IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-40824
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICIO CONTRERAS VASQUEZ, etc.
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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June 22, 2000
Before JONES and BENAVIDES, Circuit Judges, COBB, District Judge*
COBB, District Judge
In this case, we address an issue explicitly left open by this
court in United States v. Echegollen-Barrueta, 195 F.3d 786, 790 (5th
Cir. 1999)(“[W]e decline to reach the closer question of whether [the
defendant] is entitled to reversal on a Rule 32(c)(3)(B) error to which
he failed to object.”). That is, whether a district court’s failure to
comply with Fed. R. Crim. P. 32(c)(3)(B), which requires the court
during sentencing to afford the defendant’s counsel an opportunity to
speak on his behalf, is amenable to plain error analysis under Fed. R.
*
District Judge of the Eastern District of Texas, sitting by
designation.
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Crim. P. 52(b). We find that it is and affirm the district court’s
sentence.
BACKGROUND
Appellant, Patricio Contreras Vasquez, pled guilty to illegal re-
entry into the United States after deportation in violation of 8 U.S.C.
§ 1326(a)&(b). Under the terms of the plea agreement, the government
agreed to recommend Vasquez be sentenced to the lower end of the
guidelines range.
The presentence investigation report [PSR] calculated Vasquez’s
imprisonment range to be from 77 to 96 months. At sentencing, the
district court first noted that there were no objections to the PSR, and
then invited Vasquez to address the court before the sentence was
imposed. Vasquez admitted he had violated the statute by illegally re-
entering the United States. Vasquez, however, claimed that he was
unaware that he would be subject to an enhanced sentence because of his
previous convictions. The court then explained the effect of prior
convictions to Vasquez under the Federal Sentencing Guidelines. After
explaining the effect of the prior convictions, the district court
ordered Vasquez to serve 90 months imprisonment and 3 years supervised
release. At no point during the sentencing hearing did the district
court expressly invite Vasquez’s counsel to speak on his behalf.
Vasquez’s counsel did not object to this oversight. Moreover, Vasquez’s
counsel never asked the court’s permission to speak on behalf of her
client, or brought it to the trial court’s attention. This appeal
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followed.1
DISCUSSION
Vasquez argues that his sentence must be vacated and remanded
because the district court failed to afford his counsel an opportunity
to speak on his behalf before sentencing in accordance with Rule
32(c)(3)(B). We review de novo whether a district court complied with
Rule 32. See United States v. Myers, 150 F.3d 459, 461 (5th Cir. 1998).
This court has before ruled that a district court’s failure to
communicate unequivocally to a defendant that he has the right to
address the court before sentencing is imposed mandates a re-sentencing
and is not subject to plain-error review. See Echegollen-Barrueta, 195
F.3d at 789-90; Myers, 150 F.3d at 463. The practice of allowing a
defendant a chance to speak before sentencing is referred to as the
right of allocution.2 The right of allocution dates back to 1689. See
Anonymous, 3 Mod. 265, 266, 87 Eng. Rep. 175 (K.B. 1689) (finding the
failure to ask the defendant if he had anything to say before sentence
was imposed required reversal).
In Myers, we explained that the right of allocution is one “deeply
embedded in our jurisprudence” which weighs against applying a harmless
error analysis. Myers, 150 F.3d at 463. The “bright line” rule
1
The plea agreement included a waiver-of-appeal provision but the government
has specifically waived any reliance on it because the district court failed to
admonish Vasquez concerning this waiver and the court advised Vasquez that he could
appeal his sentence. Hence, this court need not decide whether Vasquez’s appeal
falls within the scope of the appeal waiver. See United States v. Myers, 150 F.3d
459, 460 n.1 (5th Cir. 1998).
2
The right of allocution refers to the defendant’s right to address the court
and not his counsel’s. See BLACK’S LAW DICTIONARY 76 (6th ed. 1990) (“formality of
court’s inquiry of defendant as to whether he has any legal cause to show why
judgment should not be pronounced against him on verdict of conviction”).
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established in Myers, requiring remand whenever a defendant is denied
the right to personally allocute in accordance with Rule 32(c)(3)(C),
vindicates the important policy concerns embodied in the rule and
“forecloses . . . chancy inquiries” into whether a defendant’s
allocution might have resulted in a different sentencing decision. Id.
at 464-65.
Vasquez maintains that the right to have counsel speak on behalf
of the defendant is equally as important as the right to personally
allocute before sentencing. Vasquez relies on the reasoning in Myers
and concludes that the district court’s failure to have his counsel
address the court is not subject to plain-error review because of the
importance of having counsel speak on behalf of their clients, and the
uncertainty of the effect counsel’s statements might have on the
sentence imposed by the district court.
Unfortunately for Vasquez, the language of 32(c)(3)(B) does not
dictate the result this court reached in Myers with regard to the right
of allocution. A review of the Rule reveals the significant differences
between the right of a defendant to allocute and the right of the
defendant to have counsel speak on his behalf. Rule 32(c) states in
pertinent part:
(3) Imposition of Sentence. Before imposing sentence,
the court must:
(B) afford defendant’s counsel an opportunity to
speak on behalf of the defendant;
(C) address the defendant personally and determine
whether the defendant wishes to make a statement
and to present any information in mitigation of
the sentence;
Rule 32(c)(3)(C) directs the court to “address the defendant personally”
and determine whether the defendant wishes to speak and present
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information to mitigate the sentence. The rule “envisions a personal
colloquy between the sentencing judge and the defendant.” Myers, 150
F.3d at 461 (citing United States v. Anderson, 987 F.3d 251, 261 (5th
Cir. 1993). The burden of complying with the right of allocution,
32(c)(3)(C), rests with the court and not the defendant. Id. at 464;
United States v. Dominguez-Hernandez, 934 F.2d 598, 599 (5th Cir. 1991).
In direct contrast to this, Rule 32(c)(3)(B) directs the court to
“afford defendant’s counsel an opportunity to speak” prior to
sentencing. (emphasis added). Thus, the language of the Rule
demonstrates that the court does not have the same burdens in affording
defense counsel an opportunity to speak as it does personally with the
defendant. Consequently, it follows defense counsel should bear the
burden of objecting if no opportunity is afforded.
Vasquez’s counsel never objected to nor called the apparent
oversight to the district court’s attention. The court is confident
that competent members of the bar will speak up during a sentencing
hearing on behalf of their clients when counsel has a matter they would
like to bring to the court’s attention. The right of allocution
embodied in 32(c)(3)(C) reflects the principle that “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 sentencing.” Myers, 150 F.3d at 462 (quoting United
States v. De Alba Pagan, 33 F.3d 125, 129 (1st Cir. 1994)). Thus, the
burden rests with the court to make sure the defendant understands that
he has the right to say anything he wants before the sentence is
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imposed. There is no need for this rationale to be applied to counsel’s
right to speak, since attorneys already know they have the right to
speak on behalf of their clients. All a district court must do under
Rule 32 is “afford” defense counsel the “opportunity” to address the
court.
Since defense counsel did not object to the court’s failure to give
her an opportunity to address the court, Rule 52(b) plain-error analysis
applies. Under this standard, reversal is not required unless there is
(1) an error; (2) that is clear or plain; (3) that affects the
defendant’s substantial rights; and (4) that seriously affects the
fairness, integrity or public reputation of judicial proceedings.
United States v. Olano, 507 U.S. 725, 732-35 (1993); see also Johnson
v. United States, 520 U.S. 461, 467 (1997). In this case, Vasquez has
shown no prejudice from his attorney not being “afforded” the
“opportunity” to address the court. The sentence imposed on Vasquez was
within the court’s discretion, and Vasquez has not alleged what
additional argument his counsel would have provided which may have
persuaded the court to impose a lower sentence. Accordingly, there is
no basis to conclude that Vasquez’s substantial rights were affected.
We note that it is in a district court’s best interests to inquire
of all defense counsel whether they have anything to add during
sentencing hearings, because defense counsel could be able to articulate
points more clearly than individual defendants. See Powell v. Alabama,
287 U.S. 45, 68-69 (1932). It does not necessarily follow, however,
that the failure of a district court automatically to “afford” counsel
the “opportunity” to speak requires remanding for re-sentencing.
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Usually, a court’s oversight in this regard can easily be corrected at
the sentencing hearing by requiring counsel to simply notify the court
they have something to add. See United States v. Dominguez-Hernandez,
934 F.2d 598, 599 (5th Cir. 1991) (remanding for resentencing “[w]ith
misgivings” where defense counsel failed to object to denial of
defendant’s right to personally allocute). While a clear and
affirmative denial of defense counsel’s right to speak could well
require us to vacate and remand for re-sentencing, the defense counsel’s
failure to object here is viewed under the plain error analysis.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s sentence.
AFFIRMED.
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