     Case: 15-50390      Document: 00513669312         Page: 1    Date Filed: 09/08/2016




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

                                     No. 15-50390                               FILED
                                   c/w No. 15-50392                     September 8, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

              Plaintiff-Appellee

v.

HUGO VILLA-LUJAN,

              Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 4:14-CR-687-1
                            USDC No. 4:09-CR-306-1


Before JOLLY, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Hugo Villa-Lujan appeals the 37-month sentence imposed following his
guilty plea for illegal reentry and the consecutive eight-month sentence
imposed following the revocation of his supervised release for a prior illegal
reentry offense.     See 8 U.S.C. § 1326(a); 18 U.S.C. § 3583(e).                Villa-Lujan
argues the district court denied him his right to allocution. Because Villa-



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50390
                                 c/w No. 15-50392


Lujan did not object in the district court that he was denied his right to
allocution, our review is for plain error. See United States v. Reyna, 358 F.3d
344, 350 (5th Cir. 2004) (en banc). We first ask “whether the district court
committed an ‘error that is plain and that affect[s] substantial rights.’” Id.
(quoting United States v. Olano, 507 U.S. 725, 732 (1993)). “If those criteria
are met, we have the discretion to correct the forfeited error but should do so
only if the error ‘seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.’” Id.
      Although Villa-Lujan and the district court extensively discussed several
topics before the imposition of his sentences, the district court erred because it
did not give Villa-Lujan an opportunity to speak on any subject in mitigation
of his sentences. This error is plain, i.e., it is “obvious.” See Reyna, 358 F.3d
at 350. The Government argues the error was not plain because the district
court personally addressed Villa-Lujan; Villa-Lujan spoke over ten times; and
the court received full, detailed answers in response to its questions. The
Government also points out Villa-Lujan’s counsel noted the staleness of Villa-
Lujan’s marijuana conviction. Even so, the district court erred in not stating
“unequivocally” that Villa-Lujan “had a right to speak on any subject of his
choosing prior to the imposition of sentence.” See United States v. Magwood,
445 F.3d 826, 829 (5th Cir. 2006) (citation and quotation marks omitted).
      Regarding whether the error affected Villa-Lujan’s substantial rights,
Villa-Lujan argues he is entitled to a presumption of prejudice because the
denial of allocution prevented him and his counsel from raising an argument
for a downward departure pursuant to U.S.S.G. § 2L1.2, comment n.7. See
Reyna, 358 F.3d at 351–52. The record demonstrates, however, that Villa-
Lujan had ample opportunity, either before or during the sentencing hearing,



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                                 No. 15-50390
                               c/w No. 15-50392


to move for a downward departure.            Two of our previous opinions are
illustrative. In one, the defendant was denied allocution, and we presumed the
error violated the defendant’s substantial rights “because the defense disputed,
on several grounds, whether [the defendant] should receive a downward
departure or variance.” United States v. Montalvo-Rodriguez, 476 F. App’x 28,
29 (5th Cir. 2012). In the other, the defendant was also denied allocution; we
presumed the error affected the defendant’s substantial rights even though he
was sentenced at the bottom of the Guidelines range because “the district court
rejected [the defendant’s] argument for a downward departure . . . .” United
States v. Gonzalez-Reyes, 582 F. App’x 302, 303–04 (5th Cir. 2014). Quite
differently, Villa-Lujan failed to advance any argument for downward
departure or variance, or for a different Guidelines calculation, despite having
the opportunity to do so. His sentences represented the bottom of the ranges
recommended by the Guidelines and by the policy statements set forth in the
Guidelines. See Reyna, 358 F.3d at 353.
      Because Villa-Lujan was sentenced at the bottom of the ranges
recommended by the Guidelines and has made no plausible argument about
how he was prejudiced, there is no presumption of prejudice and no effect on
his substantial rights. See id. at 351–53.
      AFFIRMED.




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