                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-5187


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JOHNNY RAY FANCHER,

                  Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (2:05-cr-00013-REM-JSK-1)


Submitted:    April 30, 2009                 Decided:   June 26, 2009


Before TRAXLER and KING, Circuit Judges, and Benson Everett
LEGG, Chief United States District Judge for the District of
Maryland, sitting by designation.


Vacated and remanded by unpublished per curiam opinion.


Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant.      Sharon L. Potter, United States
Attorney, David J. Perri, Robert H. McWilliams, Jr., Assistant
United States Attorneys, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            This case is before the court after resentencing on

remand.      In    our     previous      decision,        we   found    error    in     the

district court’s failure to provide advance notice that it was

considering       an    upward    variance        in    sentencing      Fancher.         We

accordingly       vacated        Fancher’s       sentence       and     remanded        for

resentencing.          United States v. Fancher, 513 F.3d 424 (4th Cir.

2008).     On remand, the district court provided advance notice

that it was again considering an upward variance, conducted the

resentencing       hearing,       and    again         sentenced    Fancher      to     the

statutory maximum 480 months of imprisonment.                           The court did

not,    however,       provide    Fancher    an       opportunity      to   address     the

court prior to the imposition of sentence, as required by Fed.

R. Crim. P. 32(i)(4)(A)(ii).              Counsel for Fancher objected, but

the    district    court    did    not   take     corrective        action.      Fancher

timely appealed.

            On appeal, Fancher argues that his due process rights

were violated by the district court’s failure to offer him the

opportunity to speak, and that his sentence is unreasonable.

The    Government       concedes     that       the     district      court   committed

reversible error in failing to allow allocution.                        This court has

held that a district court commits plain error if it does not

afford    the      defendant       an    opportunity           to     allocute     at    a

resentencing hearing.            United States v. Muhammad, 478 F.3d 247,

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250 (4th Cir. 2007).                There is, however, no per se rule of

reversal when the district court denies a defendant’s right to

allocute under Fed. R. Crim. P. 32(i)(4)(A)(ii). Muhammad, 478

F.3d at 249.            Instead, the court “should examine each case to

determine     whether       the    error       was    prejudicial.”            Id.        (quoting

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

              In    Muhammad,      the     court       applied        plain    error        review

because     Muhammad       failed     to       object      to     the    district         court’s

failure to allow him to allocute.                       Id. at 249.            In this case,

however,      counsel      specifically             objected      to     the       lack    of    an

opportunity        to    allocute,    and      cited       Rule    32.        Therefore,        the

Government has the burden of demonstrating that any error was

harmless, which requires a showing that the court’s error did

not affect Fancher’s sentence.                  United States v. White, 405 F.3d

208, 223 (4th Cir. 2005).                  The Government does not attempt to

carry   its    burden,      but     “acknowledges           that      the     District      Court

committed     reversible          error    when       it    neglected         to    afford      the

defendant     the       opportunity       to   speak       on   his     own    behalf      before

imposing sentence.”

              Accordingly, we vacate Fancher’s sentence and remand

for resentencing.           We dispense with oral argument because the

facts   and    legal      contentions          are    adequately         presented         in   the




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materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                    VACATED AND REMANDED




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