Whether the plain and prejudicial denial of the right to allocution is an error that ordinarily warrants correction under the fourth prong of plain-error review, irrespective of the defendant's ability to proffer a persuasive, hypothetical allocution statement on appeal

QUESTION PRESENTED In United States v. Olano, 507 U.S. 725 (1993), this Court held that an appellate court’s discretion to correct unpreserved errors under Federal Rule of Criminal Procedure 52(b) is governed by a four-prong test. If a defendant establishes (1) “error,” that is (2) “plain,” and that (3) “affect[s] substantial rights,” then the court of appeals “should correct” the error if it (4) “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732, 736. The courts of appeals are split over the standard for satisfying Olano’s fourth prong where a defendant has established a plain denial of the right to presentence allocution that affects substantial rights. Seven circuits hold that, absent rare circumstances, such an error ordinarily warrants correction. Two circuits, in contrast, condition relief in this context on the defendant’s ability to proffer a hypothetical allocution statement that the court of appeals deems persuasive. Applying that rule in this case, the Fifth Circuit concluded that, despite suffering a plain and prejudicial denial of the right to speak at sentencing, petitioner had proposed an insufficiently persuasive allocution statement on appeal, and so had failed to satisfy Olano’s fourth prong. The question presented is: Whether the plain and prejudicial denial of the right to allocution is an error that ordinarily warrants correction under the fourth prong of plain-error review, irrespective of the defendant’s ability to proffer a persuasive, hypothetical allocution statement on appeal. ii