United States v. Irineo Ponce-Recendiz ( 2019 )

Case: 18-10736 Document: 00514884897 Page: 1 Date Filed: 03/22/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-10736 March 22, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
IRINEO PONCE-RECENDIZ,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CR-442-1
Before BENAVIDES, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM: *
Irineo Ponce-Recendiz pleaded guilty to illegal reentry after deportation
in violation of 8 U.S.C. § 1326, and he was sentenced to 57 months of
imprisonment and three years of supervised release. He argues that the
district court’s statement that it was “going to impose a term of supervised
release on the defendant” stated a firm conclusion as to the sentence it would
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 18-10736
impose before Ponce-Recendiz could address the court, rendering his allocution
a meaningless formality.
Ponce-Recendiz’s failure to object to the alleged allocution error triggers
plain error review. See United States v. Reyna, 358 F.3d 344, 350 (5th Cir.
2004) (en banc). Ponce-Recendiz must show a forfeited error that is “clear or
obvious, rather than subject to reasonable dispute,” and that affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If
he makes such a showing, this court has the discretion to correct the error but
only if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.Before a district court imposes sentence, it must “address the defendant
personally in order to permit the defendant to speak or present any
information to mitigate the sentence.” FED. R. CRIM. P. 32(i)(4)(A)(ii). “[T]he
district court must communicate unequivocally that the defendant has a right
to allocute.” United States v. Chavez-Perez, 844 F.3d 540, 544 (5th Cir. 2016)
(internal quotation marks and citation omitted). The interaction among the
court, the defendant, and the prosecutor must show “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.” United States v. Echegollen-Barrueta, 195
F.3d 786, 789 (5th Cir. 1999) (internal quotation marks and citation omitted).
“Rule 32 does not prohibit courts from stating their mere intentions to
impose a particular sentence before giving defendants the opportunity to
speak.” United States v. Pittsinger, 874 F.3d 446, 452 (5th Cir. 2017). After
hearing from defense counsel, Ponce-Recendiz, and the Government, the
district court imposed the sentence, including supervised release for a term of
three years. There is no indication in the record that the timing of the
defendant’s allocution rendered it meaningless for purposes of the district
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No. 18-10736
court’s ability to hear and consider what Ponce-Recendiz had to say.
See Pittsinger, 874 F.3d at 452. Because the district court did not make a
definitive and conclusive statement regarding the sentence to be imposed, and
because it directly invited Ponce-Recendiz to speak on any matter that he
wished before formally imposing the sentence, the district court did not commit
a clear or obvious error. See Pittsinger, 874 F.3d at 453-54.
AFFIRMED.
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