                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 07-4126



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

           versus


PEDRO SOSA-SAUCEDA,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:01-cr-00220-ALL)


Argued:   November 2, 2007                 Decided:   January 7, 2008


Before MOTZ and GREGORY, Circuit Judges, and Claude M. HILTON,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed in part, reversed in part and remanded for resentencing by
unpublished per curiam opinion.


ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Steven
R. Kaufman, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.     ON BRIEF: Steven Slawinski, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Jonathan A. Vogel, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     On January 24, 2007, the United States District Court for the

Western District of North Carolina sentenced Appellant Pedro Sosa-

Sauceda to a term of twenty-four months imprisonment after Sosa-

Sauceda admitted guilt to several supervised release violations.

Sosa-Sauceda now appeals to this Court alleging the district court

(1) lacked subject matter jurisdiction over his supervised release

revocation proceeding, (2) committed prejudicial error by failing

to recognize his allocution rights and (3) imposed an unreasonable

sentence.       We   find   the   district   court   had   subject       matter

jurisdiction over Sosa-Sauceda’s supervised release revocation

proceeding.     However, we find the district court’s failure to

recognize Sosa-Sauceda’s allocution rights to be plain error that

affected    Sosa-Sauceda’s    substantial     rights.      Since    we    find

prejudicial error with regards to the allocution issue, we need not

consider whether the sentence imposed by the district court was

unreasonable.



                                     I.

     In 1995, Sosa-Sauceda, a Mexican citizen, was deported to

Mexico after completing a prison sentence in Texas for murder.               In

1996, Sosa-Sauceda was sentenced by Mexican authorities to a prison

term for the transportation of marijuana.               While serving his

Mexican     sentence,   Sosa-Sauceda      falsely    claimed   to    Mexican


                                      3
authorities that he was a United States citizen and provided a

fraudulent birth certificate to substantiate his claim.            Sosa-

Sauceda sought a transfer of his sentence to the United States,

pursuant to 18 U.S.C. § 4100, et seq., where he would complete the

remaining term of his imprisonment. Though the record is silent on

this    point,   United   States   officials   apparently   conducted   a

verification of consent hearing, as required by 18 U.S.C. § 4108,

and found that Sosa-Sauceda knowingly and voluntarily consented to

the transfer and understood the conditions and consequences of the

transfer, including the fact that his consent would be irrevocable.

See id. at § 4108(b)-(d).      Sosa-Sauceda’s sentence was thereafter

transferred from Mexico to the United States, though the precise

date is not clear from the record.         Upon transfer, the United

States Parole Commission added a term of supervised release to his

sentence.    In November 2001, Sosa-Sauceda completed his term of

imprisonment at a federal prison in Texas and began his term of

supervised release in the Western District of North Carolina, the

district in which Sosa-Sauceda resided.

       In 2002, while on supervised release, Sosa-Sauceda returned to

Mexico, leading his probation officer to file a petition alleging

Sosa-Sauceda violated the terms of his supervised release. At some

point thereafter, he again returned to the United States.               In

December of 2005, he was found by authorities in the Southern

District of Texas and was charged with illegal reentry, pursuant to


                                     4
8 U.S.C. § 1326(a) and § 1326(b), based on his previous deportation

in 1995.     Sosa-Sauceda pled guilty to illegal reentry and was

sentenced to forty-six months imprisonment in the Southern District

of Texas.   He was then transferred to the Western District of North

Carolina for a supervised release revocation proceeding related to

his transferred Mexican marijuana conviction.

       Sosa-Sauceda moved to dismiss the revocation proceeding on the

ground that the court lacked personal jurisdiction over him.      He

argued that his sentence had been improperly transferred to the

United States because he was not a United States citizen, and

because the transfer was improper, the imposition of supervised

release was invalid and the court lacked personal jurisdiction over

him.    The court denied the motion and found that Sosa-Sauceda had

waived personal jurisdiction by lying to Mexican authorities about

his citizenship.    He did not argue the court lacked subject matter

jurisdiction. On December 20, 2006, the district court found Sosa-

Sauceda in violation of the terms of his supervised release.     The

Guidelines’ range for the offense was eight to fourteen months.

The district court sentenced Sosa-Sauceda to the statutory maximum

twenty-four months imprisonment to run consecutively with the

forty-six month illegal reentry sentence imposed by the district

court in the Southern District of Texas.

       Though the district court heard argument from counsel for both

parties, the court never personally addressed Sosa-Sauceda or asked


                                  5
whether he wanted to address the court.       Sosa-Sauceda did not

object to the court’s failure to permit him to allocute.



                                 II.

     Sosa-Sauceda alleges the district court lacked subject matter

jurisdiction over his supervised release revocation proceeding, an

issue he did not raise at the district court.     However, “a party

can challenge subject matter jurisdiction for the first time on

appeal even though, in most contexts, issues not raised below are

considered waived.” Am. Canoe Ass’n v. Murphy Farms, 326 F.3d 505,

515 (4th Cir. 2003) (citing Wisconsin Dep’t of Corr. v. Schatt, 524

U.S. 381, 389 (1998)).   See also United States v. Beasley, 495 F.3d

142, 147 (4th Cir. 2007) (“the lack of subject matter jurisdiction

can be raised at any time”).   Thus, whether the district court had

subject matter jurisdiction is a question of law subject to de novo

review.   United States v. Barton, 26 F.3d 490, 491 (4th Cir. 1994).

     The Treaty between the United States of America and the United

Mexican States on the Execution of Penal Sentences, Nov. 25, 1976,

U.S.-Mex., 28 U.S.T. 7399,1 as implemented by 18 U.S.C. § 4100, et

seq., allows citizens of the United States convicted in Mexico to

serve their sentences in the United States.        In order to be

transferred from Mexico to the United States, the offender must be



     1
      The Treaty is sometimes referred to as the “United States-
Mexico Prisoner Transfer Treaty.”

                                  6
a citizen or national of the United States and knowingly and

voluntarily consent to the transfer.         18 U.S.C. § 4100(b).        The

offender’s consent to transfer must be verified by a United States

verifying officer, defined as a United States Magistrate Judge or

a citizen specifically designated by a United States Judge. Id. at

§   4108.      Once   the   offender’s   consent   is   verified,   it   is

irrevocable.    Id. at § 4100(b).

      Upon the offender’s transfer to the United States, the United

States Parole Commission determines the release date and any period

or conditions of supervised release. Id. at § 4106A(b)(1)(A). The

offender then serves the sentence “as though the offender were

convicted in a United States district court of a similar offense.”

Id. During any period of supervised release, the offender is to be

supervised by the United States district court for the district in

which the offender resides.        Id. at § 4106A(b)(3).      If, at any

point after the transfer to the United States, the offender wishes

to challenge the validity or legality of the transfer, the offender

must comply with 18 U.S.C. § 3244(5), which provides:

      [A]ll proceedings instituted by or on behalf of an
      offender seeking to challenge the validity or legality of
      the offender's transfer to the United States shall be
      brought in the United States district court of the
      district in which the offender is confined or of the
      district in which supervision is exercised and shall name
      the Attorney General and the official having immediate
      custody or exercising immediate supervision of the
      offender as respondents. The Attorney General shall
      defend against such proceedings.

Id. at § 3244(5).

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     Sosa-Sauceda argues the district court lacked subject matter

jurisdiction over his supervised release revocation proceeding

because he was not, in fact, a citizen of the United States.                           He

argues that because his initial transfer to the United States was

improper, the subsequent imposition of supervised release was

invalid. Because the imposition of supervised release was invalid,

the district court lacked subject matter jurisdiction over Sosa-

Sauceda’s supervised release revocation proceeding.                      Sosa-Sauceda

argues   the     fact    that    the    transfer    was     a   result    of   his   own

fraudulent       actions        is     irrelevant     because        subject     matter

jurisdiction is not waivable.

     Sosa-Sauceda’s argument is belied by the statutory scheme

governing prisoner transfers under the Treaty. See id. at §§ 4100,

4106A, 3244(5).         When he was transferred to the United States, he

received    an    amended       sentence     from   the     United    States     Parole

Commission,      which     included      a   period    of       supervised     release.

Importantly, this amended sentence was to be served by “as though

[he] were convicted in a United States district court of a similar

offense.”      Id. at § 4106A(b)(1)(A).               Thus, Sosa-Sauceda was to

serve his sentence as though he were convicted in a United States

district court of transportation of marijuana.                         United States

district     courts      have    subject     matter    jurisdiction          over    drug

prosecutions brought under the federal drug laws.                        See id. at §

3231 (“district courts of the United States shall have original


                                             8
jurisdiction . . . of all offenses against the laws of the United

States”); 21 U.S.C. § 841(a) (“it shall be unlawful for any person

knowingly or intentionally to manufacture, distribute, or dispense

. . . a controlled substance”).     Additionally, the district court

in which Sosa-Sauceda resided had jurisdiction to supervise him

during   his   period   of   supervised   release.   See   18    U.S.C.

4106A(b)(3).     Therefore, the district court had subject matter

jurisdiction over the supervised release revocation proceeding.

     Sosa-Sauceda may not use an appeal of his supervised release

revocation proceeding to challenge the validity or legality of his

transfer to the United States.     In order to challenge the validity

or legality of his transfer, Sosa-Sauceda must comply with the

statutory requirements set forth in 18 U.S.C. § 3244(5).        Namely,

he must bring a proceeding in the district court in which he is

being confined or supervised and must “name the Attorney General

and the official having immediate custody or exercising immediate

supervision of [him] as respondents.”       Id. at § 3244(5).    Sosa-

Sauceda has not brought such a proceeding.       Instead, he seeks to

challenge the validity and legality of his transfer on the appeal

of his supervised release revocation proceeding.      This is not the

proper avenue by which a prisoner can challenge a transfer under

the Treaty.    Absent a proceeding which complies with § 3244(5), we

are to treat the sentence, including the imposition of supervised

release, as though it were imposed by a United States district


                                   9
court.    See id. at § 4106A(b)(1)(A).           Treating the sentence as

such, we find the district court had subject matter jurisdiction

over the supervised release revocation proceeding.



                                    III.

       Sosa-Sauceda   next   alleges      the   district    court   committed

prejudicial error by failing to recognize his right to allocution.

This Court reviews issues not preserved before the district court

for plain error, which requires “error, that is plain, and that

affects [the] substantial rights” of the defendant.              United States

v. Olano, 507 U.S. 725, 732 (1993) (internal quotations omitted).

Even if the error is plain, correction of the error remains within

the discretion of this Court, which we “should not exercise . . .

unless the error ‘seriously affect[s] the fairness, integrity or

public reputation of judicial proceedings.’”          Id. (quoting United

States v. Young, 470 U.S. 1, 15 (1985)).

       Federal Rule of Criminal Procedure 32.1(b)(2)(E) specifically

provides defendants at supervised release revocation proceedings

with    “an   opportunity    to   make    a   statement    and   present   any

information in mitigation.”        The defendant’s allocution right is

“not satisfied by ‘merely affording the [d]efendant’s counsel the

opportunity to speak,” but must be extended personally to the

defendant by the court.       United States v. Cole, 27 F.3d 996, 998




                                     10
(4th Cir. 1994) (quoting Green v. United States, 365 U.S. 301, 304

(1961)).

     We find the district court’s failure to recognize Sosa-

Sauceda’s right to allocution to be plain error that affected his

substantial rights and we exercise our discretion to notice the

error.      In United States v. Muhammad, we held that the mere

possibility that a defendant could receive a lesser sentence had

the defendant been permitted to allocute at resentencing was

sufficient to prejudice the defendant. 478 F.3d 247, 251 (4th Cir.

2007).     Here, Sosa-Sauceda was sentenced to the statutory maximum

twenty-four      months       imprisonment,      even       though   the    applicable

Guidelines’ range advised a sentence of eight to fourteen months

imprisonment.         Had he been given an opportunity to address the

court,    he    may    have    been   able      to   explain     the    circumstances

surrounding his supervised release revocation or his criminal

history    in   such    a     way   that   would     have    affected      the   court’s

sentencing determination.             Because this possibility remains, we

find Sosa-Sauceda to have been prejudiced by the court’s failure to

permit him to allocute and we exercise our discretion to notice the

error.2


     2
      In United States v. O’Hallaren, 505 F.3d 633 (7th Cir. 2007),
the Seventh Circuit recently addressed a district court’s failure
to recognize a defendant’s right to allocution at a revocation of
supervised release proceeding.    The Seventh Circuit vacated and
remanded for resentencing upon finding the failure to be
prejudicial error that affected the defendant’s substantial rights.
Id. at 636.

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     Because we find the district court’s failure to recognize

Sosa-Sauceda’s right to allocution to be plain error that affected

his substantial rights, we vacate his sentence and remand to the

district court for resentencing. Because we find prejudicial error

with regards to the allocution issue, we need not consider whether

the sentence imposed by the district court was unreasonable.



                                IV.

     For the foregoing reasons, the judgment of the district court

is AFFIRMED in part, REVERSED in part and REMANDED for resentencing

consistent with this opinion.

                                                 AFFIRMED IN PART,
                                              REVERSED IN PART AND
                                         REMANDED FOR RESENTENCING




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