     Case: 11-40107     Document: 00511722387         Page: 1     Date Filed: 01/11/2012




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

                                                                            FILED
                                                                         January 11, 2012
                                       No. 11-40107
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE GUADALUPE ZALETA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:10-CR-1236-1


Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
        Jose Guadalupe Zaleta appeals his sentence for transporting an
undocumented alien by motorized vehicle for financial gain. He asserts that the
district court plainly erred by denying him an opportunity for allocution. We
affirm his sentence.
                                             I.
        Jose Guadalupe Zaleta pleaded guilty to a one-count indictment that
charged him with transportation of an undocumented alien for private financial


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40107

gain, in violation of 8 U.S.C. § 1324 and 18 U.S.C. § 2. The Pre-Sentence Report
(“PSR”) noted that one of the undocumented aliens transported by Zaleta
reported that the defendant placed him in a compartment/box located
underneath the bed in the cabin of the tractor-trailer in which the aliens were
transported. The alien was in the box for approximately thirty minutes before
they arrived at the Border Patrol checkpoint where Zaleta was ultimately
arrested. The PSR noted:
      [The alien] said the tractor’s running engine made the box hot and
      he could not communicate with the driver because of the loud noise
      the engine made during the trip. [The alien] added he felt trapped
      in the box and would not have been able to extricate himself in case
      of an accident.

Under § 2L1.1(a)(3) of the United States Sentencing Guidelines Manual, Zaleta’s
base offense level was 12. Based on the information provided by the alien who
had been concealed in the compartment underneath the cabin bed, the PSR
recommended that Zaleta’s base offense level be increased to 18 for intentionally
or recklessly creating a substantial risk of death or serious bodily injury to
another person, pursuant to § 2L1.1(b)(6).
      Zaleta filed objections to the PSR that included opposition to the
§ 2L1.1(b)(6) enhancement for reckless endangerment. At sentencing, defense
counsel argued that the alien’s statements were not credible, pointing out that
the engine was not adjacent to the storage compartment, a fact in tension with
the alien’s assertion that the compartment was hot. The district court rejected
the defense’s argument that the alien would “say anything he could” to curry
favor with the government, noting that in another case before the court, aliens
in similar circumstances had said that they did not feel endangered or hot. It
found that the storage compartment was separated from the air-conditioned cab
and sleeping area by a platform and mattress and that “the heat of the motor
could go under the cab to the back.” Defense counsel responded that the lid to
the storage compartment was propped open by suitcases and asserted that

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                                         No. 11-40107

Zaleta could “speak to the details of how it was.” Without offering Zaleta an
opportunity to speak, the district court replied that it was “totally unpersuaded”
and applied the enhancement. The six-level enhancement, combined with a two-
level adjustment for acceptance of responsibility, yielded a total offense level of
16. For Zaleta, who was in criminal history category II, a total offense level of
16 corresponded to an advisory Guidelines range of twenty-four to thirty months
imprisonment. The district court imposed a sentence of twenty-four months
imprisonment.
                                               II.
       Zaleta argues that by failing to offer Zaleta an opportunity to allocute, the
district court violated Rule 32 of the Federal Rules of Criminal Procedure.1 He
maintains that the district court’s error was prejudicial because it denied him
the opportunity to explain why the six-level enhancement for reckless
endangerment was not warranted and that the appropriate Guidelines range
was eight to fourteen months rather than twenty-four to thirty months.
       Because Zaleta did not object on this ground in the district court, we apply
plain error review.2 Zaleta must demonstrate a forfeited error that is clear or
obvious, and which affected his substantial rights.3 If Zaleta establishes those
elements, we may exercise our discretion to correct the district court’s error “only
if the error ‘seriously affects the fairness, integrity or public reputation of
judicial proceedings.’”4 Even where a defendant’s sentence was at the bottom of
the Guidelines range, there is a presumption that a failure to allow the
defendant to allocute at sentencing affected the defendant’s substantial rights

       1
        See FED. R. CRIM. P. 32(i)(4)(A) (“Before imposing sentence, the court must . . . (ii)
address the defendant personally in order to permit the defendant to speak or present any
information to mitigate the sentence.”).
       2
           See United States v. Reyna, 358 F.3d 344, 350 (5th Cir. 2004) (en banc).
       3
           Id.
       4
           Id. (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).

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if “a searching review of the district court record reveals . . . any disputed facts
at issue at sentencing, or any arguments raised in connection with sentencing,
that if resolved in the defendant’s favor would have reduced the applicable
Guidelines range or the defendant’s ultimate sentence.”5 However, we have
declined “to adopt a blanket rule that once prejudice is found under [this] rule
. . . the error invariably requires correction.”6 Rather, to decide whether we
should exercise our discretion to correct the error, we engage in a fact-specific
inquiry.7
                                           III.
      As the Government concedes, the district court violated Rule 32 by failing
to allow Zaleta an opportunity to address the court before it imposed his
sentence. The error was clear or obvious.8 We presume that it violated Zaleta’s
substantial rights because the defense disputed the imposition of a reckless
endangerment enhancement.9 In light of the particular facts of this case,
however, we cannot conclude that the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.
      Our conclusion with regard to the final element of the plain error standard
turns on the particular facts of this case. Zaleta’s situation is distinct from those
of the defendants in the Rule 32 plain error cases he cites because of the nature
of the prejudice Zaleta claims he suffered. In the previous cases, the defendant
argued that, had the defendant been given the opportunity to allocute, the
defendant might have convinced the court to exercise its discretion to issue a
lesser sentence within the applicable Guidelines range or to downwardly depart

      5
          Id. at 352.
      6
          Id.
      7
          See id. at 352-53.
      8
          See id. at 350.
      9
          See id. at 352.

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                                            No. 11-40107

from the Guidelines.10 Here, Zaleta only argues that his statements might have
convinced the trial court that the criteria for a reckless endangerment
enhancement under § 2L1.1(b)(6) were not satisfied. The applicability of the
reckless endangerment enhancement is a legal and factual question that must
be answered in the affirmative or the negative.11 Zaleta points out that the
sentencing at issue was his initial sentencing rather than a revocation hearing
and that he was given no opportunity to speak before the district court imposed
the sentence, despite counsel’s assertion that he could provide more details about
the circumstances of the alien’s transport relevant to the reckless endangerment
enhancement, factors which weigh in favor of us exercising our discretion to
remand for re-sentencing.12 However, Zaleta does not “specif[y] precisely what
he would have told the district court” to convince the court that the reckless
endangerment enhancement should not apply.13
       Citing United States v. Zuniga-Amezquita,14 Zaleta notes that the relevant
considerations in determining whether a defendant recklessly endangered an
alien are (1) availability of oxygen, (2) exposure to extreme temperatures, (3)
ability to communicate with the driver, (4) ability to exit the vehicle quickly, and
(5) danger in the event of an accident.15              He asserts that he would have
expounded upon the Zuniga-Amezquita factors by offering information to show


       10
         See United States v. Avila-Cortez, 582 F.3d 602, 606 (5th Cir. 2009);United States v.
Lister, 229 F. App’x 334, 338 (5th Cir. 2007) (unpublished); United States v. Magwood, 445
F.3d 826, 829-30 (5th Cir. 2006); Reyna, 358 F.3d at 352.
       11
        See, e.g., United States v. Rodriguez, 630 F.3d 377, 380-81 (5th Cir. 2011) (explaining
the standard used to determine the propriety of applying a reckless endangerment
enhancement under § 2L1.1(b)(6)).
       12
            See Reyna, 358 F.3d at 352-53.
       13
            Avila-Cortez, 582 F.3d at 606.
       14
            468 F.3d 886 (5th Cir. 2006).
       15
            See id. at 889.

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that the alien was not deprived of oxygen, was not exposed to extreme
temperatures, and could have extricated himself by communicating with the
other alien.     But all of the issues on which Zaleta claims he would have
expounded were addressed by defense counsel. While Zaleta asserts that “he
could have furnished the district court with facts of greater quantity and quality”
than those discussed by defense counsel, he does not identify what new or
additional facts he would have offered to demonstrate that the alien was not
deprived of oxygen, that the alien was not exposed to extreme hot temperatures,
or that the alien was able to extricate himself.
       The district court acknowledged the arguments made by the defense on
these points, but explained: “I just disagree with the Defense on this argument
that the guy enclosed in this place underneath the mattress, even with it
propped open, is not recklessly endangered.” The district court credited the
alien’s report that the compartment was hot from the engine running, that the
alien could not communicate with the driver, and that the alien felt trapped and
would have been unable to extricate himself in the event of an accident. Zaleta
does not explain how any statement he could have offered would have affected
that reasoning.16 “[I]f the defendant fails to explain what exactly he or she
would have said during allocution that might mitigate the sentence, then the
case is one of those ‘limited class of cases’ in which we will decline to exercise our
discretion to correct the error.”17 Because Zaleta does not specify precisely how
his allocution would have affected the district court’s analysis of the applicability



       16
          As the government notes, Zaleta has not argued on appeal that the district court
erred in applying the reckless endangerment enhancement – he does not challenge the district
court’s finding that the facts on record supported application of the enhancement under the
governing legal standard.
       17
         Avila-Cortez, 582 F.3d at 606; see also Magwood, 445 F.3d at 830 (“[D]efendants ‘have
to show some objective basis that would have moved the trial court to grant a lower sentence;
otherwise, it can hardly be said that a miscarriage of justice has occurred.’” (citation omitted)).


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of the reckless endangerment enhancement,18 we find that he has not satisfied
the fourth and final prong of the plain error standard.
                                                IV.
      Because Zaleta has not demonstrated that the district court’s Rule 32 error
seriously affects the fairness, integrity or public reputation of judicial
proceedings, we AFFIRM the sentence imposed by the district court.




      18
           See Avila-Cortez, 582 F.3d at 606.

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