(B)  Statutes and Rules.  The right of allocution is recognized in California by statute.[331]  It is recognized in many jurisdictions by judicial decision,[332] and is mandatory as a matter of federal law under the Federal Rules of Criminal Procedure.[333]

           

Before imposing its sentence, the district court is required to personally address the defendant, inquiring into the defendant's wish to speak on his behalf.[334]  The right of allocution has several important functions.  First, it gives the defendant one more opportunity before conviction “to throw himself on the mercy of the court.”[335]  It also has symbolic importance, “maximizing the perceived equity of the [sentencing] process.”[336]

 

            Compliance with this rule is reviewed de novo, and failure to comply requires automatic reversal.[337]  Demonstration that defendant misunderstood the purpose of the court’s invitation to speak as relating to a topic other than mitigation may result in reversal.[338]  Courts are not required to renew invitations for allocution once given, even when further discussion takes place between the invitation for allocution and the eventual pronouncement of sentence, or to inquire why a defendant does not accept the invitation.[339]

 

[331] California Penal Code § 1200.

[332] See Annotation, supra; e.g., State v. Fettis, 664 P.2d 208 (1983) (alternative holding). 

[333] F. R. Crim. Pro. 32(a)(1).

[334]  See Fed.R.Crim.P. 32(c)(3)(C).

[335] United States v. Myers, 150 F.3d 459, 463 (5th Cir. 1998).

[336] Id. (citing United States v. De Alba Pagan, 33 F.3d 125, 129 (1st Cir. 1994)); United States v. Dabeit, 231 F.3d 979, 982 (5th Cir. October 30, 2000), cert. denied, 531 U.S. 1202 (2001).

[337] Fed.R.Crim.P. 52.

[338] See United States v. Echegollen-Barrueta, 195 F.3d 786 (5th Cir. 1999).

[339] See United States v. Washington, 44 F.3d 1271, 1276-77 (5th Cir. 1995); United States v. Hernandez, 291 F.3d 313 (5th Cir. May 9, 2002) (right to allocution not violated where court extended comprehensive, easily understood invitation to “make any statement” appellant chose to present; invitation need not be renewed on second day of sentencing); United States v. Dabeit, 231 F.3d 979 (5th Cir. October 30, 2000), cert. denied, 531 U.S. 1202 (2001) (defendant sufficiently informed of right of allocution, so sentence need not be vacated).

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