United States v. Jose Figueroa-Coello , 920 F.3d 260 ( 2019 )


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  •      Case: 18-50254   Document: 00514901127       Page: 1   Date Filed: 04/03/2019
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 18-50254
    FILED
    April 3, 2019
    Lyle W. Cayce
    UNITED STATES OF AMERICA,                                                 Clerk
    Plaintiff–Appellee,
    v.
    JOSE SANTOS FIGUEROA-COELLO,
    Defendant–Appellant.
    Appeal from the United States District Court
    for the Western District of Texas
    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:
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    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 (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 (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. 2 Case:
    18-50254     Document: 00514901127      Page: 3    Date Filed: 04/03/2019
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    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
    . 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
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    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 (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
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    to determine whether this case is a member of the “limited class” in which we
    will refrain from exercising our discretion. 
    Id. at 352.
                                            1
    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.
    2
    But we also do not remand cases for plain error involving allocution when
    the appellant does not offer “mitigating evidence that . . . likely would have
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    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 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, 844 F.3d at 543
    . We faulted the defendant for providing “no
    specific facts or additional details” regarding these hypothetical efforts, and
    thus found no “objective basis” for overturning his sentence despite the trial
    court’s plain error. 
    Id. at 545.
    Additionally, the defendant in Chavez-Perez had
    a “repetitive history of violent crime.” 
    Id. at 546;
    see United States v. Chavez-
    Perez, No. 1:15-CR-00290 (S.D. Tex. Jan. 22, 2016), ECF 19 at 6-18. And the
    judge stated that the defendant’s extensive criminal history directly led him to
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    pronounce his high sentence. 
    Id. at 546;
    542 (“I’m kind of hard-pressed to
    conclude anything other than something much higher than what the minimum
    is . . . given not only the nature of the convictions, but also the evidence that is
    recited in support of my finding for the criminal history points”). Because the
    defendant’s proffered allocution failed to directly address these concerns, our
    court found no need to remand for plain error. 
    Id. at 546.
          On the other hand, a sufficiently detailed and specific description of
    mitigating facts to be offered at allocution will likely establish a need for
    remand. We retrieve this rule from our prior decisions in Palacios and Avila-
    Cortez. In the former case, the defendant’s prospective allocution was
    “lengthy”:
    [H]e apologizes to society, the victims of his crimes, and his
    family—particularly his young son. He explains the financial
    difficulties that drove him to his “horrible decision” and asserts
    that he takes responsibility for his actions. He additionally
    describes the efforts he has made to rehabilitate himself while
    incarcerated and details his past charitable and volunteer work.
    
    Palacios, 844 F.3d at 530
    . In like, but less extensive, fashion, the defendant in
    Avila-Cortez explained he would have told the trial court “that he had a specific
    strategy to address his problem with alcohol and that he was making plans to
    return permanently to Mexico with his wife.” 
    Avila-Cortez, 582 F.3d at 606
    .
    Given the amount of specificity that allocution would have added to counsel’s
    “somewhat cursory” statements, our court remanded both cases. 
    Palacios, 844 F.3d at 533
    .
    Unlike Magwood’s unrepentant defendant, Jose has provided additional
    mitigating facts on appeal. He states in his brief that, if allocution had been
    allowed,
    [he] would have explained that he only returned to the United
    States to earn a better living to support his children. He would
    have explained that his mother has been diagnosed with
    Alzheimer’s disease, and that he is motivated to return to
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    Honduras to help her. He would have explained that he has
    struggled with alcohol abuse in the past, but that he is willing to
    address this problem and maintain sobriety. [He] would have
    expressed remorse for his crime. And he would have explained why
    a sentence at the top of the Guidelines range was not necessary to
    deter future crimes: because he has children, siblings, and parents
    in Honduras and skills to make a life for himself there.
    Jose’s simple provision of this information means he has at least passed the
    Magwood threshold. But his recitation is also not quite “lengthy” and
    “thorough” enough to reach the heights of 
    Palacios. 844 F.3d at 530
    , 532. In
    substance, Jose’s prospective allocution sits somewhere on a spectrum between
    Chavez-Perez and Avila-Cortez. As we found a basis for remand in the latter
    and not the former, we must determine whether Jose offered enough specificity
    and detail to make remand appropriate.
    While his counsel referenced the economic reason for Jose’s illegal entry,
    he did not explain that Jose’s aim was to support his family. This is an
    additional detail, but likely not enough on its own to move the trial court to
    lessen Jose’s sentence. The court’s only stated ground for imposing its top-of-
    range sentence was aversion to Jose’s prior aggravated robbery, which this
    statement would not have addressed.
    Jose next mentions his mother’s recent Alzheimer’s diagnosis and casts
    that as his reason to return to Honduras. Yet this ground is cast into doubt by
    an element of his presentence report (PSR), which states that “[t]he defendant
    was not sure of his parent’s health status.” United States v. Figueroa-Coello,
    No. 2:17-CR-00899-JCZ (W.D. Tex. Apr. 3, 2018), ECF 23 at 7. Our circuit has
    not yet determined what we should do when the defendant’s PSR mentions an
    element of a proffered allocution. Going forward, if the PSR directly contradicts
    a portion of that allocution, we presume that it will not likely provide an
    objective ground to lessen his sentence. However, if a defendant merely
    mentions information contained in the PSR as part of his allocution, we will
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    not make this presumption. Instead, items referenced in the PSR but not
    referenced by counsel will be treated as “specific facts or additional details”
    that may persuade the trial court, and thus may constitute grounds for
    remand. In this instance, Jose’s PSR contradicts his briefed allocution
    statement about his knowledge of his mother’s health. We find that this detail
    provides no objective basis upon which the district court would have curtailed
    his sentence, and thus on its own does not warrant remand.
    In contrast, Jose’s openness to maintaining sobriety goes beyond his
    counsel’s mere statement that Jose’s past crimes were in part due to alcohol
    abuse. Jose’s expressed willingness to change in a manner relating to the root
    of his prior criminal activity—the trial court’s reason for his higher sentence—
    may have led to a lower sentence, especially when coupled with his remorse.
    We have previously recognized statements of remorse and sincere willingness
    to change as a possible “objective basis” for lessening a sentence. See 
    Palacios, 844 F.3d at 530
    . So this proffered statement weighs in favor of remand.
    The final portion of Jose’s allocution—his intent to return to Honduras
    and make a living with his family—could also be grounds for a sentence
    reduction. If a defendant truly means to leave America at the next available
    opportunity and never illegally return, the district court could find it unlikely
    that he will reoffend if granted a lighter sentence.
    On balance, we hold that allowing allocution in this case would give
    “detail, expression, [and] expansion” to Jose’s plea for a lessened sentence that
    his counsel simply did not. 
    Avila-Cortez, 582 F.3d at 606
    ; see also Green v.
    United States, 
    365 U.S. 301
    , 304 (1961) (“The most persuasive counsel may not
    be able to speak for a defendant as the defendant might, with halting
    eloquence, speak for himself”). In fact, Jose’s final two intended remarks are
    quite like those of the defendant in Avila-Cortez, who explained that he would
    have told the trial court “that he had a specific strategy to address his problem
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    with alcohol and that he was making plans to return permanently to Mexico
    with his 
    wife.” 582 F.3d at 606
    . In that case, we exercised our discretion to
    remand.
    We are not persuaded by the Government’s claim that counsel presented
    essentially the same facts as Jose would have, had he been able to allocute.
    This formulation of our standard disregards the specificity allocution provides.
    The right of allocution exists because counsel may not be able to provide “the
    same quantity or quality of mitigating evidence” as the defendant at
    sentencing. 
    Id. Jose’s intended
    allocution here is markedly different than his
    counsel’s statements to the court.
    Accordingly, we are also unconvinced by the Government’s assertion that
    Jose has presented no further evidence that would affect the district court’s
    ground for sentencing. In Chavez-Perez we found that the defendant’s long and
    sordid criminal history required a rebuttal that he never 
    offered. 844 F.3d at 546
    . But Jose has committed comparatively few crimes. And he is unlikely to
    commit more if he follows through on his intent to maintain sobriety and leave
    promptly for his home of Honduras. He is far more like the defendant in Avila-
    Cortez, which (as previously mentioned) we remanded. See 
    id. at 603.
    Though
    the district court did state that “there’s no excuse of a prior offense of
    aggravated robbery . . . [in] our country,” Jose’s prospective allocution provided
    just enough additional detail that could lead a reasonable judge to reconsider
    his stringent sentence.
    IV
    Jose was not allowed to say his piece before the district court, as Rule 32
    requires. This may have saddled him with a longer-than-needed sentence.
    Remand would correct this plain error and ensure fairness. We REVERSE the
    judgment of the district court and REMAND for resentencing.
    10