United States v. Antoine Hedary , 672 F. App'x 434 ( 2016 )

Case: 16-10218 Document: 00513809696 Page: 1 Date Filed: 12/22/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-10218 FILED
Summary Calendar December 22, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANTOINE JOSEPH HEDARY,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-189-1
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Antoine Joseph Hedary appeals the 30-month sentence that he received
after pleading guilty to committing fraud in connection with access devices.
Hedary’s sole argument is that by denying his motion for a downward variance
before he addressed the district court, the court denied him a meaningful
opportunity to allocute. Because Hedary did not object in the district court
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-10218 Document: 00513809696 Page: 2 Date Filed: 12/22/2016
No. 16-10218
that he was denied his right to allocute, our review is for plain error only. See
United States v. Avila-Cortez, 582 F.3d 602, 604 (5th Cir. 2009).
At the beginning of the sentencing hearing, the district court, after
giving the defense the opportunity to present evidence and argument, denied
Hedary’s motion for a downward variance in which he argued that his prior
crimes were not violent and he was at a lower-than-usual risk to recidivate
given his age and commitment to drug treatment. The district court later
permitted defense counsel to make sentencing arguments, allowed Hedary to
present witnesses, and gave Hedary the unrestricted opportunity to allocute.
Even if the better practice is to rule on any request for a Booker variance
after the defendant has allocuted, Hedary cannot show the obvious error
required in light of his failure to raise the issue in the trial court. The out-of-
circuit cases he cites finding allocution error involved a district judge
announcing the sentence or declaring it would only sentence within the
Guidelines range before it heard from the defendant. See, e.g., United States
v. Mendeoza-Lopez, 669 F.3d 1148, 1152 (10th Cir. 2012); United States v.
Landeros-Lopez, 615 F.3d 1260, 1264-1268 (10th Cir. 2010); United States v.
Luepke, 495 F.3d 443, 445, 450-52 (7th Cir. 2007). The district court did
neither in this case. Its denial of the written motion for downward variance
did not preclude the court’s ability to consider other factors for a downward
variance that might have been raised during Hedary’s allocution. We thus
cannot say that it is plain or obvious that Hedary was denied a meaningful
opportunity to allocate.
AFFIRMED.
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