United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 23, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-40988
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ULISES ALBERTO DE ANDA-DUENEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-169-1
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Before BARKSDALE, EMILIO M. GARZA and DENNIS, Circuit Judges.
PER CURIAM:*
Ulises Alberto De Anda-Duenez (“de Anda”) appeals his
guilty-plea conviction and sentence for attempting to re-enter
the United States after having been deported and after having
been convicted of an “aggravated felony,” in violation of
8 U.S.C. § 1326(a) and (b). De Anda was sentenced to 77
months in prison, at the bottom of the Sentencing Guidelines
imprisonment range determined in his Presentence Report (“PSR”),
and to three years of supervised release.
*
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that this opinion should not be published and is not precedent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. 02-40988
-2-
For the first time on appeal, de Anda contends that he is
entitled to automatic reversal because the district court denied
him his right of allocution at sentencing, as required by FED.
R. CRIM. P. 32(c)(3)(C).2 Until recently, we had “consistently
held that we must automatically reverse a district court which
fails to give the defendant an opportunity for allocution as
required by Rule 32.” See United States v. Reyna, 358 F.3d 344,
348 (5th Cir. 2004) (citations omitted). Based on the Supreme
Court’s decision in United States v. Vonn, 535 U.S. 55 (2002),
however, the en banc court in Reyna abrogated our long-standing
automatic-reversal rule and applied a plain-error standard of
review to denial-of-allocution claims raised for the first time
on appeal. See id. at 350-53.
Under the three-step plain-error standard set forth in
United States v. Olano, 507 U.S. 725 (1993), we first address
whether the district court clearly or obviously erred with
respect to the right of allocution. See Reyna, 358 F.3d at 350;
see Olano, 507 U.S. at 734. In the instant case, the district
court clearly erred because it never “address[ed] [de Anda]
personally [or] determine[d] whether [he] wishe[d] to make a
statement and to present any information in mitigation of
sentence.” See Rule 32(c)(3)(C); Reyna, 358 F.3d at 350. Under
2
Effective December 1, 2002, this rule was redrafted as
FED. R. CRIM. P. 32(i)(4)(A)(ii) in substantially similar form.
Because the instant offense and resentencing hearing occurred
prior to the effective date of the recodified section, Rule
32(c)(3)(C) is applicable to the instant case.
No. 02-40988
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the Olano standard’s second prong, de Anda can show that his
“substantial rights” were affected, because we presume that he
was prejudiced by the denial of the allocution right as he was
sentenced to the maximum possible term of supervised release.
See Reyna, 358 F.3d at 350-52.
We exercise our discretion not to correct the district
court’s error, however, because the error does not “seriously
affect[] the fairness, integrity or public reputation of judicial
proceedings.” See Reyna, 358 F.3d at 353. The denial of the
right to allocution “is not a fundamental defect that inherently
results in a complete miscarriage of justice nor an omission
inconsistent with the rudimentary demands of fair procedure.”
Id. at 352 (quoting Hill v. United States, 368 U.S. 424 (1962)).
Here, in responding to de Anda’s lawyer, the district court
indicated that it was only interested in de Anda’s record and de
Anda had conceded that his record was accurately reported in the
presentence report prepared in his case. Moreover, de Anda was
sentenced to the minimum term of imprisonment in the applicable
range under the Guidelines. Under such circumstances, when there
is no objective basis that would move a trial court to grant a
lower sentence, the integrity, fairness and public reputation of
the judicial proceedings are not affected. See Reyna 358 F.3d at
356 (Jones J., concurring. “[D]efendants will have to show some
objective basis that would have moved the trial court to grant a
lower sentence; otherwise, it can hardly be said that a
No. 02-40988
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miscarriage of justice has occurred.”). We thus reject de Anda’s
challenge to the denial of the opportunity for allocution.
For the first time on appeal, de Anda also maintains that
the “aggravated felony” sentencing scheme of 8 U.S.C. § 1326(b)
is unconstitutional in light of Apprendi v. New Jersey, 530 U.S.
466, 490 (2000). As de Anda concedes, his argument is foreclosed
by circuit precedent. See, e.g., United States v. Dabeit,
231 F.3d 979, 984 (5th Cir. 2000), overruled on other grounds by
Reyna, 358 F.3d 344. He raises the issue only to preserve it for
possible further review.
The judgment of the district court is AFFIRMED.