from the United States District Court for the Western
District of Texas
KING, SMITH, and WILLETT, Circuit Judges.
asks us to overturn the district court's
within-Guidelines sentence because he was denied the chance
to speak at his sentencing hearing. We agree that Appellant
successfully demonstrated reversible plain error that
affected the fairness of his sentence. We thus REVERSE the
district court's judgment and REMAND for resentencing.
Jose Santos Figueroa-Coello, a citizen of both Honduras and
Mexico with a criminal history, pleaded guilty to illegally
reentering the United States. See 8 U.S.C. §
1326. His proper sentencing range, as determined based on his
presentence report, was 21 to 27 months. At the sentencing
hearing, the following exchange took place:
THE COURT: Prior to sentencing, do you have anything that
you'd like to say on behalf of your client?
MS. PADILLA PAXTON [Jose's attorney]: Yes, Your Honor.
Mr. Figueroa-Coello is a citizen of both Honduras and Mexico.
He came to the United States in order to make a better
living. He can make about $600 a week in construction here in
the United States. He was last removed in 2014. Although he
does not minimize his past conduct, we would point out that
his issue stems from alcohol abuse. He was on his way to
Houston this time to reunite with his family. And he's
asking for a sentence as lenient as possible.
The Government argued for a top-of-the-range sentence of 27
months based on Jose's prior conviction for aggravated
robbery. The district court never addressed Jose or asked
whether he had anything to say. Instead, the court agreed
with the Government and sentenced Jose to 27 months in prison
plus three years supervised release. Jose appealed, arguing
that the district court reversibly erred by failing to ask
him whether he wished to speak at his sentencing hearing.
failed to object at trial, we review for plain error.
United States v. Reyna, 358 F.3d 344, 348-50 (5th
Cir. 2004) (en banc). Relief under the plain-error standard
"will be difficult to get, as it should be."
United States v. Dominguez Benitez, 542 U.S. 74, 83,
n. 9 (2004). To receive it, the appellant must show the lower
court's action (or lack thereof) (1) deviated from
unwaived and established legal rules, (2) was "clear or
obvious, rather than subject to reasonable dispute," and
(3) affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). This court then has
discretion to correct the error if (4) it seriously affects
the fairness, integrity, or public reputation of judicial
is little dispute here regarding the first three prongs of
the Puckett test, which serve to establish the
existence of plain error. The parties quarrel over prong
four, which concerns ...