IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40231

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

DANIEL AGUIRRE-ROMERO, also known as Daniel Romero-Aguirre, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 5:15-CR-85-1

Before WIENER, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

Daniel Aguirre-Romero challenges his 71-month sentence for illegally 

reentering the country after having been deported, arguing that the district 

court deprived him of his right to allocute. Because we find that the district 

court plainly erred and this error seriously affects the fairness, integrity, or 

public reputation of the proceedings, we exercise our discretion to correct the 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 23, 2017

Lyle W. Cayce

Clerk

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error and VACATE Aguirre-Romero’s sentence and REMAND for 

resentencing.

I

Aguirre-Romero pleaded guilty, without the benefit of a plea agreement, 

to illegally reentering the country after having been deported, in violation of 8 

U.S.C. § 1326. The presentence report (PSR) assessed Aguirre-Romero a total 

offense level of 21, which included a 16-level enhancement because he had 

previously been convicted of a drug-trafficking offense, and placed him in 

criminal history category IV, resulting in a guidelines range of 57 to 71 months. 

The PSR also described Aguirre-Romero’s history of domestic violence. 

His criminal history included convictions for injury to a child relating to his 

infliction of head injuries and rib fractures to his three-month-old daughter. 

According to statements made to investigators by Jahaira Alejandra Garcia,

the child’s mother and Aguirre-Romero’s common-law wife, the child was left 

in Aguirre-Romero’s care one afternoon while Garcia went to a nearby store to 

purchase milk and water. Soon after she returned, the baby cried out in pain, 

was having difficulty breathing, was unresponsive, and was limp. During the 

same interview, Garcia also reported that Aguirre-Romero once threw the child

across the bed, causing her to hit the bedpost. Aguirre-Romero denied any 

wrongdoing. He explained that he previously allowed an undocumented couple 

to reside at his apartment for two and a half weeks, and on one occasion his 

child was left with them while he ran errands with his wife. He stated that 

the child began to show discomfort after she was left in their care.

In her interview with the probation officer as part of the sentencing 

proceedings in this case, Garcia recanted the statement she provided to officers 

at the time and provided a similar version of events to the one that AguirreRomero provided during questioning. Moreover, she described AguirreRomero as a “good father” and reported that prior to his arrest, she would leave 

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their two younger children with him in Nuevo Laredo, Mexico, while she 

worked and their two older children attended school in Laredo, Texas. She 

denied that Aguirre-Romero was abusive to her, explaining that he had “only 

slapped her on a few occasions” when “she was being impertinent in the 

presence of his friends.” Garcia’s mother, however, reported that she believed 

that Garcia was the victim of domestic violence; she stated that she had seen 

Garcia with bruises and other injuries. She further explained that AguirreRomero’s former common-law wife had ended their relationship “because of 

domestic violence issues.” The PSR also noted that Aguirre-Romero had been 

arrested for making a terroristic threat after threatening to assault his former 

common-law wife. 

The district court began the sentencing hearing by reviewing the PSR’s 

guidelines calculation and Aguirre-Romero’s criminal history. AguirreRomero represented that the PSR was correct. Defense counsel explained to 

the court that, after Aguirre-Romero was deported, he remained in Mexico for 

three years and held a job. He lived there with Garcia and their children and 

helped his wife care for the family. The court asked counsel several follow-up 

questions regarding Aguirre-Romero’s convictions for injury to a child and the 

effect they had on his family life, noting that he had almost killed his daughter, 

listing the injuries that she suffered, and seeming incredulous in the face of

counsel’s representation that Aguirre-Romero was a good father. The court 

also recounted the rest of Aguirre-Romero’s criminal history, including his 

prior illegal entries and the charge for making a terroristic threat, noting that 

he had nearly enough criminal history points to place him in a higher category 

and characterizing his record as “very serious” and “very troubling.” Counsel 

continued to emphasize that Romero-Aguirre and his wife worked hard to 

make their marriage last, Aguirre-Romero had not returned to the United 

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States for three years, and he eventually returned so that he could make more 

money and better support his family. 

Aguirre-Romero also engaged in a colloquy with the court regarding his 

convictions for injury to a child, representing that he had the support of his 

family, he did not hurt his daughter, he believed he was pleading guilty only 

to endangering a child, the other people living with them were responsible for 

his daughter’s injuries, and he was a loving father. 

Defense counsel then asked the court to consider a sentence at the low 

end of the guidelines range or to vary downward on the basis that the drug 

conviction that increased Aguirre-Romero’s offense level by 16 levels was 15 

years old and was committed when he was 24 years old. The government asked 

for a sentence at the top of the guidelines range based on Aguirre-Romero’s 

criminal history. The probation officer explained that during an interview with 

Garcia, she recanted the statement she previously made to police officers that 

Aguirre-Romero caused the injuries to their daughter, blamed the couple that 

was staying with them, and explained that Aguirre-Romero was a good father. 

The probation officer stated that Garcia reported that her daughter was 

developing normally and was healthy. The court then asked whether there 

was “[a]nything else from anyone?” The government replied that it had 

nothing to add, and the defense did not respond. 

The court then explained that it was concerned about Aguirre-Romero’s 

four previous deportations; his prior convictions, including for injury to a child 

and for drug offenses; and other incidents that did not result in convictions but 

about which the record contained specific facts. Mitigating factors recognized 

by the court included that this was Aguirre-Romero’s first conviction for illegal 

reentry after deportation, he remained in Mexico for three years, and his 

family claimed to have made amends with him. The court found that a 

downward variance based on the age of the conviction underlying the 16-level 

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enhancement was not warranted. It imposed a 71-month sentence, the top of 

the guidelines range, to be followed by three years of supervised release. 

Finally, it explained that an upward variance could have been justified based 

on the seriousness of Aguirre-Romero’s criminal record. The court again asked 

if there was “[a]nything else from anyone?” The government responded that it 

had nothing more, and defense counsel neither responded nor raised an 

objection. 

II

Because Aguirre-Romero did not object to the denial of his right to 

allocute in the district court, our review is for plain error. See United States v. 

Avila-Cortez, 582 F.3d 602, 604 (5th Cir. 2009). To establish plain error, 

Aguirre-Romero must show that the district court committed a clear or obvious 

error that affected his substantial rights. See Puckett v. United States, 556 

U.S. 129, 135 (2009). Even if he succeeds, we will correct the error only if it 

seriously affects the fairness, integrity, or public reputation of the proceedings. 

See id.

A. Right to Allocution

Aguirre-Romero contends that the district court committed a clear, 

obvious error in neglecting to offer him the opportunity to allocute. He asserts 

that, although the court directed some questions toward him, it did not invite 

him to speak on any subject he wished as it was required to do. 

Before imposing a sentence, the district court must “address the 

defendant personally in order to permit the defendant to speak or present any 

information to mitigate the sentence.” FED. R. CRIM. P. 32(i)(4)(A)(ii). We have 

interpreted this requirement “quite literally as mandating precisely what it 

appears to mandate—a personal inquiry directed to the defendant.” United 

States v. Dickson, 712 F.2d 952, 956 (5th Cir. 1983); accord United States v. 

Magwood, 445 F.3d 826, 829 (5th Cir. 2006). The right to allocute reflects “the 

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need for the defendant, personally, to have the opportunity to present to the 

court his plea in mitigation.” Green v. United States, 365 U.S. 301, 304 (1961) 

(plurality opinion); accord Hill v. United States, 368 U.S. 424, 426 (1962) 

(noting that though there was no majority opinion in Green, eight justices 

agreed that Rule 32 “requires a district judge before imposing sentence to 

afford every convicted defendant an opportunity personally to speak in his own 

behalf”). It is not sufficient that the court simply “addresses a defendant on a 

particular issue, affords counsel the right to speak, or hears the defendant’s 

specific objections to the presentence report.” United States v. EchegollenBarrueta, 195 F.3d 786, 789 (5th Cir. 1999) (internal quotation marks omitted).

Instead, the interaction among the court, the defendant, and the prosecutor 

must show “clearly and convincingly that the defendant knew he had a right 

to speak on any subject of his choosing prior to the imposition of sentence.” Id.

(internal quotation marks omitted). 

The government points out that the district court engaged AguirreRomero in a discussion regarding his convictions for injury to a child and his 

representation that he was nonetheless good father and directed several 

remarks toward him. However, this was plainly not sufficient to discharge the 

court’s obligation to provide him the opportunity to allocute. See Magwood, 

445 F.3d at 829 (explaining that the court’s colloquy with the defendant 

regarding his behavior did not provide the defendant with an opportunity to 

allocute); Echegollen-Barrueta, 195 F.3d at 789-90; United States v. Reyna, 358 

F.3d 344, 347 (5th Cir. 2004) (en banc). The government also points to the 

court’s two inquiries as to whether there was “[a]nything else from anyone?”

However, the second inquiry occurred after the court announced its sentence 

and thus could not have served as an invitation for Aguirre-Romero to allocute. 

See FED. R. CRIM. P. 32(i)(4)(A)(ii) (requiring the court to provide the defendant 

an opportunity to speak in mitigation of his sentence before the court imposes 

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the sentence); Echegollen-Barrueta, 195 F.3d at 789-90. Furthermore, these 

open-ended, general questions, not directed to any party in particular, and to 

which only the prosecutor responded, do not show “clearly and convincingly 

that [Aguirre-Romero] knew he had a right to speak on any subject of his 

choosing prior to the imposition of sentence.” Echegollen-Barrueta, 195 F.3d 

at 789 (internal quotation marks omitted).

Accordingly, the district court did not provide Aguirre-Romero an 

opportunity to allocute, an error that was clear and obvious. See United States 

v. Garza-Lopez, 410 F.3d 268, 275 (5th Cir. 2005) (in determining whether the 

district court’s error is clear and obvious, “it is enough that the error be ‘plain’

at the time of appellate consideration” (quoting Johnson v. United States, 520 

U.S. 461, 467-68 (1997))); Magwood, 445 F.3d at 829. 

B. Defendant’s Substantial Rights

Aguirre-Romero next argues that his substantial rights were 

presumptively affected because he was sentenced at the top of the guidelines 

range. The government concurs. We presume that neglecting to provide the 

defendant with an opportunity to allocute affects his substantial rights if the 

district court did not impose a sentence at the bottom of the guidelines range 

or if the court rejected the defense’s arguments for a lower sentence. Magwood, 

445 F.3d at 829. Because Aguirre-Romero was not sentenced at the bottom of 

the guidelines range—indeed, he was sentenced at the top of that range—we 

presume that the error affected his substantial rights. See id. 

C. Discretion to Correct the Error

“[W]e will ordinarily remand for resentencing if a district court commits 

plain error that affects a defendant’s substantial rights by denying the right of 

allocution.” United States v. Palacios, 844 F.3d 527, 531 (5th Cir. 2016). 

However, we have “decline[d] to adopt a blanket rule that once prejudice is 

found . . . the error invariably requires correction”; there is a “limited class of 

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cases” in which reversal is unwarranted. Reyna, 358 F.3d at 352. Whether the 

error necessitates reversal in a particular case is a fact-specific inquiry made 

based on a complete review of the record. Avila-Cortez, 582 F.3d at 605. 

Among the factors we consider are whether the defendant had a prior 

opportunity to allocute, whether the defendant has explained “what exactly he 

or she would have said during allocution that might mitigate the sentence,”

and whether defense counsel offered mitigating arguments on behalf of the 

defendant. Palacios, 844 F.3d at 532.

As to the first point, this was Aguirre-Romero’s first opportunity to 

allocute and he had no prior sentencing hearing, which weighs in favor of 

correcting the error. See Avila-Cortez, 582 F.3d at 605. As to the second, 

Aguirre-Romero has explained what he would have said during allocution to 

mitigate his sentence, had he been given the opportunity. In his opening brief, 

he states that he would have “discussed in detail his unstable childhood, 

including the abuse and neglect that he and his sister suffered at the hands of 

their father”; “provided information about the economic hardships he had 

suffered in Mexico immediately prior to his return to the United States”; 

“addressed in much more detail the injury-to-a-child conviction and childabuse allegations that were of so much concern to the district court”; and 

“addressed personal insights he had gained into his behavior, changes in that 

behavior, and lessons he had learned, since his last period of incarceration.” 

In light of the district court’s concerns about his child abuse conviction and 

questions regarding his family life, this constitutes “some objective basis” that 

could have influenced Aguirre-Romero’s sentence. See Magwood, 445 F.3d at

830 (citing Reyna, 328 F.3d at 356 (Jones, J., concurring)); cf. United States v. 

Hoover, No. 15-30620, 2016 WL 6440382, at *3 (5th Cir. Oct. 31, 2016) 

(unpublished) (declining to remand for resentencing where the defendant 

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failed to “identify anything he would have said [during allocution] to allay [the] 

concerns” that the district referenced in imposing the sentence).

Finally, counsel did put forward several arguments on Aguirre-Romero’s 

behalf, repeatedly emphasizing to the court that Aguirre-Romero remained 

outside of the United States for three years after he was deported, held a job, 

and supported his family, and counsel also highlighted the age of the conviction 

that increased Aguirre-Romero’s offense level. And, as the government points 

out, much of this information was referenced in the PSR. However, the mere 

fact that some mitigation arguments were before the district court at 

sentencing does not control whether we will exercise our discretion to order 

resentencing. See Palacios, 844 F.3d at 532 (“Although the presence of 

[mitigation] arguments may support affirming the sentence, such statements 

do not preclude this court from exercising its discretion to correct the error.”). 

Aguirre-Romero represents that he could have provided deeper, more personal 

insight into the arguments counsel raised and could have more fully addressed 

the court’s concerns about his past, specifically by providing a more detailed 

discussion of the abuse that he suffered as a child, his prior convictions, and 

his financial troubles and by discussing the insights he had gained and the 

lessons he had learned. We agree. As the Supreme Court observed in Green, 

“The most persuasive counsel may not be able to speak for a defendant as the 

defendant might, with halting eloquence, speak for himself.” 365 U.S. at 304. 

Aguirre-Romero did not have a prior opportunity to allocute, he has 

explained what exactly he would have said during allocution that might have 

mitigated his sentence, and the mitigating arguments offered by defense 

counsel were not sufficient to remove the prejudice he suffered. We therefore 

conclude that this is not one of the “limited class of cases” where reversal is 

unwarranted. See Palacios, 844 F.3d at 532.

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III

In sum, we conclude that the district court’s failure to provide AguirreRomero the opportunity to allocute before sentencing amounted to plain error 

that affected his substantial rights, warranting our exercise of discretion to 

correct the error. See Reyna, 358 F.3d at 352-53. Accordingly, we VACATE 

his sentence and REMAND for resentencing.

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