     Case: 10-10240 Document: 00511384261 Page: 1 Date Filed: 02/16/2011




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

                                                 FILED
                                                                          February 16, 2011
                                     No. 10-10240
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BERNARD JOSEPH DOLENZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:98-CR-107-1


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Bernard Joseph Dolenz has appealed the district court’s judgment
revoking his supervised release and sentencing him to a term of imprisonment
of 12 months plus one day.            Dolenz complains that he was not given an
opportunity to allocute prior to imposition of the sentence.
       As Dolenz concedes, our review is for plain error. See United States v.
Reyna, 358 F.3d 344, 353 (5th Cir. 2004) (en banc). To show plain error, Dolenz
must show a forfeited error that is clear or obvious and that affects his

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10240 Document: 00511384261 Page: 2 Date Filed: 02/16/2011

                                  No. 10-10240

substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If
Dolenz makes such a showing, we have the discretion to correct the error if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      Under F ED. R. C RIM . P. 32.1(b)(2)(E), Dolenz was entitled to “an
opportunity to make a statement and present any information in mitigation.”
The failure to provide Dolenz with an opportunity to speak in mitigation of his
sentence was a clear or obvious error. See United States v. Avila-Cortez, 582
F.3d 602, 604 (5th Cir. 2009). Where, as here, the defendant has been sentenced
above the guidelines range, this court has presumed that the error prejudiced
the defendant’s substantial rights. See United States v. Magwood, 445 F.3d 826,
829-30 (5th Cir. 2006). In this circumstance, we must conduct a thorough review
of the record to determine whether we should exercise our discretion to correct
the error because it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Avila-Cortez, 582 F.3d at 604-05. “[I]f the defendant had
a prior opportunity to allocute, or if the defendant fails to explain what exactly
he or she would have said during allocution that might mitigate the sentence,
then the case is one of those ‘limited class of cases’ in which we will decline to
exercise our discretion to correct the error.” Id. at 606.
      Dolenz had a prior opportunity to allocute, and he fails to explain in his
brief what he would have said support of mitigation of his sentence. The only
mitigating factor apparent on the record is that Dolenz is elderly and in poor
health, a factor that was considered by the court in permitting Dolenz to report
to prison voluntarily.    The record does not demonstrate that the fairness,
integrity, or public reputation of the judicial proceedings was impacted
negatively by the district court’s failure to give Dolenz an opportunity to
allocute. For that reason, we decline to exercise our discretion to correct the
forfeited error. The judgment is AFFIRMED.



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