United States v. Florencio Ortega-Lopez

I

Appellant was indicted in the Southern District of California on one count of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1) (1988), and one count of assault on a federal officer, in violation of 18 U.S.C. § 111 . Appellant pled guilty to Count 1 of the indictment, pursuant to a written plea agreement filed with the court.

On November 25, 1991, the district court sentenced appellant to 70 months of custody. Defense counsel asked the court to depart downward from the Guideline range of 70 to 87 months to the minimum required under 21 U.S.C. § 841 (a)(1), 60 months. The court sentenced the appellant to precisely what the Guidelines require and what the government recommended in accordance with the plea agreement, 70 months in custody. The final entry of judgment was filed on December 10, 1991. Appellant filed a notice of appeal on the same day.

Appellant did not speak with the judge during the November 25, 1991 sentencing proceeding, nor did he request the right to allocute. On January 27, 1992, at the request of defense counsel, the court heard defense counsel’s oral motion under Fed. R.Crim.P. 35(a) to correct the sentence. Defense…