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Click here for the full text of this decision FACTS:Daniel Casas-Torrez pled guilty to conspiring to transport illegal aliens within the United States. The presentence report gave Casas-Torrez a base level offense of 12 and recommended that it be increased to 20 because he brandished a knife while fleeing a border patrol officer. The knife � with its serrated blade exposed � was found on the ground near where the officer and Casas-Torrez struggled. Casas-Torrez argued that he did not brandish the knife but was merely complying with the officer’s order to disarm. He also said he used the knife for work and that he did not open the knife. The district court rejected Casas-Torrez’s explanation “in every particular.” Even though the district court thought Casas-Torrez was lying, the district court recommended a downward departure to level 17 because of Casas-Torrez Casas-Torrez’s acceptance of responsibility. Level 17 carried a range of 24 to 30 months, and Casas-Torrez was sentenced to 30 months in jail. On appeal, Casas-Torrez argues for the first time that the district court denied him his right of allocution at sentencing, so his sentence should be automatically reversed. HOLDING:Vacated and remanded. The court agrees that an automatic reversal used to be the proper remedy for a lack of allocution, but notes that since 2002, a plain error standard of review is applied when an allocution error is alleged for the first time on appeal. The court first looks to see if the district court clearly or obviously failed to afford Casas-Torrez an opportunity to exercise his right of allocution. From the record, the court finds the district court never addressed Casas-Torrez personally or determined if he wanted to make a statement or offer mitigating evidence. The court then looks to see if the district court’s error affected Casas-Torrez’s substantial rights. The court observes that if Casas-Torrez’s version of why he had the knife was accepted, his base level offense would have been 15, which would have resulted in a punishment range of 18 to 24 months. The court thus presumes Casas-Torrez was prejudiced by the district court’s failure. The court also notes that some of the evidence Casas-Torrez says he wants to offer in mitigation was already before the district court in the presentence report, and that the district court disbelieved Casas-Torrez’s account. Even so, the court says this is “no reason to dispense with Casas-Torrez’s right of allocution.” OPINION:Davis, Circuit Judge.; King, C.J., Higginbotham and Davis, JJ.

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