*1 other, contracts. similar readily found statutory Thus, common canons
See id. Traxxas. not aid
construction do that the district
holdWe contract that the it determined
err when thus, ambiguous, summary judg- Traxxas’s denied
properly Appar- motions. See JA
ment and Rule 50 law,
el, York F.3d at 396. Under New left appropriately district court ambiguous contract
interpretation of this jury.
to the See id.
IV. CONCLUSION reasons, hold that foregoing
For ap- to hear jurisdiction
this court judgment of the AFFIRM the
peal
district court. America, STATES
UNITED
Plaintiff-Appellee Cruz, La
Ramiro MONTOYA-De
Defendant-Appellant
No. 15-50804 No. 15-50808
Consolidated with Case Appeals,
United States Court
Fifth Circuit. 30, 2017
Filed June
*2
traveling
nationals
Jr.,
undocumented Mexican
Gay,
Assistant U.S. At-
Joseph H.
Lubbock, Texas,
Office,
to .seek work.
Attorney’s
Western
torney, U.S.
TX,
reentry after de-
Texas,
Antonio,
guilty
illegal
pleaded
Ken-
San
District
moved to
The Government then
Attorney,
portation.
Assistant U.S.
Kaplan,
neth P.
for his 2013
Montoya’s probation
Office,
revoke
Attorney’s
Western District
U.S.
*3
illegal entry offense.
Texas,
Paso, TX,
Plaintiff-Appellee.
El
for
Coltharp, Assistant Federal
Donna F.
court,
Chief
August
In
Franco,
Defender,
Public
Maureen Scott
simultaneously con-
Judge Biery presiding,
Defender, Federal Public
Federal Public
hearing on Monto-
sentencing
ducted
Office,
of Tex-
Western District
Defender’s
and on
illegal reentry
offense
ya’s
Antonio, TX,
as,
Defendant-Appel-
San
for his 2013
probation
revocation of his
lant.
reentry offense.1 This was the sec-
illegal
Montoya appeared
time that
ond
GRAVES,
JOLLY, SMITH,
Before
Judge Biery, who had been
Judges.
Circuit
Montoya’s 2013 offense.
judge for
JOLLY,
Judge:
E.
Circuit
GRADY
sentencing hearing, the district
At the
applicable Guidelines
(“Monto-
provided
Montoya-De La Cruz
Ramiro
counsel
range for each offense and asked
illegal
ya”) challenges his sentences
“[a]nything
there
that would
whether
was
reentry
of the terms of his
and violation
change
responded
that.” Counsel
“No.”
ground
release on the
that the
supervised
The court
then asked defense counsel
by failing to
why
“any legal
whether there was
reason
him an
to allocute be-
provide
[Montoya’s] supervised
...
release should
AF-
pronouncing
fore
his sentences. We
again
not be revoked.” Defense counsel
FIRM.
further comments
said “No” and made no
I.
hearing.
during the
entry in
illegal
was convicted of
then addressed Mon-
The district court
entry
deportation
after
in
illegal
2012 and
toya. He asked him whether he was “the
2013, receiving probationary
2012 and in
Montoya-De La
who’s
same Ramiro
Cruz
deported
He
last
sentence each time.
reentry
illegal
again,”
convicted here on
By
in 2013.
from the United States
“Yes,
Montoya responded,
which
sir.” The
States,
in the United
was back
why
coming
him
he kept
court then asked
time
again
he
violated the law. This
where
kept getting caught. Montoya
back
he
driving
aggravated
he was
of
convicted
of need.” The court asked
responded, “Out
alcohol,
while under the influence of
driv-
money he made while he was
how much
license,
driving
ing without a driver’s
up;
responded
locked
road,
wrong
receiving
side of the
on the
had
none. The court noted
custody,
ninety days
eighty-
of
sentence
in federal court and
repeatedly been
eight
suspended.
which were
of
asked,
you
you’re going
get
know
“So
answered, ‘Tes,
caught, right?” Montoya
April
agents
In
Border Patrol
asked,
you
The court
“Once
finish
found
in the United
sir.”
again
eases,
your punishment
other
in these
what do
group
time with a
States —this
speaks Spanish.
proceedings were conducted with the
1. The
interpreter because
assistance of the court
States,
you plan
to do?”
replied, “Stay
129 S.Ct.
(2009) (citations
my country, sir.” The court responded,
omitted).
The district court sentenced A. imprisonment fifteen months of and three years supervised release for the 2015 begin by We considering whether *4 illegal entry The court also re- offense. the district court committed by voked probation and sentenced failing to Montoya offer the opportunity to him eight imprisonment to months of to allocute sentencing before him. run consecutively to his sentence for the Montoya although contends the new offense. Both sentences were at the engaged in a colloquy him, brief advisory range. Guidelines exchange did not comply with Rule 32 Montoya confirmed that he understood his because the clearly court never and un- sentences, and neither he nor his counsel equivocally him right offered the speak to objected to either sentence. any subject on of his choosing before sen- timely appealed.2 He Further, tencing. Montoya argues, contends That the district court plainly questions'were by driven its con- by erred him denying right his to allocute cerns, not receiving his interest in a lower sentencing before him in contravention of sentence. Federal Rule of Criminal Procedure 32.3 The Government counters that the dis- trict court complied by with Rule asking II. Montoya open-ended questions that en- object Because compassed mitigation why issues such as in the district court to the denial of his again committed the same crime and right to we review his claim for planned how he to avoid recidivistic behav- plain error. 358 ior in the future. 2004) (en banc). F.3d prevail, Montoya to
Therefore,
must show:
The district court
(1)
(2)
defect”;
“an error or
that is
by failing
“clear
an allocution
obvious,
or
subject
rather than
to
reason
pronouncing
before
his sen
(3)
dispute”;
able
and
that
long required
“affect[s] [his]
tences. We have
strict com
Puckett v. United
rights.”
pliance
Thus,
with Rule 32.4
order to
“[i]n
prison
imposing
released from
on Au-
sentence. Fed. R. Crim. P.
32(i)(4)(A)(ii).
gust
subject
but remains
to a three-
Therefore,
year
supervised
term of
release.
4. See,
Palacios,
e.g., United States v.
appeal is not moot.
2016) (holding
a
that
discussion between the district court and de
requires
sentencing
3. Rule 32
court to
regarding
acceptance
fendant
credit for
personally
“address the defendant
in order to
responsibility
specific
was not "a
and un
permit
present
defendant to
equivocal opportunity
speak mitigation
mitigate
information to
the sentence” before
sentence”);
of his
United States v. Montalvo-
particu-
on
must
addressed
the district court
satisfy Rule
issues,
enough
lar
which is not
that
the de-
‘unequivocally’
communicate
Echegollen-Barrueta,
Rule 32. See
by making
right
a
to allocute”
fendant has
(citation omitted). And the
F.3d at 789
to the defen-
personal inquiry
“a
directed
clearly
convincingly
record does not
445 F.3d
Magwood,
dant.” United States
(citations omitted).
he had a
2006)
demonstrate that
knew
826, 829
any subject he chose
on
enough
is
“[I]t
(citation
he was sentenced. See id.
particu-
a
a defendant on
court addresses
omitted).
Accordingly, we hold
issue,
lar
affords counsel
failing
provide
court erred
specific
speak, or hears
opportunity.
with an allocution
presentence
report.”
objections to
language
clear
of the rule and
“Given the
(cita-
manner that shows ly the defendant knew he had B. any subject choosing on *5 Next, we consider whether the dis imposition of sentence.” Id. prior to the (citation omitted). Montoya’s trict court’s error affected sub rights. stantial colloquy court’s brief with
The district
compliance Montoya
attempt
does not
to establish
Montoya fell short of strict
actually prejudi-
unequivo-
not
that the error here was
Rule
The court did
Moreover,
acknowledges
that: he
had a
cial.
cally state that
appli-
of the
subject
before his was sentenced
the bottom
any
on
he chose
an exten-
ranges;
cable Guidelines
he had
imposed.
was
See United States
sentence
colloquy
sentencing judge;
with the
Villa-Lujan,
Fed.Appx.
286 sive
2016)
(5th
any argu-
though
even
neither he nor his counsel
(holding
Cir.
variance; and,
ex-
for a
when
“and the district court
ments
the defendant
downward
he had
reason to dis-
tensively
topics
several
asked whether
discussed
sentences,
ranges, his counsel
pute
the district
the Guidelines
imposition
of his
Nevertheless,
that he did not.
Mon-
it did not
stated
[plainly]
erred because
toya
presume
that we should
give
op-
an
contends
[unequivocally]
[the defendant]
neither he nor his attor-
any subject
prejudice
on
in miti-
because
portunity
sentences”). Moreover,
opportunity
an
to make
ney
was
gation of his
(5th
any topic
choosing,”
speak on
of his
Rodriguez, 476
2012) (holding
plain
that it was
error for the
plainly denied him the
to allo-
which
the defendant an
cute);
district court to not allow
Echegollen-Barrueta,
United States
opportunity to address the court before im-
1999) (hold-
789-90
sentence,
though
posing
the court
even
personal
ing
the district court's
address
that
questions
several
asked the defendant
defendant, "asking
he had
twice whether
”
arguments
made several
on
defense counsel
say,'
'anything
failed to
Rule 32
behalf); United States v. Per-
the defendant's
ez,
demonstrated
when the defendant's answers
may
that he
not have understood
2012) (holding that the district court’s
any subject
a
on
had
questioning of defendant on several factual
choosing).
opportunity
topics
provide him "an
arguments for a downward variance.5
review,
On
rejected
we
argument that,
disputes
The Government
that Monto-
circumstances,
under these
his substantial
ya’s
counsel had no
to make
Reyna,
rights were
affected because
we
mitigation arguments
suggests
explained,
may
the Court
infer from defense counsel’s
contemplated
failure to move for a downward
that at
variance
least some—and
perhaps
that counsel knew such a motion would be
all—defendants who were de-
frivolous.
nied allocution at revocation sentencing,
but who nevertheless received a sen-
We conclude
tence at the
guideline
court’s
error did
affect
sub
range, and who never even advanced
Where,
here,
rights.
stantial
as
the error
arguments that might have
resulted
was the denial of the defendant’s allocution
sentence,
lower
would not be
owed
right,
generally “presume
we
de
[a
presumption
prejudice
plain-error
on
rights
were affected
fendant’s
review.
if he shows there
an opportunity
Id. the error ‘to
played
a role in the
”
decision.’
We reached the same
conclusion
Gonzalez-Reyes,
United States v.
582 Fed.
Villa-Lujan
case near
— a
2014)
Appx.
(quoting
ly indistinguishable from this one. In that
351-52).
Reyna,
Reyna
Under
case,
review,
which was also on plain error
presume prejudice
to a defendant who
defendant,
who was denied the right to
was not sentenced at the bottom of the
allocute, pleaded guilty to the same of
but,
range,
correct Guideline
as we ex
Montoya,
fenses as
had an
collo
extensive
where,
here,
plained as
a defen
quy
judge,
with the
was sentenced at the
*6
dant is sentenced at the bottom of the
applicable
ranges,
Guidelines
applicable
ranges, prejudice
Guidelines
argue
and did not
for downward variance
presumed
should
be
“the district
or a different Guidelines calculation. Villa-
‘rejected
arguments by
has
the de Lujan,
Fed.Appx.
661
at 286-87. The de
in
fendant that would have resulted
a low
fendant made the
argument
same
as to the
”
E.g.,
(quoting Reyna,
id.
er
sentence.’
presumption
prejudice
of
353); Montalvo-Rodriguez,
court’s by failing Montoya’s not affect sub- rights cution did it then holds that Thus, Montoya right has not met his to allocute. But rights. stantial af- rights showing that the court com- were his burden hand, gives it it mitted reversible error. fected. What with one justifies takes with the It this move other. III. by declining pre- afford sumption prejudice post-Reyna that our reasons, foregoing we AFFIRM For the Reyna, applied. cases have See the district court’s sentences. (holding “presume that we should GRAVES, JR., Circuit JAMES E. when a defendant shows a viola- prejudice Judge, dissenting: and the right tion of the a role in the played violation to have such Procedure 32
Federal Rule of Criminal
decision”)
(quot-
requires the district court to “address
276,
Adams,
v.
252 F.Sd
ing United States
in
personally
permit
order to
defendant
(3d
also,
2001));
e.g., United
287
see
any
present
the defendant
Gonzalez-Reyes,
Fed.Appx.
582
States
mitigate the sentence” be-
information to
302,
2014);
304
United States
imposing
fore
sentence. Fed. R. Crim. P.
28,
476
29
Montalvo-Rodriguez,
(i)
(A)(ii).
(4)
guarantees
Rule 32
the de-
Garcia,
2012);
States v.
United
impor-
“an
fendant’s
504,
Yet
tant,
right”
deep-
that “is
highly respected
so,
majority
ap-
doing
apparently
ly
legal
in our
tradition.” United
rooted
plies
presumption
its own
States v.
—that
prejudiced
was not
the denial
2004) (en banc). Indeed,
any topic
himself on
jurisprudence
been enshrined
our
since
choosing.
country.
founding
before the
of this
Green
States,
v. United
us, I
the record before
fail to see
On
(1961).
S.Ct.
5 L.Ed.2d
definitively conclude that noth-
how we can
important
several
functions.
It serves
ing Montoya would have said would
“First,
gives
it
one more
defendant
so,
Particularly
difference.
conviction ‘to throw
opportunity describes
his brief several
”
*7
mercy of the court.’ Unit
himself on the
he would have made had he
statements
(5th
979,
Dabeit,
ed
v.
231 F.3d
981
States
specified
allocuted.
a defendant has
When
2000),
abrogated
358 F.3d
mitigation
arguments
favor
persuasive
may
“The
counsel
344.
most
made,
properly given
would have
be able to
defendant as
past
remanded
opportunity, we have
might,
halting eloquence,
defendant
resentencing
recognized
because we
Green,
304,
speak for himself.”
right to allocution in
that the denial of the
symbolic
The
“also has
2017), 24, 2017); as revised United Perez,
States v. 460 Fed.Appx. 2012); Lister, There these, significant
is no difference between anything,
cases and the case at bar. If
Montoya’s inability to speak on his own prejudicial,
behalf was more rather than
less, because his counsel failed also
any arguments in favor of mitigation. this, legal
When the tradition is as old as this, important is as as and the this,
rule is as clear as
judge simply needs to follow the rule.
I respectfully dissent. BANK, Plaintiff-
1ST SOURCE
Appellee,
Joaquim NETO, Salles Leite
Defendant-Appellant.
No. 17-1058 Appeals,
United States Court of
Seventh Circuit.
Argued May
Decided June