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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 10, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
03-40554
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL CASAS-TORREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas, Laredo
Before KING, Chief Judge, HIGGINBOTHAM, and DAVIS, Circuit
Judges.
W. EUGENE DAVIS, Circuit Judge:
The only issue in this case is whether the district court
plainly erred in failing to give the defendant an opportunity to
allocute as required by Federal Rule of Criminal Procedure 32.
Because (1) Casas-Torrez was sentenced at the top of the sentencing
range; (2) the district court rejected defendant's argument that he
did not brandish a weapon and enhanced his sentence accordingly;
and (3) no unique circumstances are present to excuse the district
court's non-compliance with Rule 32, we VACATE the sentence and
REMAND for resentencing.

I.
Defendant, Daniel Casas-Torrez, pled guilty to conspiring to
transport undocumented aliens within the United States in violation
of 8 U.S.C. § 1324(a)(1)(A)(v)(I). The Presentence Report ("PSR")
recommended that Casas-Torrez's base offense level of 12 be
increased to 20 because he brandished a knife while fleeing from
the border patrol agent. Casas-Torrez objected to the dangerous
weapon enhancement, arguing that he did not "brandish" the knife,
but rather was complying with the agent's command to disarm
himself. The agent testified that, he recovered the knife - with
the serrated blade exposed - on the ground where he had struggled
with Casas-Torrez. Casas-Torrez denied ever opening the knife,
which he testified he used at his place of employment to open
packages.
The district court accepted the agent's testimony and rejected
Casas-Torrez's testimony "in every particular." Though troubled by
Casas-Torrez's apparent lying regarding the details of his offense,
the district court granted Casas-Torrez a downward adjustment of
three levels (to offense level 17) for acceptance of responsibility
in accordance with his plea agreement. Based on an offense level
of 17 and a criminal history category of I, Casas-Torrez faced an
imprisonment range of 24 to 30 months. The district court
sentenced Casas-Torrez to 30 months' imprisonment, three years
supervised release, and a $100 special assessment. Casas-Torrez
timely appealed.
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II.
For the first time on appeal, Casas-Torrez contends that he
is entitled to automatic reversal because the district court
denied him his right of allocution at sentencing, as required by
Federal Rule of Criminal Procedure 32(i)(4)(A)(ii). 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
State v Reyna, 358 F.3d 344, 348 (5th Cir. 2004). Based on the
Supreme Court's decision in United States v. Vonn, 535 U.S. 55,
122 S.Ct. 1043, 152 L.Ed.2d 90 (2002), however, the en banc
court in Reyna backed away from 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 Reyna, 358 F.3d at 350-53.
Under Reyna's three-step plain-error analysis, we first
address whether the district court clearly or obviously failed to
afford the defendant an opportunity to exercise his right of
allocution at sentencing. Id. at 350(citing the three-step plain-
error standard in United States v. Olano, 507 U.S. 725, 113 S.Ct.
1770, 123 L.Ed.2d 508 (1993)). Rule 32 states that, before
imposing sentence, the court must "address the defendant personally
in order to permit the defendant to speak or present any
information to mitigate the sentence." FED. R. CRIM. P.
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32(i)(4)(A)(ii). This court has construed Rule 32's right of
allocution "quite literally as mandating precisely what it appears
to mandate - a personal inquiry directed to the defendant."
United States v. Dickson, 712 F.2d 952, 955 (5th Cir. 1983).
In this case, the district court obviously erred because it
never addressed the defendant personally or determined whether the
defendant wanted to make a statement or offer mitigating evidence.
FED. R. CRIM. P. 32(i)(4)(A)(ii); Reyna, 358 F.3d at 350.
Next, Reyna dictates that we determine whether the error
affected the defendant's substantial rights. Id. at 350. At this
step of the plain error test, the defendant must ordinarily
demonstrate prejudice by showing that the error "affected the
outcome of the district court proceedings." Id. But, in Reyna, we
held that we would presume prejudice when the defendant "shows a
violation of the right [of allocution] and the opportunity for such
a violation to have played a role in the district court's
sentencing decision." Id. at 352 (quoting United States v. Adams,
252 F.3d 276, 287(3d Cir. 2001)). A defendant sentenced at the top
of the Sentencing Guidelines who is denied his right of allocution
is ordinarily considered to fulfill this requirement.1 Id.
1Reyna also held that courts could presume prejudice under
this standard even if the defendant was sentenced at the bottom
of the Sentencing Guidelines range if a "searching review of the
district court record reveals that there are any disputed facts
at issue at sentencing, or any arguments raised in connection
with sentencing, that if resolved in the defendant's favor would
have reduced the applicable Guidelines range or the ultimate
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In the present case, Casas-Torrez was sentenced to 30 months
imprisonment which was at the top of the guideline range. U.S.S.G.
Ch. 5, Pt. A. The defendant also disputed the fact that he
brandished a weapon. If this factual dispute had been resolved in
the defendant's favor, his offense level would have been 15 instead
of 17 (base level of 12, enhanced to 18 got brandishing a weapon,
then reduced 3 levels for acceptance of responsibility to 15).
This would have resulted in a guideline range between 18 to 24
months. See U.S.S.G. Ch. 5 Pt. A. Because allocution could have
played a role in the sentence, we presume that Casas-Torrez was
prejudiced by the district court's failure to afford him his right
of allocution.
Once this court presumes prejudice, Reyna held that it "will
ordinarily remand for resentencing." Id. at 353. We declined to
adopt a "blanket approach" to remand after finding prejudice,
however, opting instead to examine the record to determine if "the
error seriously affects the fairness, integrity, or public
reputation of the judicial proceeding." Id. at 352. Unless a
thorough search of the record reveals that the case before us is
one of the "limited class of cases" in which, despite the presence
of disputed issues and a denial of allocution, the defendant was
given an "unusual" opportunity to present mitigating evidence, we
will remand for resentencing. Id. at 352-353. The defendant in
sentence." Reyna, 358 F.3d at 352.
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Reyna was denied his right of allocution in his third appearance
before the district judge. Id. at 352. The record showed that he
had been given the opportunity to allocute both at his original
sentencing and when he was resentenced following the first
violation of supervised release. Id. Because the loss of the
defendant's right to allocute in his third appearance before the
court had no effect on the "fairness, integrity, or public
reputation of his sentencing proceedings," we declined to remand
his case for resentencing. Id. at 353.
In this case, Casas-Torrez was not afforded any such unusual
or unique opportunity to present his personal plea in mitigation of
sentence. The government argues that this case is analogous to
Reyna because Casas-Torrez testified at his sentencing hearing
regarding the weapon charge and answered several questions
regarding his personal finances. Casas-Torrez contends, however,
that if the court had afforded him a right of allocution, he would
have been able to call the court's attention to other, unrelated
subjects, such as the fact that he had attained a GED, completed
one year of college, been gainfully employed since 1989, provided
for his two children, and had never been convicted of a previous
violent offense.
It is true that some of this evidence was already before the
court in the PSR and we recognize that the district judge
disbelieved Casas-Torrez's account of the offense "in every
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particular." But this is no reason to dispense with Casas-Torrez's
right of allocution. Rule 32 requires the court to "address the
defendant personally in order to permit the defendant to speak or
present any information to mitigate the sentence." FED. R. CRIM. P.
32(i)(4)(A)(ii). Even if the court had been apprised of the
relevant facts by counsel or court personnel, this does not "lessen
the need for the defendant, personally, to have the opportunity to
present to the court his plea in mitigation." Reyna 358 F.3d at
349 (quoting U.S. v. Green, 365 U.S. 301, 304 (1961)).
For the reasons stated above, we VACATE the court's sentence
and REMAND for resentencing.
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