     Case: 10-10788     Document: 00511564762         Page: 1     Date Filed: 08/08/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           August 8, 2011

                                       No. 10-10788                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

MANUEL AGUILERA-DELEON,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:10-CR-13-1


Before SMITH, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
        Manuel Aguilera-DeLeon appeals his 57-month sentence for illegal reentry
after deportation, arguing that the district court committed reversible error by
denying him the right of allocution before pronouncing his sentence, and by
categorizing his previous aggravated assault conviction as an aggravated felony
for deportation purposes. We agree that the right to allocution was improperly
limited. We VACATE his sentence and REMAND for resentencing.



        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 10-10788

                           STATEMENT OF FACTS
      Aguilera-DeLeon was charged with illegal reentry after deportation. He
pled guilty but did not waive his right to appeal. The presentence report
characterized a prior conviction for aggravated assault as a crime of violence and
increased his offense level by 16 levels pursuant to the Sentencing Guidelines.
U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) (2010). A total offense
level of 21 and a criminal history category of III produced a Guidelines
imprisonment range of 46 to 57 months. The presentence report listed factors
that might warrant a sentence outside the Guidelines range and stated that
Aguilera-DeLeon was considered an aggravated felon for deportation purposes
due to his aggravated assault conviction. See 8 U.S.C. § 1101(a)(43).
      Aguilera-DeLeon objected to the presentence report, arguing that his
aggravated assault conviction, for which he received a four-year term of deferred
adjudication, was not an aggravated felony under Section 1101(a)(43). The
district court held that the objection was moot because the court was not making
an upward variance based on the purported erroneous characterization.
      The district court advised Aguilera-DeLeon that he had the right to
address the court and asked if he had anything he wished to state before he was
sentenced. Aguilera-DeLeon began by mentioning his prior aggravated assault
offense.   The district court interrupted him and stated that it would not
“relitigate that offense.” The district court then asked if Aguilera-DeLeon had
anything to offer in mitigation of his sentence. Aguilera-DeLeon pleaded for
forgiveness and explained that he had returned to the United States to be with
his family. The district court accepted the guilty plea and sentenced him at the
top of the Guidelines range. Aguilera-DeLeon timely appealed.


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                                  No. 10-10788

                                 DISCUSSION
      Aguilera-DeLeon raises two challenges to his sentence. He contends the
district court erred by denying him the right to allocution and by categorizing a
prior conviction as an aggravated felony for deportation purposes.
      The parties agree that Aguilera-DeLeon needed to but failed to object to
the district court’s limiting his opportunity to allocute. Because he did not, the
parties also agree that our review is for plain error. They rely on a decision in
which plain error review was given to a defendant’s failure to object when the
district court neither addressed him nor gave him a chance to allocute. United
States v. Reyna, 358 F.3d 344, 353 (5th Cir. 2004) (en banc). What occurred here
might instead be analyzed as a sua sponte ruling by the district court not to
allow introduction of certain evidence that was being offered, namely, the
explanation the defendant began to make of the events underlying the prior
conviction. We do not pursue that analysis further because of Aguilera-DeLeon’s
concession that this is a matter for plain-error analysis.
      To establish reversible plain error, Aguilera-DeLeon must show that the
district court committed a “clear or obvious” error that affected both his
substantial rights and “the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Thompson, 454 F.3d 459, 464 (5th Cir. 2006)
(quotation marks and citation omitted).
      Aguilera-DeLeon did object to the allegedly erroneous characterization of
his aggravated assault conviction as a crime of violence. Our review of that issue
is for clear error. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 765 (5th
Cir. 2008).




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                                   No. 10-10788

I.      Right to Allocution
        As an initial matter, we must decide whether the substance of Aguilera-
DeLeon’s reply brief is properly before this court. The government filed a letter
under Federal Rule of Appellate Procedure 28(j) objecting to supplemental facts
included in the reply brief. Aguilera-DeLeon’s initial brief generally described
what he would have stated to the district court had he been allowed to allocute
on his aggravated assault conviction. The government’s brief argued that
Aguilera-Leon’s description was not specific enough. In the reply brief, Aguilera-
DeLeon addresses that alleged shortcoming by providing details as to the
mitigation testimony he would have given. The government urges us not to
consider these details.
        A claim raised for the first time in a reply brief will generally not be
considered. United States v. Aguirre-Villa, 460 F.3d 681, 683 n.2 (5th Cir. 2006).
Nonetheless, the court has discretion to consider an issue raised for the first
time in a reply brief if it is in response to an issue raised in an appellee’s brief.
United States v. Ramirez, 557 F.3d 200, 203 (5th Cir. 2009). Here, because
Aguilera-DeLeon raised no new claims but only provided detail in response to
the government’s assertion that his factual explanation was insufficient, we will
consider the contents of the reply brief.
        Aguilera-DeLeon contends that the district court violated his right to
allocution by interrupting him and forbidding him to speak about mitigating
circumstances that surrounded his aggravated assault conviction. Federal Rule
of Criminal Procedure 32 requires the district court to “address the defendant
personally in order to permit the defendant to speak or present any information
to mitigate the sentence” before imposing sentence.             Fed. R. Crim. P.


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                                 No. 10-10788

32(i)(4)(A)(ii) (emphasis added). The district court must apply Rule 32 “quite
literally” and “make a personal inquiry directed to the defendant.” United States
v. Magwood, 445 F.3d 826, 829 (5th Cir. 2006) (quotation marks and citations
omitted).
      What we are reviewing is an allocution in which the mitigation testimony
being offered was limited by the district court. The following exchange occurred:
      AGUILERA:         When my wife called 911 and the police went to
                        my house--

      COURT:            I’m not going to relitigate that offense. I’m
                        asking you if you have anything which you wish
                        to state to the court in the way of mitigation of
                        sentence.

      AGUILERA:         I would just like to say forgive me and please give
                        me the least amount of time so that I can be back
                        with my family, hopefully here in the United
                        States, so that I can --I’m doing this for my family
                        and my children.

                        Thank you.
      The claimed error is that the district court prohibited Aguilera-DeLeon
from describing his aggravated assault conviction, calling it “the one incident
that had the most pernicious effect on his sentence.” The government argues
that the district court was not seeking to stop Aguilera-DeLeon from discussing
the facts of the prior incident but was just clarifying the proper purpose of
allocution. The government’s characterization may not be frivolous, but it is not
the most obvious interpretation. We conclude that Aguilera-DeLeon would have
understood that he was being told not to talk about that prior offense. That was



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                                    No. 10-10788

error.     Aguilera-DeLeon was to be given the opportunity to present any
information to mitigate the sentence. Fed. R. Crim. P. 32(i)(4)(A)(ii).
         We are to presume that the error affected substantial rights unless the
defendant was sentenced at the bottom of the Guidelines range. United States
v. Avila-Cortez, 582 F.3d 602, 604 (5th Cir. 2009). Because Aguilera-DeLeon was
sentenced at the top of the range, his substantial rights were affected. Id.
         The final inquiry is whether the error affects the fairness, integrity, or
public reputation of judicial proceedings before we exercise discretion to correct
the error. Id. at 604-05. The district court initially allowed Aguilera-DeLeon an
opportunity to speak but then interrupted and specifically disallowed testimony
relating to his underlying assault conviction. Although there was some evidence
in the record as to the unusual nature of Aguilera-DeLeon’s aggravated assault
offense and that his wife had forgiven him, he was not allowed to explain to the
court in his own words these facts and others he believed could have produced
a sentence at the lower end of the Guidelines.
         The rules of procedure grant the right to offer any information, yet in this
case the court instructed the defendant not to discuss the central point he
wished to address. We conclude that this kind of interference with the right of
allocution is a matter affecting the public reputation of the court.
         Aguilera-DeLeon’s right to allocution was sufficiently limited to require
that he be resentenced after being given a full opportunity to allocute.
II.      Presentence Report
         The presentence report listed factors that might warrant a sentence
outside the advisory Guidelines range. It stated that Aguilera-DeLeon was
considered an aggravated felon for deportation purposes due to his aggravated


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                                 No. 10-10788

assault conviction. See 8 U.S.C. § 1101(a)(43). Aguilera-DeLeon contended that
characterization was erroneous because an aggravated felony for deportation
purposes requires a sentence to a term of imprisonment for at least one year.
See id. He received a term of deferred adjudication probation and served no
prison time. Consequently, the presentence report was in error.
      Aguilera-DeLeon concedes that this error had no effect on the Guidelines
range, but asserts that it affected the sentencing recommendation. He argues
that a downward departure is permitted under the Guidelines where the
applicable offense level substantially overstates the seriousness of a prior
conviction. See U.S. Sentencing Guidelines Manual § 2L1.2(b) cmt. n.7 (2010).
He maintains that the error “might also hurt” him later because the presentence
report could be used in a future immigration case and impact subsequent
determinations by this court.
      The record does not provide a clear indication as to the extent this error
impacted the district court’s sentencing decision. The district court overruled
the objection and stated that it was not going to impose an upward variance and
therefore the issue was moot.         Because there will be a resentencing, the
presentence report should be amended to remove the erroneous characterization
to avoid a future issue for appeal.
      Aguilera-DeLeon’s sentence is VACATED, and the case is REMANDED
for resentencing.




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