United States v. Angel Chavez-Perez
2016 U.S. App. LEXIS 23298
| 5th Cir. | 2016Background
- Defendant Angel Rodolfo Chavez-Perez, a Mexican national with an extensive criminal history, pleaded guilty to illegal reentry under 8 U.S.C. § 1326.
- PSR calculated total offense level 21, criminal history category VI, yielding an advisory Guidelines range of 77–96 months; probation recommended mid-range.
- At sentencing, defense counsel urged a low-end sentence, citing family support, pressure to return from Mexico, and substance-abuse history; counsel noted most prior convictions were misdemeanors and no violent offenses since 2006.
- The district court questioned Chavez-Perez about his family’s role and safety concerns in Mexico, elicited a brief apology and explanation for returning to see his sick mother, and then imposed an 85-month sentence.
- Chavez-Perez did not object at sentencing but later appealed, arguing plain error because the court failed to give him an unequivocal, personal opportunity to allocute.
- The Fifth Circuit affirmed, finding allocution error but declining to remand because Chavez-Perez failed to show what additional, specific mitigating information he would have offered that likely would have yielded a lower sentence.
Issues
| Issue | Chavez-Perez's Argument | Government's/Respondent's Argument | Held |
|---|---|---|---|
| Whether the district court gave a proper, unequivocal opportunity to allocute under Rule 32 | Court did not personally and unequivocally invite him to speak on any subject prior to sentencing | Court’s questioning and defendant’s brief responses sufficed for record purposes; any error was harmless | Error occurred: questioning did not constitute the required unequivocal allocution invitation (reversed on this point) |
| Whether the allocution error satisfies plain-error prongs (clear error affecting substantial rights) | Error affected substantial rights because sentence was mid-range (85 months) within Guidelines and could have been lower if allocution occurred | Even if error occurred, defendant must show specific mitigating facts he would have offered that likely would have changed sentence | Error was clear and affected substantial rights (presumption of prejudice because sentence not at bottom of range) |
| Whether the appellate court should exercise discretion to correct the allocution error (remand for resentencing) | Remand required because defendant was deprived of the right to allocute and prejudice is presumed | Exercise of discretion not warranted absent objective, specific mitigating information that likely would have persuaded the district court to impose a lower sentence | No remand: defendant failed to proffer specific additional mitigating facts; most points were already presented by counsel; appellate court declines to correct error |
| Burden to show miscarriage of justice on allocution plain-error claims | Defendant must show objective basis that would have moved trial court to reduce sentence | Court will review record; mere assertions are insufficient without specifics | Defendant’s vague proffers (family pressure, dangers in Mexico, substance-abuse efforts) were insufficient to show miscarriage of justice; affirmation of sentence |
Key Cases Cited
- Reyna v. United States, 358 F.3d 344 (5th Cir. 2004) (en banc) (plain-error framework for allocution; presumption of prejudice when sentence above bottom of Guidelines)
- Olano v. United States, 507 U.S. 725 (1993) (plain-error standard under Rule 52(b))
- Avila-Cortez v. United States, 582 F.3d 602 (5th Cir. 2009) (discretionary correction of allocution error only when fairness/integrity/public reputation demand it)
- Magwood v. United States, 445 F.3d 826 (5th Cir. 2006) (district court must communicate unequivocally that defendant has right to allocute)
- Echegollen-Barrueta v. United States, 195 F.3d 786 (5th Cir. 1999) (Rule 32 allocution requirement applied literally)
- Neal v. United States, [citation="212 F. App'x 328"] (5th Cir. 2007) (appellate court declines to correct allocution error where defendant fails to allege specific mitigating facts likely to have persuaded court)
- Zaleta v. United States, [citation="458 F. App'x 369"] (5th Cir. 2012) (no remand where counsel presented mitigating arguments and defendant offered no new facts on appeal)