From Casetext: Smarter Legal Research

United States v. Dominguez-Hernandez

United States Court of Appeals, Fifth Circuit
Jun 13, 1991
934 F.2d 598 (5th Cir. 1991)

Summary

remanding for resentencing "[w]ith misgivings" where defense counsel failed to object to denial of defendant's right to personally allocute

Summary of this case from U.S. v. Vasquez

Opinion

No. 90-8623. Summary Calendar.

June 13, 1991.

Robert Ramos, Hill Ramos, El Paso, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Joan E.T. Stearns, Asst. U.S. Attys., and Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.


Appellant Dominguez pleaded guilty to conspiracy to possess ten machine guns, violating 18 U.S.C. §§ 371 and 922( o)(1), and was sentenced to thirty months imprisonment followed by a three-year term of supervised release and a $50 special assessment. With misgivings, we are forced to vacate and remand for resentencing.

Dominguez's brief on appeal raises but one issue: that the district court did not specifically address him and determine whether he wished to exercise his right to allocution. This court has repeatedly held, as the government recognizes, that a defendant must be given an opportunity, conferred by Fed. Rule Crim.Proc. 32(a)(1)(C), personally to speak in his own behalf before sentence is imposed. See, e.g., U.S. v. Posner, 868 F.2d 720, 724 (5th Cir. 1989). If the district court fails to provide the right of allocution, resentencing is required. Id. We re-endorse here the importance of the district court's inviting the defendant to speak if he so desires.

What bothers us, however, is that neither defendant nor his counsel mentioned to the district court its omission of the Rule 32(a)(1)(C) requirement. As the government observes, "the district court easily could have corrected its oversight without the need for burdening this Court with the issue or for repeating the sentencing hearing." See United States v. Jackson, 807 F.2d 1185, 1192 (5th Cir. 1986). Defendant's brief does not even aver that, upon resentencing, he wishes to exercise his right to allocution. We thus remand in what may well be a useless bow to procedural nicety.

The judgment of the district court is VACATED and REMANDED for resentencing.


Summaries of

United States v. Dominguez-Hernandez

United States Court of Appeals, Fifth Circuit
Jun 13, 1991
934 F.2d 598 (5th Cir. 1991)

remanding for resentencing "[w]ith misgivings" where defense counsel failed to object to denial of defendant's right to personally allocute

Summary of this case from U.S. v. Vasquez
Case details for

United States v. Dominguez-Hernandez

Case Details

Full title:UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. ALFREDO…

Court:United States Court of Appeals, Fifth Circuit

Date published: Jun 13, 1991

Citations

934 F.2d 598 (5th Cir. 1991)

Citing Cases

U.S. v. Myers

As the Supreme Court recognized, Rule 32 envisions a personal colloquy between the sentencing judge and the…

U.S. v. Vasquez

The burden of complying with the right of allocution, 32 (c)(3)(C), rests with the court and not the…