                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  March 15, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk

                               03-40554



                      UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

                                Versus



                         DANIEL CASAS-TORREZ,

                                                  Defendant-Appellant.



             Appeal from the United States District Court
                  for the Southern District of Texas
                            L-02-CR-1422-2


Before KING, Chief Judge, HIGGINBOTHAM, and DAVIS, Circuit
Judges.

W. EUGENE DAVIS, Circuit Judge:1

     Upon reconsideration, this panel’s previous opinion in this

case is hereby withdrawn in its entirety and replaced by the

following.

     The sole issue in this case is whether the defendant was

denied his right of allocution as required by Federal Rule of


     1
      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this opinion should not be published and is not precedent except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.

                                 -1-
Criminal Procedure 32 (i)(4)(A)(ii) (“Rule 32").                         Because the

defendant    was    given    an   opportunity       to   address    the      court   and

personally    present       mitigating    evidence,      we   are    satisfied       the

district court complied with Rule 32 and we AFFIRM.



                            I. FACTS AND PROCEEDINGS

     Defendant, Daniel Casas-Torrez, pleaded guilty, pursuant to a

written plea agreement, to conspiring to transport undocumented

aliens   within     the   United    States     in   violation       of   8     U.S.C.   §

1324(a)(1)(A)(v)(I).         The Presentencing Report (“PSR”) recommended

a base offense level of 12 and an increase of 20 in Casas-Torrez’s

offense level because he brandished a knife while fleeing from the

border patrol agent.           On March 7, 2003, (“March hearing”) the

parties appeared before the district court for sentencing; the

court addressed Casas-Torrez and said “[t]his is your opportunity

to say anything you want about the issue of sentencing.”                         Casas-

Torrez apologized to the court for his offense and asked the court

for probation so he could take care of his children and his wife,

who according to Casas-Torrez was unable to work.                    Casa-Torrez’s

attorney then asked the court for an extra point reduction for

acceptance    of    responsibility       and   argued      against       the    weapons

enhancement.

     During    the    hearing,     a   controversy       developed       about    facts

surrounding both acceptance of responsibility and the weapons

enhancement.       The district court decided to forgo sentencing and

                                         -2-
scheduled another hearing to hear testimony from the border agent

on the weapons enhancement and further argument on the acceptance

of responsibility deduction.

     The follow-up hearing took place on April 9, 2003, (“April

hearing”). First, the border agent testified regarding the weapons

enhancement and his encounter with Casas-Torrez the night of his

arrest. The agent testified that, when he recovered the knife from

the defendant, the serrated blade was exposed and the knife was

found on the ground where the struggle between Casas-Torrez and the

border agent took place.

     Next, Casas-Torrez himself testified and offered his account

of the night of his arrest; he was also able to tell the court

about his job at a supermarket and discuss his family’s financial

circumstances.

     The district court granted the weapons enhancement, stating

that it believed the agent’s testimony and disbelieved Casas-

Torrez’s testimony “in every particular.”      Though troubled by

Casas-Torrez’s apparent false statements regarding the details of

his offense, the district court granted Casas-Torrez a downward

adjustment of three levels (to offense level 17) for acceptance of

responsibility in accordance with his plea agreement.   Based on an

offense level of 17 and a criminal history category of I, Casas-

Torrez faced an imprisonment range of 24 to 30 months.         The

district court sentenced Casas-Torrez to 30 months’ imprisonment,

three years supervised release, and a $100 special assessment.

                               -3-
During the April hearing, the district court did not ask Casas-

Torrez   if    he   wanted   to   address   the   court   further   about   his

sentence.     Casas-Torrez timely appealed his sentence.

     On December 10, 2004, this panel issued an opinion in which we

vacated the defendant’s sentence and remanded for resentencing

because the district court did not personally address the defendant

at the April hearing and afford him an opportunity for allocution

in accordance with Rule 32.        Thereafter, the district court called

our attention to the March hearing, which was neither included in

the appellate record nor referred to in either party’s briefs.

     After reviewing the transcripts from both the March and April

hearings, we conclude that Casas-Torrez was afforded his right of

allocution in this case and has not shown a violation of Rule 32.

The sentencing hearing was interrupted on March 7 and continued on

April 9.      The defendant was given a full opportunity to allocute

during the March 7 segment of the hearing.          This satisfies Rule 32,

which does not require allocution immediately before sentence is

imposed.      See United States v. Hernandez, 291 F.3d 313,           316 (5th

Cir. 2002) (it is not necessary for the court to renew its

invitation for allocution when right of allocution extended to

defendant on previous day of sentencing proceeding).                We find no

error and affirm the district court.

AFFIRMED.




                                      -4-
