     Case: 18-50230      Document: 00514925622         Page: 1    Date Filed: 04/22/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 18-50230
                                      c/w 18-50251
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            April 22, 2019
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

              Plaintiff–Appellee

v.

BENEDICTO LAZARO-LOPEZ,

              Defendant–Appellant.



                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:14-CR-485-1
                            USDC No. 2:17-CR-745-1


Before STEWART, Chief Judge, and DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Benedicto Lazaro-Lopez contends that the district
court erred in failing to give him an opportunity to allocute before it rendered
a 48-month sentence. So Lazaro-Lopez now appeals his consecutive sentences
for (1) illegal reentry and (2) violation of terms of supervised release arising
from a prior illegal reentry conviction. The Government concedes that the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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district court erred by not providing Lazaro-Lopez an opportunity to allocute.
The parties, however, dispute whether on plain error review we should exercise
our discretion to correct this error by remanding this case for resentencing.
After reviewing the record and relevant law, we vacate the sentence and
remand this case for resentencing.
                                         I.
      On June 15, 2017, Lazaro-Lopez—who was then on supervised release
arising from a 2014 illegal reentry conviction—was indicted for a separate
crime of illegal reentry into the United States, in violation of 8 U.S.C. § 1326(a).
He later pled guilty.
      On March 14, 2018, Lazaro-Lopez appeared before the district court for
sentencing. Lazaro-Lopez was represented by counsel from the Federal Public
Defender’s Office, who indicated that Lazaro-Lopez was pleading true to the
revocation allegations. The court then revoked his supervised release. Defense
counsel agreed that the sentencing guidelines range for the new illegal reentry
conviction was 24 to 30 months of imprisonment and that the guidelines range
for the revocation and violation of terms of supervised release was 18 to 24
months of imprisonment.
      The court then asked defense counsel, “Do you have anything you’d like
to say prior to sentencing, or would [the defendant] like to make a statement?”
The following exchange occurred:
      DEFENSE COUNSEL:         Your Honor, Mr. Lazaro-Lopez came
                 back to the United States because his work has
                 been here. In his country, in the area in which he
                 lives, he has suffered by being accosted by the
                 police. He’s been handcuffed, he’s been harassed,
                 making [] finding work a lot more difficult. His
                 brother was murdered in June of 2017. And
                 there’s been issues regarding some property that

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                      he owned. Mr. Lazaro needs to go home as soon
                      as possible to address those issues. He’s the eldest
                      of the family. He is unmarried and does not
                      support any minor children.
                           He indicates that he needs to go home, of
                      course, to deal with his brother’s property but,
                      also, that his mom needs him. He’s the one that
                      provides for her care and support and especially
                      now that she’s grieving over the loss of her son.
                      He’d like to go home, collect his mother, and move
                      to a place which is safer, and he would like to do
                      that as quickly as possible.
                          So he’s asking for a sentence as lenient as
                      possible and to run the sentences [con]currently.
      THE COURT:      Counsel for the government.
      THE GOVERNMENT:         Your Honor, the defendant standing
                 before you has 46 aliases, eight alternative IDs.
                 He was a quick return. He was deported on April
                 14th. He was back June 15th of that year, around
                 two-month interim. And then, he has, by my
                 count, eight uncounted criminal convictions: One
                 for breaking and entering, one for attempted
                 larceny, 1998, the sale of cocaine and then, for
                 criminal trespass.
                           And then, going into his immigration history,
                      this will be his fifth conviction for illegal reentry,
                      your Honor. He got 42 months last time he was
                      sentenced. That was insufficient to deter him
                      from coming back to the United States.
                          So the government would request a guideline
                      range sentence to run consecutive to his
                      revocation sentence.
      Immediately after hearing from counsel, the district court imposed a
sentence of 30 months for the new illegal reentry and 18 months for violation
of terms of supervised release, to run consecutively, for a total of 48 months.

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The court stated: “[M]y reasons [for the sentence] are as stated by the
government as to [Defendant’s] prior history.”
       Lazaro-Lopez did not make any statement at the hearing.                       He now
appeals his sentence, arguing that the district court committed reversible plain
error by depriving him of the right to allocute.
                                             II.
       We apply plain error review because Lazaro-Lopez failed to raise any
objection at his sentencing hearing. 1 Plain error doctrine provides:
              An appellate court may not correct an error the
              defendant failed to raise in the district court unless
              there is (1) error, (2) that is plain, and (3) that affects
              substantial rights. If all three conditions are met an
              appellate court may then exercise its discretion to
              notice a forfeited error but only if (4) the error
              seriously affects the fairness, integrity, or public
              reputation of judicial proceedings. 2

                                             III.
       Federal Rule of Criminal Procedure 32(i)(4)(A)(ii) provides: “Before
imposing sentence, the court must . . . address the defendant personally in
order to permit the defendant to speak or present any information to mitigate
the sentence[.]” 3 The Government concedes that the district court erred by



       1  United States v. Reyna, 358 F.3d 344, 353 (5th Cir. 2004) (en banc).
       2  United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005) (internal quotations and
citations omitted); see also Olano v. United States, 507 U.S. 725, 732 (1993).
        3 FED. R. CRIM. P. 32(i)(4)(A)(ii). We have held that a sentencing court “‘should leave

no room for doubt that the defendant has been issued a personal invitation to speak prior to
sentencing.’” United States v. Avila-Cortez, 582 F.3d 602, 607 (5th Cir. 2009) (quoting Green
v. United States, 365 U.S. 301, 305 (1961) (Frankfurter, J., plurality)). That is, we provide a
defendant with an opportunity to “ask for mercy, explain his or her conduct, apologize for the
crime, or say anything else in an effort to lessen the impending sentence.” BLACK’S LAW
DICTIONARY 88 (9th ed. 2009). “[I]t is not enough” that the court “affords counsel the right
to speak.” United States v. Echegollen-Barrueta, 195 F.3d 786, 789 (5th Cir. 1999) (citation
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failing to directly invite Lazaro-Lopez to allocute and that such error was plain
and affected his substantial rights. 4            In such case, where the first three
elements of plain error review are satisfied, we “will ordinarily remand for
resentencing.” 5 “In a limited class of cases,” however, we recognize that the
failure to provide allocution rights will not affect “the fairness, integrity or
public reputation of judicial proceedings,” thereby obviating the need for
reversal. 6 “Whether a case falls within this limited class is a ‘highly fact-
specific inquiry.’” 7
       After “conduct[ing] a thorough review of the record,” 8 we hold that
remand is appropriate because Lazaro-Lopez’s case does not fall within the
limited class of cases where we have recognized that resentencing would
clearly be a fruitless exercise. In United States v. Reyna, for example, it was
Reyna’s “third appearance before this district judge, his second for violations
of the terms of his supervised release.” 9 When the district judge sentenced
Reyna for his first violation of the supervised-release terms, the judge gave
Reyna an option: six months in prison or twelve additional months of




omitted). The court must instead unambiguously address the defendant and offer him the
opportunity to allocute. Green, 365 U.S. at 305.
        4 Though the district court announced his sentence immediately after the

Government’s response, the court did previously ask defense counsel whether Lazaro-Lopez
“would [] like to make a statement.” We make no determination whether this statement
satisfies a defendant’s right to allocute because the Government concedes that “[t]his
invitation fell short of the required direct, personal inquiry to the defendant, as to whether
he wanted to make a statement.”
        5 Reyna, 358 F.3d at 353.
        6 United States v. Gonzalez-Reyes, 582 F. App’x 302, 304 (5th Cir. 2014) (citing Reyna,

358 F.3d at 353). While our unpublished opinions are not controlling precedent, they may be
persuasive authority. See Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006) (citation
omitted).
        7 Gonzalez-Reyes, 582 F. App’x at 304 (citation omitted).
        8 Reyna, 358 F.3d at 353.
        9 Id. at 352.

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supervised release. 10 The latter option came with an important condition: If
Reyna violated his supervised-release terms again, he would automatically get
twelve months in prison. 11         At this prior hearing, Reyna was given an
opportunity to allocute, and he chose the twelve-month supervised-release
option, accepting the warning against further violations of the supervised-
release terms.     Nevertheless, Reyna violated the terms of his supervised
release by testing positive for drugs. 12 The judge therefore imposed the twelve-
month sentence without giving Reyna another opportunity to allocute. 13 It was
on these “particular facts”—“unusual facts,” we emphasized—that we held that
the denial of allocution rights did not affect “the fairness, integrity or public
reputation of judicial proceedings,” as required by plain-error review. 14
      Also, in United States v. Chavez-Perez, we concluded that the defendant
failed to meet the fourth plain-error review requirement because he did not
provide significant new mitigating information that would have moved the
court to grant a lower sentence. 15 The defendant in that case argued on appeal
that, given the opportunity, he would have elaborated on three topics, all of
which his attorney had already explained to the sentencing court. 16 Because
the defendant “offer[ed] no specific facts or additional details that he would
include in his elaboration of these topics,” he failed to meet the fourth
requirement of plain-error review. 17




      10 Id. at 352–53 & n.7.
      11 Id. at 353.
      12 Id.
      13 Id.
      14 Id.
      15 United States v. Chavez-Perez, 844 F.3d 540, 545 (5th Cir. 2016).
      16 Id.
      17 Id.

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       Here, Lazaro-Lopez argues that, if permitted to speak, he would have
elaborated on the statements his counsel made and would have apologized.
The district court explained that its reasons for Lazaro-Lopez’s 48-month
sentence “are as stated by the government as to [Defendant’s] prior [criminal]
history.” In this regard, Lazaro-Lopez says on appeal that despite his past
criminal offenses, 18 he would have explained that “his offenses since 2001 were
primarily illegal reentry offenses” and that those offenses reflected “his need
for work so that he can help support his mother, and brother Julio, who has
Down[] syndrome.” Though the Government points out that this information
was in the presentence report, the Government does not indicate that the
district court had before it the complete story that Lazaro-Lopez wanted to tell.
It is unclear whether the presentence report “present[ed] to the court the same
quantity or quality of mitigating evidence that [the defendant] would have
given had he been able to allocute.” 19 Lazaro-Lopez’s proffered statements
could have weaved these facts together in a manner both logically convincing
and personally sincere, which may have potentially led to a lower sentence.
       The Government also argues that Lazaro-Lopez previously had an
opportunity to allocute in the district court during his sentencing hearing in
2014, which arose from a separate illegal reentry conviction.                     But that
allocution was before a different district judge than the one who sentenced him
in this case. So his statements made in 2014 are irrelevant for purposes of his
current allocution and sentencing—because this was his first time before the
sentencing judge.       Furthermore, Lazaro-Lopez claims that he would have
apologized for his illegal-reentry offense. Such personal apology is important

       18 Lazaro-Lopez’s presentence investigation report reveals criminal convictions dating
back to 1993, including, inter alia, multiple misdemeanor larceny and theft, felony possession
and sale of cocaine, and more relevant here, five convictions for illegal reentry.
       19 Avila-Cortez, 582 F.3d at 606.

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in a sentencing hearing because “the most persuasive counsel may not be able
to speak for a defendant as the defendant might, with halting eloquence, speak
for himself.” 20     Accordingly, we exercise our discretion and remand for
resentencing. 21
                                       *      *       *
       Based on the above reasons, we VACATE the sentence and REMAND
this case for resentencing.
       VACATED AND REMANDED.




       20Green, 365 U.S. at 304.
       21See Avila-Cortez, 582 F.3d at 606–07; see also Gonzalez-Reyes, 582 F. App’x at 304
(reversing under fourth plain-error prong in part due to no prior allocution); United States v.
Perez, 460 F. App’x 294, 300–01 (5th Cir. 2012) (same).
                                              8
