United States v. Hernandez

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

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

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. . . . 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.

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