32 reads, in pertinent part:
(4) Opportunity to Speak.
(A) By a party. Before imposing sentence, the court
must:
No. 06-3285 11
(i) provide the defendant’s attorney an opportu-
nity to speak on the defendant’s behalf;
(ii) address the defendant personally in order to
permit the defendant to speak or present any informa-
tion to mitigate the sentence; and
(iii) provide an attorney for the government an
opportunity to speak equivalent to that of the
defendant’s attorney.
Fed. R. Crim. P. 32(i)(4)(A) (emphasis added).
In United States v. Green, 365 U.S. 301, 304 (1961) (plural-
ity opinion) (Harlan, J.), a plurality of the Supreme Court
interpreted the right to allocution in a prior version of
Rule 32 and held that the right was a personal one. The
Court held that the rule required a sentencing court to ask
the defendant himself if he wished to make a statement
for the court to consider before the imposition of a sen-
tence. Id. The Court explicitly recognized that “[t]he most
persuasive counsel may not be able to speak for a defen-
dant as the defendant might, with halting eloquence,
speak for himself.” Id. Although the plurality in Green
concluded that the record did not reveal whether Green
himself had been denied the right, the Court directed
district judges to remove any ambiguity in future cases:
“Trial judges before sentencing should, as a matter of
good judicial administration, unambiguously address
themselves to the defendant. Hereafter trial judges
should leave no room for doubt that the defendant has
been issued a personal invitation to speak prior to sen-
tencing.” Id. at 305. Rule 32 was amended to its present
form to incorporate the rationale of Green. See Fed. R. Crim.
P. 32, advisory committee’s notes to the 1966 Amendments,
12 No. 06-3285
Subdivision (a)(1).5
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 impos-
ing 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, 368 U.S. 424, 426 (1962) (holding that
the right could not be asserted on collateral attack) (empha-
sis added). Hill noted that, in cases on direct review, the
proper relief to a defendant who had been denied the
personal right to allocution under Rule 32 was to remand
for resentencing in compliance with the rule. Id. at 429 n.6
(citing Van Hook v. United States, 365 U.S. 609 (1961) (per
curiam)).
Since these Supreme Court decisions, we have consid-
ered, 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,
976 F.2d 1044, 1054 (7th Cir. 1992); Barnes, 948 F.2d at 330-
31. We have held that “[d]enial of the right to allocution
or compliance by a judge in form only is grounds for the
vacation or reversal of a sentence.” United States v.
5
Changes to the rule following United States v. Green, 365 U.S.
301, 304 (1961) and Hill v. United States, 368 U.S. 424, 426 (1962),
make the conclusions drawn in these cases even clearer. The
rule no longer ambiguously refers to the right of “the defen-
dant” to speak on his own behalf, but treats that right as
separate from the right of the defendant to have his attorney
speak on his behalf. Compare Fed. R. Crim. P. 32(i)(4)(A)(i) and
32(i)(4)(A)(ii).
No. 06-3285 13
Clemmons, 48 F.3d 1020, 1025 (7th Cir. 1995), overruled on
other grounds by United States v. Allender, 62 F.3d 909 (7th
Cir. 1995), (emphasis added). We further have acknowl-
edged that the Supreme Court has directed us “to apply
Rule 32[(i)(4)] liberally, to freely grant defendants the
right to make a statement prior to the imposition of sen-
tence in all circumstances.” Barnes, 948 F.2d at 328-29.
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 imposi-
tion 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,
948 F.2d at 331 n.5. However, in order for this process to be
truly effective, we noted that the district court “must
genuinely reconsider the sentence in light of the elicited
statement.” Id.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 defendant that, through
his statement, he has a meaningful opportunity to influence
the sentence. As we noted in United States v. Williams,
14 No. 06-3285
258 F.3d 669 (7th Cir. 2001), “Rule 32[] does not purport to
set out a script that the district courts must follow
when advising defendants of their right to allocution.
Instead, the substance of what occurred is what counts.” Id.
at 672 (internal citation omitted) (emphasis added).
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 consid-
ered de novo on the basis of his statement, the error has
been corrected.
The district court’s handling of the matter in this pro-
ceeding did not contain any such assurances to the defen-
dant. Whatever the distinction the court meant to draw
between “adjudging” and “imposing” a sentence, a reason-
able 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 al-
ready 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 war-
ranting 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
No. 06-3285 15
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 him to demonstrate prejudice. See Olano, 507 U.S.
at 735. It also has left open the possibility, however, that
prejudice might be presumed under some circumstances.
Id.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, 252 F.3d 276, 287 & n.9 (3d Cir. 2001)
(discussing possible approaches). In our view, our col-
leagues in the Third and Fifth Circuits have determined
correctly that, when there has been a violation of the right
to allocute, a reviewing court should presume prejudice
when there is any possibility that the defendant would
have received a lesser sentence had the district court heard
from him before imposing sentence. This approach ac-
knowledges the immense practical difficulty facing a
defendant who otherwise would have to attempt to prove
that a violation affected a specific sentence; it also avoids
our speculation about what the defendant might have
said had the right been properly afforded him. See Reyna,
358 F.3d at 351-52; see also Adams, 252 F.3d at 285-86, 289;
cf. United States v. Cole, 27 F.3d 996, 999 (4th Cir. 1994)
(declining an absolute rule that denials of the right to
16 No. 06-3285
allocute are prejudicial, but holding that, when a defen-
dant can demonstrate the legal “possibility” that he may
have been able to persuade the court to impose a shorter
sentence, prejudice is established).
In a post-Booker world, in which sentencing determina-
tions 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, prop-
erly afforded, could have had such influence is the most
we reasonably can expect a defendant to demonstrate. Cf.
United States v. Thornton, 463 F.3d 693, 701 (7th Cir. 2006)
cert. denied, 75 U.S.L.W. 3707 (U.S. June 29, 2007) (No. 06-
9011), (rejecting a defendant’s claim that prejudice
should be presumed when “its existence is easily dis-
coverable by the defendant”).
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 con-
clude that it “seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.” Johnson v. United
States, 520 U.S. 461, 467 (1997) (modification in original).
We believe that, in the vast majority of cases, the denial
of the right to allocution is the kind of error that under-
mines the fairness of the judicial process. As we said in
No. 06-3285 17
Barnes, “[a]side from its practical role in sentencing, the
right has value in terms of maximizing the perceived equity
of the process.” 948 F.2d at 328 (internal quotation marks
and citation omitted) (emphasis added); see also United
States v. Muhammad, 478 F.3d 247, 251 (4th Cir. 2007) (ruling
that the defendant’s showing of a possibility of influenc-
ing his sentence warranted a finding that he had satisfied
the “substantial rights” prong of plain error analysis and
that relief was warranted in the exercise of discretion);
Adams, 252 F.3d at 288 (holding that “the legitimacy of the
sentencing process [is] called into question when [the] right
of allocution [is] violated” and that an exercise of discre-
tion is warranted). 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.6 We see
no such circumstances here, and, accordingly, we exer-
cise our discretion to reverse the district court’s error in
denying the rights accorded Mr. Luepke under Rule
32(i)(4)(A)(ii).
Conclusion
We conclude that the district court plainly erred in
pronouncing its sentence without affording Mr. Luepke
6
But see United States v. Reyna, 358 F.3d 344, 352 (5th Cir. 2004)
(en banc) (declining to exercise discretion to reverse plain error
when the defendant’s sentence was imposed for violation of
the terms of supervised release in the exact terms the district
court had warned the defendant twice would be imposed, and
when, at each proceeding in which the defendant was warned,
he was afforded the right to allocute).
18 No. 06-3285
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 sen-
tencing proceeding. Circuit Rule 36 shall apply.
VACATED and REMANDED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-24-07