     Case: 11-40892     Document: 00511849862         Page: 1     Date Filed: 05/09/2012




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

                                                                            FILED
                                                                            May 9, 2012
                                     No. 11-40892
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JESUS MONTALVO-RODRIGUEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:11-CR-609-1


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Jesus Montalvo-Rodriguez (Montalvo) appeals his sentence for having
been found unlawfully present in the United States following a prior
deportation. He asserts that the district court plainly erred by denying him an
opportunity for allocution. As the Government concedes, the district court
violated Rule 32 of the Federal Rules of Criminal Procedure by failing to allow
Montalvo an opportunity to address the court before it imposed his sentence.
The error was clear or obvious. See United States v. Reyna, 358 F.3d 344, 350

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-40892    Document: 00511849862     Page: 2   Date Filed: 05/09/2012

                                   No. 11-40892

(5th Cir. 2004) (en banc). We presume that the error violated Montalvo’s
substantial rights because the defense disputed, on several grounds, whether
Montalvo should receive a downward departure or variance. See id. at 352.
      In light of the particular facts of this case, we exercise our discretion to
correct the error. It occurred during Montalvo’s initial sentencing and not at a
revocation hearing. See United States v. Avila-Cortez, 582 F.3d 602, 605-06 (5th
Cir. 2009); Reyna, 358 F.3d at 352. Montalvo was given no opportunity to speak
before the district court imposed the sentence. See Avila-Cortez, 582 F.3d at 607;
United States v. Magwood, 445 F.3d 826, 829-30 (5th Cir. 2006). The district
court personally addressed Montalvo only once before imposing the sentence,
when it asked at the outset of the hearing whether he understood why he was
there, whether he had reviewed sentencing materials with counsel, and whether
he understood his sentencing range, which was reduced upon the Government’s
motion that Montalvo receive an additional one-point reduction for acceptance
of responsibility. Montalvo answered only, “Yes.” Additionally, Montalvo’s brief
to this court specifies the arguments he would have made during allocution. See
Avila-Cortez, 582 F.3d at 606-07. The only factor weighing against correcting
the error is that defense counsel offered several arguments on Montalvo’s behalf.
See Magwood, 445 F.3d at 830. We have previously exercised our discretion to
correct an error even when counsel has offered arguments on a defendant’s
behalf at sentencing. See Avila-Cortez, 582 F.3d at 606-07. Under the facts of
this case, we opt to do so here.
      Accordingly,    we   VACATE      the   sentence    and   REMAND        FOR
RESENTENCING.




                                        2
