* 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that this opinion should not be published and is not precedent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.

United States Court of Appeals

Fifth Circuit

FILED

April 23, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-40988

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ULISES ALBERTO DE ANDA-DUENEZ,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. B-02-CR-169-1

--------------------

Before BARKSDALE, EMILIO M. GARZA and DENNIS, Circuit Judges.

PER CURIAM:*

Ulises Alberto De Anda-Duenez (“de Anda”) appeals his

guilty-plea conviction and sentence for attempting to re-enter

the United States after having been deported and after having

been convicted of an “aggravated felony,” in violation of

8 U.S.C. § 1326(a) and (b). De Anda was sentenced to 77

months in prison, at the bottom of the Sentencing Guidelines

imprisonment range determined in his Presentence Report (“PSR”),

and to three years of supervised release.
No. 02-40988 

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2 Effective December 1, 2002, this rule was redrafted as

FED. R. CRIM. P. 32(i)(4)(A)(ii) in substantially similar form. 

Because the instant offense and resentencing hearing occurred

prior to the effective date of the recodified section, Rule

32(c)(3)(C) is applicable to the instant case.

For the first time on appeal, de Anda contends that he is

entitled to automatic reversal because the district court denied

him his right of allocution at sentencing, as required by FED.

R. CRIM. P. 32(c)(3)(C).2 Until recently, we had “consistently

held that we must automatically reverse a district court which

fails to give the defendant an opportunity for allocution as

required by Rule 32.” See United States v. Reyna, 358 F.3d 344,

348 (5th Cir. 2004) (citations omitted). Based on the Supreme

Court’s decision in United States v. Vonn, 535 U.S. 55 (2002),

however, the en banc court in Reyna abrogated our long-standing

automatic-reversal rule and applied a plain-error standard of

review to denial-of-allocution claims raised for the first time

on appeal. See id. at 350-53.

Under the three-step plain-error standard set forth in

United States v. Olano, 507 U.S. 725 (1993), we first address

whether the district court clearly or obviously erred with

respect to the right of allocution. See Reyna, 358 F.3d at 350;

see Olano, 507 U.S. at 734. In the instant case, the district

court clearly erred because it never “address[ed] [de Anda]

personally [or] determine[d] whether [he] wishe[d] to make a

statement and to present any information in mitigation of

sentence.” See Rule 32(c)(3)(C); Reyna, 358 F.3d at 350. Under
No. 02-40988 

-3-

the Olano standard’s second prong, de Anda can show that his

“substantial rights” were affected, because we presume that he

was prejudiced by the denial of the allocution right as he was

sentenced to the maximum possible term of supervised release. 

See Reyna, 358 F.3d at 350-52. 

We exercise our discretion not to correct the district

court’s error, however, because the error does not “seriously

affect[] the fairness, integrity or public reputation of judicial

proceedings.” See Reyna, 358 F.3d at 353. The denial of the

right to allocution “is not a fundamental defect that inherently

results in a complete miscarriage of justice nor an omission

inconsistent with the rudimentary demands of fair procedure.” 

Id. at 352 (quoting Hill v. United States, 368 U.S. 424 (1962)). 

Here, in responding to de Anda’s lawyer, the district court

indicated that it was only interested in de Anda’s record and de

Anda had conceded that his record was accurately reported in the

presentence report prepared in his case. Moreover, de Anda was

sentenced to the minimum term of imprisonment in the applicable

range under the Guidelines. Under such circumstances, when there

is no objective basis that would move a trial court to grant a

lower sentence, the integrity, fairness and public reputation of

the judicial proceedings are not affected. See Reyna 358 F.3d at

356 (Jones J., concurring. “[D]efendants will have to show some

objective basis that would have moved the trial court to grant a

lower sentence; otherwise, it can hardly be said that a
No. 02-40988 

-4-

miscarriage of justice has occurred.”). We thus reject de Anda’s

challenge to the denial of the opportunity for allocution.

For the first time on appeal, de Anda also maintains that

the “aggravated felony” sentencing scheme of 8 U.S.C. § 1326(b)

is unconstitutional in light of Apprendi v. New Jersey, 530 U.S.

466, 490 (2000). As de Anda concedes, his argument is foreclosed

by circuit precedent. See, e.g., United States v. Dabeit,

231 F.3d 979, 984 (5th Cir. 2000), overruled on other grounds by

Reyna, 358 F.3d 344. He raises the issue only to preserve it for

possible further review. 

The judgment of the district court is AFFIRMED.