United States v. Gamboa ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 00-40068
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNEDY PETER GAMBOA,
Defendant-Appellant.
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Appeal from the United States District Court for the
Southern District of Texas
USDC No. M-99-CR-336-1
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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this opinion should not be published and is not precedent except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
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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.
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