In the

United States Court of Appeals
                For the Seventh Circuit

No. 07-2468

U NITED S TATES OF A MERICA,
                                                   Plaintiff-Appellee,
                                  v.

D ICK L. N OEL,
                                               Defendant-Appellant.


              Appeal from the United States District Court
      for the Southern District of Indiana, Indianapolis Division.
              No. 06 CR 017—John Daniel Tinder, Judge.



     A RGUED A PRIL 8, 2009—D ECIDED S EPTEMBER 4, 2009




 Before EASTERBROOK, Chief Judge, and KANNE and
W ILLIAMS, Circuit Judges.
  K ANNE, Circuit Judge. Dick Noel was charged with
producing and possessing child pornography in viola-
tion of 18 U.S.C. §§ 2251(a) and 2252(a)(4)(B). A jury
found Noel guilty on all counts, and on June 1, 2007, the
district court sentenced Noel to eighty years’ imprison-
ment to be followed by a lifetime of supervised release.
Noel now appeals his conviction, arguing that (1) the
2                                               No. 07-2468

district court erred in allowing Indiana State Police Detec-
tive Jennifer Barnes to testify that certain images in evi-
dence met the federal definition of child pornography,
and (2) the court’s jury instruction regarding the defini-
tion of a “lascivious exhibition of the genitals,” which
was derived from United States v. Dost, 

,
832 (S.D. Cal. 1986), was confusing to the jury. Noel also
claims that his sentence was unreasonable and that the
district judge failed to personally address him and offer
him the opportunity to allocute. Although we find the
government’s approach in submitting certain evidence
at trial troubling, none of the errors below require
reversal of Noel’s conviction or sentence.


                     I. B ACKGROUND
  This case represents every parent’s worst nightmare.
Russell Beauchamp and his wife, Lori Beedi, consciously
decided to restrict the care of their young son, “H,” only
to family members. In keeping with that decision,
Beauchamp trusted his step-brother Dick Noel to care
for H periodically from the time H was two years old.
Noel often supervised H overnight, including every
Friday. As the years progressed, Beauchamp and Beedi
divorced, and Noel’s role in H’s life increased. For exam-
ple, Noel would often care for H when Beauchamp
was working late, and he provided assistance as H
healed from a broken arm suffered in July 2005.
  But a police investigation later revealed that Noel was
not worthy of the trust that Beauchamp had bestowed. On
July 31, 2005, Detective Brian Broughton of the Martin
No. 07-2468                                                3

County, Florida, Sheriff’s Department began investigating
Philip Vanderhoff for crimes against children. A search
of Vanderhoff’s computer revealed logs from chat
sessions with a person with the screen name of
“dick_noel2003.” In those conversations, “dick_noel2003”
referred to a “BL,” meaning “boy lover,” and certain
“pics.” He also described his relationship with a boy
named H; this conversation included a description of
various sexual encounters.1
  The screen name was registered to a Dick Noel in
Middletown, Indiana, whose personal information
matched that of the appellant. Broughton referred this
information to the Indiana Internet Crimes Against Chil-
dren Task Force. Authorities searched Noel’s house in
August 2005, and seized several pieces of computer
media. The hard drive of Noel’s computer and several
computer disks contained photographs organized into
many folders, including one labeled “H,” which held
photos that portrayed H nude and asleep. The computer
media also contained numerous photos of other minors
engaged in sexually explicit conduct.
  A grand jury returned a four-count indictment against
Noel on January 25, 2006. Counts one through three
charged Noel with production of child pornography in
violation of 18 U.S.C. § 2251(a). These three counts were



1
  These conversations were not published to the jury but were
referred to in the Presentence Investigation Report (PSR).
Because they are not essential to our analysis, we will spare
the reader the despicable details.
4                                              No. 07-2468

based on ten allegedly pornographic photos of H that
investigators had found during the search of Noel’s home.
Count four charged Noel with possession of child pornog-
raphy in violation of 18 U.S.C. § 2252(a)(4)(B). This count
was based not only on the ten pornographic photos of H,
but also on numerous photos of other minors. A jury
trial commenced on March 12, 2007.
  As one of its primary witnesses, the government
called Jennifer Barnes, a detective with the Indiana State
Police who had conducted the forensic examination on
the computer media seized from Noel’s residence. Barnes
explained that she found numerous images that met the
federal definition of child pornography organized in
multiple folders on Noel’s computer system. She then
described the government’s exhibits, explaining how
she compiled them and how they related to each of the
charged counts.
  Barnes testified that the government’s Exhibit Nine
contained all 246 images of H that were found on
Noel’s computer. These included not only the ten
charged photos, but also numerous photos that were not
pornographic, such as clothed photos of H in outdoor
settings. These photos were all admitted into evidence
without objection.
  Exhibits One, Two, and Three contained the photos
that formed the basis for counts one through three
against Noel, respectively. Barnes told the jury that these
were duplicates of certain photos that were also con-
tained in Exhibit Nine. The prosecution asked Barnes:
“And these were, in your opinion, although the jury will
No. 07-2468                                              5

be making that determination, pictures that fit within
federal law?” Barnes responded affirmatively.
  Barnes stated that the government’s Exhibit Four con-
tained the photos on Noel’s computer that met the
federal definition of child pornography. She described
the folders on Noel’s computer from which the photos
came and informed the jury that those folders also con-
tained photos of child pornography that were not
present in the exhibits. She later explained to the jury
that Exhibit Four contained all photos relevant to count
four, the possession charge, including copies of the
photos of H in Exhibits One through Three. All in all,
Barnes opined at least six times during her testimony
that the charged photos were pornographic.
  At the close of evidence, the court instructed the jury
regarding the definition of “lascivious exhibition of the
genitals” in the context of child pornography, using the
factors articulated in 

. During
the government’s closing argument, the prosecution
described some of the photos and argued, using the Dost
factors, that they each fell within the definition of child
pornography. Defense counsel chose not to focus on the
photos, telling the jury:
   I’m going to give you some good news. You are not
   going to have to look at those pictures again in
   order to make up your minds about this case,
   because people, reasonable people, could probably
   decide that those are minors and that that’s por-
   nography. Probably could, and I’m not going to
   argue that. That’s not our issue.
6                                              No. 07-2468

Instead, defense counsel, after acknowledging that the
photos were “horrible,” argued that there was not
enough evidence to find that Noel had produced or
knowingly possessed them. She then reiterated: “You
don’t need to look at these pictures again. I mean, you
certainly can if you want to, but from our perspective,
you don’t need to.”
  Defense counsel also criticized the police investigation,
claiming that the detectives failed to inquire into who
owned and created the pornography. As a part of this
claim, counsel stated: “Where they were looking for
pornography, they found pornography and they were
done.”
  The jury returned a guilty verdict on all counts. The
district court held a sentencing hearing on June 1, 2007.
At the outset of that hearing, the judge stated:
    And I’ll now hear first from the government
    with respect to its argument regarding sen-
    tencing, and then I’ll hear from the defense.
    And of course, Ms. Jensen, as part of the defense
    presentation, your client, Mr. Noel, has the right
    to speak; that is, to say whatever he wants to say
    to help me in determining what the sentence
    should be.
After the government’s presentation, the district court
asked defense counsel, “Miss Jensen, do you have a
presentation you’d like to make regarding sentencing
and would your client like to address me?”
  Defense counsel began by reading a letter that Noel had
prepared. She explained that Noel had provided her
No. 07-2468                                                  7

with the letter too late for the probation officer to in-
clude it in the PSR, but she nonetheless felt it might
be appropriate to share with the court.
  In the letter, Noel never admitted to his conduct. The
letter stated that Noel was not aware of the material on
his computer and described how his trust had been
betrayed by an unnamed friend.2 Noel wrote: “He had
my computer, as my mentor, set up the passwords, he
even chatted under my chat name. He had the run of the
house three to four days a week.” Noel explained that
other minors and Beauchamp himself had stayed at his
house and that “[t]hey also witnessed that nothing ques-
tionable ever happened.”
  Nonetheless, Noel apologized in the letter, stating,
“I do want to apologize for all the pain this has caused.
I grieve for all of my family who felt this trust was be-
trayed by me. I feel their pain very deeply.” He ex-
plained that words failed to express his “deep love” for H,
and he said that “when I think that our wonderful rela-
tionship has now had the shadow cast on it, it causes
my very soul to hurt. He alone, other than myself, knows
the purity of our ten-year relationship.” The letter con-
cluded by requesting a merciful sentence.
  After defense counsel’s presentation, the district court
considered the letter but ultimately concluded that an


2
  Although Noel did not name this friend in the letter, defense
counsel argued during closing arguments that a man who
regularly fixed Noel’s computer was responsible for the photo-
graphs.
8                                                  No. 07-2468

acceptance of responsibility adjustment was inappropri-
ate.3 The district court determined that the letter was
inconsistent with statements Noel made to law enforce-
ment and was “a denial of the very things that would
constitute acceptance of responsibility.”
  The district court applied a base offense level of 48, with
a criminal history level of I. This resulted in a recom-
mended guidelines sentence of the statutory maxi-
mum—one hundred years’ imprisonment.4 After con-
sidering the sentencing factors enumerated in 18 U.S.C.
§ 3553(a), the district court imposed a below-guidelines
sentence of eighty years’ imprisonment—twenty-five
years for each of counts one through three, and five
years for count four, to be served consecutively.


                        II. A NALYSIS
  Noel challenges his conviction on appeal, claiming that
the district court erred in allowing certain aspects of
Barnes’s testimony and in instructing the jury based on



3
  An acceptance of responsibility adjustment would have
resulted in a two-point decrease in the total offense level. See
U.S. Sentencing Guidelines Manual (U.S.S.G.) § 3E1.1. Because
Noel was five levels above the highest offense level, this
would not have had an impact on his guidelines sentence.
4
  The guidelines range for offense levels 43 and higher is life
in prison. Where, as here, the guidelines range exceeds
the statutory maximum, the statutory maximum becomes
the guidelines sentence. U.S.S.G. § 5G1.1(a).
No. 07-2468                                             9

the Dost factors. He also appeals his sentence as unrea-
sonable and argues that he was not given the oppor-
tunity to allocute. We discuss each issue in turn.


 A. Noel’s Challenges to His Conviction
  Noel claims that Detective Barnes rendered an impermis-
sible legal conclusion that the government’s exhibits
met the federal definition of child pornography. He also
argues that this error was exacerbated by the district
court’s purportedly “muddled and confusing” jury in-
struction defining “lascivious exhibition of the genitals”
using the factors described in 

.
We find error in Barnes’s testimony but not the
jury instructions. Because the error did not affect
Noel’s substantial rights, however, his conviction will be
affirmed.


 1. Testimony of Detective Barnes
  At Noel’s trial, Barnes testified repeatedly that the
images on Noel’s computer met the federal definition
of child pornography. She provided no explanation for
this opinion, but instead offered only conclusory state-
ments. We find the government’s explanation for this
testimony troubling and agree with Noel that it was
improper.
  Under the Federal Rules of Evidence, testimony is not
objectionable solely “because it embraces an ultimate
issue to be decided by the trier of fact.” Fed. R. Evid.
10                                              No. 07-2468

704(a); see also United States v. Wantuch, 

, 513
(7th Cir. 2008). But this rule “does not lower the bars so
as to admit all opinions.” Fed. R. Evid. 704 advisory
committee’s note. The evidence must be otherwise ad-
missible as lay testimony under Rule 701, United States v.
Baskes, 

, 478-79 (7th Cir. 1980), or expert
testimony under Rule 702, United States v. Scavo, 

, 844 (8th Cir. 1979). Most importantly for our
purposes, the testimony must be helpful to the trier of
fact under either rule. Fed. R. Evid. 704 advisory com-
mittee’s note; see also Fed. R. Evid. 701(b), 702.
   We have held repeatedly that lay testimony offering
a legal conclusion is inadmissible because it is not
helpful to the jury, as required by Rule 701(b). See, e.g.,

(holding that the question of
whether the defendant knew his actions were legal
“demanded a conclusion as to the legality of [the defen-
dant’s] conduct, which is unhelpful to the jury under
Rule 701”); United States v. Espino, 

, 257 (7th
Cir. 1994) (“[T]he question posed to Espino, ‘[Y]ou’re
admitting the conspiracy, aren’t you,’ required a con-
clusion regarding the legal implications of his conduct.
Espino’s lay answer to this question was therefore ob-
jectionable as being unhelpful opinion testimony and
should have been excluded.” (second alteration in origi-
nal)). This is because a lay witness’s purpose is to
inform the jury what is in the evidence, not to tell it
what inferences to draw from that evidence. See United
States v. Grinage, 

, 750 (2d Cir. 2004). Once
the evidence is presented, the jury is capable of examining
it and determining whether it supports a conviction; it
No. 07-2468                                                  11

does not need lay testimony to assist in making that
determination. Cf. 

(“The jury
was just as capable as [the witness] of inferring that
Wantuch knew he was committing a crime, without [the
witness opining] as to whether Wantuch was aware
that his conduct was illegal.”).
  Barnes’s testimony that the photos found in Noel’s
home met the federal definition of child pornography
amounted to nothing more than a statement that the
photos were illegal. Given proper instructions, the jury
was capable of making this determination on its own.
This testimony was unhelpful to the jury as lay testi-
mony and inadmissible under Rule 701(b).
  The government claims that this rule is irrelevant
because Barnes was presented as an expert and her testi-
mony was admissible under Rule 702. But even if Barnes
was properly qualified as an expert,5 her testimony does
not pass muster under Rule 702 because it was no



5
  The record reveals that Barnes was offered in part as a fact
witness to explain the course of the police investigation and
in part as an expert witness. The breadth of her expertise is
disputed, however. Noel claims that she was only offered as an
expert in computer forensics. The government, on the other
hand, claims that she was also an expert in child pornography,
pointing to her extensive experience in these investigations
and her testimony that she was familiar with the federal and
Indiana definitions of child pornography. We need not
resolve this conflict because of our finding that, in any event,
Barnes’s testimony was unhelpful to the jury.
12                                                   No. 07-2468

more helpful as expert testimony than it would have
been as lay testimony.
  In her testimony, Barnes gave no basis whatsoever
for her conclusion that the images on Noel’s computer
were child pornography under the federal definition.
“An expert who supplies nothing but a bottom line sup-
plies nothing of value to the judicial process.” Mid-State
Fertilizer Co. v. Exch. Nat’l Bank of Chi., 

,
1339 (7th Cir. 1989). We have therefore described an
expert’s opinion that lacks proper substantiation as
“worthless.” Minasian v. Standard Chartered Bank, 

, 1216 (7th Cir. 1997). Thus, even though
expert witnesses may opine on ultimate issues of the
case, under Rule 702 their opinions may not be divorced
from the expert bases that qualified them as witnesses
in the first place. United States v. Hall, 

,
1344 (7th Cir. 1996).
  Barnes’s “expert” testimony that the photos met the
definition of child pornography was a bare conclusion
that provided nothing but the bottom line, i.e., that
Noel possessed illegal photos. Had Barnes provided
some basis for this explanation, perhaps her testimony
would have been of some use for the jury.6 But she did not
do so. She, in essence, told the jury nothing more than,



6
  Noel cites United States v. Thoma, 

(7th Cir. 1984),
for the proposition that whether photos are child pornography
is an inappropriate topic for expert testimony altogether.
We need not reach this issue, and we express no opinion
regarding whether Barnes’s testimony would have been
objectionable if otherwise properly substantiated.
No. 07-2468                                                   13

“I am familiar with the definition of child pornography,
and this meets that definition because I said so.” Regard-
less of whether Barnes was an expert, she could not
“merely tell the jury what result to reach.” Fed. R. Evid. 704
advisory committee’s note; see also United States v.
Garcia, 

, 210 (2d Cir. 2005).
   At oral argument, the government’s only justification
for this testimony was that it wanted to inform the jury
that the government knew the difference between the
illegal and legal photos. According to the prosecutor, in
addition to the ten photos for which Noel was charged
in counts one through three, the remaining 236 photos of
H presented to the jury were legal and did not meet
the definition of child pornography. Counsel explained
that these photos were offered to show how much Noel
loved H and to provide a motive for the crime. She sur-
mised that juries often do not understand why certain
photos are not illegal; as a result, the government was
attempting to show that it knew the difference between
legal and illegal and that it was not attempting to
convict Noel based on the legal photos.7
 But even if we accept the government’s rationale,
Barnes’s testimony did nothing to help the jury under-



7
  This begs the question of why the legal photos were presented
to the jury in the first place. Noel has not appealed this issue,
so we need not decide whether the admission of this evidence
was proper, but we see no reason why the government could
not have simply presented the ten illegal photos to establish
Noel’s motive.
14                                             No. 07-2468

stand why certain photos were illegal. With such
damning evidence against Noel, the government would
have been well served to simply stick to the facts: present
the charged photos to the jury and allow it to reach its
own conclusions based on the court’s instructions. Prosecu-
tors were certainly free to argue that the photos were
pornographic, but the proper forum was in the opening
or closing arguments, not during the presentation of
evidence. Cf. 

(explaining that the
opening statement is the proper vehicle for the govern-
ment to help the jury gain an overview of the evidence
and theories of the case).
  Moreover, to the extent that the government felt com-
pelled to explain its subjective motivations or the
thought processes of its investigators, these considera-
tions are irrelevant to Noel’s guilt or innocence. Indeed,
the government’s focus on the investigators’ subjective
views to justify this line of questioning is troubling. In
United States v. Cunningham, we held that detailed ques-
tioning regarding the procedures used to obtain court
authorization for wiretaps was inadmissible because it was
irrelevant to the defendants’ guilt or innocence. 

, 712 (7th Cir. 2006). Instead, we opined that the ex-
planation of why the government did what it did was
simply a back-door way to show that numerous gov-
ernment agents believed the defendants were com-
mitting crimes, which was impermissible. 

  Although the facts in this case are different from those
in Cunningham, we suspect that the government’s motiva-
tion was similar. The only plausible reason the govern-
No. 07-2468                                              15

ment would want to show that its investigators believed
the photos were illegal was to persuade the jury to
agree. But without a proper explanation to help the jury
form that conclusion on its own, this type of testimony
is not allowed.
  That Barnes’s testimony was improper is not disposi-
tive of this case, however. Because Noel did not object
to Barnes’s comments at trial,8 our review is for plain
error, “and we will reverse only if the errors resulted in
an actual miscarriage of justice such that the defendant
probably would have been acquitted but for the errone-
ously admitted evidence.” United States v. Avila, 

, 819-20 (7th Cir. 2009) (quotations omitted). We are
convinced that Noel would have been convicted even
if Barnes had not been allowed to testify improperly,
and, therefore, reversal is not warranted.
  Fortunately, we are able to spare the reader the
photos’ stomach-turning details to reach our conclu-
sion, because we need not go beyond defense counsel’s
words at Noel’s trial to determine that the result would
have been the same without Barnes’s testimony. During
her closing argument, defense counsel explicitly told
the jury twice that there was no need to review the
photos in making its determination. She said that
whether the photos were pornographic was “not our
issue” and instead argued that the government had


8
  The only objections were to any description of the photos.
Defense counsel argued the photos spoke for themselves,
and the district court agreed.
16                                                No. 07-2468

failed to prove that it was Noel who had produced the
photos. She even commented that “[w]here [the govern-
ment was] looking for pornography, they found pornogra-
phy.”
  Given the focus of Noel’s closing argument and the
concessions by his counsel, he cannot now argue that he
was prejudiced by Barnes’s comments. Not only did his
attorney concede that the photos were pornographic,
but she did so in what was likely a deliberate trial
strategy to shift the jury’s attention away from their
content. Noel’s sole focus at trial was knowledge, i.e., he
claimed that someone else had produced the photos and
that he did not know they were on his computer.
Barnes’s improper opinion that the photos were porno-
graphic therefore did not result in a manifest mis-
carriage of justice such that reversal is warranted.


 2. The Dost Jury Instruction
  Noel claims that the harm resulting from Barnes’s
improper testimony was exacerbated by a confusing jury
instruction defining child pornography. The district
court provided the jury with the following instruction
based on the language in 

:
     In determining whether a visual depiction is a
     “lascivious exhibition of the genitals or pubic area
     of any person,” there are a number of factors for
     you to consider. Those factors include but are
     not limited to:
         (1) whether the focal point of the picture is
         the minor’s genitalia or pubic area;
No. 07-2468                                                  17

       (2) whether the visual setting or pose is
       sexually suggestive, that is, in a place or a
       pose generally associated with sexual
       activity;
       (3) whether the minor’s pose is unnatural
       or whether the minor is dressed in inap-
       propriate attire given his/her age;
       (4) whether the minor is partially or
       fully . . . nude;
       (5) whether sexual coyness or willingness
       to engage in sexual activity is suggested;
       and
       (6) whether the visual depiction is in-
       tended or designed to elicit a sexual re-
       sponse in the viewer.
     The government is not required to prove each of
   these factors is present for a visual depiction [to] be
   a “lascivious exhibition of the genitals or pubic
   area.” The determination will have to be made
   based on the overall content of the visual depic-
   tion, taking into account the age of the minor.
Noel claims that this instruction was “confusing and
muddled.” He argues that “lascivious” is a “commonsensi-
cal term [that] needs no adornment.”
  We typically review jury instructions de novo, but give
the district court substantial discretion to formulate the
instructions “so long as [they] represent[] a complete
and correct statement of the law.” United States v.
18                                               No. 07-2468

Matthews, 

, 704 (7th Cir. 2007). Our review in
this case is more deferential, however. Noel did not
object to this jury instruction at trial, so we review for
plain error, United States v. Jackson, 

, 491 (7th
Cir. 2007), a standard that is particularly limited in the
context of jury instructions, United States v. Peters, 

, 754 (7th Cir. 2006). To warrant reversal, “ ‘[t]he
error [must] be of such a great magnitude that it
probably changed the outcome of the trial.’ ” 

in original) (quoting United States v. Moore, 

, 1362 (7th Cir. 1997)). As we have noted, where
there is no objection at trial, “[i]t is the rare case in
which an improper instruction will justify reversal of
a criminal conviction.” 

  There has been some debate among courts regarding
the propriety of jury instructions based on the Dost
factors. Compare United States v. Rivera, 

, 250-
53 (2d Cir. 2008) (holding that the Dost factors, although
imperfect, are an accurate statement of the law and that
jurors “need neutral references and considerations”
when interpreting the word “lascivious”), and United
States v. Villard, 

, 122 (3d Cir. 1989) (“[T]he
Dost factors provide specific, sensible meaning to the
term ‘lascivious,’ a term which is less than crystal clear.”),
with United States. v. Frabizio, 

, 88 (1st Cir.
2006) (noting that the Dost factors have resulted in “dis-
putes that have led courts far afield from the statutory
language” and that “the Dost test has produced a pro-
foundly incoherent body of case law” (quotations omit-
ted)), and United States v. Hill, 

, 1085
No. 07-2468                                                   19

(C.D. Cal. 2004) (“While the Dost factors attempt to
bring order and predictability to the lasciviousness
inquiry, they are highly malleable and subjective in their
application.”). Much of the debate over Dost involves a
concern that is of no help to Noel—that the factors listed
may be too generous to the defendant. 

; see also, e.g., 

(“[T]here is a risk
that the Dost factors will be used to inappropriately limit
the scope of the statutory definition.”); United States v.
Wiegand, 

, 1244 (9th Cir. 1987). Still other
commentary has suggested, however, that in certain
cases, some Dost factors may be over-inclusive. See, e.g.,

(“[I]f the sixth factor were to
focus on the defendant’s subjective reaction to the photo-
graph, as opposed to the photograph’s intended effect,
a sexual deviant’s quirks could turn a Sears catalog
into pornography.” (quotations omitted)).
  We have not yet taken a position on whether the Dost
factors represent a permissible instruction, and we need
not do so today. Even if improper, the instruction does not
rise to the level of plain error because it was unlikely
to have influenced the jury’s verdict. As described above,
defense counsel admitted that the outcome of the case
did not turn on the issue of whether the photos were
pornographic; it turned on Noel’s knowledge. Noel
conceded that the photos were pornographic and told
the jury it did not need to look at them. For the same
reason that Barnes’s improper testimony does not merit
reversal, nor does the Dost instruction: the outcome of
the trial would not have been different without it.
20                                                No. 07-2468

  B. Noel’s Challenges to his Sentence
  Noel also challenges his sentence, claiming that (1) it
was excessive and unreasonable; and (2) the district court
erred in failing to personally address him and give him
the opportunity to allocute.


  1. Reasonableness
  We can quickly dismiss Noel’s argument that his sen-
tence was unreasonable. A sentence that falls within a
properly calculated guidelines range is presumptively
reasonable. United States v. Mykytiuk, 

, 608 (7th
Cir. 2005). Not only is Noel’s sentence presumptively
reasonable under that rule, but it was actually twenty
years below the guidelines sentence of one hundred years’
imprisonment. In order to rebut the presumption of
reasonableness, Noel must demonstrate that this below-
guidelines sentence was unreasonable in light of the
factors set forth in § 3553(a). See 

failed to do so.
  First, Noel claims that the most appropriate sentence
is a structured treatment program including psycho-
therapy and medications. He claims that the imposed
prison sentence does not meet his needs and notes that
an eighty-year sentence amounts to life in prison for a
man of his age. But the district court considered these
arguments in its § 3553(a) analysis, and none of them are
sufficient to override its well-reasoned sentence. Noel’s
acts were unspeakable. He betrayed Beauchamp’s trust by
producing pornography while caring for Beauchamp’s
young son. He amassed a tremendous amount of child
No. 07-2468                                                    21

pornography throughout his life. Considering these
troubling facts, we find no error in the district court’s
determination that Noel’s conduct warranted a lengthy
prison sentence.
  Noel also argues that his sentence was unreasonably
disproportionate to that of other defendants convicted
of the same offense, but we find this argument uncon-
vincing. We have held that “[w]hile comparisons are
appropriate, . . . [i]t is not enough for a defendant to argue
that a few cases . . . seem to cast doubt on his sentence.”
United States v. Newsom, 

, 689 (7th Cir. 2005).
Instead, “we have a system of individualized sentencing
[that] takes into account factors other than the type of
crime.” United States v. Cavender, 

, 803 (7th
Cir. 2000). Furthermore, the statutory penalties and
guidelines sentences for producing child pornography
have recently increased.9 Compare 18 U.S.C. § 2251(e) (2007)


9
  In his reply brief, Noel objects to the government’s reliance on
this change because he claims he was sentenced to almost
three times the statutory maximum. He correctly notes that the
statutory maximum for production of child pornography is
thirty years, while he was sentenced to eighty. But the statutory
maximum is thirty years for each count. Noel was convicted of
three counts of producing child pornography and was sen-
tenced to twenty-five years per count. He was also convicted
of possessing child pornography and sentenced to five years
for that charge. His sentence is therefore almost three times
the statutory maximum for producing child pornography
because he was convicted of three counts of that offense. Noel
                                                   (continued...)
22                                                No. 07-2468

(imposing a maximum sentence of thirty years in prison
for production of child pornography), and U.S.S.G
§ 2G2.1(a) (2007) (imposing a base offense level of thirty-
two for violations of 18 U.S.C. § 2251), with 18 U.S.C.
§ 2251(d) (2002) (imposing a maximum sentence of
twenty years in prison for production of child pornogra-
phy), and U.S.S.G § 2G2.1(a) (2002) (imposing a base
offense level of twenty-seven for violations of 18 U.S.C.
§ 2251). Sentencing statistics that include defendants
sentenced prior to these changes therefore have little
probative value. With all these considerations in mind,
we conclude that Noel’s sentence was reasonable.


    2. Allocution
  We next turn to Noel’s argument that the district court
erred in denying him the right to a meaningful allocution.
Because Noel did not object at sentencing, our review is
again for plain error. United States v. Luepke, 

,
446 (7th Cir. 2007). To prevail, Noel must demonstrate
that a plain error occurred that affected his substantial
rights. 

If he makes this showing, “we may
reverse, in an exercise of discretion, if we determine
that the error seriously affect[ed] the fairness, integrity, or


9
  (...continued)
does not argue that consecutive sentences were inappropriate.
If anything, this detracts from his argument that his sen-
tence was disproportionate because the statistics upon which
he relies likely include defendants serving sentences for a
single offense.
No. 07-2468                                               23

public reputation of the judicial proceedings.” 

omitted).


     a. Whether Plain Error Occurred
  In Green v. United States, 

, 304 (1961), the
Supreme Court rejected the view that inviting defense
counsel to speak at sentencing satisfied the defendant’s
right to address the court and allocute. Instead, the Court
held that before imposing a sentence, a trial judge must
address the defendant personally and offer him the op-
portunity to speak. 

was later codified
in Federal Rule of Criminal Procedure 32(i)(4)(A)(ii).
See United States v. Barnes, 

, 328 (7th Cir.
1991).10
  At the outset of Noel’s sentencing, the district judge
addressed Noel’s counsel and stated, “[Y]our client,
Mr. Noel, has the right to speak.” After the government
made its presentation, the court asked defense counsel,
“Miss Jensen, do you have a presentation you’d like to
make regarding sentencing and would your client like to
address me?” Noel’s counsel responded by reading



10
  As Barnes recognized, the holding in Green was originally
codified at Rule 32(a)(1). See Fed. R. Crim. P. 32 advisory
committee’s note (1966 Amendments). Although the Rule
has subsequently been reorganized, its application for our
purposes remains unchanged. See Fed. R. Crim. P. 32 advisory
committee’s note (2002 Amendments) (stating that, unless
otherwise noted, changes were intended to be stylistic only).
24                                              No. 07-2468

aloud a letter that Noel had addressed to the court. The
government claims that this was a sufficient opportunity
to allocute under Rule 32. We cannot agree. The record
is clear that the district court addressed defense counsel
and asked “would your client like to address me?” but
the court did not directly address the defendant him-
self. This is contrary to the language of Rule 32 and consti-
tutes plain error.
  In arguing that the district court’s comments satisfied
Rule 32, the government relies on United States v. Williams,

(7th Cir. 2001), and United States v. Franklin,

(7th Cir. 1990). However, neither case is
supportive. In Williams, the district court said at sentenc-
ing, “Mr. Williams, is there anything that you would
like to 

. We held that this satisfied
Rule 32’s requirement that the court address the
defendant personally because “it [was] clear that the court
addressed Williams himself, not his lawyer or any
other representative.” 

(emphasis added). Simi-
larly, in Franklin, the district judge asked both defense
counsel and the defendant if either or both of
them had a statement they wished to 

. We held that this was sufficient because the
record indicated that the district court judge explicitly
addressed the defendant. 

Williams and Franklin, the record in this case
makes clear that the district court was addressing
Noel’s counsel only. He began each statement by re-
ferring to “Miss Jensen,” and then advised what her client
had the right to do. In all of these addresses, the court
No. 07-2468                                               25

referred to Noel only in the third person. In response to
the district court, Jensen made her presentation (which
was constructed much as an allocution), but the district
court never returned to Noel to ask him directly whether
he would like to speak. Although the mistake is under-
standable given the reading of Noel’s letter, this is not
the type of personal address the rule unequivocally
requires.
  The Supreme Court’s own language in Green is instruc-
tive: “Trial judges before sentencing should, as a matter
of good judicial administration, unambiguously address
themselves to the defendant. Hereafter trial judges
should leave no room for doubt that the defendant has
been issued a personal invitation to speak prior to sen-

. Such a “personal invitation”
was lacking here, an omission that constituted plain error.


b. Whether the Error Affected Noel’s Substantial Rights
  We now turn to the question of whether this plain error
affected Noel’s substantial rights. In the ordinary case, the
defendant’s burden of showing that an error affected
his substantial rights requires a demonstration of preju-
dice. 

. But when, as here, the
error violated the right to allocute, we “presume prejudice
when there is any possibility that the defendant
would have received a lesser sentence had the district
court heard from him before imposing sentence.” 

  In Luepke, we emphasized the discretionary nature of
sentencing when explaining the reasoning behind this
26                                              No. 07-2468

presumption. 

that “[i]n a post-Booker
world . . . [i]t would be almost impossible to determine
whether, in the context of the advisory guidelines and
the court’s balancing of the statutory sentencing factors,
a defendant’s statement, that was never made, would
have altered the conclusions of the sentencing court.” 

determining whether Noel’s substantial
rights were affected, we do not speculate as to what he
may have said, nor do we try to determine whether it
would have been persuasive. See United States v.
O’Hallaren, 

, 636 (7th Cir. 2007) (“[W]e cannot
speculate as to the persuasive ability of anything
O’Hallaren may have said in his statement to the court.”);

(explaining that a presumption of
prejudice “avoids our speculation about what the defen-
dant might have said had the right been properly
afforded him”).
  With these considerations in mind, we cannot conclude
that Noel would have received the same sentence had he
been afforded the opportunity to allocute. Although Noel
has not submitted that he would have said anything
different than what he wrote in his letter, allowing counsel
to speak in Noel’s stead does not cure the prejudice
stemming from the violation of his rights. See 

. As the Supreme Court has suggested, “[t]he
most persuasive counsel may not be able to speak for a
defendant as the defendant might, with halting
eloquence, speak for himself.” 

words, it is not
only the content of the defendant’s words that can influ-
ence a court, but also the way he says them. Noel has
therefore established that the court’s failure to address
No. 07-2468                                                   27

him personally was plain error that affected his sub-
stantial rights.


  c.   The Fairness, Integrity, and Public Reputation of Judicial
       Proceedings
  That Noel has established plain error does not end our
inquiry, for our decision of whether to correct that error
is discretionary. We exercise that discretion and remand
only if the error seriously affected the fairness, integrity,
or public reputation of judicial proceedings. 

.
  Although we have ordinarily remanded in circum-
stances where a defendant has been denied the right to
allocute, United States v. Pitre, 

, 663 (7th Cir.
2007), the Supreme Court has stated that an error such
as this “is not a fundamental defect which inherently
results in a complete miscarriage of justice, nor an
omission inconsistent with the rudimentary demands of
fair procedure,” Hill v. United States, 

, 428
(1962). “Thus, the general rule does not foreclose the
possibility that the facts of a particular case may compel
a conclusion that any violation of the defendant’s right
to allocut[e] did not affect seriously the fairness of the
judicial proceedings.” 

.
  This case compels such a conclusion. Although the
district judge did not address the defendant personally, he
mentioned Noel’s right to allocute twice in open court.
Moreover, this is the only case we have encountered
where the defendant’s own words were read aloud at
28                                                No. 07-2468

a sentencing hearing. Noel’s letter was structured much
as an allocution would have been, and everyone at the
hearing overlooked that he had not personally been
afforded the opportunity to speak. The error was there-
fore understandable, and it is difficult to fault the
district judge for not recognizing that a proper allocution
had not occurred. Furthermore, Noel’s sentence was
twenty years below the applicable guidelines sentence,
which is presumptively reasonable and perhaps even low
given the egregious nature of Noel’s conduct. Under the
facts of this case, we conclude that the district court’s error
“did not implicate [the] core values in our sentencing
process,” and that the equity of that process, both per-
ceived and applied, remains intact. 

; see also 

(noting the value of allocution in
the perceived equity of the sentencing process). We
therefore decline to exercise our discretion to remand
for resentencing, and Noel’s sentence will be affirmed.


                      III. C ONCLUSION
  In cases involving such reprehensible conduct, the
government’s tenacity in pursuing a conviction is under-
standable. But cases such as these require even more
caution to ensure that the fairness of the judicial pro-
ceedings remains intact so that the resulting convictions
and sentences are sound. It is up to the government to
present the facts and allow the jury to do its job, without
resorting to testimony that usurps the jury’s function.
Although Barnes’s testimony was improper, we are
No. 07-2468                                              29

convinced that the outcome would have been the same had
it been excluded. We therefore A FFIRM Noel’s conviction.
We also find that although the district court committed
plain error during Noel’s sentencing, that error did not
affect the fairness, integrity, or public reputation of the
judicial proceedings, and we A FFIRM Noel’s sentence.




  E ASTERBROOK, Chief Judge, concurring. Although the
court holds that the district judge committed plain error
by failing to “address the defendant personally” about
allocution, as Fed. R. Crim. P. 32(i)(4)(A)(ii) requires, it
also declines to reverse, because it is very unlikely that
the gaffe affected the outcome. The judge twice invited
allocution (though when speaking to counsel rather than
Noel), and in response counsel read aloud a letter that
Noel had written to the judge. Noel evidently thought
that something composed in advance would present his
position better than extemporaneous oral remarks. He
has never contended that he did not know of his right
to speak on his own behalf, and he has never asserted
that he would have spoken if only the judge had raised
the subject with him rather than counsel. Even the
plainest of errors justifies reversal only if allowing the
decision to stand would impair “the fairness, integrity or
public reputation of judicial proceedings” (United States
30                                               No. 07-2468

v. Atkinson, 

, 160 (1936), quoted in United
States v. Olano, 

, 736 (1993)). The integrity
and public reputation of judicial proceedings would be
undermined, rather than reinforced, if this court reversed
on account of the district judge’s inconsequential misstep.
  I write separately to question the conclusion of
United States v. Luepke, 

, 451 (7th Cir. 2007),
that, when conducting plain-error review of a conten-
tion that the district judge violated Rule 32(i)(4)(A)(ii),
the court of appeals must “presume prejudice when
there is any possibility that the defendant would have
received a lesser sentence had the district court heard
from him before imposing sentence.” There are two
problems with this standard: first the presumption in
defendant’s favor, and second the proposition that
“any possibility” of prejudice suffices to establish plain
error.
  Even on harmless-error review, the burden of showing
prejudice rests on the defendant, not the prosecutor. See
Kotteakos v. United States, 

(1946); cf. O’Neal v.
McAninch, 

(1995). It is supposed to be
harder to show plain error (when the defendant for-
feited the issue by failing to raise it in the district court)
than to show harmless error (when the defendant did
raise the issue, and the judge wrongly rejected the argu-
ment). Yet Luepke makes it easier to reverse on plain-
error review than on harmless-error review.
  Only grave and prejudicial errors justify reversal when
the defendant did not alert the district judge to the prob-
lem. See, e.g., United States v. Young, 

(1985);
No. 07-2468                                               31

Atkinson; Olano. During the last 20 years, courts of appeals
have occasionally declared that one or another kind of
error warrants a modified rule, in which prejudice is
presumed—and sometimes in which reversal follows if
there is “any possibility” that the defendant was ad-
versely affected. The Supreme Court has disapproved
that approach. For example, when a court of appeals
declared that prejudice would be presumed if alternate
jurors are present during deliberations, the Supreme Court
reversed in Olano and held that the defendant bears
the burden of establishing prejudice. When a court of
appeals concluded that prejudice is presumed if a
district court fails to provide the defendant with all of
the information required by Fed. R. Crim. P. 11, the
Supreme Court reversed and held that the defendant
bears the burden of showing prejudice, United States v.
Vonn, 

(2002), meaning that he would not have
pleaded guilty had he received the information. United
States v. Dominguez Benitez, 

(2004).
  And when some courts of appeals concluded that a
prosecutor’s failure to keep a promise in a plea agree-
ment leads to reversal unless the prosecutor shows that
there is “no possibility” of an adverse effect, the Supreme
Court replied that the defendant bears the burden of
showing prejudice. Puckett v. United States, 

(2009). See also United States v. Marcus, 

, 102–05
(2d Cir. 2008) (Sotomayor, J., concurring) (questioning
the second circuit’s doctrine that prejudice is presumed
for ex post facto issues, and that reversal is required if
there is “any possibility” that pre-enactment conduct
affected the verdict), petition for cert. filed, No. 08-1341.
32                                               No. 07-2468

   Now it is true that Olano and its successors state that
the defendant “ordinarily” bears the burden of estab-
lishing prejudice. This leaves open the possibility of
presuming prejudice for some kinds of error. Yet it is
also true that the Supreme Court has never found it ap-
propriate to place the burden on the prosecutor when
reviewing under Fed. R. Crim. P. 52(b). And the Justices
have never so much as hinted that a “no possibility of
harm” standard would be appropriate for any kind of
error. A small category of “structural errors” justifies
reversal without inquiry into prejudice—for example,
the participation by a judge who does not hold office
under Article III, see Nguyen v. United States, 

(2003), or deprivation of the right to counsel of one’s
choice, see United States v. Gonzalez-Lopez, 

(2006)—but no one thinks that a violation of Rule
32(i)(4)(A)(ii) is in the structural-error category. When
the standard of review is plain error, reversal is “difficult,
‘as it should be.’ ” Puckett, 

, quoting from
Dominguez 

n.9.
  Luepke justified transferring the burden to the
prosecutor, and adopting the “no possibility” standard,
because it is hard to show an adverse effect from a
judge’s failure to address the defendant personally—
rather than, say, addressing counsel in the defendant’s
presence, which conveys the same information but does
not satisfy Rule 32(i)(4)(A)(ii). But the reason it is hard
to show injury is that violations of the Rule usually are
inconsequential. That a violation did not affect anyone’s
behavior—which may explain why no one objected—ought
not make reversal the norm. It is instead why a court
No. 07-2468                                              33

of appeals should allow the judgment to stand. It cannot
be sound to say that the more technical the violation,
and the less likely any adverse consequence, the more
readily a court of appeals must reverse. Everything
Luepke said about violations of Rule 32(i)(4)(A)(ii) could
have been said—and was said, by the ninth circuit—in
Vonn and Dominguez Benitez. But the Supreme Court
held that the defendant must show prejudice when the
district judge fails to supply the information required
by Rule 11. If, for example, the defendant knew (perhaps
having been told by counsel) the information on the
Rule 11 list, there is no point in taking the plea anew.
Just so with a violation of Rule 32(i)(4)(A)(ii). Luepke
should be overruled.




  W ILLIAMS, Circuit Judge, dissenting. I join my colleagues
wholeheartedly in affirming Noel’s conviction and
agree that any errors that may have occurred during
trial were harmless due to the overwhelming evidence
of his egregious conduct. I write separately, however,
because I disagree with the panel’s conclusion that the
denial of his right to allocute did not undermine the
fairness of the judicial proceedings. Instead, I would
remand for resentencing. In light of Chief Judge
Easterbrook’s concurrence, I also write to stress the im-
portance of the presumption of prejudice afforded to a
34                                                No. 07-2468

defendant who has been denied the opportunity to
allocute, and to reiterate why the standard adopted in
United States v. Luepke, 

(7th Cir. 2007),
should remain the law of this circuit.


                              I.
  In Luepke, we held that “in the vast majority of cases,
the denial of the right to allocut[e] is the kind of error that
undermines the fairness of the judicial process,” based,
in part, on the right’s practical role and its effect on the
“perceived equity of the [sentencing] process.” 

(quoting United States v. Barnes, 

, 328 (7th Cir. 1991). We also stated that “[a]bsent
some rare indication from the face of the record that the
denial of this right did not implicate these core values,
resentencing is the appropriate judicial response.” 

In this case, the district judge mentioned Noel’s
right to allocute in open court (albeit to his lawyer); Noel’s
lawyer read aloud, during the sentencing hearing, a letter
Noel had written previously; and the judge issued a
sentence twenty years below the 100-year guideline
sentence. For these reasons, the panel concludes that the
error did not “implicate [the] core values in our sen-
tencing process.” Op. at 28. I find each of these points
unpersuasive, and I am not convinced that they bring
this case within the narrow category of cases that do not
require resentencing.
  The Supreme Court recognized, in United States v. Green,
that Rule 32, as then written, contained an “inflexible
requirement” that the district judge address the
No. 07-2468                                                    35

defendant to allow him the opportunity to allocute. 

, 303 (1961). And, as the panel notes, Rule
32(i)(4)(A)(ii) codified this holding by explicitly
requiring the judge to personally offer the defendant the
opportunity to allocute. This amendment clarified
what the Supreme Court had intimated: that ambiguous
references or invitations not directed to the defendant
fail to protect the right to allocute, and, by extension, cast
doubt over the fairness of the proceedings. See 

; see also 

(Black, J., dissenting) (“[i]t
would be wholly artificial to regard this opportunity as
having been afforded in the absence of a specific and
personal invitation to speak . . . [t]he very essence of the
ancient common-law right . . . has always been the putting
of the question to the defendant . . . .”); United States v.
Adams, 

(3d Cir. 2001) (remanding for
resentencing after district judge asked defense counsel
if defendant wanted to exercise his right to allocute but
did not ask defendant personally). Although, some may
believe that “violations of the Rule usually are inconse-
quential,” Conc. Op. at 32, an acknowledgment of the
defendant’s right to speak, posed to his lawyer, cannot be
equated with a personal invitation to the defendant to
address the court. Relying on the former would require
the defendant to interject in an ongoing conversation
between the lawyers and the judge that has taken place
throughout the proceedings—an unrealistic expectation
in an environment where the lawyer is assumed to speak
for the client. Indeed, Rule 32 places an affirmative duty
on the court to invite allocution, avoiding the need for
defendants to attempt, on their own, to ask for an oppor-
36                                               No. 07-2468

tunity to speak. To now claim that “putting the question”
to defense counsel somehow preserves the fairness of the
proceedings is at odds with the purpose of the rule
and the Court’s pronouncement in Green.
  Nor do I believe that Noel’s letter should alleviate our
concerns regarding the denial of the right to allocute. In
fact, it should do just the opposite. The record does not
clearly indicate the letter’s purpose, and it even suggests
that the choice to read the letter during the sentencing
hearing was not Noel’s. At the hearing, the district
court judge stated:
     All right. And Miss Jensen [Noel’s lawyer], do you
     have a presentation you’d like to make regarding
     sentencing and would your client like to address
     me?
To which Noel’s lawyer responded:
     I’m sorry, Judge. Mr. Noel provided me with a
     letter much too late for the Probation Department
     to include it in the presentence report, but based on
     what Miss Helart [the prosecutor] has said, I thought
     it might be appropriate to share with you today.
(emphasis added). From both the panel’s analysis and
Chief Judge Easterbrook’s concurrence, one would think
that Noel wrote this letter specifically for the sentencing
hearing. But his lawyer’s statements to the court
indicate otherwise. Noel’s counsel said that she chose to
read the letter in response to the prosecutor’s comments.
 Regardless of how it was structured, the letter was not
Mr. Noel’s allocution, and, in fact, the district judge
No. 07-2468                                             37

said that it “underline[d] the determination [he had]
made that [an] acceptance of responsibility [sentencing
reduction] was inappropriate.” The letter, which Noel’s
lawyer probably should have kept to herself, denied guilt,
shifted blame to others, and offered an apology all at
the same time. Noel did not receive an opportunity to
retract or even mitigate some of the letter’s statements;
yet the panel suggests that because his words were read
aloud in court, the perceived fairness of the process
remains intact. For a right rooted in English common
law, which affords a defendant a final opportunity to
present information in mitigation of his sentence, 

, a letter read by defense counsel in
reaction to the prosecutor’s comments is a poor sub-
stitute. It may have caused even more harm, and since
Noel did not receive the opportunity to allocute, I do not
believe that the letter contributed to preserve the per-
ceived or applied fairness of the sentencing process.
  Furthermore, I cannot agree that Noel’s eighty-year
sentence, which was twenty years below the advisory
guideline sentence, somehow renders the proceedings
fair. The distinction between an eighty and 100-year
sentence is a superficial one. For Noel, both are function-
ally life sentences (Noel was fifty-three years old at
the time). He argued that the eighty-year sentence was
still too high and asked for a reduction, which the
district court denied based, in part, on his letter. In
this particular case, a sentence below the guideline
range says little about fairness. Noel could have received
a lower sentence if he accepted responsibility or could
have had his sentences on each count run concurrently.
38                                              No. 07-2468

Cf. 

(presuming prejudice in cases
where, based on the facts at issue and the arguments
raised, the district court retained discretion to grant a
lower sentence).
  The right to allocute belongs to the defendant, and the
duty is placed squarely on the court to ensure he has
the opportunity to exercise it. That everyone overlooked
this step does not mean we must do the same. I do not
believe any of the factors to which the majority points
instill confidence that the core values of our sentencing
process are not implicated. Luepke contemplated some
rare instances where the denial of the right does not
require a judicial remedy, and I see no reason why this
case falls into that narrow category.


                            II.
  That brings me to the issue raised in Chief Judge
Easterbrook’s concurrence: the continuing viability of
Luepke’s presumption of prejudice in reviewing Rule
32(i)(4)(A)(iii) violations. As I stated earlier, the impor-
tance of the right to allocute cannot be minimized. It
has been recognized, in common law, as early as 1689,
that “the court’s failure to ask the defendant if he had
anything to say before sentencing was imposed required
reversal.” 

. And despite the vast
improvement in procedural protections afforded to
defendants, the right remains an important aspect of our
sentencing proceedings, providing defendants with a
final opportunity “to speak or present any information to
mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii).
No. 07-2468                                                 39

  A number of circuits, including ours, have recognized
the implausibility of proving prejudice from a Rule 32
violation, see, e.g., United States v. Haygood, 

,
1055 (6th Cir. 2008); United States v. Carruth, 

,
847 (11th Cir. 2008); United States v. Reyna, 

, 352
(5th Cir. 2004) (en banc); 

-88, and
without a presumption in favor of the defendant we
run the risk of reducing the rule and the right it protects
to a meaningless formality. See United States v. Barnes, 

, 331 (7th Cir. 1991) (“[T]he defendant’s right to
be heard must never be reduced to a formality.”). It is our
duty to ensure that the right is afforded to all defendants,
while maintaining a careful balance between judicial
efficiency and the redress of injustice. Puckett v. United
States, 

, 1429 (2009).
  Plain error review, outlined in Federal Rule of Criminal
Procedure 52(b), maintains the appropriate balance in
most cases; however, as the Supreme Court recognized in
Olano, there are some instances where errors may be
presumed prejudicial. United States v. Olano, 

,
735 (1993). In that case, the Court found that a violation
of Rule 24(c), which, at the time, required the district
judge to discharge alternate jurors after the jury began
deliberations, was not the type of error that “affect[s]
substantial rights independent of its prejudicial impact,”
and the Court declined to presume prejudice. 

(internal quotation marks omitted). In United States v.
Vonn, the Court held that violations of Rule 11 of the
Federal Rules of Criminal Procedure (requiring the
district court to ensure that a plea is knowing and volun-
tary) were still subject to plain error. 

(2002).
40                                               No. 07-2468

One can certainly argue that the right to allocute is not
more important than the right to a jury free from
improper influence, or the right to enter a knowing and
voluntary guilty plea. And the Supreme Court’s insistence
on the plain error standard of review (without a pre-
sumption of prejudice) for those violations may suggest
that the same should apply here. See 

-
55 (Jones, J., concurring). However, I do not believe
these cases compel us to abandon our approach in
Luepke. Our decision to apply a presumption of prejudice
is based not just on the importance of the right, but also
because the burden would be almost insurmountable
for defendants.
  Assessing the prejudice caused by the presence of
alternate jurors during deliberations was a much more
manageable task in Olano. The Court considered the
fact that the alternate jurors were instructed not to par-
ticipate in the deliberations and that the mere presence
of the jurors did not create a “sufficient risk of a chill” to
warrant a presumption of prejudice. 

-
41. A defendant denied the right to allocute, on the
other hand, would have to tell us, after the fact, what he
might have said months earlier, and he would also have
to convince us that the judge could have responded
favorably. Whatever statement he may have made,
whether it be a heartfelt plea for mercy or a full-fledged
admission and acceptance of responsibility, is of a dif-
ferent character when reduced to an appellate brief. It
is highly speculative—who really knows what would
have happened at that moment—as is any attempt to
assess its impact on a judge who has significant discre-
tion in making sentencing decisions.
No. 07-2468                                              41

  Similarly, in Vonn, a number of important considera-
tions counseled against a presumption of prejudice or
any other exception from plain error review. Although
Rule 11 required the district court judge to address the
defendant during the plea colloquy, the strong interest
in concentrating pleas in trial courts and promoting
finality in a system heavily dependent on guilty pleas
added another dimension to the balance between
judicial efficiency and the redress of injustice. See 

. Furthermore, the prejudice to a defen-
dant who alleges a Rule 11 violation is the entry of a
plea that wasn’t made knowingly or voluntarily. A tradi-
tional plain error analysis would place the burden of
proving prejudice on the defendant, who is in the best
position to know if his plea was voluntary. Putting aside
the importance of the rights, I see a significant difference
between a rule that places the burden on a defendant
who seeks to renege on an agreement he entered into,
and one that requires him to tell us how a judge would
have reacted to a plea for mercy. The rights invoked in
Olano and Vonn are sufficiently distinguishable from
the right to allocute that those cases should not call
our holding in Luepke into question.
  The presumption we adopted is not a direct route to
automatic reversal and we have not proposed, at any
point, that it be treated as a structural error that
justifies reversal without inquiry into prejudice. We have
simply applied a rebuttable presumption due to the prac-
tical difficulties defendants face in enforcing the right
during sentencing and on appeal. Cf. United States v.
Syme, 

, 154-55 (3d Cir. 2002) (applying a
42                                                  No. 07-2468

presumption of prejudice for constructive amendments
and analyzing whether the government effectively
rebutted the presumption). I am mindful of the Supreme
Court’s reluctance to expand the list of structural errors
and am aware that even constitutional errors are
normally subject to a harmless error analysis. But placing
the burden on the government to demonstrate the
absence of prejudice is not inconsistent with this princi-
ple. If the defendant had objected in the district court, the
government would bear the burden of proving that the
error was harmless. See Fed. R. Crim. P. 52(a); see also 

(interpreting language in Rule 11(h) that
tracked Rule 52(a) to provide for “consideration of error
raised by a defendant’s timely objection, but subject to an
opportunity on the Government’s part to carry the burden
of showing that any error was harmless”); United States v.
Williams, 

, 611 (7th Cir. 2009).1 Shifting burdens


1
   Chief Judge Easterbrook maintains in his concurring
opinion that the burden of showing prejudice on harmless
error review rests on a defendant, and, therefore, Luepke makes
it easier to reverse on plain error than on harmless error. I
disagree. The Supreme Court, in Kotteakos v. United States, only
placed the burden of proving harmless error on defendants
complaining of “technical” errors. 

, 760-61 (1946);
see also O’Neal v. McAninch, 

, 439-40 (1995); Brecht
v. Abrahamson, 

, 641 (1993) (Stevens, J., concurring).
Otherwise, it is clear that the government bears the burden
of proving harmless error in criminal cases. Shinseki v. Sanders,

, 1706 (2009). Although there is no formal defini-
tion of the term, the Supreme Court has referred to “technical
                                                    (continued...)
No. 07-2468                                                     43

of proof alone does not disrupt the Supreme Court’s
attempts to limit the expansion of structural errors.
  We cannot deny the importance of the right to allocute
and the steps the district court must take to enforce it.

. As a practical matter, defendants
are less likely to object on their own when a judge fails
to provide them with an opportunity to allocute, and if
they do object, the judge will provide that opportunity
in most cases. The majority of appeals we encoun-
ter—as has been the case thus far—will come from pro-
ceedings in which the defendant made no objection.
The nature of the inquiry, however, is so speculative
that, in almost all cases, the defendant would not be able
to prove prejudice, and the right would not be en-
forced. This is an unacceptable result for a right that
implicates the fairness of sentencing proceedings. The
state of the law has evolved to give judges significantly
more discretion in making sentencing decisions. As a
result, we should be more skeptical of imposing



1
   (...continued)
errors” as “matters concerned with the mere etiquette of
trials and with the formalities and minutiae of procedure . . . .”
Bruno v. United States, 

, 294 (1939); see also United
States v. Flanagan, 

, 955 (10th Cir. 1994) (referring to
technical errors as “errors for which there is no reasonable
possibility that the verdict could have been affected”). I do not
consider a Rule 32 violation minor or inconsequential; therefore,
I would also place the burden on the government to prove
the absence of prejudice on harmless error review. The way I
see it, plain error remains the more difficult standard.
44                                              No. 07-2468

standards that require us to hypothesize what a sentencing
judge would have done in a given situation. The presump-
tion we adopted in Luepke does not make the denial of
allocution a structural error, nor does it advocate for
automatic reversal. It recognizes that the right is more than
an “unenforced honor code” that judges may follow in
their discretion. United States v. Leon, 

, 978
(1984) (Brennan, J., dissenting). The presumption of prej-
udice allows the right to be enforced and provides a
remedy where our procedural rules may have rendered
it effectively obsolete. Unless the Supreme Court says
otherwise, I see no reason to revisit Luepke.




                            9-4-09