United States v. Hernandez-Jaimez

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40167
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNESTO HERNANDEZ-JAIMEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-99-cr-856-ALL
--------------------
October 17, 2000
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
In this direct criminal appeal, Ernesto Hernandez-Jaimez
asserts only that the district court did not afford him the right
of allocution before imposing sentence on his conviction for
violating 8 U.S.C. § 1326. The Government agrees that the
sentence should be vacated and the case remanded so that
Hernandez-Jaimez may be afforded the right of allocution.
The district court shall, before imposing sentence, “address
the defendant personally and determine whether the defendant

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No. 00-40167
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wishes to make a statement and to present any information in
mitigation of the sentence.” Fed. R. Crim. P. 32(c)(3)(C) (West
2000). The issue of the denial of the right to allocution is not
subject to harmless or plain error analysis. See United States
v. Echegollen-Barrueta, 195 F.3d 786, 789 (5th Cir. 1999). We
review the record de novo to determine whether the district court
afforded a defendant the right to allocution. Id.
The record demonstrates that the district court did not
comply with Fed. R. Crim. Proc. 32(c)(3)(C). Accordingly,
Hernandez-Jaimez’s sentence is VACATED and the case is REMANDED
for resentencing.
VACATED and REMANDED.

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