U.S. v. Figueroa-Coello, 18-50254

• Decision Date: 03 April 2019
• Docket Number: No. 18-50254,18-50254
• Citation: 920 F.3d 260
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jose Santos FIGUEROA-COELLO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

920 F.3d 260

UNITED STATES of America, Plaintiff–Appellee,

v.Jose Santos FIGUEROA-COELLO, Defendant–Appellant.

No. 18-50254

United States Court of Appeals, Fifth Circuit.

FILED April 3, 2019

Joseph H. Gay, Jr., Mark Randolph Stelmach, Esq., Assistant U.S. Attorneys, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee

Laura G. Greenberg, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for Defendant-Appellant.

Before KING, SMITH, and WILLETT, Circuit Judges.

PER CURIAM:

Appellant asks us to overturn the district court’s within-Guidelines sentence because he was denied the chance to speak at his sentencing hearing. We agree that Appellant successfully demonstrated reversible plain error that affected the fairness of his sentence. We thus REVERSE the district court’s judgment and REMAND for resentencing.

I

Appellant Jose Santos Figueroa-Coello, a citizen of both Honduras and Mexico with a criminal history, pleaded guilty to illegally reentering the United States. See 8 U.S.C. § 1326. His proper sentencing range, as determined based on his presentence report, was 21 to 27 months. At the sentencing hearing, the following exchange took place:

THE COURT: Prior to sentencing, do you have anything that you’d like to say on behalf of your client?

MS. PADILLA PAXTON [Jose’s attorney]: Yes, Your Honor. Mr. Figueroa-Coello is a citizen of both Honduras and Mexico. He came to the United States in order to make a better living. He can make about $600 a week in construction here in the United States. He was last removed in 2014. Although he does not minimize his past conduct, we would point out that his issue stems from alcohol abuse. He was on his way to Houston this time to reunite with his family. And he’s asking for a sentence as lenient as possible.

The Government argued for a top-of-the-range sentence of 27 months based on Jose’s prior conviction for aggravated robbery. The district court never addressed Jose or asked whether he had anything to say. Instead, the court agreed with the Government and sentenced Jose to 27 months in prison plus three years supervised release. Jose appealed, arguing that the district court reversibly erred by failing to ask him whether he wished to speak at his sentencing hearing.

II

As Jose failed to object at trial, we review for plain error. United States v. Reyna , 358 F.3d 344, 348–50 (5th Cir. 2004) (en banc). Relief under the plain-error standard "will be difficult to get, as it should be." United States v. Dominguez Benitez , 542 U.S. 74, 83, n. 9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). To receive it, the appellant must show the lower court’s action (or lack thereof) (1) deviated from unwaived and established legal rules, (2) was "clear or obvious, rather than subject to reasonable dispute," and (3) affected his substantial rights. Puckett v. United States , 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). This court then has discretion to correct the error if (4) it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id .

III

There is little dispute here regarding the first three prongs of the Puckett test, which serve to establish the existence of plain error. The parties quarrel over prong four, which concerns whether we ought to exercise our discretion to vacate and remand.

A

Jose has demonstrated a "clear or obvious" deviation from unwaived legal rules, as prongs (1) and (2) require. Id . The rule is crystal clear: Before sentencing, the court must "address the defendant personally" and allow him to offer any mitigating information affecting his sentence. FED. R. CRIM. P . 32(i)(4)(A)(ii). This address must be in the form of a "personal inquiry" directed at the defendant himself. United States v. Magwood , 445 F.3d 826, 829 (5th Cir. 2006) (quoting United States v. Dickson , 712 F.2d 952, 956 (5th Cir. 1983) ). It cannot merely consist of a generalized query, or a bounded request for a description or statement from the defendant. United States v. Palacios , 844 F.3d 527, 532 (5th Cir. 2016) (finding that no opportunity to allocute exists unless defendant receives "an explicit opportunity to speak freely"). Here, the district court did not give Jose a chance to speak at his sentencing hearing. In fact, the judge did not directly address Jose at all before pronouncing sentence. And the Government rightly concedes that the trial court erred.

Regarding prong three of Puckett , the Government also concedes that the district court’s failure to follow Rule 32 affected Jose’s substantial rights, as he was sentenced at the very top of his Guidelines-prescribed range. To show the violation of substantial rights, an appellant must ordinarily show that the court’s plain error "caused him prejudice." Puckett , 556 U.S. at 133, 129 S.Ct. 1423. We "presume prejudice when a defendant shows a violation of the right [to allocute] and the opportunity for such violation to have played a role in the district court’s sentencing decision." Reyna , 358 F.3d at 351–52. And we have recognized that such prejudice exists when a district court both plainly violates Rule 32 and hands down a sentence any higher than the bottom of an appellant’s within-Guidelines range, as it did here. Palacios , 844 F.3d at 531 ; Reyna , 358 F.3d at 352-53.

In sum, the parties do not dispute that the lower court deviated from legal rules in a clear and obvious manner that substantially prejudiced Jose and violated his rights. We agree and hold that the first three prongs of plain-error review have been met. The district court plainly erred in a manner that affected Jose’s substantial rights.

B

The closer question here centers on Puckett ’s final prong: Does this error somehow mar the fairness, integrity, or public reputation of our judicial system? "[T]his is a highly fact-specific inquiry." United States v. Avila-Cortez , 582 F.3d 602, 605 (5th Cir. 2009). We have adopted a well-reasoned rule that not all instances of plain error merit remand. Reyna , 358 F.3d at 352 ("We decline to adopt a blanket rule that once prejudice is found ... the error invariably requires correction").

The denial of a defendant’s right to speak at sentencing does not necessarily transmogrify a just hearing into an unjust one. Allocution is not a fundamental requirement of fair judicial proceedings such that a "complete miscarriage of justice" results when it is not allowed. Magwood , 445 F.3d at 830 (quoting Hill v. United States , 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) ). If the appellant had a prior opportunity to allocute, or if the appellant fails to show "some objective basis that would have moved the trial court to grant a lower sentence," we will decline to correct the error. United States v. Chavez-Perez , 844 F.3d 540, 545 (5th Cir. 2016) (quoting Reyna , 358 F.3d at 356 (Jones, J., concurring)). Otherwise, we ordinarily remand for resentencing when the right of allocution is denied. Reyna , 358 F.3d at 352. We will examine our precedents to determine whether this case is a member of the "limited class" in which we will refrain from exercising our discretion. Id . at 352.

A defendant’s right to allocute is satisfied only by "a specific and unequivocal opportunity to speak in mitigation of his sentence." Palacios , 844 F.3d at 531. Mere discussion with the defendant’s counsel, or even with the defendant himself, is not enough. Id . Rather, the court must interact directly with the defendant "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." Magwood , 445 F.3d at 829 (quoting United States v. Echegollen-Barrueta , 195 F.3d 786, 789 (5th Cir. 1999) (citation omitted)).

When defendants have several prior clear chances to allocute, we raise an eyebrow at claims that a subsequent deprivation of this right requires remand. Reyna , 358 F.3d at 352–353. The appellant in Reyna was offered an opportunity to allocute at two prior sentencing hearings before the same district judge. Id . at 346–47, 352. And in the second sentencing hearing, the judge clearly warned Reyna that violating his supervised release would mean a drastic alteration to his sentence. Id . at 346, 352–53. Yet even when the en banc court declined to remand Reyna’s case, it recognized these were "unusual facts." Id. at 353.

As previously established, the sentencing hearing here was Jose’s first, and the judge never interacted directly with him until after sentencing. This factual difference means that our conclusion in Reyna does not apply. Jose did not have a prior opportunity to allocute, and thus remand is still an appropriate remedy.

But we also do not remand cases for plain error involving allocution when the appellant does not offer "mitigating evidence that ... likely would have moved the district court to grant a more lenient sentence." Chavez-Perez , 844 F.3d at 545. Even this class of cases, however, is moderately cabined. The defendant must fail to present any "objective basis" upon which the district court would probably have changed its mind, had he been allowed to speak. Id . This much is evident from our holding in Magwood . In that matter, it was dispositive that the defendant neither "furnish[ed] any information about what he would have allocuted to that might have mitigated his sentence," nor demonstrated willingness to reform. Magwood , 445 F.3d at 830. In other words, the defendant failed to show a "miscarriage of justice" requiring remand. Id .

However, even if the defendant provides some information as to what he would have allocuted, we may find it insufficient to trigger remand. In Chavez-Perez , the defendant only stated in his appellate brief that, if allowed to allocute:

he "could have": (1) "described in much more detail his family's situation and

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