U.S. v. Avila-Cortez

• Decision Date: 10 September 2009
• Docket Number: No. 08-41219.,08-41219.
• Citation: 582 F.3d 602
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manuel AVILA-CORTEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

582 F.3d 602

UNITED STATES of America, Plaintiff-Appellee, v. Manuel AVILA-CORTEZ, Defendant-Appellant.

No. 08-41219.

United States Court of Appeals, Fifth Circuit.

September 10, 2009.

Lauretta Ann Drake, James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., Laura Fletcher Leavitt, Asst. Fed. Pub. Def., Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before JOLLY, DeMOSS and PRADO, Circuit Judges.

PRADO, Circuit Judge:

Manuel Avila-Cortez ("Avila-Cortez") appeals his sentence, arguing that the district court committed reversible error by denying him the right of allocution before pronouncing his sentence. We agree. We therefore vacate Avila-Cortez's sentence and remand for resentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

Avila-Cortez pleaded guilty to one count of being an alien unlawfully found in the United States after having been previously denied admission, excluded, deported, or removed from the country, in violation of 8 U.S.C. § 1326(a) and (b). A probation officer prepared a presentence investigation report ("PSR") and calculated a Sentencing Guidelines range of twenty-four to thirty months' imprisonment.¹ At Avila-Cortez's sentencing, the district court determined that Avila-Cortez had received and reviewed a copy of the PSR, and neither Avila-Cortez nor the government raised any objections. The district court then asked both the government and defense counsel for their views on the appropriate sentence.

The government requested a sentence at the top of the Guidelines range. The government highlighted the dangerousness Avila-Cortez exhibited through his prior DUI conviction (when he allegedly fled by dragging a vehicle that was attached to his vehicle) and mentioned his previous deportation conviction. The government stated that "it's really only a matter of time until the defendant comes back here and kills somebody, and for the safety of society that's why we recommend the full range in this case."

The district court then asked defense counsel to proceed. Avila-Cortez's lawyer made the following statement:

Your Honor, my client was, my client, who is 58 years of age, when he was serving his 21-month sentence in the Bureau of Prisons he did participate in an alcohol program and he wants to continue that when he's in custody as part of this sentence. He wants to address the issues that he had with alcohol and it's something that came late in his life, as you can see, that it wasn't until he was in his 50's, 51 before he picked up his [first] DWI case, so it's something that came late in his life and it's something that he wants to shed from him. He was punished back in 2006 for that DWI and he got a 90-day sentence because of that behavior. What the Court has before it is a man who has come back in the United States illegally and he has been punished for it in the past and he has continued to do it, we understand that. He is also on supervised release, Your Honor, and that case is not before the Court, they haven't filed a petition, but there's going to be another, there's going to be another sentence that's going to be imposed subsequent to this. And so I'm asking the Court to consider the lower end of the guideline range in recognition of the fact that he is going to be additionally punished in the future. He wants to work on his drinking problem while he's in custody and he wants to talk to his wife about coming to Mexico to live with him. She is diabetic and he was walking, I think it was through one of the ranches when he was seen, walking his way up to apparently, I think it's in North Dakota. But he's not a mean-spirited person, he's just somebody who wanted to be with his wife. Now she needs to move to Mexico and I think he understands that and that's what he plans for his future, to get her to come down to Mexico.

The district court did not address Avila-Cortez personally. In fact, the only time Avila-Cortez spoke was when he twice said "Yes, sir" in response to whether he had received and reviewed the PSR.

The court then sentenced Avila-Cortez to thirty months' imprisonment. The court explained,

The Court has selected the high end of the guidelines on recognition of the defendant's recidivism. The Court feels that he is just not getting the message. He was even on supervision when this [was] accomplished. The Court feels that the high end of the guidelines adequately addresses the sentencing factors of [18 U.S.C. § 3553], especially the recidivism of the defendant.

Avila-Cortez appeals, contending that the district court improperly failed to allow him to allocute before imposing the sentence.

II. JURISDICTION AND STANDARD OF REVIEW

This court has jurisdiction pursuant to 28 U.S.C. § 1291, as the district court entered a final judgment after accepting Avila-Cortez's guilty plea and sentencing him to thirty months' imprisonment.

Avila-Cortez did not object to the district court's failure to provide him with an opportunity to allocute. Therefore, our review is for plain error. United States v. Reyna, 358 F.3d 344, 350 (5th Cir.2004) (en banc). Specifically, we must determine whether the district court committed an "`error,'" whether that error is "`plain,'" and whether the error "`affect[s] substantial rights.'" Id. (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)) (alteration in original). If the first three prongs are met, then we can use our discretion to correct the error only if it "`seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" Id. (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770).

III. DISCUSSION

In Reyna, we discussed in detail the manner in which we analyze a defendant's claim that the district court plainly erred by denying the right of allocution. 358 F.3d at 350-53. We first decided that a district court errs when it fails to comply with Federal Rule of Criminal Procedure 32 by not addressing the defendant personally and giving him or her an opportunity to make a statement in mitigation of sentence. Id. at 350.² We further explained that this error is plain. Id. Next, we presumed that such an error affects a defendant's substantial rights unless the district court imposes a sentence at the bottom of the Guidelines range. Id. at 352. Finally, having met the first three prongs of plain error review, we noted that reversal is still not automatic, as "[i]n 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, or public reputation of judicial proceedings]." Id. That is, we "decline[d] to adopt a blanket rule that once prejudice is found under the rule stated above, the error invariably requires correction." Id. Instead, we must "conduct a thorough review of the record to determine if we should exercise our discretion to correct the error." Id. at 353.

Avila-Cortez and the government agree that the district court committed an error that was plain by failing to give Avila-Cortez an opportunity to allocute and that we must presume that the error affected Avila-Cortez's substantial rights because the sentence the court imposed was at the top of the Guidelines range. Thus, the only question in dispute is whether we should exercise our discretion to correct the error, that is, whether the error in denying Avila-Cortez the right of allocution "seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. (internal quotation marks omitted).

As our prior cases note, this is a highly fact-specific inquiry. In Reyna, for example, we declined to exercise our discretion to correct the error based on the unique facts of that case. Id. During a prior sentencing for Reyna's violation of his supervised release—at which Reyna had the opportunity to allocute—the court gave Reyna the option of immediately serving six months' imprisonment or incurring a twelve month "suspended" sentence. Id. at 352. Once Reyna chose the latter option, the district court warned him that if he violated the terms of his supervised release again, the court would automatically sentence him to twelve months' imprisonment. Id. Reyna later violated the terms of his supervised release; at the subsequent sentencing, he did not have an opportunity to allocute. Id. The court imposed a twelve month sentence, thereby holding Reyna to their initial bargain. Id. at 353. We emphasized that Reyna had previously exercised his right of allocution during his original sentencing and at the first sentencing for violating the terms of his supervised release, and at that time the district court notified Reyna of the consequence of violating the terms of his supervised release again. Id. At the resentencing the court automatically imposed the very sentence upon which they had previously agreed. Id. Under these facts, we held that Reyna's inability to allocute did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. Id.

Similarly, in United States v. Magwood, 445 F.3d 826, 830 (5th Cir.2006), we declined to correct a district court's failure to allow allocution when the defendant's counsel put forward mitigating factors relating to the defendant's attempts to rehabilitate himself, the district court weighed this information, and the defendant failed to provide any information on appeal as to what he would have said during allocution to mitigate his sentence. In particular, the district court explained that the defendant had been given several opportunities to reform but had not reformed himself, thus demonstrating that it had considered (but rejected) Magwood's lawyer's statements regarding rehabilitation. Id. We found it especially important that "Magwood does not furnish any information about...