                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 17-3327
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

            ROGELIO ENRIQUE LOPEZ-BATISTA, a/k/a Rogelio E. Lopez

                               Rogelio Enrique Lopez-Batista,
                                                      Appellant
                                   _______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (D.C. No. 2-16-cr-00358-01)
                         District Judge: Hon. Juan R. Sanchez
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 11, 2018

           Before: JORDAN, VANASKIE, and NYGAARD, Circuit Judges

                                (Filed: September 27, 2018)
                                     _______________

                                        OPINION
                                     _______________

JORDAN, Circuit Judge.




       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
       Rogelio Enrique Lopez-Batista was convicted of possession with intent to

distribute heroin and was sentenced to a ten-year term of imprisonment, which was the

mandatory minimum for his crime. 21 U.S.C. § 841(a)(1), (b)(1)(A)(i). He appeals that

sentence, arguing that the District Court committed plain error because it failed to offer

him the opportunity for allocution. We agree that the Court erred, but because Lopez-

Batista cannot show prejudice, we will affirm.

I.     Background

       In August 2016, a grand jury returned a one-count indictment charging Lopez-

Batista with attempting to possess a kilogram or more of heroin with intent to distribute,

in violation of 21 U.S.C. § 841(a)(1), a crime punishable by “a term of imprisonment

which may not be less than [ten] years,” id. § 841(b)(1)(A)(i). Several months later, he

pled guilty to that offense. At sentencing, the parties disputed whether he was eligible

for relief from the statutory mandatory minimum sentence, based on the safety valve

provision codified at 18 U.S.C. § 3553(f).1 Lopez-Batista agreed with the District




       1
        The safety valve provision modifies the applicability of a mandatory minimum
sentence in certain cases. As pertinent here, it provides:

       Notwithstanding any other provision of law, in the case of an offense under
       … the Controlled Substances Act (21 U.S.C. 841, 844, 846) …, the court
       shall impose a sentence pursuant to guidelines promulgated by the United
       States Sentencing Commission … without regard to any statutory minimum
       sentence, if the court finds at sentencing, after the Government has been
       afforded the opportunity to make a recommendation, that—

              (1) the defendant does not have more than 1 criminal history point,
              as determined under the sentencing guidelines;
                                             2
Court’s view that whether the safety valve applied was “key” to his sentence because, if

eligible, the Court would not be bound by the ten-year statutory minimum.

(Supplemental Appendix “SA” at 29.)

       Thus, the District Court first addressed whether Lopez-Batista qualified for safety-

valve relief, which it considered over two hearings. At the first hearing, it took extensive

testimony from Lopez-Batista, followed by argument from both sides on whether the

safety valve applied. It then adjourned the hearing and took the matter under advisement.

At the second hearing, and after further argument on the matter, the Court issued its

decision that Lopez-Batista was not entitled to safety-valve relief. The Court concluded

that, “having ruled … that he is not eligible for the safety valve, I think that I have no

              (2) the defendant did not use violence or credible threats of violence
              or possess a firearm or other dangerous weapon (or induce another
              participant to do so) in connection with the offense;

              (3) the offense did not result in death or serious bodily injury to any
              person;

              (4) the defendant was not an organizer, leader, manager, or
              supervisor of others in the offense, as determined under the
              sentencing guidelines and was not engaged in a continuing criminal
              enterprise, as defined in section 408 of the Controlled Substances
              Act; and

              (5) not later than the time of the sentencing hearing, the defendant
              has truthfully provided to the Government all information and
              evidence the defendant has concerning the offense or offenses that
              were part of the same course of conduct or of a common scheme or
              plan, but the fact that the defendant has no relevant or useful other
              information to provide or that the Government is already aware of
              the information shall not preclude a determination by the court that
              the defendant has complied with this requirement.

18 U.S.C. § 3553(f).
                                              3
choice but to impose the mandatory minimum sentence in this case” (SA at 125-26), and

counsel agreed. With that, the Court proceeded to sentence Lopez-Batista to a term of

ten years’ imprisonment, to be followed by three years of supervised release. It ordered

that he pay a mandatory $100 special assessment but did not impose a fine.2 Neither

party objected to that sentence.

       Lopez-Batista now appeals.

II.    Discussion3

       Lopez-Batista raises one challenge to his sentence: he argues that he was wrongly

denied the right of allocution. Because he did not raise that argument below, our review

is for plain error, pursuant to Rule 52(b) of the Federal Rules of Criminal Procedure.

United States v. Paladino, 769 F.3d 197, 200 (3d Cir. 2014). To obtain relief for plain

error, a defendant must show “(1) an error; (2) that is plain; (3) that affects substantial

rights; and (4) which seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. at 201 (citation omitted). For an error to “affect substantial

rights” under the third requirement, the error must have been “prejudicial,” such that it

“affected the outcome of the district court proceedings.” United States v. Olano, 507

U.S. 725, 734 (1993) (editorial brackets omitted).

       Lopez-Batista argues that his “sentencing was fatally flawed” because he was

denied the right to allocution, (Opening Br. at 2,) and therefore, he believes he has

       2
        The Court also ordered that Lopez-Batista forfeit his interest in the drug money
recovered at the time of his arrest, totaling $2,000.
       3
        The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
                                              4
established plain error that requires resentencing. In response, the government agrees

that he was denied the right of allocution and concedes that he has therefore satisfied the

first two requirements of the plain error standard. But it argues that resentencing is not

required because he cannot establish “any reasonable likelihood that his sentence would

have been different but for the [C]ourt’s error.” (Answering Br. at 20.) The

government’s position is correct.

       In United States v. Adams, we said that denying a defendant the right to allocution

prior to issuing his or her sentence satisfies the first two requirements of plain error

review. 252 F.3d 276, 286 (3d Cir. 2001). As to the third requirement, we said that

“prejudice should be presumed whenever the opportunity exists for this violation to have

played a role in the district court’s sentencing decision.” Id. at 289. In Adams, we

concluded that the sentencing court had committed an “error” that was “plain,” because it

failed to address the defendant, himself, and ask whether he wanted to exercise his right

of allocution before the court issued his sentence. Id. at 279, 289. We presumed that the

defendant had been prejudiced by that error, as the district court issued a sentence

“roughly in the middle of the applicable … range [of the United States Sentencing

Guidelines], and therefore [it] clearly retained discretion to grant [him] a lower sentence.”

Id. at 287 (citation omitted).

       In later cases applying Adams, we have concluded that “allocution could have

played a role in … sentencing” when “federal statutory law did not require the District

Court … to impose any minimum term of imprisonment[.]” Paladino, 769 F.3d at 202



                                              5
(quoting United States v. Plotts, 359 F.3d 247, 251 (3d Cir. 2004)). But ours is exactly

the case where a minimum term is required.

       True enough, after disposing of the safety valve issue, the District Court did not

personally extend to Lopez-Batista the opportunity to address it before it issued his

sentence, and that constituted error that was plain. Adams, 252 F.3d at 286. But as the

government points out, “regardless of what [Lopez-Batista might] have said in

allocution,” the District Court was obligated by statute to impose a sentence of no less

than the mandatory minimum of ten years’ imprisonment. (Answering Br. at 20-21.)

And that was the sentence given. On those facts, it is clear that the error did not

prejudicially affect his sentence, and thus it was harmless.4

       Having failed to establish prejudice, Lopez-Batista has not shown a basis for

reversal.

III.   Conclusion

       For the foregoing reasons, we will affirm the District Court’s sentence.




       4
        Nor can Lopez-Batista establish prejudice as to the other aspects of his sentence,
as none exceeded the mandatory minimums set forth in 21 U.S.C. § 841(b)(1)(A)(i).
                                             6
