United States of America v. Marielena Mendez

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARIELENA MENDEZ,
Defendant - Appellant.
No. 11-50290
D.C. No. 3:10-cr-04731-LAB-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted December 6, 2012**
Pasadena, California
Before: BERZON, IKUTA, and NGUYEN, Circuit Judges.
Marielena Mendez (“Mendez”) appeals her sentence, claiming that the
district court denied her right of allocution and imposed an unreasonable sentence.
We vacate the sentence and remand.
FILED
DEC 17 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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2
The record supports Mendez’s claim that the district court denied her an
opportunity to fully allocute. See United States v. Gunning, 401 F.3d 1145, 1147
(9th Cir. 2005) (discussing the district court’s obligation to afford a defendant the
right to adequate allocution); United States v. Sarno, 73 F.3d 1470, 1503 (9th Cir.
1995) (finding that the district court denied defendant’s right to allocution even if
defendant “was nominally given an opportunity to speak”). The following
exchange occurred during Mendez’s sentencing hearing:
THE COURT: Ms. Mendez, what do you have to say on your
own behalf?
DEFENDANT: I apologize for my actions. I should have - -
AUSA: Your honor . . . .
The Assistant United States Attorney (“AUSA”) then presented his arguments
regarding sentencing. Mendez was not given a further opportunity to speak.
The government moves to supplement the record with the declarations of the
court reporter and the AUSA. Both declarations, executed months after the
hearing, state that the AUSA began to speak only after Mendez appeared to have
finished her statement by trailing off and becoming quiet. Mendez counters with
her own declaration, reiterating that she intended to do more than just apologize,
and had in fact memorized a statement prior to the hearing, but she was cut off by
the AUSA.

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3
We cannot resolve the factual dispute presented by the declarants’ dueling
recollections. See Fed. R. App. P. 10(e)(1) (“If any difference arises about whether
the record truly discloses what occurred in the district court, the difference must be
submitted to and settled by that court and the record conformed accordingly.”).
Even if we were to consider the declarations and assume that Mendez was not
interrupted, it does not necessarily follow that she had an adequate chance to
complete her statement. Accordingly, we find that the district court erred in failing
to give Mendez a full opportunity to allocute.
Next, we consider whether the denial of Mendez’s allocution right is
harmless. Gunning, 401 F.3d at 1147. “[W]hen a district court could have lowered
a defendant’s sentence, we have presumed prejudice and remanded, even if we
doubted that the district court would have done so.” Id. at 1149. Here, the error is
not harmless, because the district court could have lowered Mendez’s sentence and
we cannot say that a personal statement from Mendez would not have made a
difference.
In light of the remand for resentencing, we need not reach Mendez’s claim
that her sentence was substantively unreasonable.
VACATED AND REMANDED.

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