     Case: 10-20693     Document: 00511578133         Page: 1     Date Filed: 08/22/2011




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

                                                                            FILED
                                                                          August 22, 2011
                                     No. 10-20693
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

RONALD LEGG III,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:02-CR-6-1


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Ronald Legg III, appeals his sentence of one year’s imprisonment, imposed
following his supervised-release revocation. Legg contends his sentence is
procedurally unreasonable because the district court: denied him the right of
allocution; failed to make an individualized assessment; and based his sentence
on clearly-erroneous facts.
        Because Legg did not object at sentencing to his being denied the right of
allocution, review is only for plain error. United States v. Reyna, 358 F.3d 344,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-20693

350-51 (5th Cir. 2004) (en banc). To show reversible plain error, Legg must show
a clear or obvious error that affects his substantial rights. E.g., Puckett v.
United States, 129 S. Ct. 1423, 1429 (2009). Even if he does so, our court retains
discretion to correct the error and, generally, will do so only if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings. Id.
      Although Legg and the district court engaged in an extensive discussion
prior to the imposition of sentence, the court erred in not giving Legg a specific
and unequivocal opportunity to speak in mitigation of his sentence. See FED. R.
CRIM. P. 32.1(b)(2)(E); United States v. Magwood, 445 F.3d 826, 829 (5th Cir.
2006). And, because Legg was sentenced near the top of the advisory Guidelines
sentencing range, that error is presumed to have affected his substantial rights.
See Magwood, 445 F.3d at 829.
      Our court has declined, however, “to adopt a blanket rule that once
prejudice is found . . . the error invariably requires correction”. Reyna, 358 F.3d
at 352. Along that line, Legg must “show some objective basis that would have
moved the trial court to grant a lower sentence”. Magwood, 445 F.3d at 830
(citation and internal quotation marks omitted). Legg fails to do so: the facts
and assertions he contends he would have presented to mitigate his sentence
were either considered by the district court (and deemed unpersuasive), or do not
undermine the court’s reasons for imposing the sentence. Moreover, this was
Legg’s third appearance before the district court. See Reyna, 358 F.3d at 352-53
(error not seriously affecting fairness, integrity or public reputation of judicial
proceedings where defendant was making third appearance before district
judge). Thus, we decline to exercise our discretion to correct the error. See
Magwood, 445 F.3d at 830.
      Legg contends his sentence was procedurally unreasonable because: he
was deprived of his right to an individualized assessment; and his sentence was
based on clearly-erroneous factual findings because the court lumped his conduct
with that of an unrelated defendant sentenced in the same proceeding. See Gall

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                                  No. 10-20693

v. United States, 552 U.S. 38, 50-51 (2007) (sentencing court must make
“individualized assessment” and procedurally errs in applying clearly erroneous
facts). Arguably, Legg preserved these issues for appeal and therefore review
is under the plainly-unreasonable, rather than plain-error, standard. United
States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011) (supervised-release revocation
sentences reviewed under “plainly unreasonable” standard), petition for cert.
filed (27 May 2011) (No. 10-10784). We need not decide which standard applies,
however, because there was no error and thus Legg’s contentions fail under
either standard of review.
      Prior to imposition of sentence, the court engaged Legg in an extensive
discussion, focusing on his failure to appear for his continued revocation hearing
and the court’s belief that Legg had refused to accept responsibility for his own
situation.   Although the court did not give separate explanations for the
identically imposed one-year sentences for each defendant, all of the court’s
stated reasons appear applicable to Legg. Further, none of the court’s reasons
appear applicable only to the other defendant. Thus, Legg has not shown that
the district court failed to make an individualized assessment or based his
sentence on clearly erroneous facts.
      AFFIRMED.




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