United States v. Jeffrey Green ( 2019 )


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  •                    FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,             No. 17-30227
    Plaintiff-Appellee,
    D.C. No.
    v.                   3:16-cr-00063-SLG-1
    JEFFREY R. GREEN,                     ORDER AND
    Defendant-Appellant.          AMENDED
    OPINION
    Appeal from the United States District Court
    for the District of Alaska
    Sharon L. Gleason, District Judge, Presiding
    Argued and Submitted June 12, 2019
    Anchorage, Alaska
    Filed August 21, 2019
    Amended October 7, 2019
    Before: A. Wallace Tashima, William A. Fletcher,
    and Marsha S. Berzon, Circuit Judges.
    Order;
    Opinion by Judge Berzon
    2                  UNITED STATES V. GREEN
    SUMMARY *
    Criminal Law
    The panel withdrew its opinion filed on August 21, 2019,
    and filed an amended opinion vacating a sentence and
    remanding for resentencing, in a case in which the defendant
    pleaded guilty to a single count of possession of a firearm as
    a felon.
    The panel assumed, as the defendant did in his
    supplemental briefing, that the allocution issue raised on
    appeal was not adequately raised in the district court, and
    that plain error review therefore applies.
    The panel held that the district court’s conclusion—that
    it could not listen to the defendant’s allocution before
    determining whether a reduction of acceptance of
    responsibility was warranted under the Sentencing
    Guidelines—is contrary to law. The panel concluded that
    there is at least a reasonable probability that after allocution,
    the district court could determine that an acceptance-of-
    responsibility reduction is appropriate; and that because a
    decision to grant the reduction would likely lead to a less
    severe sentence, the failure to consider the defendant’s
    allocution—combined with the district court’s faulty
    reliance on United States v. Ginn, 
    87 F.3d 367
     (9th Cir.
    1996) (concerning acceptance-of-responsibility for
    defendants convicted of multiple counts)—affected the
    *
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    UNITED STATES V. GREEN                    3
    defendant’s substantial rights and seriously affected the
    fairness of the proceedings.
    COUNSEL
    Krista Hart (argued), Sacramento, California, for Defendant-
    Appellant.
    Jonas M. Walker (argued), Assistant United States Attorney;
    Brian Schroder, United States Attorney; United States
    Attorney’s Office, Anchorage, Alaska; for Plaintiff-
    Appellee.
    ORDER
    The mandate issued on September 12, 2019 is recalled.
    The opinion filed on August 21, 2019, appearing at 
    2019 WL 3939348
    , is hereby withdrawn. An amended opinion is
    filed herewith. The mandate shall reissue forthwith.
    OPINION
    BERZON, Circuit Judge:
    Must a district court decide on a defendant’s eligibility
    for an acceptance-of-responsibility reduction in his
    Guidelines level before listening to the defendant’s
    allocution? Our answer is “No.”
    4                   UNITED STATES V. GREEN
    I
    On June 3, 2016, a group of police officers went to
    Jeffrey Green’s apartment in Anchorage, Alaska, and
    arrested Green on an outstanding warrant. While patting him
    down, an officer found a loaded revolver in Green’s pocket.
    During a later search, the officers found two pistols stored
    inside a safe in a storage closet accessible from the
    apartment. Both pistols had been reported stolen.
    The government charged Green, who had a long history
    of felony convictions, with a single count of possession of a
    firearm as a felon in violation of 
    18 U.S.C. § 922
    (g)(1). Six
    months later, Green pleaded guilty. During his plea
    colloquy, Green admitted that he possessed the single
    revolver found in his pocket during the arrest and that he was
    a felon. But Green did not admit to all the conduct alleged
    in the single-count indictment. He made no admissions—or
    statements of any kind—regarding either of the pistols found
    in the safe. 1 The district court found that Green’s admission
    regarding the revolver, coupled with his admission regarding
    his criminal history, provided a sufficient factual basis for
    the plea under Federal Rule of Criminal Procedure 11(b)(3).
    After Green pleaded guilty, the district court directed the
    probation department to prepare a presentence report. That
    report concluded that Green should be assessed an offense
    level under the Sentencing Guidelines premised on
    possession of a total of three guns, two of which were stolen.
    See U.S. Sentencing Guidelines Manual § 2K2.1(b)(1),
    1
    The government offered Green a plea deal contingent on Green
    admitting possession of all three firearms. Green rejected this offer and
    instead pleaded guilty without an agreement with the government.
    UNITED STATES V. GREEN                            5
    (b)(4)(A) (U.S. Sentencing Comm’n 2016). 2                 The
    presentence report also concluded that Green was not
    entitled to any reduction for accepting responsibility because
    he had not admitted possession of the two pistols found in
    the safe. See id. § 3E1.1(a). Green objected to each of these
    conclusions. He primarily argued that the government
    “ha[d] not proven that the two additional firearms found in
    the storage closet were in Green’s possession.”
    Because Green so objected, the court held an evidentiary
    hearing to determine whether Green possessed those
    firearms. See id. § 6A1.3 cmt. At this hearing, the
    government introduced a recording of Green speaking to a
    woman by phone after he was arrested. Green asked the
    woman, “Did they get my safe?” The woman replied, “I
    don’t know. There was a locksmith. They had a locksmith
    come there. Yes. Shane said they got into it.” Green then
    responded: “Oh, my God.” Based on this audio and other
    evidence introduced by the government the district court
    concluded that the government had shown by a
    preponderance of the evidence that Green possessed the two
    pistols, and that he should thus be assessed the offense level
    for possession of stolen guns and for possession of three or
    more guns. The court left open whether Green should be
    awarded a reduction for accepting responsibility pursuant to
    Sentencing Guidelines section 3E1.1.
    Two weeks later, on November 3, 2017, the district court
    held a second sentencing hearing. At the outset of this
    2
    These Guidelines sections provide that “[i]f the offense involved
    three [to seven] firearms, increase” the offense level by two levels,
    Guidelines Manual § 2K2.1(b)(1), and that “[i]f any firearm [involved in
    the offense] was stolen, increase [the offense level] by 2 levels,” id.
    § 2K2.1(b)(4)(A).
    6                UNITED STATES V. GREEN
    second hearing, the court entertained argument as to whether
    it should find that Green accepted responsibility under
    section 3E1.1. During argument, defense counsel told the
    court that Green “intends to allocute to this Court.” Counsel
    further stated that he thought “the only way [Green will] be
    able to express [the] contrition [required by section 3E1.1]
    . . . is in that allocution.”
    After hearing counsel’s argument but before hearing
    Green’s allocution the court announced its conclusion
    regarding the acceptance-of-responsibility reduction—that
    the reduction was not appropriate. The sentencing court
    explained that it reached this conclusion largely because it
    viewed this case as analogous to United States v. Ginn,
    
    87 F.3d 367
     (9th Cir. 1996), which held that an acceptance-
    of-responsibility reduction was appropriate only where a
    defendant charged with multiple counts had accepted
    responsibility for all of the “counts of which he is
    convicted.” 
    Id. at 370
    ; cf. United States v. Garrido, 
    596 F.3d 613
    , 619 (9th Cir. 2010) (holding that to remain eligible for
    the acceptance-of-responsibility reduction, a defendant need
    not accept responsibility for counts excluded from grouping
    under the Guidelines).
    The district court recognized that “evaluating the
    acceptance[-of-responsibility reduction] . . . after an
    allocution might be helpful” in some circumstances. But it
    believed that under our case law, it could not hear from
    Green before determining the applicability of the reduction.
    In the district court’s view, “the Ninth Circuit very clearly
    instructs district judges to determine the guidelines at the
    outset of sentencing proceeding[s],” and so before hearing
    from the defendant.
    After explaining its decision regarding the acceptance-
    of-responsibility reduction, the court heard further argument
    UNITED STATES V. GREEN                      7
    from counsel on the appropriate sentence under the statutory
    sentencing factors. See 
    18 U.S.C. § 3553
    (a). It then
    provided Green his opportunity to speak. During his
    allocution, Green explained at length that he was “extremely
    sorry” for his actions.
    Immediately following the allocution, the court
    sentenced Green to a 108-month term of imprisonment. The
    imposed sentence was within the range of 100 to 120 months
    recommended by the Guidelines calculation adopted by the
    district court. Had Green received the acceptance-of-
    responsibility reduction, the Guidelines recommended term
    would have been between 77 and 96 months. Green appeals
    his sentence.
    II
    At issue in this appeal is the district court’s decision not
    to reduce Green’s offense level under section 3E1.1 of the
    Sentencing Guidelines based on acceptance of
    responsibility. We review any factual finding embedded in
    that determination for clear error. United States v.
    Rodriguez, 
    851 F.3d 931
    , 949 (9th Cir. 2017). But we
    “review de novo whether the district court misapprehended
    the law with respect to the acceptance of responsibility
    reduction.” United States v. Cortes, 
    299 F.3d 1030
    , 1037
    (9th Cir. 2002); see also United States v. Doe, 
    778 F.3d 814
    ,
    821 (9th Cir. 2015).
    A misapprehension of law occurred here. The district
    court believed that it had to determine whether Green had
    accepted responsibility before allowing Green his
    opportunity to allocute. That is not so.
    In his supplemental brief, Green, citing Fed. R. Crim. P.
    52(b), assumed that he did not adequately challenge the
    8                 UNITED STATES V. GREEN
    district court’s allocution ruling in that court, and that the
    plain error rule therefore applies here. We shall also so
    assume. See United States v. Sum of $185,336.07 U.S.
    Currency, 
    731 F.3d 189
    , 195 (2d Cir.2013); United States v.
    McKinney, 
    707 F.2d 381
    , 383 (9th Cir. 1983). Green also
    did not raise the allocution issue in his initial briefing, but,
    as we have had full briefing, we exercise our discretion to
    consider the matter. See United States v. Ullah, 
    976 F.2d 509
    , 514 (1992) (the court has discretion to entertain an
    argument that is not raised). We conclude that this
    misapprehension of law constituted plain error, vacate
    Green’s sentence, and remand for resentencing.
    A
    Before addressing the merits of this appeal, a brief
    review of the acceptance-of-responsibility reduction is
    helpful. Sentencing Guidelines section 3E1.1(a) calls for
    reducing a defendant’s offense level by two points when the
    district court finds that the defendant has “clearly
    demonstrate[d] acceptance of responsibility for his offense.”
    “The primary goal of the reduction is to reward defendants
    who are genuinely contrite.” United States v. McKinney,
    
    15 F.3d 849
    , 853 (9th Cir. 1994). When a defendant’s
    “statements and conduct ma[k]e it clear that his contrition
    [is] sincere, he [is] entitled to the reduction,” Cortes,
    
    299 F.3d at 1038
    , even if that contrition is expressed at the
    “eleventh[]hour,” United States v. Hill, 
    953 F.2d 452
    , 461
    (9th Cir. 1991).
    The Sentencing Guidelines commentary provides courts
    with guidance on how to evaluate whether a defendant has
    demonstrated the requisite contrition. The Guidelines
    commentary instructs that courts may consider whether the
    defendant has, for example, “truthfully admitt[ed] the
    conduct comprising the offense(s) of conviction,”
    UNITED STATES V. GREEN                     9
    “voluntar[ily] terminat[ed] or withdraw[n] from criminal
    conduct or associations,” or “voluntar[ily] pa[id] restitution
    prior to adjudication of guilt.” See Guidelines Manual
    § 3E1.1 cmt. n.1.
    The Guidelines and our case law also provide specific
    guidance on how sentencing courts should evaluate the
    acceptance-of-responsibility reduction where, as here, the
    defendant has entered a plea of guilty. The Guidelines
    commentary explains: “Entry of a plea of guilty prior to the
    commencement of trial combined with truthfully admitting
    the conduct comprising the offense of conviction, and
    truthfully admitting or not falsely denying any additional
    relevant conduct for which he is accountable . . . will
    constitute significant evidence of acceptance of
    responsibility.” Id. § 3E1.1 cmt. n.3. When a district court
    determines that a defendant’s plea was adequately supported
    by the defendant’s admissions, as the district court did here,
    that determination “compels the inference that [the
    defendant] had ‘truthfully admitt[ed] the conduct
    comprising the offense of conviction.’” United States v.
    Vance, 
    62 F.3d 1152
    , 1158 (9th Cir. 1995) (second alteration
    in original). Although the Guidelines thus suggest that a
    guilty plea supported by truthful admissions by the
    defendant creates a presumption that the defendant will
    receive the acceptance-of-responsibility reduction, this
    presumption can be negated by other evidence that suggests
    the defendant has not in fact accepted responsibility for his
    actions. Guidelines Manual § 3E1.1 cmt. n.3. Such
    inconsistent conduct can include, for example, “falsely
    den[ying], or frivolously contest[ing], relevant conduct that
    the court determines to be true.” Id. § 3E1.1 cmt. n.1(A).
    10               UNITED STATES V. GREEN
    B
    The district court in this case did not cite any specific
    authority to support its premise that a sentencing court must
    reach its conclusion regarding acceptance of responsibility
    before hearing from the defendant. The government argues
    on appeal that Kimbrough v. United States, 
    552 U.S. 85
    , 108
    (2007), Gall v. United States, 
    552 U.S. 38
    , 49 (2007), and
    United States v. Carty, 
    520 F.3d 984
    , 991 (9th Cir. 2008) (en
    banc), preclude a sentencing court from hearing a
    defendant’s allocution before determining whether an
    acceptance-of-responsibility reduction is appropriate.
    None of these cases so limits a sentencing court.
    Kimbrough, Gall, and Carty each make clear that sentencing
    courts “must treat the Guidelines as the ‘starting point and
    the initial benchmark’” during sentencing. Kimbrough,
    552 U.S. at 108 (quoting Gall, 
    552 U.S. at 49
    ); see also Rita
    v. United States, 
    551 U.S. 338
    , 347–38 (2007). Carty
    explained that “[a]ll sentencing proceedings are to begin by
    determining the applicable Guidelines range.” 
    520 F.3d at 991
    . Likewise, Gall states that “a district court should begin
    all sentencing proceedings by correctly calculating the
    applicable Guidelines range.” 552 U.S. at 49.
    The language in these cases, taken out of context, can
    perhaps be read to comport with the district court’s
    understanding. In context, however, it is apparent that these
    cases were not addressing the question before us—whether
    a district court must begin a sentencing hearing with a
    Guidelines calculation rather than announcing it once (1) all
    necessary factual information has been presented, (2) all
    relevant factual issues have been resolved, and (3) all
    pertinent argument has been heard.
    UNITED STATES V. GREEN                    11
    The cases explain that when sentencing a defendant, a
    district court must determine the recommended sentencing
    range under the Sentencing Guidelines before making a
    holistic and individualized determination as to the
    appropriate sentence under those Guidelines and the
    
    18 U.S.C. § 3553
    (a) factors. Carty, 
    520 F.3d at 991
    . It is in
    that sense that the ultimate “sentencing proceedings”—that
    is, the determination and announcement of the sentence to
    be imposed—“are to begin by determining the applicable
    Guidelines range.” 
    Id.
     None of these cases requires a district
    court to make a final calculation as to the appropriate
    Guidelines range at the outset of a sentencing hearing, even
    if the judge lacks the necessary information and legal
    argumentation to make an accurate, well-considered
    determination.
    Indeed, in this case the district court did conduct an
    evidentiary hearing to determine whether it was appropriate
    to impose additional offense levels for the possession of
    stolen firearms, and the possession of three or more firearms.
    If Kimbrough, Gall, and Carty set forth the rigid rule the
    government now suggests, that rule would also make
    holding such an evidentiary hearing improper. Thankfully,
    Kimbrough, Gall, and Carty do not set forth such a
    counterproductive requirement. Neither the Guidelines nor
    the pertinent case law prefers ignorance over appropriate
    information collection and considered judicial reflection
    before calculating the applicable Guidelines range.
    Three additional considerations support our conclusion
    that a district court can hear from a defendant before
    determining whether an acceptance-of-responsibility
    reduction is indicated under the Guidelines.
    First, as a matter of practice, sentencing courts
    frequently consider the defendant’s allocution when
    12                UNITED STATES V. GREEN
    considering whether an acceptance-of-responsibility
    reduction is warranted under the Guidelines. See, e.g.,
    United States v. Goodson, 
    920 F.3d 1209
    , 1211 (8th Cir.
    2019); United States v. Leasure, 
    122 F.3d 837
    , 841 (9th Cir.
    1997); Hill, 
    953 F.2d at 461
    , United States v. Watt, 
    910 F.2d 587
    , 589, (9th Cir. 1990); see also United States v. Harvey,
    597 F. App’x 455, 456 (9th Cir. 2015); United States v.
    Kamsomphou, 111 F. App’x 937, 940 (9th Cir. 2004);
    United States v. Thompson, 49 F. App’x 749, 750 (9th Cir.
    2002).
    Second, the Sentencing Guidelines recognize that, in
    some cases, a “factor important to the sentencing
    determination [will be] reasonably in dispute.” Guidelines
    Manual § 6A1.3(a). The Guidelines state that, in these
    circumstances, “the parties shall be given an adequate
    opportunity to present information to the court regarding that
    factor.” Id. (emphasis added). Thus, the Guidelines
    recognize that in some circumstances, “determining the
    applicable Guidelines range,” Carty, 
    520 F.3d at 991
    , may
    require a sentencing judge to evaluate affidavits, hear
    testimony or hold argument, depending on the nature of the
    factor in dispute. See Guidelines Manual § 6A1.3(a).
    Third, and relatedly, when a court must resolve “disputed
    sentencing factors” as part of its sentencing determination,
    the Guidelines state that the sentencing court “shall resolve
    [those] disputed . . . factors . . . in accordance with [Federal]
    Rule [of Criminal Procedure] 32(i).” Guidelines Manual
    § 6A1.3(b) (emphasis added). Federal Rule of Criminal
    Procedure 32(i)(4)(A)(ii), in turn, requires the sentencing
    court to “address the defendant personally in order to permit
    the defendant to speak or present any information to mitigate
    the sentence.” This rule, like its longstanding common law
    predecessor, affords the defendant the right “to present any
    UNITED STATES V. GREEN                          13
    information in mitigation of punishment.” Green v. United
    States, 
    365 U.S. 301
    , 304 (1961). There is particular need to
    give the defendant an opportunity to speak when a
    sentencing court must evaluate the defendant’s character and
    credibility. In such a circumstance, even the “most
    persuasive counsel may not be able to speak for a defendant
    as the defendant might, with halting eloquence, speak for
    himself.” 
    Id.
    A sentencing court is faced with precisely such a
    character-evaluation situation when assessing whether to
    apply the acceptance-of-responsibility reduction. The
    court’s decision on the reduction turns on whether the
    defendant has expressed contrition and whether such
    expression is “sincere.” Cortes, 
    299 F.3d at 1038
    . A
    defendant can hardly demonstrate sincere contrition to the
    court through his allocution if he cannot speak until after the
    sentencing court has already made up its mind as to whether
    he has done so.
    C
    As noted, supra p. 7–8, we are assuming, as did Green in
    his supplemental briefing, that the allocution issue was not
    adequately raised, and that plain error review therefore
    applies. 3 Under plain error review, a reviewing court may
    grant relief where the district court erred so long as the error
    is contrary to the law at the time of the appeal, affects the
    defendant’s substantial rights, and seriously affects the
    fairness, integrity, or public reputation of judicial
    3
    The government argues that Green has waived any challenge to the
    timing of the district court’s consideration of the acceptance-of-
    responsibility reduction.    But it cites no evidence that Green
    affirmatively waived the claim. United States v. Depue, 
    912 F.3d 1227
    ,
    1233 (9th Cir. 2019) (en banc).
    14               UNITED STATES V. GREEN
    proceedings. See Depue, 912 F.3d at 1232. We conclude
    that each of these conditions is met.
    First, the district court’s conclusion was undoubtably
    contrary to the law. As already discussed, no authority
    supports the proposition that a sentencing court cannot first
    hear from a defendant before determining whether a
    reduction for acceptance of responsibility is appropriate.
    And, all other relevant considerations—the practice of
    sentencing courts, the Sentencing Guidelines, and Rule 32(i)
    of the Federal Rules of Criminal Procedure—indicate that
    district courts regularly do and regularly should consider a
    defendant’s allocution before determining whether to apply
    the acceptance-of-responsibility reduction.
    The district court’s error also affected Green’s
    substantial rights and seriously affected the fairness of the
    judicial proceedings. In the sentencing context, these two
    considerations will normally merge. An error “affects
    substantial rights if the defendant can ‘demonstrate a
    reasonable probability that [he] would have received a
    different sentence if the district court had not erred.’” Id.
    at 1234 (quoting United States v. Joseph, 
    716 F.3d 1273
    ,
    1280 (9th Cir. 2013)) (second alternation in original).
    Similarly, an error seriously affects the fairness of a
    sentencing proceeding if that error “may have increased the
    length of a defendant’s sentence.” United States v. Tapia,
    
    665 F.3d 1059
    , 1063 (9th Cir. 2011). In other words, we
    must conclude that there is a reasonable probability that
    Green could receive a lower sentence on remand once the
    district court considers his allocution. There is such
    probability.
    To address the reasonable probability of a lower
    sentence, we first address Green’s contention that the district
    court erred by comparing the circumstances in this case to
    UNITED STATES V. GREEN                     15
    the circumstances in United States v. Ginn. When stating its
    conclusion that Green was not eligible for the acceptance-of-
    responsibility reduction, the district court reasoned that Ginn
    counsels against granting an acceptance-of-responsibility
    reduction where a defendant has pleaded guilty to a single
    count of possession of firearms, but does not admit to
    possession of all the firearms alleged in the indictment. If
    the district court properly analogized to Ginn, then there
    would be little probability that the district court would
    resolve the issue of Green’s acceptance of responsibility in
    Green’s favor on remand.
    We conclude it was error to rely on Ginn to determine
    whether the acceptance-of-responsibility reduction was
    appropriate. Ginn and Garrido, read together, make a
    defendant ineligible for an acceptance-of-responsibility
    reduction where he has not accepted responsibility for all
    counts of which he was convicted, excluding counts that
    cannot be grouped under the Guidelines. Ginn, 
    87 F.3d at 370
    ; Garrido, 
    596 F.3d at 619
    . That rule has little
    applicability to this case. Here, the government charged
    Green with only one count. Three guns were (superfluously)
    charged in that single count, and Green pleaded guilty to that
    count. Green was not convicted of possessing three guns,
    and he had no obligation to admit to possessing all three to
    accept responsibility for the only crime of which he was
    convicted. See Vance, 
    62 F.3d at 1158
    ; see also Guidelines
    Manual § 3E1.1 cmt. n.1(A).
    As the rule set forth in Ginn and Garrido regarding
    acceptance-of-responsibility reductions for defendants
    convicted of multiple counts is neither binding nor relevant
    in this case, the district court will on remand have to
    reconsider whether the acceptance-of-responsibility
    reduction is appropriate. In making that determination,
    16               UNITED STATES V. GREEN
    Green’s posture concerning the two guns found in the safe
    may have some bearing. The two guns in the safe were
    found by a preponderance of the evidence to be in Green’s
    possession and so to be related conduct. See Guidelines
    Manual §§ 1B1.3, 3E1.1 cmt. n.1(A). “A defendant is not
    required to volunteer, or affirmatively admit, relevant
    conduct beyond the offense of conviction in order to obtain
    a[n acceptance-of-responsibility] reduction.” Id. § 3E1.1
    cmt. n.1(A). But “a defendant who falsely denies, or
    frivolously contests, relevant conduct that the court
    determines to be true has acted in a manner inconsistent with
    acceptance of responsibility.” Id.; see also id. § 1B1.3.
    The district court specifically found that Green did not
    falsely deny possession of these two guns. But it did not
    determine whether Green “frivolously contest[ed]”
    possession of these guns. Thus, on remand the district court
    can consider whether Green has “frivolously contest[ed]”
    possession of the two other guns, see United States v.
    Ramos-Medina, 
    706 F.3d 932
    , 942 (9th Cir. 2013), or
    whether he has otherwise “acted in a manner inconsistent
    with acceptance of responsibility.” Guidelines Manual
    § 3E1.1 cmt. n.1(A); see also id. § 3E1.1 cmt. n.3. If he has
    engaged in such inconsistent conduct, the Guidelines direct
    that the court should consider whether such inconsistent
    conduct outweighs the affirmative evidence indicating
    Green has accepted responsibility, including his decision to
    enter “a plea of guilty prior to the commencement of trial”
    and “admit[] the conduct comprising the offense of
    conviction.” Id. § 3E1.1 cmt. n.3.
    Under these standards, the district court could conclude,
    taking into account the allocution, that Green meets the
    acceptance-of-responsibility requirements with regard to
    related conduct. There is at least a reasonable probability
    UNITED STATES V. GREEN                     17
    that after allocution, the district court could determine an
    acceptance-of-responsibility reduction appropriate. And
    because a decision to grant an acceptance-of-responsibility
    reduction would likely lead to a less severe sentence for
    Green, the failure to consider Green’s allocution—coupled
    with the district court’s faulty reliance on Ginn—affected
    Green’s substantial rights and seriously affected the fairness,
    integrity, or public reputation of judicial proceedings.
    *   *    *
    We hold that the sentencing court erred by concluding
    that it could not first hear from the defendant before
    determining whether a reduction for acceptance of
    responsibility was warranted under the Sentencing
    Guidelines. We also conclude that this misapprehension was
    plain error and so vacate the sentence and remand for
    resentencing.
    Sentence VACATED              and   REMANDED           for
    resentencing.