United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 10, 2004

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

(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.

-2- 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,

(5th Cir. 2004). Based on the

Supreme Court’s decision in United States v. Vonn,

,

,

(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,

.

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.

(citing the three-step plain-

error standard in United States v. Olano,

,

,

(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.

-3- 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,

(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,

.

Next, Reyna dictates that we determine whether the error

affected the defendant’s substantial rights.

. 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.”

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.”

at 352 (quoting United States v. Adams,

(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

1 Reyna 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

-4- 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.”

. 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.”

. 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.

. The defendant in

sentence.” Reyna,

.

-5- Reyna was denied his right of allocution in his third appearance

before the district judge.

. 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.

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.

.

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

-6- 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

(quoting U.S. v. Green,

(1961)).

For the reasons stated above, we VACATE the court’s sentence

and REMAND for resentencing.

-7-