United States v. Daniel Aguirre-Romero, 680 F. App'x 291

Defendant Daniel Aguirre-Romero pleaded guilty to illegal reentry after deportation (8 U.S.C. § 1326); PSR computed total offense level 21 (including a 16-level enhancement for a prior drug-trafficking conviction) and criminal-history category IV, producing a 57–71 month guideline range.
PSR and record detailed prior convictions including injury to a child (serious infant injuries), multiple prior deportations and an arrest for making a terroristic threat; some witnesses recanted or disputed earlier statements about domestic violence.
Defense urged a low-end guideline sentence or downward variance based on the age of the drug conviction and defendant’s family/work history in Mexico; government sought top-of-range sentence based on criminal history.
At sentencing the district court questioned the defendant and counsel about the child-injury convictions and family life, expressed skepticism about defense claims, then imposed a 71-month sentence (top of guidelines).
The court twice asked generally, "Anything else from anyone?" but did not expressly address the defendant personally with an open invitation to speak in mitigation before pronouncing sentence; defense did not object at sentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court denied defendant right to allocute under Fed. R. Crim. P. 32(i)(4)(A)(ii)	Aguirre-Romero: court failed to personally invite him to speak on any subject before sentencing	Government: court engaged defendant in colloquy and asked open-ended "Anything else?" questions, so allocution requirement satisfied	Court: Error was clear — colloquy and general questions did not satisfy Rule 32; allocution opportunity was not given
Whether the allocution error affected substantial rights	Aguirre-Romero: presumption of prejudice because sentenced at top of guidelines and defense urged lower sentence	Government: concedes prejudice because sentence was at top of range	Court: Presumed prejudice applies when not sentenced at bottom; error affected substantial rights
Whether appellate court should exercise discretion to remand for resentencing	Aguirre-Romero: first opportunity to allocute; he stated what he would have said (childhood abuse, economic hardship, remorse, details on child-injury matter) and counsel’s arguments did not substitute for personal allocution	Government: some mitigation was presented by counsel and in PSR; remand not always required	Court: Exercised discretion to correct error and remanded — not in the limited class of cases where reversal is unwarranted

United States v. Avila-Cortez, 582 F.3d 602 (5th Cir. 2009) (plain-error review for unpreserved sentencing errors)
Puckett v. United States, 556 U.S. 129 (2009) (plain-error standard requires clear error affecting substantial rights and discretion to correct)
United States v. Dickson, 712 F.2d 952 (5th Cir. 1983) (Rule 32 allocution requirement construed as personal inquiry to defendant)
United States v. Magwood, 445 F.3d 826 (5th Cir. 2006) (colloquy on specific issues does not substitute for open invitation to allocute)
Green v. United States, 365 U.S. 301 (1961) (Rule 32 requires opportunity for defendant personally to speak in mitigation)
Hill v. United States, 368 U.S. 424 (1962) (recognition of allocution right under Rule 32)
United States v. Echegollen-Barrueta, 195 F.3d 786 (5th Cir. 1999) (requirement that record show defendant knew of right to speak on any subject)
United States v. Garza-Lopez, 410 F.3d 268 (5th Cir. 2005) (plain-error analysis; clarity of error at time of appellate review)
Johnson v. United States, 520 U.S. 461 (1997) (plain-error doctrine principles)
United States v. Palacios, 844 F.3d 527 (5th Cir. 2016) (factors for whether allocution error warrants resentencing)
United States v. Reyna, 358 F.3d 344 (5th Cir. 2004) (limiting class of cases where allocution error does not require correction)