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.
Chavez-Perez, a Mexican national with a lengthy criminal history including multiple
At the sentencing hearing, the district court addressed defense counsel:
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.
Defense counsel explained that much of Chavez-Perez's criminal behavior stemmed from his history of alcohol abuse:
Defense counsel additionally noted that most of Chavez-Perez's convictions were for misdemeanors and that he had committed no violent offenses since 2006:
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:
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."
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. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)); see also United States v. Perez, 460 Fed.Appx. 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,
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 Fed.Appx. at 299 (determining that district court's questioning of defendant on several topics did not constitute allocution opportunity); United States v. Legg, 439 Fed.Appx. 312, 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.
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
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 Fed.Appx. 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," 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,
For the foregoing reasons, the sentence of Defendant-Appellant Angel Rodolfo Chavez-Perez is AFFIRMED.
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."