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UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_____________
No. 93-8355
_____________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM K. RODRIGUEZ,
Defendant-Appellant.
________________________________________________
Appeal from the United States District Court
For the Western District of Texas
________________________________________________
(June 14, 1994)
Before REAVLEY, GARWOOD, and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
William Rodriguez appeals the district court's sentence
imposed upon revocation of his supervised release. Because the
district court sentenced Rodriguez in absentia and without
affording him the right to allocute, we vacate and remand for
resentencing.
In 1989, Rodriguez was convicted by a jury of stealing a
government-owned van in violation of 18 U.S.C. § 641, and was
sentenced to three years of probation. Upon revocation of his
probation for violating the terms of such probation, Rodriguez was
subsequently sentenced to five months imprisonment and three years
supervised release.

In 1993, the probation office filed in federal district court
an amended petition to revoke Rodriguez's supervised release. The
amended petition specifically charged Rodriguez with committing a
state crime while on supervised release, failing to submit required
urine samples, and failing to make required restitution payments,
all in violation of the terms of his supervised release. The
district court referred the matter to a magistrate judge, pursuant
to 18 U.S.C.A. § 3401(i) (West Supp. 1994).1
The magistrate judge conducted a revocation hearing, at which
Rodriguez and his counsel were present. At the hearing, Rodriguez
pled true to the charges in the amended petition to revoke
supervised release. In his report to the district court, the
magistrate judge recommended that Rodriguez's supervised release be
revoked. In recommending an appropriate term of imprisonment,2 the
magistrate judge expressly considered the policy statements of
Chapter 7 of the Guidelines. Based on the revocation table set
forth in U.S.S.G. § 7B1.4(a), p.s., Rodriguez's applicable
1
Section 3401(i) provides:
A district court may designate a magistrate judge to
conduct hearings to modify, revoke, or terminate
supervised release, including evidentiary hearings, and
to submit to the judge proposed findings of fact and
recommendations for such modification, revocation, or
termination by the judge, including, in the case of
revocation, a recommended disposition under section
3583(e) of this title. The magistrate judge shall file
his or her proposed findings and recommendations.
2
A court may require a person who has violated a condition
of his supervised release "to serve in prison all or part of the
term of supervised release without credit for time previously
served on postrelease supervision." 18 U.S.C. § 3583(e)(3).
-2-

sentencing range was four to ten months imprisonment. Citing
Rodriguez's "willful failure to make any reasonable effort to
comply with even the minimal conditions" of his probation or
supervised release, the magistrate judge instead recommended that
Rodriguez be sentenced to twenty-four months imprisonment.
Rodriguez filed objections to the magistrate's report and
recommendations. He also requested a brief hearing before the
district court "to provide additional information in person."
Without holding another hearing, the district court entered an
order adopting the report and recommendations of the magistrate
judge. The court therefore revoked Rodriguez's supervised release
and sentenced him to twenty-four months imprisonment. Neither
Rodriguez nor his counsel were present when the district court
imposed sentence. Rodriguez subsequently filed a timely notice of
appeal.
"We will uphold a sentence unless it (1) was imposed in
violation of law, (2) resulted from an incorrect application of the
guidelines, (3) was outside the guideline range and is
unreasonable, or (4) was imposed for an offense for which there is
no applicable sentencing guideline and is plainly unreasonable."
United States v. Headrick, 963 F.2d 777, 779 (5th Cir. 1992)
(citing 18 U.S.C. § 3742(e)). Because there are no applicable
guidelines for sentencing after revocation of supervised release,
see U.S.S.G. Chapter 7 Part A 1. ("At this time, the Commission has
chosen to promulgate policy statements only."), we will uphold
Mathena's sentence unless it is in violation of law or plainly
-3-

unreasonable. Headrick, 963 F.2d at 779. "A sentence is imposed
in an illegal manner if the court fails to comply with the
procedural rules in imposing sentences." United States v.
Velasquez, 748 F.2d 972, 974 (5th Cir. 1984). "Once it is found
that the district court failed to comply with a procedural rule of
sentencing, a new sentencing hearing should be ordered." Id.
Rodriguez contends, inter alia, that his sentence was imposed
in violation of law because the district court sentenced him in
absentia and without affording him the right to allocute.3 Rule
43(a) of the Federal Rules of Criminal Procedure provides that
"[t]he defendant shall be present . . . at the imposition of
sentence, except as otherwise provided by this rule."4 Rule 32(a)
3
Rodriguez also raises several issues premised on the
district court's failure to sentence him within the applicable
range set forth in U.S.S.G. § 7B1.4, p.s. Because we vacate and
remand for resentencing due to the district court's sentencing of
Rodriguez in absentia, we need not address those other issues. We
nevertheless point out that any sentence imposed upon revocation of
supervised release must be consistent with our recent decision in
United States v. Mathena, No. 93-8054, 1994 WL 242501 (5th Cir.
June 6, 1994). See id. 1994 WL 242501, at *5 (holding that when a
court sentences a defendant upon revoking his supervised release
under § 3583(e), the policy statements of Chapter 7 are advisory
only).
4
The government's claim that Rodriguez waived his right to
be present at the imposition of sentence is not supported by the
record. At the revocation hearing, Rodriguez's counsel stated:
Only if [the magistrate judge's report] comes to [the
district court] on an unobjected-to recommendation does
[the court] sign it without a hearing. Otherwise, we got
an issue that [the court] needs to resolve, and people
need to have notice and [the] opportunity to [be]
hear[d], the defendant needs to be present, because
something going to happen that hasn't happened before."
Record on Appeal vol. 3, at 58-59 (emphasis added). It is
-4-

of the Federal Rules of Criminal Procedure provides that "[b]efore
imposing sentence, the court shall . . . (C) address the defendant
personally and determine if the defendant wishes to make a
statement and to present any information in mitigation of the
sentence." Although conceding that Rodriguez was not present when
the district court imposed sentence, the government argues that
Rodriguez's presence at the revocation hearing, where he was given
an opportunity to be heard, satisfied the requirements of Rules
43(a) and 32(a)(C). We disagree.
Although we have found no case dealing with this issue in the
context of a revocation hearing conducted pursuant to 18 U.S.C.A.
§ 3401(i) (West Supp. 1994), we think it clear that the hearing
before the magistrate judge did not satisfy the requirements of
Rules 43(a) and 32(a)(C). The magistrate judge did not possess the
authority to impose sentence; only the district court possessed
that authority. See 18 U.S.C.A. § 3401(i) (West Supp. 1994)
(stating that magistrate judges may be given the authority to
conduct revocation hearings and to "submit to the judge proposed
findings of fact and recommendations" (emphasis added)).
Therefore, Rule 43(a) required that Rodriguez be present when the
district court imposed sentence, and not when the magistrate judge
recommended sentence. Similarly, Rule 32(a)(C) refers to the court
undisputed that Rodriguez filed his objections to the magistrate's
report and recommendations. We further point out that Rodriguez
prefaced his objections with a specific request for a hearing
before the district court, so that he could "provide additional
information in person, and to allow counsel to present argument."
-5-

that imposes sentence. See Fed. R. Crim. P. 32(a)(C) (stating that
"[b]efore imposing sentence, the court shall . . . address the
defendant personally . . . ."). Therefore, Rule 32(a)(C) required
that Rodriguez be given the right to allocute when the district
court imposed sentence. As we stated in United States v. Moree,
928 F.2d 654 (5th Cir. 1991):
[T]he requirements of criminal justice . . . leave no
doubt of [the defendant's] right to be present when a
final determination of sentence is made. The elementary
right of a defendant to be present at the imposition of
sentence and to speak in his own behalf . . . is not
satisfied by allowing him to be present and speak at a
prior stage of the proceedings . . . . Even if he has
spoken earlier, a defendant has no assurance that when
the time comes for final sentence the district judge will
remember the defendant's words in his absence and give
them due weight. Moreover, only at the final sentencing
can the defendant respond to a definitive decision of the
judge.
Id. at 656 (footnote omitted). The final determination of
Rodriguez's sentence was made by the district court, and not the
magistrate judge. Rodriguez was therefore entitled to be present
and to allocute when the district court imposed sentence. As the
record clearly shows, he was denied that "elementary right."
Accordingly, the sentence imposed by the district court is
VACATED and the cause REMANDED for resentencing.
-6-