                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-14603         ELEVENTH CIRCUIT
                                        Non-Argument Calendar    SEPTEMBER 7, 2011
                                      ________________________        JOHN LEY
                                                                       CLERK
                          D.C. Docket No. 2:10-cr-00032-MEF-SRW-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                                 versus

HERMELINDO RODRIGUEZ-GALICIA,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Alabama
                                 ________________________

                                           (September 7, 2011)

Before BARKETT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

         Hermelindo Rodriguez-Galicia (“Rodriguez”) appeals his 24-month

sentence, imposed at the statutory maximum, after pleading guilty to 1 count of
re-entry of a deported alien, in violation of 8 U.S.C. § 1326(a). Rodriguez appeals

his sentence based on the district court’s failure to permit him an opportunity to

allocute during the sentencing hearing. Rodriguez also contends that his sentence

is procedurally unreasonable because the court made incorrect guideline

calculations, relied on clearly erroneous facts, failed to consider all the 18 U.S.C.

§ 3553(a) factors, and failed to adequately explain the sentence. He further

contends that the sentence is substantively unreasonable because the court relied

on incorrect facts, did not consider other facts, and created sentence disparities.

      “[A] district court’s failure to afford a defendant the right of allocution will

be reviewed only for plain error where the defendant did not timely object.”

United States v. Prouty, 303 F.3d 1249, 1251 (11th Cir. 2002). “We will correct

plain error only when (1) there is an error; (2) the error is plain or obvious; (3) the

error affects the defendant’s substantial rights in that it was prejudicial and not

harmless; and (4) the error seriously affects the fairness, integrity, or public

reputation of a judicial proceeding.” United States v. Dorman, 488 F.3d 936, 938

(11th Cir. 2007).

      Before imposing a sentence, the district court must: (1) “provide the

defendant’s attorney an opportunity to speak on the defendant’s behalf;”

(2) “address the defendant personally in order to permit the defendant to speak or

                                           2
present any information to mitigate the sentence;” and (3) “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). The Supreme Court has rejected the

contention that affording defense counsel the opportunity to speak fulfills the

requirements of this rule. Green v. United States, 365 U.S. 301, 304, 81 S. Ct.

653, 655 (1961). The Court held that the district court should “unambiguously

address [itself] to the defendant,” and that it “should leave no room for doubt that

the defendant has been issued a personal invitation to speak prior to sentencing.”

Id. at 305, 81 S.Ct. at 655; see also United States v. Carruth, 528 F.3d 845, 846

n.2 (11th Cir. 2008) (“[Q]uestions posed to defendant’s counsel are insufficient in

affording a defendant the opportunity to allocute.”); Gordon v. United States, 518

F.3d 1291, 1299 (11th Cir. 2008) (holding, in a habeas case, that Rule 32 “is not

satisfied when the court does not address the defendant personally concerning the

defendant’s desire to allocute but instead addresses defendant’s counsel only”).

      A district court’s failure to offer the opportunity for allocution is a plain or

obvious error. Prouty, 303 F.3d at 1252. “[T]he right of allocution is the type of

important safeguard that helps assure the fairness, and hence legitimacy, of the

sentencing process.” Id. at 1253 (quotation omitted). Failing to offer allocution,

when it might affect the sentence, is manifestly unjust. Id. When a defendant does

                                           3
not have an opportunity to allocute and does “not receive the lowest possible

sentence within the applicable guideline range,” the district court commits

reversible error.” Id.

       Because the district court did not personally address Rodriguez with an

opportunity to allocute and because Rodriguez did not receive the lowest possible

sentence with the guideline range, the district court committed plain error.

       Upon review of the entire record on appeal, and after consideration of the

parties’ appellate briefs, we vacate and remand the sentence.1

       VACATED AND REMANDED.




       1
              Based on our disposition of this allocution issue, we decline to address
Rodriguez’s additional arguments concerning the reasonableness of his sentence.

                                                4
