IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-50804

Consolidated with 

Case No. 15-50808

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 

United States Court of Appeals

Fifth Circuit

FILED

June 30, 2017

Lyle W. Cayce

Clerk

 Case: 15-50804 Document: 00514057250 Page: 1 Date Filed: 06/30/2017
No. 15-50804

Cons. w/ No. 15-50808

2

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 

 

1 The proceedings were conducted with the assistance of the court interpreter because 

Montoya only speaks Spanish. 

 Case: 15-50804 Document: 00514057250 Page: 2 Date Filed: 06/30/2017
No. 15-50804

Cons. w/ No. 15-50808

3

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 

 

2 Montoya was released from prison on August 12, 2016, but remains subject to a 

three-year term of supervised release. Therefore, his appeal is not moot.

3 Rule 32 requires the sentencing court to “address the defendant personally in order 

to permit the defendant to speak or present any information to mitigate the sentence” before 

imposing sentence. FED. R. CRIM. P. 32(i)(4)(A)(ii). 

 Case: 15-50804 Document: 00514057250 Page: 3 Date Filed: 06/30/2017
No. 15-50804

Cons. w/ No. 15-50808

4

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 ‘seriously affect[s] the fairness, integrity or public reputation of 

judicial proceedings.’” Id. (citation omitted). 

A.

We begin by considering whether the district court committed plain error 

by failing to offer Montoya the opportunity to allocute before sentencing him. 

Montoya contends that, although the court engaged in a brief colloquy 

with him, this exchange did not comply with Rule 32 because the court never 

clearly and unequivocally offered him the right to speak on any subject of his 

choosing before sentencing. Further, Montoya argues, the court’s questions

were driven by its concerns, not his interest in receiving a lower sentence. 

The Government counters that the district court complied with Rule 32 

by asking Montoya open-ended questions that encompassed mitigation issues 

such as why he committed the same crime again and how he planned to avoid 

recidivistic behavior in the future. 

The district court plainly erred by failing to offer Montoya an allocution 

opportunity before pronouncing his sentences. We have long required strict 

compliance with Rule 32.4 Thus, “[i]n order to satisfy Rule 32, the district court 

 

4 See, e.g., United States v. Palacios, 844 F.3d 527, 531 (5th Cir. 2016) (holding that a 

discussion between the district court and defendant regarding credit for acceptance of 

responsibility was not “a specific and unequivocal opportunity to speak in mitigation of his 

sentence”); United States v. Montalvo-Rodriguez, 476 F. App’x 28, 29 (5th Cir. 2012) (holding 

that it was plain error for the district court to not allow the defendant an opportunity to 

address the court before imposing his sentence, even though the court asked the defendant 

several questions and defense counsel made several arguments on the defendant’s behalf); 

United States v. Perez, 460 F. App’x 294, 297, 299–300 (5th Cir. 2012) (holding that the 

district court’s questioning of defendant on several factual topics did not provide him “an 

 Case: 15-50804 Document: 00514057250 Page: 4 Date Filed: 06/30/2017
No. 15-50804

Cons. w/ No. 15-50808

5

must communicate ‘unequivocally’ that the defendant has a right to allocute” 

by making “a personal inquiry directed to the defendant.” United States v. 

Magwood, 445 F.3d 826, 829 (5th Cir. 2006) (citations omitted). “[I]t is not 

enough that the sentencing court addresses a defendant on a particular issue, 

affords counsel the right to speak, or hears the defendant’s specific objections 

to the presentence report.” Echegollen-Barrueta, 195 F.3d at 789 (citation and 

internal quotations omitted). “[T]he court, the prosecutor, and the defendant 

must at the very least interact in a manner that shows 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. (citation omitted). 

The district court’s brief colloquy with Montoya fell short of strict 

compliance with Rule 32. The court did not unequivocally state that Montoya 

had a right to speak on any subject he chose before his sentence was imposed. 

See United States v. Villa-Lujan, 661 F. App’x 285, 286 (5th Cir. 2016) (holding 

that, even though the defendant “and the district court extensively discussed 

several topics before the imposition of his sentences, the district court [plainly] 

erred because it did not [unequivocally] give [the defendant] an opportunity to 

speak on any subject in mitigation of his sentences”). Moreover, the court only 

addressed Montoya on particular issues, which is not enough to satisfy Rule 

32. See Echegollen-Barrueta, 195 F.3d at 789 (citation omitted). And the 

record does not clearly and convincingly demonstrate that Montoya knew he 

had a right to speak on any subject he chose before he was sentenced. See id. 

(citation omitted). Accordingly, we hold that the district court erred by failing 

 

opportunity to speak on any topic of his choosing,” which plainly denied him the right to 

allocute); United States v. Echegollen-Barrueta, 195 F.3d 786, 789–90 (5th Cir. 1999) (holding 

that the district court’s personal address to defendant, “asking twice whether he had 

‘anything to say,’” failed to satisfy Rule 32 when the defendant’s answers demonstrated that 

he may not have understood that he had a right to speak on any subject of his choosing). 

 Case: 15-50804 Document: 00514057250 Page: 5 Date Filed: 06/30/2017
No. 15-50804

Cons. w/ No. 15-50808

6

to provide Montoya with an allocution opportunity. “Given the clear language 

of the rule and . . . Supreme Court case law . . . , this error was obvious or 

plain.” Reyna, 358 F.3d at 350. 

B.

Next, we consider whether the district court’s error affected Montoya’s 

substantial rights. 

Montoya does not attempt to establish that the error here was actually 

prejudicial. Moreover, he acknowledges that: he was sentenced at the bottom 

of the applicable Guidelines ranges; he had an extensive colloquy with the 

sentencing judge; neither he nor his counsel made any arguments for a 

downward variance; and, when asked whether he had any reason to dispute 

the Guidelines ranges, his counsel stated that he did not. Nevertheless, 

Montoya contends that we should presume prejudice because neither he nor 

his attorney was given an opportunity to make arguments for a downward 

variance.5 

The Government disputes that Montoya’s counsel had no opportunity to 

make mitigation arguments and suggests that the Court may infer from 

defense counsel’s failure to move for a downward variance that counsel knew 

such a motion would be frivolous. 

We conclude that the district court’s error did not affect Montoya’s 

substantial rights. Where, as here, the error was the denial of the defendant’s 

allocution right, we generally “presume that [a defendant]’s substantial rights 

were affected if he shows there was an opportunity for the error ‘to have played 

a role in the district court’s sentencing decision.’” United States v. Gonzalez-

 

5 Rule 32 also requires the district court to “provide the defendant’s attorney an 

opportunity to speak on the defendant’s behalf” before imposing sentence. FED. R. CRIM. P.

32(i)(4)(A)(i). Montoya does not, however, specifically claim a violation of this provision.

 Case: 15-50804 Document: 00514057250 Page: 6 Date Filed: 06/30/2017
No. 15-50804

Cons. w/ No. 15-50808

7

Reyes, 582 F. App’x 302, 304 (5th Cir. 2014) (quoting Reyna, 358 F.3d at 351–

52). Under Reyna we presume prejudice to a defendant who was not sentenced 

at the bottom of the correct Guideline range, but, as we explained in Reyna,

where, as here, a defendant is sentenced at the bottom of the applicable 

Guidelines ranges, prejudice should only be presumed if “the district court has 

‘rejected arguments by the defendant that would have resulted in a lower 

sentence.’” E.g., id. (quoting Reyna, 358 F.3d at 353); Montalvo-Rodriguez, 476 

F. App’x at 29. 

Montoya cannot satisfy this requirement. He never proffered any 

arguments that would have resulted in a lower sentence. Moreover, in similar 

situations, we have declined to presume prejudice. 

In United States v. Jimenez-Laines, the defendant, who was sentenced 

at the bottom of the Guideline range and never argued for a lower sentence, 

was denied his right to allocute. 354 F. App’x 889, 894–895 (5th Cir. 2009). 

On plain error review, we rejected the defendant’s argument that, under these 

circumstances, his substantial rights were affected because Reyna, we 

explained,

contemplated that at least some—and perhaps all—defendants 

who were denied allocution at revocation sentencing, but who 

nevertheless received a sentence at the bottom of the guideline 

range, and who never even advanced arguments that might have 

resulted in a lower sentence, would not be owed a presumption of 

prejudice on plain-error review. 

Id. at 895. 

We reached the same conclusion in United States v. Villa-Lujan—a case 

nearly indistinguishable from this one. In that case, which was also on plain 

error review, the defendant, who was denied the right to allocute, pleaded 

guilty to the same offenses as Montoya, had an extensive colloquy with the 

 Case: 15-50804 Document: 00514057250 Page: 7 Date Filed: 06/30/2017
No. 15-50804

Cons. w/ No. 15-50808

8

judge, was sentenced at the bottom of the applicable Guidelines ranges, and 

did not argue for a downward variance or a different Guidelines calculation. 

Villa-Lujan, 661 F. App’x at 286–87. The defendant made the same argument 

as to the presumption of prejudice that Montoya now makes. Id. at 286. We 

rejected that argument, holding that the defendant “had ample opportunity, 

either before or during the sentencing hearing, to move for a downward 

departure . . . or variance, or for a different Guidelines calculation” and that, 

given his failure to do so, we would not presume that he was prejudiced by the 

denial of allocution. Id. at 286–87. 

We are presented with no reason to depart from these applications of 

Reyna. Accordingly, we hold that the district court’s error in denying Montoya 

his allocution rights did not affect Montoya’s substantial rights. Thus, 

Montoya has not met his burden of showing that the court committed 

reversible plain error. 

III.

For the foregoing reasons, we AFFIRM the district court’s sentences.

 Case: 15-50804 Document: 00514057250 Page: 8 Date Filed: 06/30/2017
No. 15-50804

Cons. w/ No. 15-50808

9

JAMES E. GRAVES, JR., Circuit Judge, dissenting:

Federal Rule of Criminal Procedure 32 requires the district court to 

“address the defendant personally in order to permit the defendant to speak or 

present any information to mitigate the sentence” before imposing sentence. 

Fed. R. Crim. P. 32(i)(4)(A)(ii). Rule 32 guarantees the defendant’s right to 

allocution, “an important, highly respected right” that “is deeply rooted in our 

legal tradition.” United States v. Reyna, 358 F.3d 344, 349 (5th Cir. 2004) (en 

banc). Indeed, the right has been enshrined in our jurisprudence since before 

the founding of this country. Green v. United States, 365 U.S. 301, 304 (1961).

It serves several important functions. “First, it gives the defendant one 

more opportunity before conviction ‘to throw himself on the mercy of the 

court.’” United States v. Dabeit, 231 F.3d 979, 981 (5th Cir. 2000), abrogated 

by Reyna, 358 F.3d 344. “The most persuasive counsel may not be able to speak 

for a defendant as the defendant might, with halting eloquence, speak for 

himself.” Green, 365 U.S. at 304. The right “also has symbolic importance, 

‘maximizing the perceived equity of the [sentencing] process.’” Dabeit, 231 

F.3d at 981.

The majority recognizes that given the importance of the right to 

allocution, we have long required nothing less than strict compliance to satisfy 

Rule 32. The majority then concludes that the district court plainly erred by 

failing to offer Montoya his right to allocute. But it then holds that Montoya’s 

substantial rights were not affected. What it gives with one hand, it takes with 

the other. It justifies this move by declining to afford Montoya the presumption 

of prejudice that our post-Reyna cases have applied. See Reyna, 358 F.3d at 

351–52 (holding that we should “presume prejudice when a defendant shows a 

violation of the right and the opportunity for such violation to have played a 

role in the district court’s sentencing decision”) (quoting United States v. 

 Case: 15-50804 Document: 00514057250 Page: 9 Date Filed: 06/30/2017
No. 15-50804

Cons. w/ No. 15-50808

10

Adams, 252 F.3d 276, 287 (3d Cir. 2001)); see also, e.g., United States v. 

Gonzalez-Reyes, 582 F. App’x 302, 304 (5th Cir. 2014); United States v. 

Montalvo-Rodriguez, 476 F. App’x 28, 29 (5th Cir. 2012); United States v. 

Garcia, 456 F. App’x 504, 505 (5th Cir. 2012). Yet in doing so, the majority 

apparently applies its own presumption—that Montoya was not prejudiced by 

the denial of his right to speak for himself on any topic of his choosing. 

On the record before us, I fail to see how we can definitively conclude 

that nothing Montoya would have said would have made any difference. 

Particularly so, given that Montoya describes in his brief several statements 

he would have made had he allocuted. When a defendant has specified 

arguments in favor of mitigation that he would have made, if properly given 

the opportunity, we have in the past remanded for resentencing because we 

recognized that the denial of the right to allocution in such circumstances 

“seriously affect[s] the fairness, integrity, or public reputation of judicial 

proceedings.” See, e.g., United States v. Avila-Cortez, 582 F.3d 602, 607 (5th 

Cir. 2009); see also United States v. Palacios, 844 F.3d 527, 533–34 (5th Cir. 

2016); United States v. Aguirre-Romero, 16-40231, 2017 WL 728694, at *4–5 

(5th Cir. Feb. 23, 2017), as revised (Feb. 24, 2017); United States v. Perez, 460 

F. App’x 294, 301 (5th Cir. 2012); United States v. Lister, 229 F. App’x 334, 339 

(5th Cir. 2007). There is no significant difference between these cases and the 

case at bar. If anything, Montoya’s inability to speak on his own behalf was 

more prejudicial, rather than less, because his counsel also failed to offer any 

arguments in favor of mitigation.

When the legal tradition is as old as this, the right is as important as 

this, and the rule is as clear as this, the sentencing judge simply needs to follow 

the rule. 

I respectfully dissent. 

 Case: 15-50804 Document: 00514057250 Page: 10 Date Filed: 06/30/2017