United States v. Escalera-Diaz ( 2000 )

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
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
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this opinion should not be published and is not precedent except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.
3