                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4229


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

RICHARD JODY SILVERS,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.    G. Ross Anderson Jr., Senior
District Judge. (7:12-cr-00631-GRA-1)


Submitted:   July 15, 2013               Decided:   September 17, 2013


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Benjamin T. Stepp, Assistant Federal Public Defender, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Greenville, South Carolina, for
Appellant.     William N. Nettles, United States Attorney,
Columbia, South Carolina, William J. Watkins, Jr., Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Richard Jody Silvers pleaded guilty in the district court

to a single-count indictment charging him with conspiring to

traffic in oxycodone.         The court thereafter sentenced Silvers on

the conviction to 175 months of imprisonment.                  Silvers appeals,

contending that he was not afforded the opportunity to allocute

at sentencing.        See Fed. R. Crim. P. 32(i)(4)(A)(ii) (mandating

that the district court, prior to the imposition of sentence,

“address     the    defendant     personally     in    order    to    permit   the

defendant to speak or present any information to mitigate the

sentence”).        Silvers also maintains that the court neglected to

sufficiently explain on the record how the enumerated factors it

was required to consider pursuant to 18 U.S.C. § 3553(a) bore

upon the sentence imposed.

       Notwithstanding that no objection was lodged below to the

errors now alleged, we vacate and remand for resentencing so

that   Silvers      may   avail   himself   of   the    right    of    allocution

heretofore denied him.            See United States v. Olano, 507 U.S.

725, 732 (1993) (instructing that appellate correction of plain

error requires appellant to demonstrate:               (1) error; that is (2)

plain;     (3)     affects   substantial    rights;      and    (4)    “seriously

affects the fairness, integrity or public reputation of judicial

proceedings” (citation, internal quotation marks, and alteration

omitted)).

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      The        disposition   of     this       appeal      is     controlled     by    our

decision in United States v. Muhammad, 478 F.3d 247 (4th Cir.

2007).      In that case, we determined that it was plain error for

the   defendant        to   have    been     deprived        of    the    opportunity     to

allocute         at   sentencing,     by     which      he        was    foreclosed      from

attempting to convince the court that he should have received a

less severe punishment.             See id. at 249 (citing United States v.

Cole, 27 F.3d 996, 999 (4th Cir. 1994)).

      Indeed,         the   prospects       for    leniency         were     palpable     in

Muhammad, where the defendant — like Silvers here — had been

sentenced at the top of the advisory range prescribed by the

Sentencing Guidelines.             But we have exercised our discretion to

correct plain errors abridging the right to allocution even when

the attendant likelihood of prejudice is not so clear-cut.                                See

Cole, 27 F.3d at 999 (observing that sentence imposed was at

bottom      of    guidelines       range,    but    identifying           “at    least   two

grounds” that defendant could have advanced to persuade court to

downwardly        adjust    offense    level      and     thereby        lower   applicable

range).

      The government maintains that Muhammad is distinguishable

insofar as Silvers, in contesting a proposed upward adjustment

to his base offense level for an enhanced role in the offense,

see USSG § 3B1.1(c), personally addressed the district court at

sentencing, as he attempted to downplay his involvement in the

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conspiracy.          This       impromptu       soliloquy,       according       to   the

government,         was     sufficient          to     satisfy      the        allocution

requirement.

      We are unpersuaded.            Had Silvers been given the specific

opportunity to allocute, he would not have been compelled to

confine the topic to his relative culpability vis à vis his co-

conspirators.        Silvers could have reiterated those same points,

to be sure, but the record reflects that he also could have, for

example, stressed his cooperation in the investigation of the

conspiracy and the effect of his addiction in motivating his

criminal behavior.          The latter two subjects would not have been

appropriate for Silvers to broach during his focused discourse

to   the    court    on   the    offense-level         objection.         We    therefore

discern plain error in the withholding of allocution such that

we may appropriately exercise our discretion to correct it.

      Pursuant to the foregoing, we vacate the sentence imposed

on Silvers and remand for resentencing in conformance with this

opinion. *     We dispense with oral argument because the facts and

legal      contentions    are     adequately         presented    in   the     materials




      *
       In light of our disposition of the appeal on the basis
that Silvers was denied allocution, we need not address his
alternative contention that he was sentenced in contravention of
18 U.S.C. § 3553(a).



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before   the   Court   and   argument   would   not   aid   the   decisional

process.

                                                      VACATED AND REMANDED




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