Appeals from the United States District Court for the Western
District of Texas
JOLLY, SMITH, and GRAVES, Circuit Judges.
GRADY JOLLY, Circuit Judge:
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.
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
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.
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. This was the second time
that Montoya appeared before Judge Biery, who had been the
sentencing judge for Montoya's 2013 offense.
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
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."
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
has timely appealed. 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.
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