IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40164

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee 

v. 

ANGEL RODOLFO CHAVEZ-PEREZ, 

 Defendant - Appellant 

Appeal from the United States District Court 

for the Southern District of Texas 

Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges. 

CARL E. STEWART, Chief Judge: 

Angel Rodolfo Chavez-Perez (“Chavez-Perez”) appeals his 85-month 

sentence for illegal reentry, arguing that the district court plainly erred by 

denying him the opportunity to allocute before sentencing. For the following 

reasons, we AFFIRM. 

I. BACKGROUND 

Chavez-Perez, a Mexican national with a lengthy criminal history 

including multiple theft and assault convictions, was deported in 2013. In 

2015, he pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326. The 

pre-sentence report (“PSR”) determined his total offense level to be 21 and his 

criminal history score to be VI, resulting in a Guidelines range of 77 to 96 

United States Court of Appeals

Fif h Circuit

FILED

December 27, 2016

Lyle W. Cayce

Clerk

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months. See U.S.S.G. §§ 2L1.2; 3E1.1. The probation officer recommended a 

mid-range sentence, emphasizing Chavez-Perez’s repetitive and violent 

criminal history. 

At the sentencing hearing, the district court addressed defense counsel: 

[T]his is definitely a case in which, you know, I’m kind of hardpressed to conclude anything other than something much higher 

than what the minimum is . . . given not only the nature of the 

convictions, but also the evidence that is recited in support of my 

finding for the criminal history points . . . . I mean, the list goes on 

as far as the nature of the violence that your client has shown to 

be capable of.1 And so I ask you to address the Court on his behalf.

Defense counsel then acknowledged Chavez-Perez’s extensive criminal history 

but offered numerous reasons for a low-end Guidelines sentence. For example, 

counsel cited Chavez-Perez’s family support.2 Defense counsel also noted that 

Chavez-Perez had returned to reunite with his family at their urging because 

the situation in the region of Mexico where he resided was difficult, and he had 

nowhere else to go:

They don’t want him in Matamoros. They don’t want him in 

Mexico. They know how the situation is over there and they 

themselves have requested or have talked to him and they’ve come 

into a conclusion . . . that this last time he was coming back, hoping 

to make it to Galveston, reside there with his family. He has 

[nowhere] else to go in Mexico in any way whatsoever. Very 

difficult for him to be over there. 

Defense counsel explained that much of Chavez-Perez’s criminal behavior 

stemmed from his history of alcohol abuse:

 

1 The specific examples cited by the district court included aggravated assault against 

a peace officer, burglary, resisting arrest, robbery (in which Chavez-Perez stabbed the 

victim), and violence against his mother.

2 Defense counsel stated: “My understanding from the family, my understanding from 

the aunt that is here supporting my client, is that they’ve gone past the situation. They 

support Mr. Chavez quite a bit in this situation.” 

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Mr. Chavez is not proud in any way, whatsoever, Your Honor. He 

probably believes from the conversations that I have had with him 

that a lot of it stems from substance abuse, primarily involving 

alcohol . . . . But under the circumstances, Your Honor, . . . we’re 

not here to deny any type of that history or what has taken place. 

That is his history, it is there. He wishes it wasn’t there, but we 

can’t deny it. 

Defense counsel additionally noted that most of Chavez-Perez’s convictions 

were for misdemeanors and that he had committed no violent offenses since 

2006:

He’s asking here that Your Honor simply consider the least 

possible sentence for him under the circumstances. Since 2006 

there has [sic] been no other offenses other than illegal entry . . . .

[H]e has tried very much to change his ways. The only thing that 

he did in this particular case, was to come back into this country 

illegally, hoping to re-join his family. 

The district court then engaged Chavez-Perez directly, asking him 

whether his family understood that, by encouraging him to reenter illegally, 

they had subjected him to the possibility of imprisonment: 

THE COURT: [Your attorney] told me that your family was the 

one who was hoping to be able to get you—all the way to Galveston 

this time around. So, my concern is whatever sentence I order, 

whenever you get out, are they going to be doing the same? . . . . 

Were they aware that they were asking you or encouraging you to 

put yourself in a situation where you could potentially go to prison 

for 10 years? 

CHAVEZ-PEREZ: No. No, they didn’t want me to come to prison 

though. 

THE COURT: [D]id they understand that by encouraging you to 

come back that you were subject to possibly as much as 10 years 

in prison? . . . . [G]iven the nature of all these convictions, it 

wouldn’t be too long . . . given your problem drinking and your 

tendency to get violent[,] . . . eventually you were going to bring 

yourself to the attention of law enforcement . . . . Did they 

understand that? 

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CHAVEZ-PEREZ: Yes. 

THE COURT: Okay. So I’m concluding from that answer that 

after I send you to prison and you get out that they’re going to say, 

“Well, come on. We’ll help you get there.” 

CHAVEZ-PEREZ: My main purpose to come here was [t]o see my 

mother because she was very sick. It’s been 8 to 10 years that I 

haven’t even seen her. That was my reason to come here, to see 

her. Therefore, I apologize to you and the Government and my 

past life already passed me. Therefore, I apologize to you. 

 

Immediately following Chavez-Perez’s statement, the district court ordered 

that he be sentenced to 85 months’ imprisonment. 

Chavez-Perez appeals his sentence, arguing that the district court 

plainly erred when it failed to allow him the right to allocute at his sentencing 

hearing. In his appellate brief, Chavez-Perez explains that if given the 

opportunity to allocute, he “could have”: (1) “described in much more detail his 

family’s situation and the resultant pressure he felt to return” to the United 

States; (2) “discussed in much more detail the difficulties, and perhaps even 

dangers, he faced during his time in Mexico”; and (3) “explained in much more 

detail about his substance abuse and how, in his view, it contributed to his 

criminal history, especially the assaultive offenses that were of so much 

concern to the district court” and “spoken about any efforts on his part, since 

his last assaultive offense . . . to try to stay ‘clean’ and to manage his anger.” 

II. DISCUSSION 

Chavez-Perez did not object in the district court that he was denied his 

right to allocute, and so we review for plain error. See United States v. Reyna, 

358 F.3d 344, 350 (5th Cir. 2004) (en banc). To apply Rule 52(b)’s plain error 

rule in the allocution context, we first ask whether the district court (1) 

committed an error, (2) that is clear and obvious, and (3) that affected the 

defendant’s substantial rights. Id. (quoting United States v. Olano, 507 U.S. 

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725, 732 (1993)); see also United States v. Perez, 460 F. App’x 294, 299 (5th Cir. 

2012) (per curiam). We “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. Avila-Cortez, 582 F.3d 602, 

606 (5th Cir. 2009) (quoting Reyna, 358 F.3d at 353). However, reversal is “not 

automatic.” Id. at 604. “In a limited class of cases, a review of the record may 

reveal, despite the presence of disputed sentencing issues, that the violation of 

a defendant’s right to allocution does not [seriously affect the fairness, 

integrity, or public reputation of judicial proceedings].” Id. (quoting Reyna, 

358 F.3d at 352). 

A. 

Chavez-Perez argues that the district court did not issue him “a personal 

invitation to speak prior to sentencing on any subject of his choosing” so as to 

satisfy his right of allocution. We agree. “In order to satisfy Rule 32, the 

district court must communicate ‘unequivocally’ that the defendant has a right 

to allocute.” United States v. Magwood, 445 F.3d 826, 829 (5th Cir. 2006) 

(quoting United States v. Echegollen-Barrueta, 195 F.3d 786, 790 (5th Cir. 

1999)). The district court must make a direct, personal inquiry to the 

defendant, applying the rule “quite literally.” Id. (citation omitted). 

At the sentencing hearing, Chavez-Perez answered the district court’s 

question about his family’s participation in his reentry, explained his reasons 

for returning, and apologized to the court for having committed the instant 

offense. However, although Chavez-Perez and the district court engaged in a 

brief discussion prior to the imposition of his sentence, this is not tantamount 

to the district court having given him a specific and unequivocal opportunity 

to speak in mitigation of his sentence. See Perez, 460 F. App’x at 299 

(determining that district court’s questioning of defendant on several topics did 

not constitute allocution opportunity); United States v. Legg, 439 F. App’x 312, 

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313 (5th Cir. 2011) (per curiam) (determining that extensive discussion 

between district court and defendant did not constitute a “specific and 

unequivocal” allocution opportunity). Rather, the district court (1) asked 

Chavez-Perez whether he was aware that his family was putting him in a 

situation where he “could potentially go to prison for 10 years”; (2) asked 

Chavez-Perez whether he understood the consequences of being found in the 

United States given the nature of his previous convictions; and (3) stated, “I’m 

concluding from that answer that after I send you to prison and you get out 

that [your family] is going to say, ‘Well, come on. We’ll help you get here’”—

which elicited a response from Chavez-Perez about his mother’s illness. 

Because Chavez-Perez was never given an unequivocal opportunity to speak 

in mitigation of his sentence, see Magwood, 445 F.3d at 829, we conclude that

the district court erred in failing to give Chavez-Perez an allocution 

opportunity, and the error was clear and obvious. 

 We also hold that this error affected Chavez-Perez’s substantial rights. 

“Ordinarily, in order to establish that an error ‘affects substantial rights’ . . . , 

a defendant must establish that the error was ‘prejudicial,’ i.e.[,] that it 

‘affected the outcome of the district court proceedings.’” Reyna, 358 F.3d at 

350. In cases involving the right to allocute, we presume that the defendant’s 

substantial rights were affected if “the record reveals that the district court did 

not sentence at the bottom of the guideline range or if the court rejected 

arguments by the defendant that would have resulted in a lower sentence.” Id.

at 353. Because Chavez-Perez was sentenced to 85 months’ imprisonment, a 

mid-range sentence in the advisory Guidelines range of 77 to 96 months, we

presume that the error affected his substantial rights. See Magwood, 445 F.3d 

at 829; Reyna, 358 F.3d at 353.

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B. 

While we 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, we have “decline[d] to adopt a blanket rule that once 

prejudice is found under the rule stated above, the error invariably requires 

correction.” Reyna, 358 F.3d at 352. Instead, we “conduct a thorough review 

of the record to determine . . . whether the error ‘seriously affects the fairness, 

integrity, or public reputation of judicial proceedings,’” compelling our exercise 

of discretion to correct it. Id. at 353. Whether this court will exercise its 

discretion to correct the error is a “highly fact-specific” inquiry involving a 

range of factors. See Avila-Cortez, 582 F.3d at 605. In most allocution appeals, 

“to prevail, defendants will have to show some objective basis that would have 

moved the trial court to grant a lower sentence; otherwise, it can hardly be said 

that a miscarriage of justice has occurred.” Reyna, 358 F.3d at 356 (Jones, J., 

concurring). 

Here, Chavez-Perez does not provide mitigating evidence that, “given the 

entirety of the transcript,” likely would have moved the district court to grant 

a more lenient sentence. See United States v. Neal, 212 F. App’x 328, 332 (5th 

Cir. 2007) (per curiam) (declining to correct the error where the defendant

“assert[ed] only conclusionally [that] he was not given an opportunity to 

discuss his ‘family, background, his conduct in prison, his activities during his 

months of successful supervised release, or other areas’” but failed “to allege 

any specific facts which, given the entirety of the transcript, . . . likely would’ve 

convinced the district court to levy a more lenient sentence”). In his appellate 

brief, Chavez-Perez asserts that if given the opportunity to allocute, he would 

have elaborated on three general topics raised by defense counsel during the 

sentencing hearing: (1) his family situation and the resultant pressure he felt 

to return to the United States; (2) the difficulties, “and perhaps even dangers,” 

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he faced in Mexico; and (3) how his substance abuse “contributed to his 

criminal history, especially [his] assaultive offenses” and “any efforts on his 

part . . . to try to stay ‘clean’ and to manage his anger.” However, Chavez-Perez 

offers no specific facts or additional details that he would include in his 

elaboration of these topics.

Chavez-Perez’s proffered statements fail to demonstrate an “objective 

basis” that would have moved the court to grant a lower sentence. See Reyna, 

358 F.3d at 356 (Jones, J., concurring). Most of the arguments Chavez-Perez 

claims he would have made were raised either by him or defense counsel at the 

sentencing hearing,3 and Chavez-Perez does not provide any new mitigating 

information in his appellate brief. Thus, because the district court had before 

it the mitigating information Chavez-Perez claims he would have provided if 

given the chance to allocute, and the court calculated his sentence having 

considered that information, we cannot say that a miscarriage of justice 

occurred. See Magwood, 445 F.3d at 830 (declining to correct the error where 

defense counsel argued mitigating information, the district court weighed that 

information, and the defendant failed to state what his mitigating statement 

would have been); see also United States v. Zaleta, 458 F. App’x 369, 372–73

(5th Cir. 2012) (per curiam) (declining to correct the error where all of the 

issues on which the defendant claimed he would have expounded were 

addressed by defense counsel at sentencing, and the defendant failed to 

identify what “new or additional facts he would have offered” that would have 

affected the district court’s analysis). 

Furthermore, the statements Chavez-Perez offers on appeal are unlikely 

to have moved the district court to impose a lower sentence because, in 

 

3 Chavez-Perez’s argument regarding his efforts to “stay ‘clean’” and “manage his 

anger” was not raised at the sentencing hearing and is discussed in the next paragraph of 

this opinion.

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calculating Chavez-Perez’s sentence, the district court gave significant, if not 

decisive, weight to his repetitive history of violent crime. The district court 

raised this concern both when it spoke to defense counsel and to Chavez-Perez 

directly.4 However, neither Chavez-Perez’s proposed arguments regarding his 

family situation nor the dangers he faced in Mexico address this concern. And 

although it is possible Chavez-Perez could have persuaded the district court to 

reduce his sentence by demonstrating that he had taken steps to manage his 

problems with substance abuse and anger,5 the statement offered in his 

appellate brief does not indicate that he has actually taken any such actions. 

Rather, Chavez-Perez ambiguously states that he “could . . . have spoken about 

any efforts on his part, since his last assaultive offense . . . , to try to stay ‘clean’ 

and to manage his anger” (emphasis added). This vague assertion is not 

sufficient to permit our exercise of discretion to correct the error. See 

Magwood, 445 F.3d at 830; Neal, 212 F. App’x at 332; cf. Avila-Cortez, 582 F.3d

at 606 (correcting the error where the defendant explained in his appellate 

brief that he had a “specific strategy to address his problem with alcohol”). 

 

4 During the sentencing hearing, the district court stated to defense counsel: 

I’m kind of hard-pressed to conclude anything other than something much 

higher than what the minimum [sentence] is . . . given not only the nature of 

the convictions, but also the evidence that is recited in support of my finding 

for the criminal history points . . . . I mean, the list goes on as far as the nature 

of the violence that your client has shown to be capable of. 

The district court later stated to Chavez-Perez: “[G]iven the nature of all these convictions, 

it wouldn’t be too long . . . given your problem drinking and your tendency to get violent[,] . . 

. eventually you were going to bring yourself to the attention of law enforcement.” 

5 Although it is possible, it is not necessarily likely. The district court was apparently 

unmoved by defense counsel’s argument that Chavez-Perez had committed no offenses since 

2006 (other than illegal reentry) or by defense counsel’s assertion that Chavez-Perez “has 

tried very much to change his ways.” 

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III. CONCLUSION 

For the foregoing reasons, the sentence of Defendant-Appellant Angel 

Rodolfo Chavez-Perez is AFFIRMED.6 

 

6 We are aware that in Dkt. No. 14-40279, United States v. Palacios, also up on appeal, 

we held that the district court’s failure to provide the defendant the right to allocute 

amounted to reversible error. In contrast to the instant case, we determined that the final 

prong of the plain error test was satisfied because the defendant established that a 

miscarriage of justice had occurred. Because the defendant in Palacios demonstrated an 

objective basis that would have moved the district court to grant a lower sentence, see Reyna, 

358 F.3d at 356 (Jones, J., concurring), we therefore exercised our discretion to correct the 

error. 

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