1 Pursuant to 5 TH 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this opinion should not be published and is not precedent except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 5 TH CIR. R. 47.5.4.

-1- United States Court of Appeals

Fifth Circuit



## FILED

March 15, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 pr evious 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case is hereby withdrawn in its entirety and replaced by the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-2-

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 undocum ented

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 distr ict court for sentencing; the

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

to say anything you want about the issue of sentencin g.” CasasTorrez 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 again st the weapons

enhancement.

D uring the hearing, a controversy developed about facts

surrounding both acceptance of responsibility and the weapons

enhancement. The district court decided to forgo sentencing and-3-

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 pl ace on April 9, 2003, (“April

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

enhancement and h is 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.

T he district court granted the weapons enhancement, statin g

that it believed the agent’s testimony and disbelieved CasasTorrez’s testimony “in every particular.” Though troubled by

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

his offense, the district c ourt 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 catego ry of I, CasasTorrez faced an impri sonment range of 24 to 30 months. The

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

three years supervise d release, and a $100 special assessment.-4-

During the April hearing, the district court did not ask CasasTorrez 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 t he 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 allocuti on immediately before sentence is

imposed. S ee United States v. Hernandez

, 291 F.3d 313, 316 (5 t h

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

invitation for allocution when right of allocutio n extended to

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

error and affirm the district court.

AFFIRMED.