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United States v. Palacios

United States Court of Appeals, Fifth Circuit

December 27, 2016

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
JOSE PALACIOS, JR., Defendant-Appellant

         Appeal from the United States District Court for the Southern District of Texas

          Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.

          CARL E. STEWART, Chief Judge:

         Jose Palacios, Jr. ("Palacios") appeals his 144-month sentence for possession with the intent to distribute 100 kilograms or more of marijuana. He asserts that the district court committed reversible error by denying him the right of allocution before pronouncing his sentence. We agree. Accordingly, we VACATE and REMAND for resentencing.

         I. BACKGROUND

         Palacios, a licensed attorney, became involved in a drug trafficking conspiracy wherein he oversaw the organization's drug transportation activities, was involved in the collection of narcotics proceeds, and represented members of the organization in state legal proceedings to gain access to privileged information regarding law enforcement activity. Palacios was arrested on July 23, 2013. On August 20, 2013, he and his coconspirators were named in a twenty-one count superseding indictment alleging that they had, inter alia, engaged in a conspiracy to traffic narcotics. Palacios pleaded guilty to Count Fifteen, possession with the intent to distribute 100 kilograms or more of marijuana.

         The district court sentenced Palacios and his codefendants on March 6, 2014. Palacios's pre-sentence report ("PSR") placed him at an offense level of 38 with a category I criminal history. Based on this information, the advisory range pursuant to the U.S. Sentencing Guidelines was five to forty years' imprisonment, with a term of at least four years of supervised release. The PSR recommended that the district court reduce Palacios's offense level if he clearly accepted responsibility for his crime but also recommended that the court depart upwardly in sentencing him because he had abused his position as an attorney.

         During sentencing, the district court reiterated Palacios's right to raise any issues he had with the PSR. The court explained to Palacios that to receive a reduction in his offense level for acceptance of responsibility, he would have to "generally" describe his wrongful conduct that constituted the instant offense. The court asked Palacios, "Do you want to tell me what it is that you did in this conspiracy?" Palacios spoke in detail about his role in the conspiracy, explaining that he arranged for the transportation and delivery of marijuana to at least three different locations.

         Following Palacios's statement, the district court reduced his offense level by two points. The following exchange ensued:

THE COURT: All right. So I'm going to give him his two points off for acceptance. I assume the Government will move for the third?
THE GOVERNMENT: The Government so moves, your Honor.
THE COURT: All right, which I grant. Okay. Anything else you want to add? I did review the letter from the church.
MR. GARCIA [Palacios's counsel]: Yes, your Honor, also the classes that he's been taking while incarcerated in Willacy County. We also ask the Court to consider ...

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