Case: 15-50804   Document: 00514057250        Page: 1   Date Filed: 06/30/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                    No. 15-50804                           FILED
                                                                       June 30, 2017

Consolidated with
                                                                      Lyle W. Cayce
                                                                           Clerk
Case No. 15-50808

UNITED STATES OF AMERICA,

             Plaintiff - Appellee

v.

RAMIRO MONTOYA-DE LA CRUZ,

             Defendant - Appellant




                Appeals from the United States District Court
                      for the Western District of Texas


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      Ramiro Montoya-De La Cruz (“Montoya”) challenges his sentences for
illegal reentry and violation of the terms of his supervised release on the
ground that the district court plainly erred by failing to provide him an
opportunity to allocute before pronouncing his sentences. We AFFIRM.
                                         I.
      Montoya was convicted of illegal entry in 2012 and illegal entry after
deportation in 2012 and in 2013, receiving a probationary sentence each time.
He was last deported from the United States in 2013. By 2014, Montoya was
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back in the United States, where he again violated the law. This time he was
convicted of aggravated driving while under the influence of alcohol, driving
without a driver’s license, and driving on the wrong side of the road, receiving
a sentence of ninety days in custody, eighty-eight of which were suspended.
      In April 2015, Border Patrol agents again found Montoya in the United
States—this time with a group of other undocumented Mexican nationals
traveling to Lubbock, Texas, to seek work. Montoya pleaded guilty to illegal
reentry after deportation. The Government then moved to revoke Montoya’s
probation for his 2013 illegal entry offense.
      In August 2015, the district court, Chief Judge Biery presiding,
simultaneously conducted the sentencing hearing on Montoya’s 2015 illegal
reentry offense and on revocation of his probation for his 2013 illegal reentry
offense. 1 This was the second time that Montoya appeared before Judge Biery,
who had been the sentencing judge for Montoya’s 2013 offense.
      At the sentencing hearing, the district court provided the applicable
Guidelines range for each offense and asked counsel whether there was
“[a]nything that would change that.” Counsel responded “No.” The court then
asked defense counsel whether there was “any legal reason why . . . [Montoya’s]
supervised release should not be revoked.” Defense counsel again said “No”
and made no further comments during the hearing.
      The district court then addressed Montoya. He asked him whether he
was “the same Ramiro Montoya-De La Cruz who’s convicted here on illegal
reentry again,” to which Montoya responded, “Yes, sir.” The court then asked
him why he kept coming back if he kept getting caught. Montoya responded,
“Out of need.” The court asked how much money he made while he was locked


      1The proceedings were conducted with the assistance of the court interpreter because
Montoya only speaks Spanish.
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up; he responded that he made none. The court noted that Montoya had
repeatedly been in federal court and asked, “So you know you’re going to get
caught, right?” Montoya answered, “Yes, sir.” The court asked, “Once you
finish your punishment in these cases, what do you plan to do?” Montoya
replied, “Stay in my country, sir.” The court responded, “Okay. Because next
time—instead of a couple of years in prison, next time it’ll be four years, and
the next time it’ll be seven or eight. Do you understand now how it works?”
Montoya again answered, “Yes, sir.”
       The district court sentenced Montoya to fifteen months of imprisonment
and three years of supervised release for the 2015 illegal entry offense. The
court also revoked Montoya’s probation and sentenced him to eight months of
imprisonment to run consecutively to his sentence for the new offense. Both
sentences were at the bottom of the advisory Guidelines range. Montoya
confirmed that he understood his sentences, and neither he nor his counsel
objected to either sentence.
       Montoya has timely appealed. 2             He contends that the district court
plainly erred by denying him his right to allocute before sentencing him in
contravention of Federal Rule of Criminal Procedure 32. 3
                                            II.
       Because Montoya did not object in the district court to the denial of his
right to allocution, we review his claim for plain error. United States v. Reyna,

, 350 (5th Cir. 2004) (en banc). Therefore, to prevail, Montoya



       2Montoya was released from prison on August 12, 2016, but remains subject to a
three-year term of supervised release. Therefore, his appeal is not moot.

       3Rule 32 requires the sentencing court to “address the defendant personally in order
to permit the defendant to speak or present any information to mitigate the sentence” before
imposing sentence. FED. R. CRIM. P. 32(i)(4)(A)(ii).
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must show: (1) “an error or defect”; (2) that is “clear or obvious, rather than
subject to reasonable dispute”; and (3) that “affect[s] [his] substantial rights.”
Puckett v. United States, 

, 135 (2009) (citations omitted). If those
three requirements are met, we have discretion to correct the error, but “only
if the error ‘seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.’” 

                                              A.
       We begin by considering whether the district court committed plain error
by failing to offer Montoya the opportunity to allocute before sentencing him.
       Montoya contends that, although the court engaged in a brief colloquy
with him, this exchange did not comply with Rule 32 because the court never
clearly and unequivocally offered him the right to speak on any subject of his
choosing before sentencing. Further, Montoya argues, the court’s questions
were driven by its concerns, not his interest in receiving a lower sentence.
       The Government counters that the district court complied with Rule 32
by asking Montoya open-ended questions that encompassed mitigation issues
such as why he committed the same crime again and how he planned to avoid
recidivistic behavior in the future.
       The district court plainly erred by failing to offer Montoya an allocution
opportunity before pronouncing his sentences. We have long required strict
compliance with Rule 32. 4 Thus, “[i]n order to satisfy Rule 32, the district court


       4 See, e.g., United States v. Palacios, 

, 531 (5th Cir. 2016) (holding that a
discussion between the district court and defendant regarding credit for acceptance of
responsibility was not “a specific and unequivocal opportunity to speak in mitigation of his
sentence”); United States v. Montalvo-Rodriguez, 476 F. App’x 28, 29 (5th Cir. 2012) (holding
that it was plain error for the district court to not allow the defendant an opportunity to
address the court before imposing his sentence, even though the court asked the defendant
several questions and defense counsel made several arguments on the defendant’s behalf);
United States v. Perez, 460 F. App’x 294, 297, 299–300 (5th Cir. 2012) (holding that the
district court’s questioning of defendant on several factual topics did not provide him “an
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must communicate ‘unequivocally’ that the defendant has a right to allocute”
by making “a personal inquiry directed to the defendant.” United States v.
Magwood, 

, 829 (5th Cir. 2006) (citations omitted). “[I]t is not
enough that the sentencing court addresses a defendant on a particular issue,
affords counsel the right to speak, or hears the defendant’s specific objections
to the presentence report.” 

(citation and
internal quotations omitted). “[T]he court, the prosecutor, and the defendant
must at the very least interact in a manner that shows clearly and convincingly
that the defendant knew he had a right to speak on any subject of his choosing
prior to the imposition of sentence.” 

       The district court’s brief colloquy with Montoya fell short of strict
compliance with Rule 32. The court did not unequivocally state that Montoya
had a right to speak on any subject he chose before his sentence was imposed.
See United States v. Villa-Lujan, 661 F. App’x 285, 286 (5th Cir. 2016) (holding
that, even though the defendant “and the district court extensively discussed
several topics before the imposition of his sentences, the district court [plainly]
erred because it did not [unequivocally] give [the defendant] an opportunity to
speak on any subject in mitigation of his sentences”). Moreover, the court only
addressed Montoya on particular issues, which is not enough to satisfy Rule
32. See 

(citation omitted). And the
record does not clearly and convincingly demonstrate that Montoya knew he
had a right to speak on any subject he chose before he was sentenced. See 

Accordingly, we hold that the district court erred by failing



opportunity to speak on any topic of his choosing,” which plainly denied him the right to
allocute); United States v. Echegollen-Barrueta, 

, 789–90 (5th Cir. 1999) (holding
that the district court’s personal address to defendant, “asking twice whether he had
‘anything to say,’” failed to satisfy Rule 32 when the defendant’s answers demonstrated that
he may not have understood that he had a right to speak on any subject of his choosing).
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to provide Montoya with an allocution opportunity. “Given the clear language
of the rule and . . . Supreme Court case law . . . , this error was obvious or
plain.” 

.
                                            B.
       Next, we consider whether the district court’s error affected Montoya’s
substantial rights.
       Montoya does not attempt to establish that the error here was actually
prejudicial. Moreover, he acknowledges that: he was sentenced at the bottom
of the applicable Guidelines ranges; he had an extensive colloquy with the
sentencing judge; neither he nor his counsel made any arguments for a
downward variance; and, when asked whether he had any reason to dispute
the Guidelines ranges, his counsel stated that he did not.                 Nevertheless,
Montoya contends that we should presume prejudice because neither he nor
his attorney was given an opportunity to make arguments for a downward
variance. 5
       The Government disputes that Montoya’s counsel had no opportunity to
make mitigation arguments and suggests that the Court may infer from
defense counsel’s failure to move for a downward variance that counsel knew
such a motion would be frivolous.
       We conclude that the district court’s error did not affect Montoya’s
substantial rights. Where, as here, the error was the denial of the defendant’s
allocution right, we generally “presume that [a defendant]’s substantial rights
were affected if he shows there was an opportunity for the error ‘to have played
a role in the district court’s sentencing decision.’” United States v. Gonzalez-



       5  Rule 32 also requires the district court to “provide the defendant’s attorney an
opportunity to speak on the defendant’s behalf” before imposing sentence. FED. R. CRIM. P.
32(i)(4)(A)(i). Montoya does not, however, specifically claim a violation of this provision.
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Reyes, 582 F. App’x 302, 304 (5th Cir. 2014) (quoting 

–
52). Under Reyna we presume prejudice to a defendant who was not sentenced
at the bottom of the correct Guideline range, but, as we explained in Reyna,
where, as here, a defendant is sentenced at the bottom of the applicable
Guidelines ranges, prejudice should only be presumed if “the district court has
‘rejected arguments by the defendant that would have resulted in a lower
sentence.’” E.g., 

358 F.3d at 353); Montalvo-Rodriguez, 476
F. App’x at 29.
      Montoya cannot satisfy this requirement.       He never proffered any
arguments that would have resulted in a lower sentence. Moreover, in similar
situations, we have declined to presume prejudice.
      In United States v. Jimenez-Laines, the defendant, who was sentenced
at the bottom of the Guideline range and never argued for a lower sentence,
was denied his right to allocute. 354 F. App’x 889, 894–895 (5th Cir. 2009).
On plain error review, we rejected the defendant’s argument that, under these
circumstances, his substantial rights were affected because Reyna, we
explained,
      contemplated that at least some—and perhaps all—defendants
      who were denied allocution at revocation sentencing, but who
      nevertheless received a sentence at the bottom of the guideline
      range, and who never even advanced arguments that might have
      resulted in a lower sentence, would not be owed a presumption of
      prejudice on plain-error review.

      We reached the same conclusion in United States v. Villa-Lujan—a case
nearly indistinguishable from this one. In that case, which was also on plain
error review, the defendant, who was denied the right to allocute, pleaded
guilty to the same offenses as Montoya, had an extensive colloquy with the


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judge, was sentenced at the bottom of the applicable Guidelines ranges, and
did not argue for a downward variance or a different Guidelines calculation.
Villa-Lujan, 661 F. App’x at 286–87. The defendant made the same argument
as to the presumption of prejudice that Montoya now makes. 

We
rejected that argument, holding that the defendant “had ample opportunity,
either before or during the sentencing hearing, to move for a downward
departure . . . or variance, or for a different Guidelines calculation” and that,
given his failure to do so, we would not presume that he was prejudiced by the
denial of allocution. 

      We are presented with no reason to depart from these applications of
Reyna. Accordingly, we hold that the district court’s error in denying Montoya
his allocution rights did not affect Montoya’s substantial rights.         Thus,
Montoya has not met his burden of showing that the court committed
reversible plain error.
                                       III.
      For the foregoing reasons, we AFFIRM the district court’s sentences.




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JAMES E. GRAVES, JR., Circuit Judge, dissenting:
      Federal Rule of Criminal Procedure 32 requires the district court to
“address the defendant personally in order to permit the defendant to speak or
present any information to mitigate the sentence” before imposing sentence.
Fed. R. Crim. P. 32(i)(4)(A)(ii). Rule 32 guarantees the defendant’s right to
allocution, “an important, highly respected right” that “is deeply rooted in our
legal tradition.” United States v. Reyna, 

, 349 (5th Cir. 2004) (en
banc). Indeed, the right has been enshrined in our jurisprudence since before
the founding of this country. Green v. United States, 

, 304 (1961).
      It serves several important functions. “First, it gives the defendant one
more opportunity before conviction ‘to throw himself on the mercy of the
court.’” United States v. Dabeit, 

, 981 (5th Cir. 2000), abrogated
by Reyna, 

. “The most persuasive counsel may not be able to speak
for a defendant as the defendant might, with halting eloquence, speak for
himself.” 

. The right “also has symbolic importance,
‘maximizing the perceived equity of the [sentencing] process.’” 

.
      The majority recognizes that given the importance of the right to
allocution, we have long required nothing less than strict compliance to satisfy
Rule 32. The majority then concludes that the district court plainly erred by
failing to offer Montoya his right to allocute. But it then holds that Montoya’s
substantial rights were not affected. What it gives with one hand, it takes with
the other. It justifies this move by declining to afford Montoya the presumption
of prejudice that our post-Reyna cases have applied. See 

–52 (holding that we should “presume prejudice when a defendant shows a
violation of the right and the opportunity for such violation to have played a
role in the district court’s sentencing decision”) (quoting United States v.

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Adams, 

, 287 (3d Cir. 2001)); see also, e.g., United States v.
Gonzalez-Reyes, 582 F. App’x 302, 304 (5th Cir. 2014); United States v.
Montalvo-Rodriguez, 476 F. App’x 28, 29 (5th Cir. 2012); United States v.
Garcia, 456 F. App’x 504, 505 (5th Cir. 2012). Yet in doing so, the majority
apparently applies its own presumption—that Montoya was not prejudiced by
the denial of his right to speak for himself on any topic of his choosing.
      On the record before us, I fail to see how we can definitively conclude
that nothing Montoya would have said would have made any difference.
Particularly so, given that Montoya describes in his brief several statements
he would have made had he allocuted.           When a defendant has specified
arguments in favor of mitigation that he would have made, if properly given
the opportunity, we have in the past remanded for resentencing because we
recognized that the denial of the right to allocution in such circumstances
“seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” See, e.g., United States v. Avila-Cortez, 

, 607 (5th
Cir. 2009); see also United States v. Palacios, 

, 533–34 (5th Cir.
2016); United States v. Aguirre-Romero, 16-40231, 

, at *4–5
(5th Cir. Feb. 23, 2017), as revised (Feb. 24, 2017); United States v. Perez, 460
F. App’x 294, 301 (5th Cir. 2012); United States v. Lister, 229 F. App’x 334, 339
(5th Cir. 2007). There is no significant difference between these cases and the
case at bar. If anything, Montoya’s inability to speak on his own behalf was
more prejudicial, rather than less, because his counsel also failed to offer any
arguments in favor of mitigation.
      When the legal tradition is as old as this, the right is as important as
this, and the rule is as clear as this, the sentencing judge simply needs to follow
the rule.
      I respectfully dissent.

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