                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 17 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-50290

              Plaintiff - Appellee,              D.C. No. 3:10-cr-04731-LAB-1

  v.
                                                 MEMORANDUM *
MARIELENA MENDEZ,

              Defendant - Appellant.



                    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.


        *
             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).
      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.



                                           2
      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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