     Case: 16-40164   Document: 00513812355        Page: 1   Date Filed: 12/27/2016




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

                                    No. 16-40164                      FILED
                                                               December 27, 2016
                                                                 Lyle W. Cayce
UNITED STATES OF AMERICA,                                             Clerk

             Plaintiff - Appellee

v.

ANGEL RODOLFO CHAVEZ-PEREZ,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
CARL E. STEWART, Chief Judge:
      Angel Rodolfo Chavez-Perez (“Chavez-Perez”) appeals his 85-month
sentence for illegal reentry, arguing that the district court plainly erred by
denying him the opportunity to allocute before sentencing. For the following
reasons, we AFFIRM.
                              I. BACKGROUND
      Chavez-Perez, a Mexican national with a lengthy criminal history
including multiple theft and assault convictions, was deported in 2013. In
2015, he pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326. The
pre-sentence report (“PSR”) determined his total offense level to be 21 and his
criminal history score to be VI, resulting in a Guidelines range of 77 to 96
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                                       No. 16-40164
months. See U.S.S.G. §§ 2L1.2; 3E1.1. The probation officer recommended a
mid-range sentence, emphasizing Chavez-Perez’s repetitive and violent
criminal history.
       At the sentencing hearing, the district court addressed defense counsel:
       [T]his is definitely a case in which, you know, I’m kind of hard-
       pressed to conclude anything other than something much higher
       than what the minimum is . . . given not only the nature of the
       convictions, but also the evidence that is recited in support of my
       finding for the criminal history points . . . . I mean, the list goes on
       as far as the nature of the violence that your client has shown to
       be capable of. 1 And so I ask you to address the Court on his behalf.
Defense counsel then acknowledged Chavez-Perez’s extensive criminal history
but offered numerous reasons for a low-end Guidelines sentence. For example,
counsel cited Chavez-Perez’s family support. 2 Defense counsel also noted that
Chavez-Perez had returned to reunite with his family at their urging because
the situation in the region of Mexico where he resided was difficult, and he had
nowhere else to go:
       They don’t want him in Matamoros. They don’t want him in
       Mexico. They know how the situation is over there and they
       themselves have requested or have talked to him and they’ve come
       into a conclusion . . . that this last time he was coming back, hoping
       to make it to Galveston, reside there with his family. He has
       [nowhere] else to go in Mexico in any way whatsoever. Very
       difficult for him to be over there.

Defense counsel explained that much of Chavez-Perez’s criminal behavior
stemmed from his history of alcohol abuse:



       1 The specific examples cited by the district court included aggravated assault against
a peace officer, burglary, resisting arrest, robbery (in which Chavez-Perez stabbed the
victim), and violence against his mother.

       2Defense counsel stated: “My understanding from the family, my understanding from
the aunt that is here supporting my client, is that they’ve gone past the situation. They
support Mr. Chavez quite a bit in this situation.”
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                                    No. 16-40164
        Mr. Chavez is not proud in any way, whatsoever, Your Honor. He
        probably believes from the conversations that I have had with him
        that a lot of it stems from substance abuse, primarily involving
        alcohol . . . . But under the circumstances, Your Honor, . . . we’re
        not here to deny any type of that history or what has taken place.
        That is his history, it is there. He wishes it wasn’t there, but we
        can’t deny it.

Defense counsel additionally noted that most of Chavez-Perez’s convictions
were for misdemeanors and that he had committed no violent offenses since
2006:
        He’s asking here that Your Honor simply consider the least
        possible sentence for him under the circumstances. Since 2006
        there has [sic] been no other offenses other than illegal entry . . . .
        [H]e has tried very much to change his ways. The only thing that
        he did in this particular case, was to come back into this country
        illegally, hoping to re-join his family.

        The district court then engaged Chavez-Perez directly, asking him
whether his family understood that, by encouraging him to reenter illegally,
they had subjected him to the possibility of imprisonment:
        THE COURT: [Your attorney] told me that your family was the
        one who was hoping to be able to get you—all the way to Galveston
        this time around. So, my concern is whatever sentence I order,
        whenever you get out, are they going to be doing the same? . . . .
        Were they aware that they were asking you or encouraging you to
        put yourself in a situation where you could potentially go to prison
        for 10 years?
        CHAVEZ-PEREZ: No. No, they didn’t want me to come to prison
        though.
        THE COURT: [D]id they understand that by encouraging you to
        come back that you were subject to possibly as much as 10 years
        in prison? . . . . [G]iven the nature of all these convictions, it
        wouldn’t be too long . . . given your problem drinking and your
        tendency to get violent[,] . . . eventually you were going to bring
        yourself to the attention of law enforcement . . . . Did they
        understand that?

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                                  No. 16-40164
      CHAVEZ-PEREZ: Yes.
      THE COURT: Okay. So I’m concluding from that answer that
      after I send you to prison and you get out that they’re going to say,
      “Well, come on. We’ll help you get there.”
      CHAVEZ-PEREZ: My main purpose to come here was [t]o see my
      mother because she was very sick. It’s been 8 to 10 years that I
      haven’t even seen her. That was my reason to come here, to see
      her. Therefore, I apologize to you and the Government and my
      past life already passed me. Therefore, I apologize to you.

Immediately following Chavez-Perez’s statement, the district court ordered
that he be sentenced to 85 months’ imprisonment.
      Chavez-Perez appeals his sentence, arguing that the district court
plainly erred when it failed to allow him the right to allocute at his sentencing
hearing.   In his appellate brief, Chavez-Perez explains that if given the
opportunity to allocute, he “could have”: (1) “described in much more detail his
family’s situation and the resultant pressure he felt to return” to the United
States; (2) “discussed in much more detail the difficulties, and perhaps even
dangers, he faced during his time in Mexico”; and (3) “explained in much more
detail about his substance abuse and how, in his view, it contributed to his
criminal history, especially the assaultive offenses that were of so much
concern to the district court” and “spoken about any efforts on his part, since
his last assaultive offense . . . to try to stay ‘clean’ and to manage his anger.”
                                II. DISCUSSION
      Chavez-Perez did not object in the district court that he was denied his
right to allocute, and so we review for plain error. See United States v. Reyna,
358 F.3d 344, 350 (5th Cir. 2004) (en banc). To apply Rule 52(b)’s plain error
rule in the allocution context, we first ask whether the district court (1)
committed an error, (2) that is clear and obvious, and (3) that affected the
defendant’s substantial rights. Id. (quoting United States v. Olano, 507 U.S.

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                                  No. 16-40164
725, 732 (1993)); see also United States v. Perez, 460 F. App’x 294, 299 (5th Cir.
2012) (per curiam). We “will ‘ordinarily remand for resentencing’ if a district
court commits plain error that affects a defendant’s substantial rights by
denying the right of allocution.” United States v. Avila-Cortez, 582 F.3d 602,
606 (5th Cir. 2009) (quoting Reyna, 358 F.3d at 353). However, reversal is “not
automatic.” Id. at 604. “In a limited class of cases, a review of the record may
reveal, despite the presence of disputed sentencing issues, that the violation of
a defendant’s right to allocution does not [seriously affect the fairness,
integrity, or public reputation of judicial proceedings].” Id. (quoting Reyna,
358 F.3d at 352).
                                       A.
      Chavez-Perez argues that the district court did not issue him “a personal
invitation to speak prior to sentencing on any subject of his choosing” so as to
satisfy his right of allocution. We agree. “In order to satisfy Rule 32, the
district court must communicate ‘unequivocally’ that the defendant has a right
to allocute.” United States v. Magwood, 445 F.3d 826, 829 (5th Cir. 2006)
(quoting United States v. Echegollen-Barrueta, 195 F.3d 786, 790 (5th Cir.
1999)).   The district court must make a direct, personal inquiry to the
defendant, applying the rule “quite literally.” Id. (citation omitted).
      At the sentencing hearing, Chavez-Perez answered the district court’s
question about his family’s participation in his reentry, explained his reasons
for returning, and apologized to the court for having committed the instant
offense. However, although Chavez-Perez and the district court engaged in a
brief discussion prior to the imposition of his sentence, this is not tantamount
to the district court having given him a specific and unequivocal opportunity
to speak in mitigation of his sentence.       See Perez, 460 F. App’x at 299
(determining that district court’s questioning of defendant on several topics did
not constitute allocution opportunity); United States v. Legg, 439 F. App’x 312,
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                                   No. 16-40164
313 (5th Cir. 2011) (per curiam) (determining that extensive discussion
between district court and defendant did not constitute a “specific and
unequivocal” allocution opportunity).        Rather, the district court (1) asked
Chavez-Perez whether he was aware that his family was putting him in a
situation where he “could potentially go to prison for 10 years”; (2) asked
Chavez-Perez whether he understood the consequences of being found in the
United States given the nature of his previous convictions; and (3) stated, “I’m
concluding from that answer that after I send you to prison and you get out
that [your family] is going to say, ‘Well, come on. We’ll help you get here’”—
which elicited a response from Chavez-Perez about his mother’s illness.
Because Chavez-Perez was never given an unequivocal opportunity to speak
in mitigation of his sentence, see Magwood, 445 F.3d at 829, we conclude that
the district court erred in failing to give Chavez-Perez an allocution
opportunity, and the error was clear and obvious.
       We also hold that this error affected Chavez-Perez’s substantial rights.
“Ordinarily, in order to establish that an error ‘affects substantial rights’ . . . ,
a defendant must establish that the error was ‘prejudicial,’ i.e.[,] that it
‘affected the outcome of the district court proceedings.’” Reyna, 358 F.3d at
350. In cases involving the right to allocute, we presume that the defendant’s
substantial rights were affected if “the record reveals that the district court did
not sentence at the bottom of the guideline range or if the court rejected
arguments by the defendant that would have resulted in a lower sentence.” Id.
at 353. Because Chavez-Perez was sentenced to 85 months’ imprisonment, a
mid-range sentence in the advisory Guidelines range of 77 to 96 months, we
presume that the error affected his substantial rights. See Magwood, 445 F.3d
at 829; Reyna, 358 F.3d at 353.




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                                   No. 16-40164
                                         B.
      While we will ordinarily remand for resentencing if a district court
commits plain error that affects a defendant’s substantial rights by denying
the right of allocution, we have “decline[d] to adopt a blanket rule that once
prejudice is found under the rule stated above, the error invariably requires
correction.” Reyna, 358 F.3d at 352. Instead, we “conduct a thorough review
of the record to determine . . . whether the error ‘seriously affects the fairness,
integrity, or public reputation of judicial proceedings,’” compelling our exercise
of discretion to correct it. Id. at 353. Whether this court will exercise its
discretion to correct the error is a “highly fact-specific” inquiry involving a
range of factors. See Avila-Cortez, 582 F.3d at 605. In most allocution appeals,
“to prevail, defendants will 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.” Reyna, 358 F.3d at 356 (Jones, J.,
concurring).
      Here, Chavez-Perez does not provide mitigating evidence that, “given the
entirety of the transcript,” likely would have moved the district court to grant
a more lenient sentence. See United States v. Neal, 212 F. App’x 328, 332 (5th
Cir. 2007) (per curiam) (declining to correct the error where the defendant
“assert[ed] only conclusionally [that] he was not given an opportunity to
discuss his ‘family, background, his conduct in prison, his activities during his
months of successful supervised release, or other areas’” but failed “to allege
any specific facts which, given the entirety of the transcript, . . . likely would’ve
convinced the district court to levy a more lenient sentence”). In his appellate
brief, Chavez-Perez asserts that if given the opportunity to allocute, he would
have elaborated on three general topics raised by defense counsel during the
sentencing hearing: (1) his family situation and the resultant pressure he felt
to return to the United States; (2) the difficulties, “and perhaps even dangers,”
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                                    No. 16-40164
he faced in Mexico; and (3) how his substance abuse “contributed to his
criminal history, especially [his] assaultive offenses” and “any efforts on his
part . . . to try to stay ‘clean’ and to manage his anger.” However, Chavez-Perez
offers no specific facts or additional details that he would include in his
elaboration of these topics.
      Chavez-Perez’s proffered statements fail to demonstrate an “objective
basis” that would have moved the court to grant a lower sentence. See Reyna,
358 F.3d at 356 (Jones, J., concurring). Most of the arguments Chavez-Perez
claims he would have made were raised either by him or defense counsel at the
sentencing hearing, 3 and Chavez-Perez does not provide any new mitigating
information in his appellate brief. Thus, because the district court had before
it the mitigating information Chavez-Perez claims he would have provided if
given the chance to allocute, and the court calculated his sentence having
considered that information, we cannot say that a miscarriage of justice
occurred. See Magwood, 445 F.3d at 830 (declining to correct the error where
defense counsel argued mitigating information, the district court weighed that
information, and the defendant failed to state what his mitigating statement
would have been); see also United States v. Zaleta, 458 F. App’x 369, 372–73
(5th Cir. 2012) (per curiam) (declining to correct the error where all of the
issues on which the defendant claimed he would have expounded were
addressed by defense counsel at sentencing, and the defendant failed to
identify what “new or additional facts he would have offered” that would have
affected the district court’s analysis).
      Furthermore, the statements Chavez-Perez offers on appeal are unlikely
to have moved the district court to impose a lower sentence because, in


      3  Chavez-Perez’s argument regarding his efforts to “stay ‘clean’” and “manage his
anger” was not raised at the sentencing hearing and is discussed in the next paragraph of
this opinion.
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                                         No. 16-40164
calculating Chavez-Perez’s sentence, the district court gave significant, if not
decisive, weight to his repetitive history of violent crime. The district court
raised this concern both when it spoke to defense counsel and to Chavez-Perez
directly. 4 However, neither Chavez-Perez’s proposed arguments regarding his
family situation nor the dangers he faced in Mexico address this concern. And
although it is possible Chavez-Perez could have persuaded the district court to
reduce his sentence by demonstrating that he had taken steps to manage his
problems with substance abuse and anger, 5 the statement offered in his
appellate brief does not indicate that he has actually taken any such actions.
Rather, Chavez-Perez ambiguously states that he “could . . . have spoken about
any efforts on his part, since his last assaultive offense . . . , to try to stay ‘clean’
and to manage his anger” (emphasis added). This vague assertion is not
sufficient to permit our exercise of discretion to correct the error.                          See
Magwood, 445 F.3d at 830; Neal, 212 F. App’x at 332; cf. Avila-Cortez, 582 F.3d
at 606 (correcting the error where the defendant explained in his appellate
brief that he had a “specific strategy to address his problem with alcohol”).




       4   During the sentencing hearing, the district court stated to defense counsel:
       I’m kind of hard-pressed to conclude anything other than something much
       higher than what the minimum [sentence] is . . . given not only the nature of
       the convictions, but also the evidence that is recited in support of my finding
       for the criminal history points . . . . I mean, the list goes on as far as the nature
       of the violence that your client has shown to be capable of.

The district court later stated to Chavez-Perez: “[G]iven the nature of all these convictions,
it wouldn’t be too long . . . given your problem drinking and your tendency to get violent[,] . .
. eventually you were going to bring yourself to the attention of law enforcement.”

       5 Although it is possible, it is not necessarily likely. The district court was apparently
unmoved by defense counsel’s argument that Chavez-Perez had committed no offenses since
2006 (other than illegal reentry) or by defense counsel’s assertion that Chavez-Perez “has
tried very much to change his ways.”

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                                       No. 16-40164
                                  III. CONCLUSION
       For the foregoing reasons, the sentence of Defendant-Appellant Angel
Rodolfo Chavez-Perez is AFFIRMED. 6




       6 We are aware that in Dkt. No. 14-40279, United States v. Palacios, also up on appeal,
we held that the district court’s failure to provide the defendant the right to allocute
amounted to reversible error. In contrast to the instant case, we determined that the final
prong of the plain error test was satisfied because the defendant established that a
miscarriage of justice had occurred. Because the defendant in Palacios demonstrated an
objective basis that would have moved the district court to grant a lower sentence, see Reyna,
358 F.3d at 356 (Jones, J., concurring), we therefore exercised our discretion to correct the
error.

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