United States v. Escalera-Diaz

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 12, 2000
• Docket: 99-41033
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-41033 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GABRIEL ESCALERA-DIAZ, also known as Rene Delgado-Diaz,

Defendant-Appellant.

******************************************************************

Consolidated with

No. 99-41091 _____________________

GABRIEL ESCALERA,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. B-99-CR-202-0 USDC No. B-96-CR-145-1 _________________________________________________________________

July 11, 2000 Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Gabriel Escalera-Diaz asserts only that the district court did

not afford him the right of allocution before imposing sentence on

his conviction for violating 8 U.S.C. § 1326(a) & (b) and before

imposing sentence on the revocation of supervised release. The

government agrees that the sentences should be vacated and the

cases remanded so that Escalera-Diaz may be afforded the right of

allocution.

The district court shall, before imposing sentence, “address

the defendant personally and determine whether the defendant wishes

to make a statement and to present any information in mitigation of

the sentence.” Fed. R. Crim. P. 32(c)(3)(C) (West 2000). In

sentencing upon revocation of supervised release, the defendant is

entitled to the right of allocution. See United States v.

Rodriguez, 23 F.3d 919, 921 (5th Cir. 1994).

The issue of the denial of the right to allocution is not

subject to harmless or plain error analysis. See United States v.

Echegollen-Barrueta, 195 F.3d 786, 789 (5th Cir. 1999). We review

the record de novo to determine whether the district court afforded

a defendant the right to allocution. Id.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

2 The record demonstrates that the district court did not comply

with Rule 32(c)(3)(C). Accordingly, Escalera-Diaz’s sentences are

VACATED and the cases are REMANDED for resentencing.

VACATED and REMANDED.