[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 16, 2012
No. 11-14107
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 1:11-cr-20238-JLK-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
EMILIO SUAREZ,
lllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 16, 2012)
Before DUBINA, Chief Judge, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Emilio Suarez appeals his consecutive 24-month sentences,
imposed for his offenses of use of unauthorized access devices, in violation of 18
U.S.C. § 1029(a)(2), and aggravated identity theft, in violation of 18 U.S.C. §
1028(a)(1). On appeal, Suarez argues that his 48-month total sentence should be
vacated because the district court denied him the right of allocation. Suarez
concedes that he did not object to his sentence below.
Where the defendant fails to object to an error, we review for plain error
only. United States v. Perez, 661 F.3d 568, 583 (11th Cir. 2011), petition for cert.
filed, ___ U.S.L.W. ___ (U.S. Mar. 05, 2012) (No. 11-9238). Under the plain
error standard, we will reverse only if: (1) there is error; (2) that is plain; (3) that
affected the defendant’s substantial rights; and (4) seriously affected the fairness,
integrity, or public reputation of a judicial proceeding. Id.
Before imposing a sentence, the court must address the defendant and allow
him to speak in mitigation of his sentence. Fed.R.Crim.P. 32(i)(4)(A)(ii). Because
the district court is required to offer a defendant the opportunity to allocute, failure
to do so constitutes plain error. United States v. Prouty, 303 F.3d 1249, 1252
(11th Cir. 2002). However, such error affects a defendant’s substantial rights only
where the possibility of a lower guidelines sentence exists. Id. at 1252-53; see
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also Perez, 661 F.3d at 586. Prouty states that there can be no relief where the
defendant receives “the lowest sentence available within the applicable guideline
range.” Prouty, 303 F.3d at 1253; see also United States v. Quintana, 300 F.3d
1227, 1232 (11th Cir. 2002) (finding no manifest injustice because the defendant
received the “lowest term of imprisonment permissible under the guidelines”);
United States v. Rodriguez-Velasquez, 132 F.3d 698, 700 (11th Cir. 1998) (finding
no manifest injustice where the defendant “was given the lowest possible sentence
within the Guidelines”).
Although the record supports that the district court denied Suarez his right
to allocute, we conclude that Suarez’s substantial rights were not affected by that
error. Our precedent does not require that a defendant receive the lowest sentence
imaginable, only “the lowest sentence available within the applicable guideline
range.” Prouty, 303 F.3d at 1253. Suarez received the lowest sentence under his
applicable guideline range, and thus, there was no reversible error. Accordingly,
we affirm Suarez’s sentence.
AFFIRMED.
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