                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 14-3188
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                                   DANTE HUNTER,
                                              Appellant
                                   ________________

                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                     (D.C. Criminal Action No. 2-05-cr-00103-001)
                      District Judge: Honorable Gene E.K. Pratter
                                  ________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    April 13, 2015

             Before: AMBRO, VANASKIE, and SHWARTZ, Circuit Judges

                                  (Filed: May 27, 2015)

                                   ________________

                                       OPINION*
                                   ________________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Dante Hunter appeals his sentence because the District Court failed to provide the

opportunity to allocute. We vacate and remand for resentencing.

                                             I.

       In 2005 Hunter was convicted of possession of a firearm by a convicted felon. His

sentence was 80 months in prison and 3 years of supervised release. On March 14, 2014,

he began his period of supervised release. Just over a month later, a petition to revoke

release was filed alleging that Hunter had participated in the robbery of an armored

vehicle the day before and had failed to notify probation of a change of residence. A

bench warrant was issued for his arrest. Two weeks later the petition was amended to

include a third violation, that Hunter associated with a cousin who is a convicted felon.

       The District Court held a revocation hearing on July 1, 2014. At the end of the

parties’ closing arguments, the District Court reviewed the evidence and then stated, “I’m

revoking [Hunter’s] supervised release. I am imposing a period of incarceration of 24

months.” The Court did not address Hunter directly or offer an opportunity for

allocution. It informed him that he had the right to appeal, and that he would receive

credit for the time he was incarcerated before the hearing. The Court then adjourned after

counsel stated there was nothing else they needed to bring to its attention.

                                             II.

       On appeal, Hunter argues the District Court erred by failing to provide an

opportunity for allocution before sentencing. Federal Rule of Criminal Procedure 32

requires a sentencing court to “address the defendant personally in order to permit the

defendant to speak or present any information to mitigate the sentence.” Fed. R. Crim. P.

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32(i)(4)(A)(ii). This rule extends to revocation hearings. United States v. Plotts, 359

F.3d 247, 250 (3d Cir. 2004). As Hunter failed to object in the District Court, his claim is

subject to plain error review. We have discretion to grant relief if the District Court

(1) commits error that (2) is “plain,” (3) “affects substantial rights,” and (4) “seriously

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

v. Tai, 750 F.3d 309, 313–14 (3d Cir. 2014). The Government agrees that the first two

requirements are satisfied here.

       In United States v. Adams, the district court failed to address the defendant directly

and offer the opportunity for allocution before sentencing. 252 F.3d 276, 278 (3d Cir.

2001). Defense counsel did not object. Id. Based largely on Supreme Court precedent,

we applied a rebuttable presumption that an allocution error satisfies the third

requirement of plain error where the district court has discretion to impose a lower

sentence than the one actually imposed. Id. at 287–89; see also United States v.

Paladino, 769 F.3d 197, 201–202 (3d Cir. 2014); Plotts, 359 F.3d at 251. We also held

that the fourth requirement was satisfied. Adams, 252 F.3d at 288–89; see also Paladino,

769 F.3d at 203; Plotts, 359 F.3d at 251.

       The Government acknowledges that this case falls squarely within Adams,

Paladino and Plotts and makes no effort to distinguish them with respect to the third or

fourth requirements of plain error. Gov’t Br. at 31. Thus under our precedent all the

prongs of plain error are met.

       The Government argues, however, that our precedent is in tension with Supreme

Court cases since Adams. See, e.g., United States v. Marcus, 560 U.S. 258 (2010);

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United States v. Dominguez Benitez, 542 U.S. 74 (2004). Reviewing unpreserved errors

that were not related to allocution, the Court required in each case an affirmative showing

of a “reasonable probability” the errors affected the outcome of the proceedings. Marcus,

560 U.S. at 262–63; Dominguez Benitez, 542 U.S. at 76. Though the Government

suggests the Supreme Court would reach a result different than we do here, the Court’s

cases do not compel such an outcome. As we are bound by our precedent, which we

recently reaffirmed, see Paladino, 769 F.3d at 202, and as the Government concedes our

rule has been adopted by “[v]irtually every other Circuit,” Gov’t Br. at 32 n.6, we do not

reconsider it absent en banc review.

       For the foregoing reasons, we hold that the District Court committed plain error

and we vacate and remand for resentencing. We therefore need not consider Hunter’s

other claims.




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