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United States v. Cruz

United States Court of Appeals, Fifth Circuit

June 30, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
RAMIRO MONTOYA-DE LA CRUZ, Defendant-Appellant

          Appeals from the United States District Court for the Western District of Texas

          Before JOLLY, SMITH, and GRAVES, Circuit Judges.

          E. GRADY JOLLY, Circuit Judge:

         Ramiro Montoya-De La Cruz ("Montoya") challenges his sentences for illegal reentry and violation of the terms of his supervised release on the ground that the district court plainly erred by failing to provide him an opportunity to allocute before pronouncing his sentences. We AFFIRM.

         I.

         Montoya was convicted of illegal entry in 2012 and illegal entry after deportation in 2012 and in 2013, receiving a probationary sentence each time. He was last deported from the United States in 2013. By 2014, Montoya was back in the United States, where he again violated the law. This time he was convicted of aggravated driving while under the influence of alcohol, driving without a driver's license, and driving on the wrong side of the road, receiving a sentence of ninety days in custody, eighty-eight of which were suspended.

         In April 2015, Border Patrol agents again found Montoya in the United States-this time with a group of other undocumented Mexican nationals traveling to Lubbock, Texas, to seek work. Montoya pleaded guilty to illegal reentry after deportation. The Government then moved to revoke Montoya's probation for his 2013 illegal entry offense.

         In August 2015, the district court, Chief Judge Biery presiding, simultaneously conducted the sentencing hearing on Montoya's 2015 illegal reentry offense and on revocation of his probation for his 2013 illegal reentry offense.[1] This was the second time that Montoya appeared before Judge Biery, who had been the sentencing judge for Montoya's 2013 offense.

         At the sentencing hearing, the district court provided the applicable Guidelines range for each offense and asked counsel whether there was "[a]nything that would change that." Counsel responded "No." The court then asked defense counsel whether there was "any legal reason why . . . [Montoya's] supervised release should not be revoked." Defense counsel again said "No" and made no further comments during the hearing.

         The district court then addressed Montoya. He asked him whether he was "the same Ramiro Montoya-De La Cruz who's convicted here on illegal reentry again, " to which Montoya responded, "Yes, sir." The court then asked him why he kept coming back if he kept getting caught. Montoya responded, "Out of need." The court asked how much money he made while he was locked up; he responded that he made none. The court noted that Montoya had repeatedly been in federal court and asked, "So you know you're going to get caught, right?" Montoya answered, "Yes, sir." The court asked, "Once you finish your punishment in these cases, what do you plan to do?" Montoya replied, "Stay in my country, sir." The court responded, "Okay. Because next time-instead of a couple of years in prison, next time it'll be four years, and the next time it'll be seven or eight. Do you understand now how it works?" Montoya again answered, "Yes, sir."

         The district court sentenced Montoya to fifteen months of imprisonment and three years of supervised release for the 2015 illegal entry offense. The court also revoked Montoya's probation and sentenced him to eight months of imprisonment to run consecutively to his sentence for the new offense. Both sentences were at the bottom of the advisory Guidelines range. Montoya confirmed that he understood his sentences, and neither he nor his counsel objected to either sentence.

         Montoya has timely appealed.[2] He contends that the district court plainly erred by denying him his right to allocute before sentencing him in contravention of Federal Rule of Criminal Procedure 32.[3]

         II.

         Because Montoya did not object in the district court to the denial of his right to allocution, we review his claim for plain error. United States v. Reyna, 358 F.3d 344, 350 (5th Cir. 2004) (en banc). Therefore, to prevail, Montoya must show: (1) "an error or defect"; (2) that is "clear or obvious, rather than subject to reasonable dispute"; and (3) that "affect[s] [his] substantial rights." Puckett v. United States, 556 U.S. 129, 135 (2009) (citations omitted). If those three requirements are met, we have discretion to correct the error, but "only if the error ...


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