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United States v. Luis-Vasquez, 99-41123 (2000)

Court: Court of Appeals for the Fifth Circuit Number: 99-41123 Visitors: 13
Filed: Jul. 19, 2000
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 99-41123 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALFREDO LUIS-VASQUEZ, Defendant-Appellant. - Appeal from the United States District Court for the Southern District of Texas USDC No. B-99-CR-225-1 - July 18, 2000 Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges. PER CURIAM:* In this direct criminal appeal, Alfredo Luis-Vasquez argues that the district court did not afford him the right to allocu
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 99-41123
                         Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus


ALFREDO LUIS-VASQUEZ,

                                         Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. B-99-CR-225-1
                      --------------------
                          July 18, 2000

Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.

PER CURIAM:*

     In this direct criminal appeal, Alfredo Luis-Vasquez argues

that the district court did not afford him the right to

allocution before sentencing him to 77 months of imprisonment

upon his guilty plea to illegal reentry after deportation.     He

also argues that defense counsel was not afforded the opportunity

to speak on Luis-Vasquez’ behalf.

     Rule 32 of the Federal Rules of Criminal Procedure mandates

that a defendant be given the opportunity “to make a statement


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                            No. 99-41123
                                 -2-

and [] present any information in mitigation of sentence.”       Fed.

R. Crim. P. 32(c)(3)(C); United States v. Myers, 
150 F.3d 459
,

462 (5th Cir. 1998).    To comply with Rule 32, “the court, the

prosecutor, and the defendant must at the very least interact in

a manner that shows clearly and convincingly that the defendant

knew he had a right to speak on any subject of his choosing prior

to the imposition of sentence.”     
Myers, 150 F.3d at 462
.    It is

not enough that the sentencing court addresses a defendant on a

particular issue, affords counsel the right to speak, or hears

the defendant’s specific objections to the presentence report.

Id. at 461-62
& n.3.    We review a determination whether the

defendant was allowed his right to allocution de novo.        
Id. at 461.
       A review of the sentencing transcript reveals that the

district court did not afford Luis-Vasquez his right to

allocution.    Accordingly, Luis-Vasquez’ sentence is VACATED, and

the case is REMANDED for resentencing so that Luis-Vasquez may

exercise his right to allocution.    Because we reverse on the

allocution error, we need not address whether the district court

committed reversible error by failing to invite defense counsel

to speak on behalf of Luis-Vasquez prior to sentencing.       See

United States v. Echegollen-Barrueta, 
195 F.3d 786
, 790 (5th Cir.

1999).

       VACATED and REMANDED for resentencing.

Source:  CourtListener

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