USA v. Efren Valtierra-Ortega


UNPUBLISHED OPINION FILED. [09-41078 Vacated and Remanded] Judge: WED , Judge: JLW , Judge: JLD Mandate pull date is 12/01/2010 for Appellant Efren Valtierra-Ortega [09-41078]

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USA v. Efren Valtierra-Ortega Case: 09-41078 Document: 00511290638 Page: 1 Date Filed: 11/10/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED November 10, 2010 N o . 09-41078 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. E F R E N VALTIERRA-ORTEGA, D e fe n d a n t -A p p e lla n t A p p e a l from the United States District Court for the Southern District of Texas U S D C No. 7:09-CR-906 B e fo r e DAVIS, WIENER, and DENNIS, Circuit Judges. P E R CURIAM:* D e fe n d a n t -A p p e lla n t Efren Valtierra-Ortega appeals the judgment of c o n v ic t io n and the sentence imposed by the district court, contending that the c o u r t committed two procedural errors. He claims first that the court im p e r m is s ib ly abridged his defense counsel's right of allocution, as guaranteed b y Federal Rule of Criminal Procedure 32(i)(4)(A)(i); and second, that the court fa ile d to explain his sentence adequately, as required by 18 U.S.C. 3553(c). We v a c a t e and remand for resentencing. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 09-41078 Document: 00511290638 Page: 2 Date Filed: 11/10/2010 No. 09-41078 I. V a lt ie r r a -O r t e g a was convicted of violating 8 U.S.C. 1326, illegal reentry in t o the United States by an alien previously removed following conviction on an a g g r a v a t e d felony. The presentence report (PSR) assigned a base offense level o f eight and recommended a 16-level enhancement pursuant to U.S. Sentencing G u id e lin e s Manual 2L1.2(b)(1)(A)(ii). Valtierra-Ortega filed written objections t o the PSR, including a request for a sentence below the Guidelines range. A t the sentencing hearing, Valtierra-Ortega's counsel began to present o b je c t io n s to the PSR's Guidelines calculations. Before he could finish, however, t h e judge interrupted counsel to inform Valtierra-Ortega that he had a right to s p e a k . Valtierra-Ortega then exercised his right of allocution, as did the G o v e r n m e n t . Afterward, Valtierra-Ortega's counsel attempted to finish his s e n te n c in g presentation, but the judge again prevented him from doing so: T H E COURT: M R . GOULD: O k a y . The Court adopts the factual finding contained -- Y o u r Honor, I'm sorry. I wasn't finished. I just had a couple of other requests. I did -- T H E COURT: Y o u should have made them in writing. I'm not -- I don't have any more time for you. M R . GOULD: T H E COURT: I did make them in writing, your Honor. O k a y . Then I've already considered them and they're overruled. T h e judge then proceeded to adopt the PSR's factual findings and stated, "The C o u r t considers those factors under 18 [U.S.C. ] 3553(a), [and] concludes that a sentence within these guidelines satisfies them." Valtierra-Ortega's counsel o b je c t e d , asserting that "the sentence is greater than necessary to achieve the p u r p o s e s of 18 [U.S.C. ] 3553 [and] that the reasons for the sentence have not b e e n adequately explained." The judge overruled the objection. Valtierra-Ortega t im e ly filed his notice of appeal. 2 Case: 09-41078 Document: 00511290638 Page: 3 Date Filed: 11/10/2010 No. 09-41078 II. W e have held that if the defendant made a timely objection to a district c o u r t 's procedural error, we must apply Federal Rule of Criminal P r o c e d u r e 52(a) and conduct a "harmless error" analysis to determine whether t h e error was prejudicial. See United States v. Reyna, 358 F.3d 344, 348 (5th Cir. 2 0 0 4 ) (en banc). One important aspect of the harmless error inquiry is that the b u r d e n of persuasion with respect to prejudice "rests on the party seeking to u p h o ld the sentence," here the Government. United States v. Delgado-Martinez, 5 6 4 F.3d 750, 753 (5th Cir. 2009). Alternatively, if the defendant did not preserve his objection to the p r o c e d u r a l error, Rule 52(b) applies to the forfeited objection, and we must c o n d u c t "plain error" review: "[W]e first ask whether the district court committed a n `error that is plain and that affect[s] substantial rights.' If those criteria are m e t , we have the discretion to correct the forfeited error but should do so only if the error `seriously affect[s] the fairness, integrity or public reputation of ju d ic ia l proceedings.'" Reyna, 358 F.3d at 350 (quoting United States v. Olano, 5 0 7 U.S. 725, 732 (1993) (internal quotations omitted)). III. V a lt ie r r a -O r t e g a argues, and the Government agrees, that the district c o u r t committed procedural error by denying defense counsel the opportunity at s e n te n c in g to advocate a below-Guidelines sentence, thereby violating his R u le 32 right of allocution. See FED. R. CRIM. P. 32(i)(4)(A)(i) (requiring a court t o "provide the defendant's attorney an opportunity to speak on the defendant's b e h a lf" before imposing a sentence). Valtierra-Ortega's counsel was in the p r o c e s s of communicating his objections to the PSR when the judge cut him off. Although counsel did not expressly object, he made a diligent effort to complete h is argument. See United States v. Krout, 66 F.3d 1420, 1434 (5th Cir. 1995) (e x p la in in g that in order to preserve an objection "[a] party must raise a claim 3 Case: 09-41078 Document: 00511290638 Page: 4 Date Filed: 11/10/2010 No. 09-41078 o f error with the district court in such a manner so that the district court may c o r r e c t itself") (quotation omitted). We therefore construe the court's in t e r r u p tio n of Valtierra-Ortega's counsel, together with counsel's later request t o finish his allocution, as sufficient to preserve the objection. See United States v . Li, 115 F.3d 125, 132 (2d Cir. 1997) (finding that although defense counsel v o ic e d no objection, the defendant's protests were sufficient to preserve an o b je c t io n to the court's violation of her right of allocution). W e must determine whether the court's denial of Valtierra-Ortega's c o u n sel's right of allocution was "harmless error." The Government, which bears t h e burden of persuasion, conceded that "[a]lthough the district court correctly a p p lie d the sentencing guidelines, the sentence imposed is the result of a s ig n ific a n t procedural error -- counsel was not afforded a meaningful o p p o r t u n it y to argue on Valtierra-Ortega's behalf." We agree. Counsel was not p e r m it t e d to make a general mitigation argument or one for downward d e p a r t u r e , and the Government has made no attempt to persuade us that the e r r o r was harmless. T h e r e fo r e , based on the record and the Government's concession, we c o n c lu d e that the district court did not give Valtierra-Ortega's counsel a s u ffic ie n t opportunity to allocute and that the court's failure to do so constitutes r e v e r s ib le procedural error. IV. A c c o r d in g ly , we VACATE Valtierra-Ortega's sentence and REMAND for r e s e n t e n c in g . As we are vacating and remanding, we need not reach the district c o u r t's alleged violation of 18 U.S.C. 3553(c). As we noted above, ValtierraO r t e g a expressly preserved his objection to this violation, and the Government a g a in conceded procedural error. We, therefore, assume that, at resentencing o n remand, the district court will adequately explain the reasons for the s e n te n c e imposed in compliance with 3553(c). 4 Case: 09-41078 Document: 00511290638 Page: 5 Date Filed: 11/10/2010 No. 09-41078 V A C A T E D and REMANDED. 5

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