FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                    November 15, 2012
                                                                    Elisabeth A. Shumaker
                         UNITED STATES COURT OF APPEALS                 Clerk of Court

                                    TENTH CIRCUIT



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 12-2020
 MARK CASTILLO,                                    (D.C. No. 1: 09-CR-01861-BB-1)
                                                              (D. N.M.)
           Defendant-Appellant.



                                 ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, KELLY and GORSUCH, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,

submitted without oral argument.

       Defendant Mark Castillo pled guilty to being a felon in possession of a firearm, in



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and was sentenced to a term of

imprisonment of twenty-eight months, to be followed by a three-year term of supervised

release. Castillo now appeals, asserting, in part, that the district court violated Federal

Rule of Criminal Procedure 32(i)(4)(A)(ii) by failing to allow him to speak prior to the

imposition of sentence. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we agree

with Castillo. Consequently, we remand this case to the district court with directions to

vacate Castillo’s sentence and resentence him.

                                               I

       Because the underlying facts of this case are not relevant to our resolution of this

appeal, we will not discuss them. Instead, we focus solely on the procedural history of

the case, most notably the sentencing hearing.

       Castillo was indicted by a federal grand jury on four criminal counts: (1) assault

with a dangerous weapon, with intent to do bodily harm and without just cause or excuse,

in violation of 18 U.S.C. §§ 1153 and 113(a)(3); (2) assault resulting in bodily injury, in

violation of 18 U.S.C. §§ 1153 and 113(a)(6); (3) knowingly using a firearm during and

in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii); and (4)

felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Castillo pled guilty to the felon-in-possession charge and proceeded to trial on the

remaining three counts. At the conclusion of the evidence, the jury acquitted him on

those counts.

       At the ensuing sentencing hearing, the district court entertained arguments from

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counsel for both sides. But at no point during the hearing did the district court directly

address Castillo or afford him the opportunity speak. Instead, the district court, after

addressing counsels’ arguments, proceeded to sentence Castillo to a term of imprisonment

of twenty-eight months, to be followed by a three-year term of supervised release. After

addressing other ministerial matters, the district court concluded the hearing.

                                               II

       Castillo raises three issues on appeal. First, he asserts that he was denied the right

of allocution promised to him under Federal Rule of Criminal Procedure 32(i)(4)(A)(ii).

Second, he asserts that his sentence is procedurally unreasonable because the district

court considered acquitted conduct in calculating his advisory guideline range. Third, he

asserts that his sentence is procedurally unreasonable because there was insufficient

evidence to support the sentencing enhancements applied by the district court.

                                Denial of right of allocution

       Federal Rule of Criminal Procedure 32(i)(4)(A)(ii) “requires a district court to

‘address the defendant personally in order to permit the defendant to speak or present any

information’ before imposing a sentence.” United States v. Landeros-Lopez, 

, 1264 (10th Cir. 2011) (quoting Fed. R. Crim. P. 32(i)(4)(A)(ii)). “Because

allocution is vital to the sentencing process, denial of this right requires reversal of the

sentence imposed.” 

United States, 

, 304 (1961)). We

review de novo whether the district court complied with its Rule 32 obligations. United

States v. Tindall, 

, 1062 (10th Cir. 2008).

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       In its appellate response brief, the government concedes that “[t]he district court

failed to address Castillo at all during the sentencing hearing,” and that, consequently, we

“should remand the case for re-sentencing.” Aplee. Br. at 4. After carefully examining

the record on appeal, we agree. As we have noted, the district court neither directly

addressed Castillo nor permitted him to speak or present any information he may have

had prior to the imposition of sentence. Castillo is therefore entitled to a new sentencing

hearing, during which he must be afforded “a meaningful opportunity to speak on his own

behalf.” 

.

                                   Castillo’s other issues

       We will not address Castillo’s remaining two issues which challenge sentencing

enhancements. Castillo contends the district court erred in considering acquitted conduct

in calculating his advisory guideline range, and also that the enhancements were not

supported by sufficient proof. As we are remanding for resentencing, our addressing

these issues now would require us to address questions which are most likely

hypothetical. Further, Castillo candidly admits in his briefing that the sentencing court

did not specifically address the bases for its sentencing calculations and that the parties

were thus left to speculate regarding the evidence relied upon to support those

calculations. Castillo’s resentencing will provide all concerned with the opportunity to

clarify not only the sentencing calculations made, but also the evidence employed to

support those calculations.

       The case is REMANDED to the district court with instructions to VACATE

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Castillo’s sentence and resentence him consistent with this opinion.


                                                 Entered for the Court


                                                 Mary Beck Briscoe
                                                 Chief Judge




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