United States v. Hermelindo Rodriguez-Galicia , 440 F. App'x 722 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14603 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 7, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:10-cr-00032-MEF-SRW-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
HERMELINDO RODRIGUEZ-GALICIA,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(September 7, 2011)
Before BARKETT, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Hermelindo Rodriguez-Galicia (“Rodriguez”) appeals his 24-month
sentence, imposed at the statutory maximum, after pleading guilty to 1 count of
re-entry of a deported alien, in violation of 8 U.S.C. § 1326(a). Rodriguez appeals
his sentence based on the district court’s failure to permit him an opportunity to
allocute during the sentencing hearing. Rodriguez also contends that his sentence
is procedurally unreasonable because the court made incorrect guideline
calculations, relied on clearly erroneous facts, failed to consider all the 18 U.S.C.
§ 3553(a) factors, and failed to adequately explain the sentence. He further
contends that the sentence is substantively unreasonable because the court relied
on incorrect facts, did not consider other facts, and created sentence disparities.
“[A] district court’s failure to afford a defendant the right of allocution will
be reviewed only for plain error where the defendant did not timely object.”
United States v. Prouty, 303 F.3d 1249, 1251 (11th Cir. 2002). “We will correct
plain error only when (1) there is an error; (2) the error is plain or obvious; (3) the
error affects the defendant’s substantial rights in that it was prejudicial and not
harmless; and (4) the error seriously affects the fairness, integrity, or public
reputation of a judicial proceeding.” United States v. Dorman, 488 F.3d 936, 938
(11th Cir. 2007).
Before imposing a sentence, the district court must: (1) “provide the
defendant’s attorney an opportunity to speak on the defendant’s behalf;”
(2) “address the defendant personally in order to permit the defendant to speak or
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present any information to mitigate the sentence;” and (3) “provide an attorney for
the government an opportunity to speak equivalent to that of the defendant’s
attorney.” Fed.R.Crim.P. 32(i)(4)(A). The Supreme Court has rejected the
contention that affording defense counsel the opportunity to speak fulfills the
requirements of this rule. Green v. United States, 365 U.S. 301, 304, 81 S. Ct.
653, 655 (1961). The Court held that the district court should “unambiguously
address [itself] to the defendant,” and that it “should leave no room for doubt that
the defendant has been issued a personal invitation to speak prior to sentencing.”
Id. at 305, 81 S.Ct. at 655; see also United States v. Carruth, 528 F.3d 845, 846
n.2 (11th Cir. 2008) (“[Q]uestions posed to defendant’s counsel are insufficient in
affording a defendant the opportunity to allocute.”); Gordon v. United States, 518
F.3d 1291, 1299 (11th Cir. 2008) (holding, in a habeas case, that Rule 32 “is not
satisfied when the court does not address the defendant personally concerning the
defendant’s desire to allocute but instead addresses defendant’s counsel only”).
A district court’s failure to offer the opportunity for allocution is a plain or
obvious error. Prouty, 303 F.3d at 1252. “[T]he right of allocution is the type of
important safeguard that helps assure the fairness, and hence legitimacy, of the
sentencing process.” Id. at 1253 (quotation omitted). Failing to offer allocution,
when it might affect the sentence, is manifestly unjust. Id. When a defendant does
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not have an opportunity to allocute and does “not receive the lowest possible
sentence within the applicable guideline range,” the district court commits
reversible error.” Id.Because the district court did not personally address Rodriguez with an
opportunity to allocute and because Rodriguez did not receive the lowest possible
sentence with the guideline range, the district court committed plain error.
Upon review of the entire record on appeal, and after consideration of the
parties’ appellate briefs, we vacate and remand the sentence.1
VACATED AND REMANDED.
1
Based on our disposition of this allocution issue, we decline to address
Rodriguez’s additional arguments concerning the reasonableness of his sentence.
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