USA v. Christian Garcia

Filing

UNPUBLISHED OPINION FILED. [11-40466 Vacated & Remanded ] Judge: CDK , Judge: EGJ , Judge: JEG Mandate pull date is 01/26/2012 for Appellant Christian Daniel Garcia [11-40466]

Case: 11-40466

Document: 00511715967

Page: 1

Date Filed: 01/05/2012

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 11-40466
Summary Calendar

January 5, 2012
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CHRISTIAN DANIEL GARCIA, also known as Julio Belmares-Garcia,
Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:10-CR-1888-1

Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
Christian Daniel Garcia appeals his sentence for having been found
unlawfully present in the United States following a prior deportation. He
asserts that the district court plainly erred by denying him an opportunity for
allocution. As the Government concedes, the district court violated Rule 32 of
the Federal Rules of Criminal Procedure by failing to allow Garcia an
opportunity to address the court before it imposed his sentence. The error
was clear or obvious. See United States v. Reyna, 358 F.3d 344, 350 (5th Cir.
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40466

Document: 00511715967

Page: 2

Date Filed: 01/05/2012

2004) (en banc). We presume that the error violated Garcia’s substantial
rights because the defense disputed, on several grounds, whether Garcia
should receive a downward departure or variance. See id. at 352.
In light of the particular facts of this case, we exercise our discretion to
correct the error. It occurred during Garcia’s initial sentencing and not at a
revocation hearing. See United States v. Avila-Cortez, 582 F.3d 602, 605-06
(5th Cir. 2009); Reyna, 358 F.3d at 352. Garcia was given no opportunity to
speak before the district court imposed the sentence. See Avila-Cortez, 582
F.3d at 607; United States v. Magwood, 445 F.3d 826, 829-30 (5th Cir. 2006).
The district court personally addressed Garcia only once before imposing the
sentence, when it asked at the outset of the hearing whether he had reviewed
sentencing materials with counsel, whether he had any questions about the
sentencing materials that counsel could not answer, and whether the
information contained in the sentencing materials was correct. Garcia
answered only “Yes, your Honor,” and “No, your Honor.” Additionally,
Garcia’s brief to this court specifies the arguments he would have made
during allocution. See Avila-Cortez, 582 F.3d at 606-07. The only factor
weighing against correcting the error is that defense counsel offered several
arguments on Garcia’s behalf, see Magwood, 445 F.3d at 830, and this factor
does not determine whether we exercise our discretion. See Avila-Cortez, 582
F.3d at 606-07.
Accordingly, we VACATE the sentence and REMAND FOR
RESENTENCING.