                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4330


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

VERNON GRAY LESLIE, JR.,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:07-cr-00132-BO-1)


Submitted:    January 12, 2009              Decided:   February 5, 2009


Before MICHAEL, KING, and AGEE, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville,
North Carolina, for Appellant.    George E. B. Holding, United
States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Vernon   Gray     Leslie,     Jr.,    appeals       from   the   thirty-

seven-month sentence imposed following his guilty plea to two

counts of larceny of United States Postal Service money orders

and one count of receiving, concealing, and retaining stolen

United States Postal Service money orders, in violation of 18

U.S.C.    § 641      (2006).      On     appeal,     Leslie    contends       that    the

district court erred by not allowing him or his attorney the

chance    to    be   heard   after     the   court    adopted       the   Government’s

proposed       upward    departure       and     denying      Leslie’s        right    to

allocution prior to imposition of sentence.

               Before   imposing       sentence,     the    district      court     shall

address       the    defendant     personally       in     order     to   permit      the

defendant to speak or present any information to mitigate the

sentence.          See Fed. R. Crim. P. 32(i)(4)(A)(ii).                    In United

States v. Cole, 27 F.3d 996 (4th Cir. 1994), we held that the

denial of allocution constitutes plain error on direct appeal

warranting a remand for resentencing in those instances in which

there    is    a    possibility    the     defendant       could    receive     a   lower

sentence.       We noticed the error in Cole, finding that “[w]hen a

defendant was unable to address the court before being sentenced

and the possibility remains that an exercise of the right of

allocution could have led to a sentence less than that received,

we are of the firm opinion that fairness and integrity of the

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court proceedings would be brought into serious disrepute were

we to allow the sentence to stand.”                  Id. at 999; see also United

States v. Muhammed, 478 F.3d 247 (4th Cir. 2007).

           Likewise   here,        there       was   a     possibility      that   Leslie

could   have   convinced     the      court     to    impose    a    lower    sentence.

Specifically, Leslie and counsel could have argued against the

upward departure determined by the court, could have argued in

favor of Leslie’s motion for downward departure based on his

health issues, and could have addressed the 18 U.S.C. § 3553(a)

(2006) sentencing factors.               Accordingly, while we affirm the

convictions, we vacate the sentence and remand for resentencing

to give Leslie the opportunity to allocute. We dispense with

oral    argument   because      the      facts       and    legal    contentions      are

adequately     presented   in      the     materials        before    the    court    and

argument would not aid the decisional process.



                                                             AFFIRMED IN PART,
                                                 VACATED IN PART, AND REMANDED




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