     Case: 09-41078 Document: 00511290638 Page: 1 Date Filed: 11/10/2010




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

                                                 FILED
                                                                         November 10, 2010

                                       No. 09-41078                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

EFREN VALTIERRA-ORTEGA,

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:09-CR-906


Before DAVIS, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Efren Valtierra-Ortega appeals the judgment of
conviction and the sentence imposed by the district court, contending that the
court committed two procedural errors.                He claims first that the court
impermissibly abridged his defense counsel’s right of allocution, as guaranteed
by Federal Rule of Criminal Procedure 32(i)(4)(A)(i); and second, that the court
failed to explain his sentence adequately, as required by 18 U.S.C. § 3553(c). We
vacate 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                     No. 09-41078

                                          I.
      Valtierra-Ortega was convicted of violating 8 U.S.C. § 1326, illegal reentry
into the United States by an alien previously removed following conviction on an
aggravated felony. The presentence report (PSR) assigned a base offense level
of eight and recommended a 16-level enhancement pursuant to U.S. Sentencing
Guidelines Manual § 2L1.2(b)(1)(A)(ii). Valtierra-Ortega filed written objections
to the PSR, including a request for a sentence below the Guidelines range.
      At the sentencing hearing, Valtierra-Ortega’s counsel began to present
objections to the PSR’s Guidelines calculations. Before he could finish, however,
the judge interrupted counsel to inform Valtierra-Ortega that he had a right to
speak. Valtierra-Ortega then exercised his right of allocution, as did the
Government. Afterward, Valtierra-Ortega’s counsel attempted to finish his
sentencing presentation, but the judge again prevented him from doing so:
      THE COURT:         Okay. The Court adopts the factual finding contained —
      MR. GOULD:         Your Honor, I’m sorry. I wasn’t finished. I just had a
                         couple of other requests. I did —
      THE COURT:         You should have made them in writing. I’m not — I
                         don’t have any more time for you.
      MR. GOULD:         I did make them in writing, your Honor.
      THE COURT:         Okay. Then I’ve already considered them and they’re
                         overruled.
The judge then proceeded to adopt the PSR’s factual findings and stated, “The
Court considers those factors under 18 [U.S.C. §] 3553(a), [and] concludes that
a sentence within these guidelines satisfies them.” Valtierra-Ortega’s counsel
objected, asserting that “the sentence is greater than necessary to achieve the
purposes of 18 [U.S.C. §] 3553 [and] that the reasons for the sentence have not
been adequately explained.” The judge overruled the objection. Valtierra-Ortega
timely filed his notice of appeal.

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                                     No. 09-41078

                                         II.
      We have held that if the defendant made a timely objection to a district
court’s   procedural   error,   we    must      apply   Federal   Rule   of   Criminal
Procedure 52(a) and conduct a “harmless error” analysis to determine whether
the error was prejudicial. See United States v. Reyna, 358 F.3d 344, 348 (5th Cir.
2004) (en banc). One important aspect of the harmless error inquiry is that the
burden of persuasion with respect to prejudice “rests on the party seeking to
uphold the sentence,” here the Government. United States v. Delgado-Martinez,
564 F.3d 750, 753 (5th Cir. 2009).
      Alternatively, if the defendant did not preserve his objection to the
procedural error, Rule 52(b) applies to the forfeited objection, and we must
conduct “plain error” review: “[W]e first ask whether the district court committed
an ‘error that is plain and that affect[s] substantial rights.’ If those criteria are
met, 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
judicial proceedings.’” Reyna, 358 F.3d at 350 (quoting United States v. Olano,
507 U.S. 725, 732 (1993) (internal quotations omitted)).
                                         III.
      Valtierra-Ortega argues, and the Government agrees, that the district
court committed procedural error by denying defense counsel the opportunity at
sentencing to advocate a below-Guidelines sentence, thereby violating his
Rule 32 right of allocution. See F ED. R. C RIM. P. 32(i)(4)(A)(i) (requiring a court
to “provide the defendant’s attorney an opportunity to speak on the defendant’s
behalf” before imposing a sentence). Valtierra-Ortega’s counsel was in the
process 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
his argument. See United States v. Krout, 66 F.3d 1420, 1434 (5th Cir. 1995)
(explaining that in order to preserve an objection “[a] party must raise a claim

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                                   No. 09-41078

of error with the district court in such a manner so that the district court may
correct itself”) (quotation omitted). We therefore construe the court’s

interruption of Valtierra-Ortega’s counsel, together with counsel’s later request
to 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
voiced no objection, the defendant’s protests were sufficient to preserve an
objection to the court’s violation of her right of allocution).
      We must determine whether the court’s denial of Valtierra-Ortega’s
counsel’s right of allocution was “harmless error.” The Government, which bears
the burden of persuasion, conceded that “[a]lthough the district court correctly
applied the sentencing guidelines, the sentence imposed is the result of a
significant procedural error — counsel was not afforded a meaningful
opportunity to argue on Valtierra-Ortega’s behalf.” We agree. Counsel was not
permitted to make a general mitigation argument or one for downward
departure, and the Government has made no attempt to persuade us that the
error was harmless.
      Therefore, based on the record and the Government’s concession, we
conclude that the district court did not give Valtierra-Ortega’s counsel a
sufficient opportunity to allocute and that the court’s failure to do so constitutes
reversible procedural error.
                                        IV.
      Accordingly, we VACATE Valtierra-Ortega’s sentence and REMAND for
resentencing. As we are vacating and remanding, we need not reach the district
court’s alleged violation of 18 U.S.C. § 3553(c). As we noted above, Valtierra-
Ortega expressly preserved his objection to this violation, and the Government
again conceded procedural error. We, therefore, assume that, at resentencing
on remand, the district court will adequately explain the reasons for the
sentence imposed in compliance with § 3553(c).

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                           No. 09-41078

 VACATED and REMANDED.




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