United States v. Juan Jose Velasquez, 748 F.2d 972 (5th Cir. 1984). · Go Syfert
United States v. Juan Jose Velasquez, 748 F.2d 972 (5th Cir. 1984). Cases Citing This Book View Copy Cite
49 citation events (11 in the last 25 years) across 11 distinct courts.
Strongest positive: State v. Parker (conn, 2010-04-27)
Treatment trajectory · 1985 → 2026 · click a year to view as-of
1985 2005 2026
Top citers, strongest first. 25 distinct citers. How cited ↗
discussed Cited as authority (rule) State v. Parker
Conn. · 2010 · confidence medium
See, e.g., United States v. Katzin, 824 F.2d 234, 238-40 (3d Cir. 1987); United States v. Petitto, 767 F.2d 607, 610-11 (9th Cir. 1985), overruled in part on other grounds by United States v. Femandez-Angulo, 897 F.2d 1514 , 1517 n.5 (9th Cir. 1990); United *854 States v. Velasquez, 748 F.2d 972, 974 (5th Cir. 1984); see generally S. Fennell & W.
cited Cited as authority (rule) United States v. Basey
5th Cir. · 2008 · confidence medium
See Fed.R.Crim.P. 35 (b) (1985); United States v. Velasquez, 748 F.2d 972, 974 (5th Cir. 1984); see also Hill v. United States, 368 *308 U.S. 424, 430, 82 S.Ct. 468 , 7 L.Ed.2d 417 (1962).
cited Cited as authority (rule) United States v. Richmond
5th Cir. · 2003 · confidence medium
"A sentence is imposed in an illegal manner if the court fails to comply with the procedural rules in imposing sentences." United States v. Velasquez, 748 F.2d 972, 974 (5th Cir.1984).
cited Cited as authority (rule) United States v. Richmond
5th Cir. · 2003 · confidence medium
"A sentence is imposed in an illegal manner if the court fails to comply with the procedural rules in imposing sentences." United States v. Velasquez, 748 F.2d 972, 974 (5th Cir.1984).
cited Cited as authority (rule) United States v. Richmond
5th Cir. · 2003 · confidence medium
"A sentence is imposed in an illegal manner if the court fails to comply with the procedural rules in imposing sentences." United States v. Velasquez, 748 F.2d 972, 974 (5th Cir.1984).
discussed Cited as authority (rule) United States v. Virgen-Moreno
5th Cir. · 2001 · confidence medium
Instead, relying on United States v. Velasquez, 748 F.2d 972, 974 (5th Cir.1984), 9 he argues that the district court was required to but did not make a specific finding on the issue of whether he played a minor role.
cited Cited as authority (rule) United States v. William K. Rodriguez
5th Cir. · 1994 · confidence medium
“A sentence is imposed in an illegal manner if the court fails to comply with the procedural rules in imposing sentences.” United States v. Velasquez, 748 F.2d 972, 974 (5th Cir.1984).
discussed Cited as authority (rule) United States v. James Stanley Jennings A/K/A James L. Johnson
5th Cir. · 1989 · confidence medium
Thus, we may address the issue “only if it involves a pure legal question and if failure to consider it would result in a miscarriage of justice.” United States v. Velasquez, 748 F.2d 972, 973 (5th Cir.1984).
discussed Cited as authority (rule) United States v. Stephen Larned Engs
5th Cir. · 1989 · confidence medium
See United States v. Lawal, 810 F.2d 491 (5th Cir.1987) (on direct appeal of conviction, resentencing ordered where district court failed to provide clear record of presen-tence resolution of contested PSI material); United States v. Velasquez, 748 F.2d 972, 974 (5th Cir.1984) (Rule 35 permits a court to correct sentences imposed in an illegal manner by failure to comply with procedural requirements of Rule 32(c)(3)(D)); see also United States v. Weintraub, 871 F.2d 1257, 1266 (5th Cir.1989) (violations of Rule 32 that could have been raised on direct appeal or through a Rule 35 motion are not…
cited Cited as authority (rule) United States v. Ikuobolati
E.D. La. · 1988 · confidence medium
United States v. Velasquez, 748 F.2d 972, 974 (5th Cir.1984).
discussed Cited as authority (rule) United States v. Larry Peterman
10th Cir. · 1988 · confidence medium
See also United States v. Golightly, 811 F.2d 1366 (10th Cir.1987); United States v. Bradley, 812 F.2d 774, 781-82 (2d Cir.), cert. denied, — U.S. —, 108 S.Ct. 107 , 98 L.Ed.2d 67 (1987); United States v. Manni, 810 F.2d 80, 82-84 (6th Cir.1987); United States v. Edwards, 800 F.2d 878, 880-84 (9th Cir.1986); Eschweiler, 782 F.2d at 1390-91 ; United States v. Velasquez, 748 F.2d 972, 973-75 (5th Cir.1984).
discussed Cited as authority (rule) United States v. Gary Corn (2×)
5th Cir. · 1988 · confidence medium
United States v. Velasquez, 748 F.2d 972, 973 (5th Cir.1984); Nis sho-Iwai Co. v. Occidental Crude Sales, Inc., 729 F.2d 1530, 1549 (5th Cir.1984). .
discussed Cited as authority (rule) United States v. Dominic L. Serino, United States of America v. John L. Close
1st Cir. · 1987 · confidence medium
United States v. Stewart, 770 F.2d 825, 832 (9th Cir.1985), cert. denied, 474 U.S. 1103 , 106 S.Ct. 888 , 88 L.Ed.2d 922 (1986); United States v. O’Neill, 767 F.2d 780, 787 (11th Cir.1985); United States v. Velasquez, 748 F.2d 972, 974 (5th Cir.1984) (“A sentence is imposed in an illegal manner if it fails to comply with the procedural rules in imposing sentences.”).
discussed Cited as authority (rule) United States v. Katzin, Harry A/K/A \Porky\""
3rd Cir. · 1987 · confidence medium
See e.g., Moore, 571 F.2d at 184-85 (remand required to determine whether court had relied on disputed information at sentencing and, if so, whether information was false); United States v. Velasquez, 748 F.2d at 974-75 (resentencing hearing required on Rule 35 motion when district court did not respond to challenge to statement in PSI at sentencing).
cited Cited as authority (rule) United States v. Guy Robin Edwards
9th Cir. · 1986 · confidence medium
See also Stewart, 770 F.2d at 832 ; United States v. Velasquez, 748 F.2d 972, 974 (5th Cir.1984). 4 .
cited Cited as authority (rule) United States v. Anthony E. Ursillo
2d Cir. · 1986 · confidence medium
See, e.g., United States v. Petitto, supra, 767 F.2d at 610-11 ; United States v. O’Neill, supra, 767 F.2d at 787; United States v. Velasquez, 748 F.2d 972, 974-75 (5th Cir.1984).
discussed Cited as authority (rule) United States v. Andrew Eschweiler
7th Cir. · 1986 · confidence medium
Petitto, 767 F.2d at 610 (“although the due process sentencing standards ... were satisfied, rule 32 still requires a remand”); United States v. O’Neill, 767 F.2d 780, 787 (11th Cir.l985)(court found it unnecessary to address defendant’s due process claim because the trial court’s failure to comply *1389 with Rule 32(c)(3)(D) required resentencing); United States v. Velasquez, 748 F.2d 972, 974 (5th Cir.1984) (court ordered resentencing because district court failed to comply with a procedural rule).
cited Cited as authority (rule) Alfred E. Ehm v. Amtrak Board of Directors
5th Cir. · 1986 · confidence medium
United States v. Velasquez, 748 F.2d 972, 973 (5th Cir.1984). 8 .
cited Cited as authority (rule) United States v. Kenneth Petitto
9th Cir. · 1985 · confidence medium
Notes of Advisory Committee on Rules, supra; United States v. Velasquez, 748 F.2d 972, 974 (5th Cir.1984).
cited Cited "see" United States v. Myers
5th Cir. · 1999 · signal: see · confidence high
See United States v. Velasquez, 748 F.2d 972 (5th Cir.1984). *168 A remand would not be appropriate in this case, however.
cited Cited "see" United States v. James Alan Burch
5th Cir. · 1989 · signal: see · confidence high
See United States v. Velasquez, 748 F.2d 972, 974 (5th Cir.1984).
discussed Cited "see" United States v. Donald E. Smith (2×)
5th Cir. · 1988 · signal: see · confidence high
See United States v. Velasquez, 748 F.2d 972, 973 (5th Cir.1984). 11 .
discussed Cited "see" United States v. Jorge Manotas-Mejia, Justo Estrada-Tello, Julian Enriquez-Castro, and Samuel Ramirez-Rios
5th Cir. · 1987 · signal: see · confidence high
See United States v. Velasquez, 748 F.2d 972, 974 (5th Cir.1984); United States v. Lawal, 810 F.2d 491, 494 (5th Cir.1987) (PSI stated that defendant obtained $100,000 in a mail fraud scheme while defendant claimed he obtained only $1,200); United States v. Petitto, 767 F.2d 607, 611 (9th Cir.1985).
cited Cited "see" United States v. Steven Lane Crawford, and Randall Craig Waggoner
5th Cir. · 1985 · signal: see · confidence high
See United States v. Velasquez, 748 F.2d 972, 974 (5th Cir.1984).
discussed Cited "see, e.g." United States v. William Stanley Stewart, A/K/A Stanislaus W. White
9th Cir. · 1985 · signal: see also · confidence medium
See United States v. Donn, 661 F.2d 820 , 825 n. 4 (9th Cir.1981) (defendant does not have burden of showing demonstrable reliance when there is no record of what factors the sentencing court relied upon); see also United States v. Velasquez, 748 F.2d 972, 973-74 (5th Cir.1984). *833 Stewart also contends the record is ambiguous with respect to the term of imprisonment the district court imposed.
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Juan Jose VELASQUEZ, Defendant-Appellant
84-1064.
Court of Appeals for the Fifth Circuit.
Dec 17, 1984.
748 F.2d 972
Juan Jose Velasquez, pro se., Eric D. Ryan, Dallas, Tex. (Court appointed), for defendant-appellant., Edward C. Prado, U.S. Atty., Sidney Powell, Daniel E. Maeso, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.
Reavley, Politz, Higginbotham.
Cited by 34 opinions  |  Published
REAVLEY, Circuit Judge:

Juan Velasquez appeals the district court’s denial of his Fed.R.Crim.P. 35 [1] motion to correct his sentence. Finding that the sentence was imposed in an illegal manner, we reverse the judgment, vacate the sentence, and remand for resentencing.

Velasquez pleaded guilty to one count of aiding and abetting the unlawful transportation of illegal aliens in violation of 8 U.S.C. § 1324(a)(2) (1982) and 18 U.S.C. § 2 (1982). On September 19, 1983, the district court sentenced Velasquez to five years, the maximum period of incarceration allowed by 8 U.S.C. § 1324 (1982).

At the presentencing hearing, the district court asked Velasquez whether there were any errors in the presentence report. Velasquez replied no. Velasquez’s attorney then objected to the label “notorious alien smuggler” used in the presentence report to describe Velasquez. Velasquez’s attorney argued that the description implied that Velasquez was actively involved in smuggling aliens and was known by law enforcement officials for such activities when in fact Velasquez had merely knowingly allowed illegal aliens to stay in his apartment and use his car. The district court did not respond to the objection.

Velasquez subsequently filed a pro se motion under Fed.R.Crim.P. 35 seeking a correction or reduction of his sentence. The motion was filed within 120 days of sentencing. Velasquez alleged that he had been denied effective assistance of counsel at the presentencing hearing and that the presentencing report contained false statements. The ineffective assistance of counsel claim was based on charges that Velasquez’s attorney failed to object to false statements of which Velasquez had informed him. The district court denied Velasquez’s Rule 35 motion.

For the first time on appeal, Velasquez claims that his sentence should be corrected because the district court failed to comply with the procedural rules in imposing his sentence. The issue may now be addressed on appeal only if it involves a pure legal question and if failure to consider it would result in a miscarriage of justice. Nissho-Iwai Co. v. Occidental Crude Sales, Inc., 729 F.2d 1530, 1549 (5th Cir.1984).

[*974] A question is purely legal if no facts could have been raised to develop the issue at the hearing. Higginbotham v. Ford Motor Co., 540 F.2d 762, 768 n. 10 (5th Cir.1976). Here, the issue is only whether the district court complied with the 1983 rule amendment, Fed.R.Crim.P. 32(c)(3)(D), which states:

If the comments of the defendant and his counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presen-tence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission.

At the hearing, Velasquez’s counsel objected to the description of Velasquez as a notorious alien smuggler, because it implied that Velasquez was actively engaged in smuggling illegal aliens and was known by law enforcement officials for such activities. Once Velasquez met his burden under the rule, the court was required to make either a finding as to the allegation or a statement that the controverted matter would not be considered. The record reveals, however, that the district court made no response to Velasquez’s objection. Therefore, the district court failed to comply with Rule 32(c)(3)(D). No facts could have been raised to develop the issue. Once it is found that the district court failed to comply with a procedural rule of sentencing, a new sentencing hearing should be ordered. United States v. Sparrow, 673 F.2d 862, 866 (5th Cir.1982). Only at that time would the question whether, in fact, Velasquez was a notorious alien smuggler or whether the court did not take the controverted matter into account be determined. The issues were not for the court hearing the Rule 35 motion to decide.

Furthermore, failure to consider the Rule 32(c)(3)(D) issue would result in a miscarriage of justice. First, information in sentencing reports affects not only the length of the sentence but also the “defendant’s place of incarceration, chances for parole, and relationships with social service and correctional agencies after release from prison.” United States v. Brown, 715 F.2d 387, 389 n. 2 (5th Cir.1983). In other words, Velasquez’s life could be greatly affected for years to come by a statement that the district court may have found to have been false. This possibility is one of the evils that the rule was specifically designed to prevent. See Fed.R.Crim.P. 32(c)(3)(D) advisory committee note. Weighed against this possibility of prejudice, the court’s responsibility cannot be ignored; the district court may simply attach the findings or determination to the report. Id.

Deciding that Velasquez may assert the failure to comply with Fed.R.Crim.P. 32(c)(3)(D) for the first time on appeal, we turn to the issue whether Velasquez is entitled to relief under Fed.R.Crim.P. 35, which permits a court to correct sentences imposed in an illegal manner. A sentence is imposed in an illegal manner if the court fails to comply with the procedural rules in imposing sentences. See United States v. Sparrow, 673 F.2d 862, 864-65 (5th Cir.1982).

Velasquez objected to the description of notorious alien smuggler and the court failed to respond. Therefore, the district court violated Fed.R.Crim.P. 32(c)(3)(D). [2] Accordingly, the denial of Velasquez’s Rule 35 motion must be reversed[*975] and the case remanded for resentencing. Sparrow, 673 F.2d at 868.

Because Velasquez must be resentenced regardless of his ineffective assistance of counsel claims and false statements in the presentencing report claims, and because he is represented by new counsel who will undoubtedly object to any such false statements, we need not address Velasquez’s other claims.

The judgment is REVERSED, the sentence is VACATED, and the case is REMANDED for resentencing.

1

. (a) Correction of Sentence. The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal'manner within the time provided herein for the reduction of sentence.

(b) Reduction of Sentence. The court may reduce a sentence within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision.

2

. In so holding, we reject the Ninth Circuit decision that in order to make out a violation of Fed.R.Crim.P. 32(c)(3)(D), the defendant must prove that the sentencing “court 'demonstrably' relied on the challenged information when it imposed sentence." United States v. Ibarra, 737 F.2d 825, 827 (9th Cir.1984). Such a requirement clearly contradicts the plain meaning of the rule.