United States v. Cesar Valenzuela-Torres

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 18, 2019
• Docket: 18-50401
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 18 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50401

Plaintiff-Appellee, D.C. No. 3:18-cr-07139-BAS-1

v. MEMORANDUM* CESAR VALENZUELA-TORRES, AKA Arturo Luna-Torres, AKA Jorge Rodriguez Padilla, AKA Cesar Torres Valenzuela,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Cynthia A. Bashant, District Judge, Presiding

Submitted July 15, 2019**

Before: SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.

Cesar Valenzuela-Torres appeals from the district court’s judgment and

challenges the 24-month sentence imposed upon revocation of supervised release.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Valenzuela-Torres argues that the district court violated Federal Rule of

Criminal Procedure 32.1 by denying him the right to allocute before it imposed the

revocation sentence. The standard of review for unpreserved allocution errors

during sentencing is unsettled in this circuit. See United States v. Daniels, 760

F.3d 920, 922-23 (9th Cir. 2014). Because we conclude that Valenzuela-Torres

would not prevail under either standard, we need not resolve that question. For

purposes of this appeal, we assume without deciding that harmless error review

applies.

During a consolidated hearing, the court invited Valenzuela-Torres to speak

before imposing the sentence on his new conviction for illegal reentry and his

violation of supervised release. Thus, Valenzuela-Torres was given “an

opportunity to make a statement and present any information in mitigation,” Fed.

R. Crim. P. 32.1(b)(2)(E), before the revocation sentence was imposed. The court

was not required to provide him a second opportunity to speak. See United States

v. Allen, 157 F.3d 661, 666 (9th Cir. 1998) (rejecting the claim that a defendant is

“entitled to two distinct opportunities to address the court-before the imposition of

his sentence for the new conviction[], and prior to the imposition of sentence after

revocation”).

AFFIRMED.

2 18-50401