Case: 14-12133   Date Filed: 02/13/2015   Page: 1 of 4




                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-12133
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 6:13-cr-00188-RBD-KRS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

DEMIS ULISES MOKAY-FONG,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (February 13, 2015)

Before JORDAN, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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       Demis Ulises Mokay-Fong appeals his 235-month, below-Guidelines

sentence, imposed after pleading guilty to multiple drug offenses and illegal

reentry of a deported alien. Mokay-Fong asserts, for the first time on appeal, the

district court violated Federal Rule of Criminal Procedure 32(i)(1)(A)1 by

proceeding with sentencing without first inquiring whether he needed additional

time or the aid of an interpreter in order to read the amended presentence

investigation report (PSI) in its entirety.

       The Federal Rules of Criminal Procedure provide the sentencing court must

“verify that the defendant and the defendant’s attorney have read and discussed the

presentence report and any addendum to the report.” Fed. R. Crim. P. 32(i)(1)(A).

In applying a prior version of Rule 32(i)(1)(A), we held no specific inquiry was

required in order for the district court to meet its obligation, as long as there were

some indicia in the record evidencing that counsel reviewed the PSI with the

defendant. See United States v. Phillips, 

, 1255 (11th Cir. 1991)

(holding counsel’s objections to the PSI, together with his assertion the defendant

viewed the PSI, was sufficient to meet the requirements of the prior version of

Rule 32(i)(1)(A)).




       1
         We have construed Mokay-Fong’s citation to the now-defunct Federal Rule of
Criminal Procedure 32(c)(3)(A) as an argument under current Federal Rule of Criminal
Procedure 32(i)(1)(A).
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      Mokay-Fong’s sentence challenge fails for two alternate reasons. First,

application of the invited error doctrine is appropriate with respect to Mokay-

Fong’s contention the district court did not comply with Rule 32. See United

States v. Silvestri, 

, 1327 (11th Cir. 2005) (stating the doctrine of

invited error applies when a party induces or invites the district court into

committing error). The district court asked defense counsel whether he reviewed

the amended PSI with Mokay-Fong, and counsel stated he had been over it “in

depth” with his client. Defense counsel acknowledged Mokay-Fong received his

copy of the amended PSI the morning of sentencing, before clarifying that Mokay-

Fong was “prepared to proceed” with sentencing. Given the district court’s

targeted questioning and defense counsel’s assertion that sentencing should

proceed, Mokay-Fong invited any error that may have occurred with respect to the

district court’s compliance with Federal Rule of Criminal Procedure 32(i)(1)(A).

See 

; see also United States v. Brannan, 

,

1306 (11th Cir. 2009) (stating if a party waives the protection of a procedural rule,

he cannot later complain that any resulting error is reversible).

      Assuming, arguendo, that Mokay-Fong did not invite any potential error, we

review the merits of his argument under Rule 32(i)(1)(A) for plain error only, as he

did not raise it in the district court. See United States v. Wright, 

, 715

(11th Cir. 2010) (explaining when a defendant raises an objection for the first time


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on appeal, review is for plain error only). The district court inquired whether

defense counsel “had an opportunity to review the presentence report and to

discuss it with [Mokay-Fong],” and received, in response to its inquiry, assurances

that counsel and Mokay-Fong went over the PSI “in depth.” We conclude the

district court adequately fulfilled its Rule 32(i)(1)(A) obligation to “verify that the

defendant and the defendant’s attorney have read and discussed the presentence

report and any addendum to the report.” See Fed. R. Crim. P. 32(i)(1)(A).

Moreover, because Mokay-Fong does not cite, and research has not revealed, any

published case from this Court or the Supreme Court supporting his position the

district court’s actions violated Rule 32(i)(1)(A), any error by the district court was

not plain. See United States v. Lejarde-Rada, 

, 1291 (11th Cir. 2003)

(stating an error is plain when it contradicts precedent from the Supreme Court or

this Court).

      Based on the foregoing, Mokay-Fong invited any potential error with respect

to the district court’s compliance with Federal Rule of Criminal Procedure 32(i)(1).

Alternatively, the district court did not commit plain error.

      AFFIRMED.




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