United States v. Gamboa

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-40068 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KENNEDY PETER GAMBOA,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. M-99-CR-336-1 _________________________________________________________________ July 12, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

In this direct criminal appeal, Kennedy Peter Gamboa argues

that the district court did not afford him the right to allocution

before sentencing him to 70 months of imprisonment upon his guilty

plea to illegal reentry after deportation. The government concedes

the issue.

Rule 32 of the Federal Rules of Criminal Procedure mandates

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

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

Accordingly, Gamboa’s sentence is VACATED, and the case is REMANDED

for resentencing so that Gamboa may exercise his right to

allocution.

Gamboa also argues that the district court did not depart

downward from the guidelines sentence in his case because it

mistakenly believed that it lacked the authority to do so.

Although this court lacks jurisdiction to review a sentencing

court’s refusal to grant a downward departure based on a

determination that a departure is not warranted on the facts of the

2 case, jurisdiction is present if the court mistakenly believed that

it lacked the authority to depart. United States v. Palmer, 122

F.3d 215, 222 (5th Cir. 1997).

Read in their entirety, the district court’s comments reveal

that although the court perhaps was sympathetic to Gamboa’s reasons

for reentering this country, the court declined to depart based on

the facts of the case. Accordingly, this court lacks jurisdiction

to review the denial of the departure. See Palmer, 122 F.3d at

222.

VACATED and REMANDED for resentencing.