Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-20849
Summary Calendar
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ALBERTO HERNANDEZ,
ALSO KNOWN AS ARMANDO SALICEDO HERNANDEZ,
ALSO KNOWN AS ALBERTO SAUCEDO HERNANDEZ,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
May 9, 2002
Before JONES, SMITH, and
guilty of, illegal re-entry into the United
EMILIO M. GARZA, Circuit Judges.
States.
JERRY E. SMITH, Circuit Judge:
On the first day of sentencing, the district
court determined a sentencing range of
I.
twenty-one to twenty-seven months' imprison-
Alberto Hernandez, a citizen of Mexico,
ment and stated that "[a]t this time I would
was deported from the United States in 1998.
invite counsel and Mr. Hernandez to make any
In 2000, INS agents found him in Houston,
statement that they wish." Defense counsel
Texas, after he had returned to the United
then requested a downward departure from the
States to try to renew his resident alien status.
guidelines, but Hernandez did not speak.
Hernandez was charged with, and pleaded

Sentencing continued the next day, at which
United States v. Washington, 44 F.3d 1271,
time the court stated that "the specific issue is
1276 (5th Cir. 1995).
the defendant's immigration status." The
court stated that it "invites counsel to make
Hernandez argues that his right to allocu-
any statements with respect to the departure
tion was violated because the court did not
issue and to address that issue." Once again,
extend an unequivocal-enough personal
defense counsel made a statement, but Hernan-
invitation for him to speak on any issue he
dez did not.
chose, and because it failed to renew that
invitation on the second day of sentencing,
The court then denied Hernandez's request
when the departure issue was discussed.
for a departure and sentenced him to twenty-
These contentions are without merit.
one months' imprisonment. Hernandez claims
the court violated his right to allocution under
The district court plainly indicated that ei-
FED. R. CRIM. P. 32(c)(3)(C). We find no
ther Hernandez or his counsel could "make
error and affirm.
any statement that they wish" (emphasis add-
ed). It is difficult to imagine a more
II.
comprehensive invitation to speak. Indeed,
Rule 32(c)(3)(C) requires that, before im-
two other circuits have upheld the validity of
posing sentence, the district court must
similarSSbut somewhat less comprehen-
"address the defendant personally and
siveSSinvitations to speak.1 "Rule
determine whether the defendant wishes to
32(c)(3)(C)does not purport to set out a script
make a statement and to present any
that the district courts must follow when
information in mitigation of sentence." FED.
advising defendants of their right to allocution
R. CRIM. P. 32(c)(3)(C). The application of
the rule is reviewed de novo. United States v.
Myers, 150 F.3d 459, 461 (5th Cir. 1998).
1In United States v. Archer, 70 F.3d 1149,
"Failure to afford a defendant his allocution
1152 (10th Cir. 1995), the court upheld the validity
rights necessitates remand and is not reviewed
of a district court's invitation to speak that asked
for harmless error." United States v. Delgado,
"the defendant and his counsel if either can cite any
256 F.3d 264, 279 (5th Cir. 2001).
reason to the Court as to why sentence should not
be pronounced . . . or wish to make a statement in
"Rule 32 envisions a personal colloquy be-
mitigation of punishment or . . . any other
tween the sentencing judge and the
statement which other statement is properly related
defendant." Myers, 150 F.3d at 461. The rule
to the proceeding." Unlike the court in the instant
is not a mere formality; it has "value in terms
case, the court in Archer did not explicitly tell the
of maximizing the perceived equity of the
defendant that he could make any statement he
[sentencing] process." Id. at 463 (internal
wished, but only one "properly related to the
proceeding." Id. Similarly, in United States v.
citations omitted). The defendant's right to
Thomas, 875 F.2d 559, 561 (6th Cir. 1989), the
allocution cannot be vindicated merely by
court upheld a statement that invited "[e]ither you
allowing counsel to speak on his behalf. Id.
[the defendant] or [defense counsel] . . . [to] ad-
Instead, the court "should leave no room for
dress the court on your behalf." Here, the
doubt that the defendant has been issued a per-
courtSSmore so than in Archer or ThomasSSstated
sonal invitation to speak prior to sentencing."
plainly that the defendant could speak on any
subject he chose.
2

. . . . Instead, the substance of what occurred
is what counts." United States v. Williams,
258 F.3d 669, 674 (7th Cir.), cert. denied, 122
S. Ct. 414 (2001). Here, there is no doubt
that the court extended to Hernandez a
comprehensive, easily understood invitation to
"make any statement" he chose to present, and
thus the substance of the proceeding was
entirely proper.
Hernandez is also mistaken in claiming that
the court should have reiterated its invitation
on the second day of sentencing. It is
"unnecessary for a court to renew its invitation
for allocution, even when further discussion
took place between the [initial] invitation for
allocution and the eventual pronouncement of
sentencing." United States v. Dabeit, 231
F.3d 979, 982 (5th Cir. 2000), cert. denied,
531 U.S. 1202 (2001). If the original
invitation to speak was comprehensive and
readily understandable, it is "not necessary for
a judge to renew [it]." Id.
AFFIRMED.
3