(A)  Constitutional Basis.  Sentence must be vacated for judicial violation of the defendant’s right of allocation, i.e., to address the court directly prior to imposition of sentence.[327]   The right of allocution is not satisfied by allowing defense counsel, but not the defendant, to address the court at sentence: “The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.”[328]  In Boardman v. Estelle,[329] the Ninth Circuit found that due process requires a sentencing court to permit a defendant personally to address the court on request prior to imposition of sentence.  Likewise, in In re Karagozian,[330] a California Court of Appeal reversed a contempt sentence on due process grounds.  Thus, there is a strong argument that the right to allocution is constitutionally based.

[327] Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961).

[328] Ibid.; United States v. Phillips, 936 F.2d 1252 (11th Cir. 1991); United States v. Dominguez-Hernandez, 934 F.2d 598 (5th Cir. 1991); United States v. Pelaez, 930 F.2d 520 (6th Cir. 1991); United States v. Sparrow, 673 F.2d 862 (5th Cir. 1982); F. R. Crim. Pro. 32(c)(3)(B), (C); 3 ABA Standards for Criminal Justice 18-459 (2d ed. 1980); but cf. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) (collateral relief is not available on the ground that the court failed to comply with the formal requirements of Fed. R. Crim. P. 32, but court did not foreclose possibility that violation of right of allocution might constitute a fundamental defect for which relief under 28 U.S.C. § 2255 is available); United States v. Eibler, 991 F.2d 1350 (7th Cir. 1993) (no right of allocution in chambers, as opposed to open court); United States v. Barnes, 948 F.2d 325 (7th Cir. 1991) (no right of allocution at probation violation proceeding); Fed. R. Crim. P. 43(c)(4)(presence of defendant not required at Rule 35 reduction of sentence proceeding).

[329] Boardman v. Estelle, 957 F.2d 1523 (9th Cir. 1992).

[330] In re Karagozian, 44 Cal.App.3d 516, 522, 118 Cal.Rptr. 793, 796 (1975).

Ninth Circuit

POST CON RELIEF - SENTENCE - GROUNDS - ALLOCUTION - NO RIGHT OF ALLOCUTION ON LIMITED REMAND FOR RESENTENCING - CRIMINAL LAW & PROCEDURE, SENTENCING
United States v. Silva, 472 F.3d 683 (9th Cir. Jan. 3, 2007) (defendant does not have a right to allocute during a limited remand to the district court from a sentencing appeal). http://caselaw.lp.findlaw.com/data2/circs/9th/0550871p.pdf