IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-50230

c/w 18-50251

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee

v.

BENEDICTO LAZARO-LOPEZ, 

 Defendant–Appellant.

Appeals from the United States District Court

for the Western District of Texas 

USDC No. 2:14-CR-485-1

USDC No. 2:17-CR-745-1

Before STEWART, Chief Judge, and DAVIS and ELROD, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Benedicto Lazaro-Lopez contends that the district 

court erred in failing to give him an opportunity to allocute before it rendered 

a 48-month sentence. So Lazaro-Lopez now appeals his consecutive sentences 

for (1) illegal reentry and (2) violation of terms of supervised release arising 

from a prior illegal reentry conviction. The Government concedes that 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

April 22, 2019

Lyle W. Cayce

Clerk

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district court erred by not providing Lazaro-Lopez an opportunity to allocute. 

The parties, however, dispute whether on plain error review we should exercise 

our discretion to correct this error by remanding this case for resentencing. 

After reviewing the record and relevant law, we vacate the sentence and 

remand this case for resentencing. 

I.

On June 15, 2017, Lazaro-Lopez—who was then on supervised release 

arising from a 2014 illegal reentry conviction—was indicted for a separate 

crime of illegal reentry into the United States, in violation of 8 U.S.C. § 1326(a). 

He later pled guilty.

On March 14, 2018, Lazaro-Lopez appeared before the district court for 

sentencing. Lazaro-Lopez was represented by counsel from the Federal Public 

Defender’s Office, who indicated that Lazaro-Lopez was pleading true to the 

revocation allegations. The court then revoked his supervised release. Defense 

counsel agreed that the sentencing guidelines range for the new illegal reentry 

conviction was 24 to 30 months of imprisonment and that the guidelines range 

for the revocation and violation of terms of supervised release was 18 to 24 

months of imprisonment. 

The court then asked defense counsel, “Do you have anything you’d like 

to say prior to sentencing, or would [the defendant] like to make a statement?” 

The following exchange occurred:

DEFENSE COUNSEL: Your Honor, Mr. Lazaro-Lopez came 

back to the United States because his work has 

been here. In his country, in the area in which he 

lives, he has suffered by being accosted by the 

police. He’s been handcuffed, he’s been harassed, 

making [] finding work a lot more difficult. His 

brother was murdered in June of 2017. And 

there’s been issues regarding some property that 

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he owned. Mr. Lazaro needs to go home as soon 

as possible to address those issues. He’s the eldest 

of the family. He is unmarried and does not 

support any minor children.

He indicates that he needs to go home, of 

course, to deal with his brother’s property but, 

also, that his mom needs him. He’s the one that 

provides for her care and support and especially 

now that she’s grieving over the loss of her son. 

He’d like to go home, collect his mother, and move 

to a place which is safer, and he would like to do 

that as quickly as possible.

So he’s asking for a sentence as lenient as 

possible and to run the sentences [con]currently.

THE COURT: Counsel for the government.

THE GOVERNMENT: Your Honor, the defendant standing 

before you has 46 aliases, eight alternative IDs. 

He was a quick return. He was deported on April 

14th. He was back June 15th of that year, around 

two-month interim. And then, he has, by my 

count, eight uncounted criminal convictions: One 

for breaking and entering, one for attempted 

larceny, 1998, the sale of cocaine and then, for 

criminal trespass.

And then, going into his immigration history, 

this will be his fifth conviction for illegal reentry, 

your Honor. He got 42 months last time he was 

sentenced. That was insufficient to deter him 

from coming back to the United States.

So the government would request a guideline 

range sentence to run consecutive to his 

revocation sentence.

Immediately after hearing from counsel, the district court imposed a 

sentence of 30 months for the new illegal reentry and 18 months for violation 

of terms of supervised release, to run consecutively, for a total of 48 months. 

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The court stated: “[M]y reasons [for the sentence] are as stated by the 

government as to [Defendant’s] prior history.”

Lazaro-Lopez did not make any statement at the hearing. He now 

appeals his sentence, arguing that the district court committed reversible plain 

error by depriving him of the right to allocute. 

II.

We apply plain error review because Lazaro-Lopez failed to raise any 

objection at his sentencing hearing.1 Plain error doctrine provides:

An appellate court may not correct an error the 

defendant failed to raise in the district court unless 

there is (1) error, (2) that is plain, and (3) that affects 

substantial rights. If all three conditions are met an 

appellate court may then exercise its discretion to 

notice a forfeited error but only if (4) the error 

seriously affects the fairness, integrity, or public 

reputation of judicial proceedings.2

III.

Federal Rule of Criminal Procedure 32(i)(4)(A)(ii) provides: “Before 

imposing sentence, the court must . . . address the defendant personally in 

order to permit the defendant to speak or present any information to mitigate 

the sentence[.]”3 The Government concedes that the district court erred by 

 

1 United States v. Reyna, 358 F.3d 344, 353 (5th Cir. 2004) (en banc). 2 United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005) (internal quotations and 

citations omitted); see also Olano v. United States, 507 U.S. 725, 732 (1993).

3 FED. R. CRIM. P. 32(i)(4)(A)(ii). We have held that a sentencing court “‘should leave 

no room for doubt that the defendant has been issued a personal invitation to speak prior to 

sentencing.’” United States v. Avila-Cortez, 582 F.3d 602, 607 (5th Cir. 2009) (quoting Green 

v. United States, 365 U.S. 301, 305 (1961) (Frankfurter, J., plurality)). That is, we provide a 

defendant with an opportunity to “ask for mercy, explain his or her conduct, apologize for the 

crime, or say anything else in an effort to lessen the impending sentence.” BLACK’S LAW 

DICTIONARY 88 (9th ed. 2009). “[I]t is not enough” that the court “affords counsel the right 

to speak.” United States v. Echegollen-Barrueta, 195 F.3d 786, 789 (5th Cir. 1999) (citation 

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failing to directly invite Lazaro-Lopez to allocute and that such error was plain 

and affected his substantial rights.4 In such case, where the first three 

elements of plain error review are satisfied, we “will ordinarily remand for 

resentencing.”5 “In a limited class of cases,” however, we recognize that the 

failure to provide allocution rights will not affect “the fairness, integrity or 

public reputation of judicial proceedings,” thereby obviating the need for 

reversal.6 “Whether a case falls within this limited class is a ‘highly factspecific inquiry.’”7

After “conduct[ing] a thorough review of the record,”8 we hold that 

remand is appropriate because Lazaro-Lopez’s case does not fall within the

limited class of cases where we have recognized that resentencing would 

clearly be a fruitless exercise. In United States v. Reyna, for example, it was 

Reyna’s “third appearance before this district judge, his second for violations 

of the terms of his supervised release.”9 When the district judge sentenced 

Reyna for his first violation of the supervised-release terms, the judge gave 

Reyna an option: six months in prison or twelve additional months of 

 

omitted). The court must instead unambiguously address the defendant and offer him the 

opportunity to allocute. Green, 365 U.S. at 305. 4 Though the district court announced his sentence immediately after the 

Government’s response, the court did previously ask defense counsel whether Lazaro-Lopez 

“would [] like to make a statement.” We make no determination whether this statement 

satisfies a defendant’s right to allocute because the Government concedes that “[t]his 

invitation fell short of the required direct, personal inquiry to the defendant, as to whether 

he wanted to make a statement.” 

5 Reyna, 358 F.3d at 353. 6 United States v. Gonzalez-Reyes, 582 F. App’x 302, 304 (5th Cir. 2014) (citing Reyna, 

358 F.3d at 353). While our unpublished opinions are not controlling precedent, they may be 

persuasive authority. See Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006) (citation 

omitted). 

7 Gonzalez-Reyes, 582 F. App’x at 304 (citation omitted). 

8 Reyna, 358 F.3d at 353. 9 Id. at 352. 

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supervised release.10 The latter option came with an important condition: If 

Reyna violated his supervised-release terms again, he would automatically get 

twelve months in prison.11 At this prior hearing, Reyna was given an 

opportunity to allocute, and he chose the twelve-month supervised-release 

option, accepting the warning against further violations of the supervisedrelease terms. Nevertheless, Reyna violated the terms of his supervised 

release by testing positive for drugs.12 The judge therefore imposed the twelvemonth sentence without giving Reyna another opportunity to allocute.13 It was 

on these “particular facts”—“unusual facts,” we emphasized—that we held that 

the denial of allocution rights did not affect “the fairness, integrity or public 

reputation of judicial proceedings,” as required by plain-error review.14 

Also, in United States v. Chavez-Perez, we concluded that the defendant 

failed to meet the fourth plain-error review requirement because he did not 

provide significant new mitigating information that would have moved the 

court to grant a lower sentence.15 The defendant in that case argued on appeal

that, given the opportunity, he would have elaborated on three topics, all of 

which his attorney had already explained to the sentencing court.16 Because 

the defendant “offer[ed] no specific facts or additional details that he would 

include in his elaboration of these topics,” he failed to meet the fourth 

requirement of plain-error review.17 

 

10 Id. at 352–53 & n.7. 

11 Id. at 353. 

12 Id.

13 Id. 14 Id.

15 United States v. Chavez-Perez, 844 F.3d 540, 545 (5th Cir. 2016). 

16 Id. 17 Id. 

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Here, Lazaro-Lopez argues that, if permitted to speak, he would have 

elaborated on the statements his counsel made and would have apologized. 

The district court explained that its reasons for Lazaro-Lopez’s 48-month 

sentence “are as stated by the government as to [Defendant’s] prior [criminal] 

history.” In this regard, Lazaro-Lopez says on appeal that despite his past

criminal offenses,18 he would have explained that “his offenses since 2001 were 

primarily illegal reentry offenses” and that those offenses reflected “his need 

for work so that he can help support his mother, and brother Julio, who has 

Down[] syndrome.” Though the Government points out that this information 

was in the presentence report, the Government does not indicate that the 

district court had before it the complete story that Lazaro-Lopez wanted to tell. 

It is unclear whether the presentence report “present[ed] to the court the same 

quantity or quality of mitigating evidence that [the defendant] would have 

given had he been able to allocute.”19 Lazaro-Lopez’s proffered statements

could have weaved these facts together in a manner both logically convincing 

and personally sincere, which may have potentially led to a lower sentence. 

The Government also argues that Lazaro-Lopez previously had an 

opportunity to allocute in the district court during his sentencing hearing in 

2014, which arose from a separate illegal reentry conviction. But that 

allocution was before a different district judge than the one who sentenced him 

in this case. So his statements made in 2014 are irrelevant for purposes of his 

current allocution and sentencing—because this was his first time before the 

sentencing judge. Furthermore, Lazaro-Lopez claims that he would have 

apologized for his illegal-reentry offense. Such personal apology is important 

 

18 Lazaro-Lopez’s presentence investigation report reveals criminal convictions dating 

back to 1993, including, inter alia, multiple misdemeanor larceny and theft, felony possession 

and sale of cocaine, and more relevant here, five convictions for illegal reentry. 

19 Avila-Cortez, 582 F.3d at 606. 

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in a sentencing hearing because “the most persuasive counsel may not be able 

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

for himself.”20 Accordingly, we exercise our discretion and remand for 

resentencing.21 

* * *

Based on the above reasons, we VACATE the sentence and REMAND

this case for resentencing. 

VACATED AND REMANDED.

 

20 Green, 365 U.S. at 304. 

21 See Avila-Cortez, 582 F.3d at 606–07; see also Gonzalez-Reyes, 582 F. App’x at 304 

(reversing under fourth plain-error prong in part due to no prior allocution); United States v.

Perez, 460 F. App’x 294, 300–01 (5th Cir. 2012) (same).

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