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United States v. Olivo-Martinez, 99-51084 (2000)

Court: Court of Appeals for the Fifth Circuit Number: 99-51084 Visitors: 35
Filed: May 09, 2000
Latest Update: Mar. 02, 2020
Summary: No. 99-51084 -1- IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 99-51084 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALFONSO OLIVO-MARTINEZ, Defendant-Appellant. - Appeal from the United States District Court for the Western District of Texas USDC No. A-99-CR-172-ALL-SS - May 5, 2000 Before SMITH, BARKSDALE, and PARKER, Circuit Judges. PER CURIAM:* Alfonso Olivo-Martinez appeals his sentence following his guilty-plea conviction for illegal reentry follo
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                            No. 99-51084
                                 -1-

               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 99-51084
                          Summary Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

ALFONSO OLIVO-MARTINEZ,

                                           Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. A-99-CR-172-ALL-SS
                       --------------------
                            May 5, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

     Alfonso Olivo-Martinez appeals his sentence following his

guilty-plea conviction for illegal reentry following deportation.

He argues that he was denied his right of allocution and that the

district court erred by imposing a 16-level enhancement pursuant

to U.S.S.G. § 2L1.2(b)(1)(A) based on a prior Texas conviction

for cocaine possession.

     Olivo-Martinez’s contention that the district court erred in

applying § 2L1.2(b)(1)(A) is foreclosed by our opinion in United



     *
        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that this opinion should not be published and is not precedent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. 99-51084
                                -2-

States v. Hinojosa-Lopez, 
130 F.3d 691
, 694 (5th Cir. 1997).    We

AFFIRM that portion of the district court’s judgment.

     The district court, however, committed reversible error by

failing to address Olivo-Martinez personally at sentencing to

inquire whether he desired to speak in mitigation of punishment,

as required under Federal Rule of Criminal Procedure 32(c)(3)(C).

The denial of Olivo-Martinez’s right of allocution requires that

his sentence be vacated and that his cause be remanded for

resentencing.   United States v. Myers, 
150 F.3d 459
, 462-63 (5th

Cir. 1998).   The case is therefore REMANDED to the district court

for resentencing in accordance with this opinion.

     AFFIRMED in part; VACATED and REMANDED in part.

Source:  CourtListener

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