United States v. Heriberto Zamora

Case: 12-40825 Document: 00512527936 Page: 1 Date Filed: 02/10/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 12-40825 February 10, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HERIBERTO ZAMORA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:10-CR-254-2
Before REAVLEY, JONES, and PRADO, Circuit Judges
PER CURIAM: *
Heriberto Zamora pleaded guilty to conspiracy to possess with intent to
distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 846,
841(a)(1) and (b)(1)(A). He was sentenced within the Guidelines to 120 months
of imprisonment and a four-year term of supervised release.
For the first time, Zamora argues that the district court failed to provide
him with an opportunity to allocute prior to imposing sentence as required
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 12-40825 Document: 00512527936 Page: 2 Date Filed: 02/10/2014
No. 12-40825
under Federal Rule of Criminal Procedure 32(i)(4)(A)(ii). He acknowledges
that he was asked by the district court whether he had anything to say in
mitigation of his sentence, but he argues that it was too late because the
district court had already determined and pronounced the sentence. Because
Zamora did not object to the error at sentencing, our review is for plain error.
See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009);
United States v. Reyna, 358 F.3d 344, 350-51 (5th Cir. 2004) (en banc)
(revocation case).
The district court asked Zamora, “Do you have anything you’d like to say
or present to the Court about your case or in mitigation of your sentence?”
Although the question was not posed until after the district court had already
announced a sentence, the district court corrected itself, which it was allowed
to do, gave Zamora the opportunity to allocute, and then pronounced the same
sentence that it had announced before Zamora’s allocution and noted its
reasons for doing so. Thus, Zamora’s claim that he was denied the right to
allocute is without merit. See United States v. Delgado, 256 F.3d 264, 279 (5th
Cir. 2001).
The judgment of the district court is AFFIRMED.
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