     Case: 13-50751      Document: 00512763627         Page: 1    Date Filed: 09/10/2014




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

                                                                                  FILED
                                                                           September 10, 2014
                                      No. 13-50751
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee
v.

ROBERTO GONZALEZ-REYES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 12-CR-1797-1


Before STEWART, Chief Judge, BENAVIDES and OWEN, Circuit Judges.
PER CURIAM:*
       I.      BACKGROUND
       Roberto Gonzalez-Reyes (Gonzalez) pleaded guilty to one count of illegal
reentry. He received a 16-level enhancement because he previously had been
deported following his conviction of a crime of violence, to wit: aggravated
assault under Texas law. U.S.S.G. § 2L1.2(b)(1)(A)(ii). His total offense level
of 21, coupled with his criminal history category of III, resulted in a guidelines
range of 46-57 months of imprisonment. U.S.S.G. Ch. 5, Pt. A (Sentencing
Table).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50751
      Gonzalez was one of several defendants sentenced during the same
hearing. The district court did not personally address Gonzalez or afford him
an opportunity to speak on his own behalf. The district court exclusively
addressed Gonzalez’s attorney and the attorney for the government.
Gonzalez’s attorney argued for a downward departure to a sentence of no more
than 24 months because, among other things, Gonzalez’s Texas aggravated
assault conviction did not qualify as an aggravated assault under 8 U.S.C.
§ 1101(a)(43).    § 2L1.2 comment. (n.7).        The district court declined to
downwardly depart, noting that, according to the PSR, Gonzalez had hit his
victim in the forearm and head with a machete during the aggravated assault.
The district court sentenced Gonzalez at the bottom of the guidelines range to
46 months of imprisonment, explaining that the sentence was attributable to
the seriousness of Gonzalez’s criminal history and the need to deter his
criminal conduct; the court summarized: “[Gonzalez’s] record is a sorry one and
that’s the reason for the Court’s sentence.” Gonzalez did not object to the
sentence. He timely filed a notice of appeal.
      II.   DENIAL OF ALLOCUTION
      Gonzalez argues that the district court erred when it failed to provide
him an opportunity to allocute at the sentencing hearing. FED. R. CRIM. P.
32(i)(4). Gonzalez raises this issue for the first time on appeal.        When a
defendant fails to object to the denial of an opportunity to allocute, this Court
reviews for plain error. United States v. Reyna, 358 F.3d 344 (5th Cir. 2004)
(en banc). “We find plain error only if: (1) there was an error; (2) the error was
clear and obvious; and (3) the error affected the defendant’s substantial rights.”
United States v. Gracia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002). If the first
three elements are shown, we have the discretion to correct the district court’s
error if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.
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                                  No. 13-50751
      Here, it is undisputed that because the court failed to personally address
Gonzalez and allow him to speak in mitigation of his sentence, the error is
plain and obvious. Reyna, 358 F.3d at 350. Thus, the next question is whether
the error affected Gonzalez’s substantial rights. The district court sentenced
Gonzalez at the bottom of the guideline range. This Court will presume that
Gonzalez’s substantial rights were affected if he shows there was an
opportunity for the error “to have played a role in the district court’s sentencing
decision.” Id. at 351-52 (internal quotation marks and citation omitted). In
the case of a sentence at the bottom of the applicable guidelines range, the
presumption applies when the district court has “rejected arguments by the
defendant that would have resulted in a lower sentence.” Id. at 353. As the
district court rejected Gonzalez’s argument for a downward departure, this
Court presumes that the error affected his substantial rights. See id. at 353;
see also United States v. Montalvo-Rodriguez, 476 F. App’x 28, 29 (5th Cir.
2012) (applying presumption when the defense requested a downward
departure or variance).
      Although the first three elements have been satisfied, we may not
exercise our discretion to correct the district court’s error unless it seriously
affects the fairness, integrity or public reputation of the proceedings. Reyna,
358 F.3d at 352 (citation and internal quotation marks omitted). We have
declined to adopt the rule that if there is prejudice, the error always requires
correction. Id. However, having found clear or obvious error under Rule
32(i)(4)(A)(ii) that affected a defendant’s substantial rights, this Court “will
ordinarily remand for resentencing.” Id. at 353. Nonetheless, in a “limited
class of cases,” the record may reveal that the denial of the right of allocution
does not seriously affect the fairness, integrity, or public reputation of judicial
proceedings. Id. Examples of this limited class of cases include instances when
“the defendant had a prior opportunity to allocute, or [when] the defendant
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                                  No. 13-50751
fails to explain [on appeal] what exactly he or she would have said during
allocution that might mitigate the sentence.” United States v. Avila-Cortez,
582 F.3d 602, 606 (5th Cir. 2009). Whether a case falls within this limited
class is a “highly fact-specific inquiry.” Id. at 605.
      Gonzalez argues that this Court should exercise its discretion, vacate his
sentence, and remand for resentencing. He stresses that he was afforded no
opportunity to address the district court and that he had not allocuted
previously. He asserts that if he had been given that opportunity, he “could
have addressed the court’s concerns about his aggravated assault conviction”
and “could have explained why, after eighteen years of living and working in
the United States . . . he committed an aggravated assault at age 32.”
      Relying on United States v. Neal, the government argues that Gonzalez
failed to allege specific facts that would have convinced the court to impose a
more lenient sentence. 212 F. App’x 328 (5th Cir. 2007). Neal is inapposite.
In that case, the “district court allowed Neal to speak, asking him ‘Anything
else you want to tell me?’ and ‘Anything else?’” Id. at 332.
      In Avila-Cortez, this Court observed that the defendant had never been
“given any opportunity whatsoever to speak to the court, which is unlike any
of the cases in which we have declined to exercise our discretion to correct the
error.”   582 F.3d at 607.     Here, not only was Gonzalez never given any
opportunity to speak, the court never personally addressed him.              After
reviewing the record, we conclude that the failure to provide Gonzalez an
opportunity to allocute before imposing sentence was plain error that affects
Gonzalez’s substantial rights and seriously affects the fairness, integrity, or
public reputation of the judicial proceedings. Accordingly, we exercise our
discretion and vacate the sentence and remand for resentencing.
      VACATED AND REMANDED.


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