           Case: 18-10910   Date Filed: 08/20/2018   Page: 1 of 4


                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-10910
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 9:17-cr-80200-RLR-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,


                                  versus


JOSE CASTRO FLORES-REDONDO,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (August 20, 2018)

Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 18-10910     Date Filed: 08/20/2018    Page: 2 of 4


      Jose Flores-Redondo appeals his 21-month sentence, imposed at the high

end of the guideline range, for illegal reentry after being previously removed under

8 U.S.C. § 1326(a). On appeal, Flores-Redondo argues that the district court

committed plain error when it failed to personally inform him, during his

sentencing hearing, that he had a right to allocution. The government concedes

that the court committed plain error.

      We review the district court’s denial of a defendant’s right to allocution

under the plain error standard when the defendant did not object at sentencing.

United States v. George, 872 F.3d 1197, 1206–07 (11th Cir. 2017). Under plain

error review, the defendant must show (1) an error (2) that was plain and

(3) affected the defendant’s substantial rights. United States v. Olano, 507 U.S.

725, 732–36 (1993). An error is not plain unless it is obvious and clear under

current law. United States v. Dortch, 696 F.3d 1104, 1114 (11th Cir. 2012). When

these factors are met, we may exercise our discretion and correct the error if it

“seriously affects the fairness, integrity or public reputation of judicial

proceedings.” Olano, 507 U.S. at 736 (quotations and alteration omitted). Under

the prior panel precedent rule, this Court is bound to follow its binding precedent

unless it is overruled by the Court sitting en banc or by the Supreme Court. United

States v. Vega–Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008).




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      Under Fed. R. Crim. P. 32(i)(4)(A)(ii), the district court must, during

sentencing, “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).

      We have found plain error in cases where the district court failed to

personally address the defendant regarding his right to allocution and instead

addressed the defendant’s attorney. United States v. Perez, 661 F.3d 568, 584–86

(11th Cir. 2011); United States v. Machado, 886 F.3d 1070, 1086–87 (11th Cir.

2018). In Perez, we held that the district court committed plain error when it

directed the question, “will the defendant be allocuting?” to the defendant’s

attorney, rather than the defendant himself. Perez, 661 F.3d at 584. Similarly, in

Machado, we determined that the court committed plain error when it asked

counsel if Machado wished to allocute, and counsel, without conferring with

Machado, declined allocution. Machado, 886 F.3d at 1087. Further, we have

found prejudice where the defendant was not afforded the right to allocution and

was not sentenced at the low end of his advisory guideline range. Machado, 886

F.3d at 1087; Perez, 661 F.3d at 586. Finally, when the defendant shows

prejudice, we presume that the defendant also satisfies the final element of the

plain error standard, because “allocution plays a central role in the sentencing




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process.” United States v. Doyle, 857 F.3d 1115, 1118 (11th Cir. 2017); Perez,

661 F.3d at 586 (quotations omitted).

      The district court plainly erred when it failed to personally address Flores-

Redondo and inform him of his right to allocution. George, 872 F.3d at 1206–07;

Olano, 507 U.S. at 732–36. Specifically, the court committed an error that was

plain when it (1) only spoke to defense counsel regarding allocution, and

(2) defense counsel stated that Flores-Redondo had waived his right to allocution.

Machado, 886 F.3d at 1087; Vega–Castillo, 540 F.3d at 1236. Further, Flores-

Redondo was prejudiced by this error, because he was not afforded the right to

allocution, and he was sentenced at the high end of the guideline range. Perez, 661

F.3d at 586; Machado, 886 F.3d at 1087. Finally, because the first three elements

of the plain-error test are met, we presume that the court’s plain error “seriously

affects the fairness, integrity or public reputation of judicial proceedings.” Olano,

507 U.S. at 736 (quotations and alteration omitted); Doyle, 857 F.3d at 1118.

Accordingly, the district court committed plain error when it failed to personally

address Flores-Redondo regarding his right to allocution, and we vacate and

remand for allocution and resentencing.

      VACATED AND REMANDED.




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