United States v. Tampico

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 3, 2004
Charles R. Fulbruge III
Clerk
No. 03-20258
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JONATHAN M. TAMPICO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CR-485-1
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Before DAVIS, EMILIO M. GARZA and PRADO, Circuit Judges
PER CURIAM:*
Jonathan M. Tampico appeals from the district court's
judgment resentencing him after remand to consider the impact of
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). The
district court re-examined the evidence in Tampico's case and
determined that it was sufficient to support his conviction even
in light of Free Speech Coalition and resentenced Tampico to the
same term of imprisonment originally imposed. Tampico argues
that the district court erred in concluding that he was only
*
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that this opinion should not be published and is not precedent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.
No. 03-20258
-2-
entitled to be resentenced after the reversal of the judgment by
the Supreme Court and that the district court misinterpreted this
court's remand language. We conclude that the Supreme Court's
remand for further consideration in light of Free Speech
Coalition did not invalidate Tampico's conviction and sentence,
and the district court did not misapply our mandate on remand by
re-examining the evidence. See United States v. Slanina, 313
F.3d 891, 892 (5th Cir. 2002).
Tampico also argues for the first time on appeal that the
district court failed to give him an opportunity to allocute at
the resentencing hearing, and that such error requires automatic
reversal. We recently concluded that unobjected-to errors
resulting from a denial of the right to allocution under FED. R.
CRIM. P. 32 are subject to plain error review. United States v.
Reyna, __ F.3d __ (5th Cir. Jan. 26, 2004)(en banc), 2004 WL
113479 at *5, pet. for cert. filed, __ U.S.L.W. __ (U.S. Feb. 9,
2004)(No. 03-8903). We decline to exercise our discretion under
plain error review because we conclude that the alleged error did
not seriously affect the fairness, integrity, or public
reputation of the judicial proceedings. Id. at *7-8; see United
States v. Olano, 507 U.S. 725, 732 (1993).
AFFIRMED.