     Case: 16-41400      Document: 00514112682         Page: 1    Date Filed: 08/11/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                            United States Court of Appeals

                                     No. 16-41400
                                                                                     Fifth Circuit

                                                                                   FILED
                                   c/w No. 16-41403                          August 11, 2017
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GLEN MEJIA,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 5:16-CR-371-1


Before HIGGINBOTHAM, JONES and SMITH, Circuit Judges.
PER CURIAM: *
       Glen Mejia pleaded guilty, without the benefit of a plea agreement, to
illegal reentry in violation of 8 U.S.C. § 1326. He also pleaded true to two
violations of his supervised release, which he was serving on account of a prior
2010 illegal reentry conviction. At his combined sentencing hearing for both
offenses, the district court revoked Mejia’s supervised release and sentenced



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41400
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him to concurrent sentences of 57 months of imprisonment, which was the
bottom of the guidelines range for his illegal reentry conviction, and 12 months
of imprisonment, which was the bottom of the guidelines range for his
supervised release violations. Mejia appeals his sentences arguing that the
district court violated his right of allocution.      Mejia’s appeals have been
consolidated.
      Because Mejia did not object to the district court’s purported failure to
allow full allocution at his combined sentencing and revocation hearing, this
court reviews his claim for plain error. See United States v. Reyna, 358 F.3d
344, 350 (5th Cir. 2004) (en banc). Under the plain error standard of review,
Mejia must show a forfeited error that is “clear or obvious, rather than subject
to reasonable dispute,” and that affects his substantial rights. See Puckett v.
United States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have
the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
      Federal Rule of Criminal Procedure 32(i)(4)(A) 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
sentence.” FED. R. CRIM. P. 32(i)(4)(A)(ii); see also FED. R. CRIM. P. 32.1(b)(2)(E)
(providing for right of allocution during revocation hearing).
      At his revocation hearing, Mejia was given an opportunity to allocute.
He apologized, asked the district court for forgiveness, expressed remorse, and
recognized the mistakes he had made.          At the end of his allocution, the
transcribed record indicates that Mejia said: “It’s just that.” Thereafter, the
district court commented on Mejia’s prior offenses, indicated that it would not
impose an upward variance—although it believed one could be justified—and
ultimately sentenced Mejia to the bottom of the applicable guidelines ranges.



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      On appeal, Mejia does not argue that the district court fully denied his
right of allocution, but rather argues that the district court cut him off or
interrupted him and never allowed him to finish his allocution.              The
Government argues that the final statement of Mejia’s allocution—“It’s just
that.”—could have meant that Mejia had nothing more to say, which is
supported by the fact that Mejia’s counsel sat by silently and did not object to
the district court’s purported interruption.
      While Mejia’s argument that he was interrupted and desired to express
more mitigating information is plausible, the Government’s argument that
Mejia was finished with his allocution and was not interrupted is just as
plausible. Hypothetically, had Mejia begun to speak again or had his counsel
indicated that Mejia had more to say, and the district court dismissed such
efforts, the record could support a finding that Mejia was interrupted, and his
allocution right was violated. As it stands, the record does not make clear that
Mejia was interrupted or that he had more mitigating information to express.
Thus, we agree with the Government’s assessment that Mejia has failed to
establish an error that is “clear or obvious, rather than subject to reasonable
dispute.” See Puckett, 556 U.S. at 135.
      Moreover, assuming arguendo that Mejia could establish an error that is
clear or obvious and that affected his substantial rights, we would decline to
exercise our discretion to correct the error. 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, Reyna,
358 F.3d at 353, we have “decline[d] to adopt a blanket rule that once prejudice
is found under the rule stated above, the error invariably requires correction.”
Id. at 352. Instead, we “conduct a thorough review of the record” to determine
if we should exercise our discretion to correct the error. Id. at 353.



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                                No. 16-41400
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      In this case, Mejia has failed to demonstrate such an objective basis.
While Mejia argues on appeal that, had the district court not purportedly
interrupted him, he would have explained to the district court the
circumstances surrounding his prior offenses and presented mitigating
information, he does not specify what those circumstances and mitigating
information were. See United States v. Chavez-Perez, 844 F.3d 540, 545 (5th
Cir. 2016), cert. denied, 2017 WL 785826 (June 5, 2017) (No. 16-8118). Given
the record as a whole, Mejia fails to demonstrate that the district court would
have been convinced to impose a more lenient sentence. See Chavez-Perez,
844 F.3d at 545; Reyna, 358 F.3d at 356 (Jones, J., concurring). Accordingly,
even assuming arguendo that Mejia could satisfy the first three prongs of the
plain-error analysis, we find no miscarriage of justice, and we decline to
exercise our discretion to correct any purported error. See Magwood, 445 F.3d
at 830. The district court’s sentences are AFFIRMED.




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