698 F.2d 695 (5th Cir. 1983), 82-2053, United States v. De La Paz

Docket Nº:82-2053.
Citation:698 F.2d 695
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Matias Montemayor DE LA PAZ, Defendant-Appellant.
Case Date:February 02, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 695

698 F.2d 695 (5th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,

v.

Matias Montemayor DE LA PAZ, Defendant-Appellant.

No. 82-2053.

United States Court of Appeals, Fifth Circuit

February 2, 1983

Page 696

Percy Foreman, Lewis Dickson, Mike DeGeurin, Houston, Tex., for defendant-appellant.

John M. Potter, Asst. U.S. Atty., Houston, Tex., John P. Smith, Asst. U.S. Atty., Brownsville, Tex., James R. Gough, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before WISDOM, REAVLEY and TATE, Circuit Judges.

PER CURIAM:

This case involves a defendant's right of allocution prior to sentencing. 1 On appeal, the defendant argues that the trial court abused its discretion by refusing to postpone the sentencing of the defendant. We affirm.

The facts of the case are undisputed. The defendant pleaded guilty to two counts of receiving and possessing a firearm in violation of 18 U.S.C. Sec. 1201(a). After he had pleaded guilty, but before sentencing, the defendant requested a continuance of the case. He gave as the reason for his request that he could not adequately exercise his right of allocation because an indictment for a "continuing criminal enterprise" 2 was pending against him, and the information he wished to offer to mitigate his sentence for the firearms violation might be used against him in the pending trial. The trial court refused to grant the continuance.

At the sentencing hearing, the defendant's counsel again stated his concern that any exercise of his right of allocution at that time might operate to his detriment in the pending trial, for "we must go into the background of the individual". The trial judge responded by saying that he "would not consider anything for which [the defendant] had not been convicted," and he offered to order that statements the defendant made in allocution not be used against him. The court again refused to postpone sentencing. Counsel for the defendant instructed his client "not to answer any questions concerning his presentence investigation, concerning his life, or concerning anything he offered in evidence of mitigation." Notwithstanding this advice, the court said, "Do you have anything to say to me, Mr. Montemayor?" The defendant replied, "No, sir." The trial judge gave the defendant the maximum sentence on...

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