Petition for Writ of Certiorari — David Villegas Pereznegron, Petitioner v. United States

PETITION APPENDIX

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

June 9, 2022

No. 20-20644

Lyle W. Cayce

Clerk

United States of America,

Plaintiff—Appellee,

versus

David Villegas Pereznegron,

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:20-cr-71-1

Before Smith, Elrod, and Oldham, Circuit Judges.

Per Curiam: *

The question presented is whether the district court plainly erred by

not allowing David Villegas Pereznegron to allocute during sentencing. The

answer is no. We therefore affirm.

*

Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.

-1a-

PETITION APPENDIX

I.

David Villegas Pereznegron (“Villegas”) is a serial drunk driver: He

has been convicted five times of driving while intoxicated (“DWI”). After

his fourth conviction, he was removed to Mexico. Over six years later,

Villegas was at it again: Texas police caught him back in the United States

and driving drunk again. Villegas pleaded guilty to his second felony DWI

(his fifth DWI overall) and received a three-year sentence.

While serving his sentence, the United States (“Government”)

charged Villegas with illegal reentry. Villegas pleaded guilty, but he moved

for a downward departure from the guidelines range. Villegas’s sole reason

for a downward departure was the overlapping time he spent in state custody

for his second felony DWI conviction. See U.S.S.G. § 2L1.2 cmt. n.7. He also

submitted mitigation evidence, specifically letters from his family.

The court accepted Villegas’s guilty plea and moved to sentencing.

Everyone agreed that the applicable guidelines range was 46 to 57 months.

The Government urged a sentence within the guidelines range because

Villegas’s repeated misconduct presented “a very severe public safety

problem.” The sentencing judge then invited defense counsel to speak.

Defense counsel acknowledged his client’s repeated problems with alcohol

but argued that Villegas “learned his lesson” and would remain in Mexico

this time because Villegas’s family had lined up a “job” and a “place to live”

in Mexico. The sentencing judge ended the hearing by asking Villegas himself

some targeted questions but did not make clear that Villegas had an

opportunity to speak outside those targeted questions.

The judge sentenced Villegas to 48 months of imprisonment—two

months above the bottom of the applicable guideline range. Villegas timely

appealed, challenging his sentence based solely on a violation of his right to

allocute. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

-2a-

PETITION APPENDIX

§ 3742(a). Because Villegas failed to object during sentencing, our review is

for plain error. See United States v. Palacios, 844 F.3d 527, 530 (5th Cir. 2016).

II.

To pass the plain-error standard, a defendant “must show (1) that the

district court committed an error (2) that is plain and (3) affects his

substantial rights and (4) that failure to correct the error would seriously

affect the fairness, integrity or public reputation of judicial proceedings.”

United States v. Muhammad, 14 F.4th 352, 363 (5th Cir. 2021) (quotation

omitted). We need only address prong four because Villegas’s claim fails

there.

To meet prong four, our precedent requires defendants “to show

some objective basis that would have moved the trial court to grant a lower

sentence.” United States v. Magwood, 445 F.3d 826, 830 (5th Cir. 2006)

(quotation omitted); see also United States v. Chavez-Perez, 844 F.3d 540, 545

(5th Cir. 2016) (looking for “an objective basis that would have moved the

court to grant a lower sentence” (quotation omitted)). † Villegas tries to

marshal such evidence by pointing to letters from his family. Based on those

letters, Villegas says he would have allocuted on three topics if the court had

allowed him: (1) his recidivist drunk driving; (2) his taking advantage of his

family; and (3) his intention to stay in Mexico.

Villegas has not made the required showing. That is because “[m]ost

of the arguments [Villegas] claims he would have made were raised either by

[those letters] or defense counsel at the sentencing hearing, and [Villegas]

does not provide any new mitigating information in his appellate brief.”

†

This legal standard sounds like it would fit better in prong three, which requires

a showing of prejudice. We are nevertheless bound by our rule of orderliness to consider it

under prong four.

-3a-

PETITION APPENDIX

Chavez-Perez, 844 F.3d at 545 (footnote omitted). For example, the record

shows that the sentencing judge read the letters. Villegas concedes that.

Villegas’s counsel also addressed portions of the letters, including Villegas’s

incentives to stay in Mexico. For example, counsel told the judge that

Villegas’s family had a home and a job for him in Mexico and that his children

were adults who could visit him there.

The sentencing judge then made clear that nothing in those letters or

the information from Villegas’s family would change the sentence. For

example, the sentencing judge opined that Villegas had “no incentive to act

right” because he has “people here who will take him in and clean up his

messes.” The judge also suggested that Villegas “drink[s] because [he has]

. . . no way to compensate [his] family for what they’ve done supporting

[him]” and stated that Villegas “betray[ed]” his family and community by

driving drunk. To this judge, Villegas was a “danger [to] everybody in town.”

The judge even went so far as to say that Villegas has “take[n] advantage”

and “mooch[ed] off” of his family.

Under current precedent, Villegas’s claim fails at prong four.

AFFIRMED.

-4a-

PETITION APPENDIX

Jennifer Walker Elrod, Circuit Judge, dissenting:

Every criminal defendant has a right to be heard before a district court

sentences him. When a district court dominates the hearing and then

sentences the defendant without letting him speak, we almost always send it

back for a do-over. That is true even where, as here, neither the defendant

nor his counsel objects to try to get a word in edgewise. All agree that the

district court erred, that the error was obvious, and that the obvious error

harms Villegas’s substantial rights. The only issue for us is whether allowing

the district court to swap out colloquy for soliloquy seriously affects the

fairness, integrity, or public reputation of the judicial proceedings. Villegas

has made this showing, and thus I respectfully dissent.

For obvious allocution errors, our default is to vacate. We affirm only

in a “limited class of cases.” United States v. Reyna, 358 F.3d 344, 352–53

(5th Cir. 2004) (en banc). One that comes up often: where a defendant does

not get to speak at a particular sentencing hearing, but he had many chances

to allocute at other sentencing hearings. United States v. Figueroa-Coello, 920

F.3d 260, 265–66 (5th Cir. 2019). That is not the situation here, and no one

contends otherwise.

Another of these “limited” types of cases is one where the defendant

offers no “mitigating evidence” that “likely would have moved the district

court to grant a more lenient sentence.” United States v. Chavez-Perez, 844

F.3d 540, 545 (5th Cir. 2016). The defendant must have presented no

“objective basis” for the district court to “probably have changed its mind.”

Id. Again here, this case is not that: Villegas has offered a proposed allocution

that contains specific grounds that could possibly persuade a district court to

impose a lower sentence. This is true even though Villegas’s counsel

partially addressed the same issues Villegas himself would have addressed.

As we have said, “[t]he right of allocution exists because counsel may not be

-5a-

PETITION APPENDIX

able to provide the same quantity or quality of mitigating evidence as the

defendant at sentencing.” Figueroa-Coello, 920 F.3d at 268.

Palacios is a good example. There, even though the defendant’s

counsel had already covered some of the same ground at the hearing, the

defendant would have added “specific facts about [his] professional

accomplishments, charitable activities, and family life, and efforts to better

himself while incarcerated.” United States v. Palacios, 844 F.3d 527, 532–33

(5th Cir. 2016). It was sufficient for us that the district court had not

expressly contemplated or rejected those considerations. Id. at 533.

Another is Avila-Cortez, where we vacated for allocution error in a

case much like this one. United States v. Avila-Cortez, 582 F.3d 602, 603 (5th

Cir. 2009). The defendant in that case pleaded guilty to illegal reentry and

had a history of driving while intoxicated. Id. at 603–04. Just like here, the

district court emphasized the defendant’s recidivism and did not clearly

reject defense counsel’s mitigating arguments. Id. at 606. Because of these

facts, and because the defendant had described precisely what information he

would present in allocution regarding his alcohol abuse and his plan to return

to Mexico, we held that the fourth prong was satisfied. Id. at 606–07.

We should do the same here. The district court’s conjecture about

Villegas went largely unchecked.

What started as a discussion about

Villegas’s criminal history veered into assumptions about Villegas’s family

members, then veered into the psychological impact on Villegas’s family

caused by his drinking, which veered into calling Villegas a “mooch” for how

he treated his family. Villegas would have provided details about his long

struggle with alcohol, his past lengthy period of sobriety, and his plan to

return to society and avoid relapsing. And far from being a “mooch,”

Villegas would have refuted that by discussing “the support he had provided

to his daughters over the years.” These comments would have gone well

-6a-

PETITION APPENDIX

beyond his counsel’s short remark that Villegas had “issues with alcohol,”

and they could have at least partially rebutted the district court’s

unchallenged perspective that Villegas had been and would continue to be a

hopeless alcoholic. Villegas also would have provided details about his plan

to return to and remain in Mexico. On this point, his counsel noted merely

that Villegas had a home and a job in Mexico, and that his children were

“adults” who could visit him there. Had Villegas allocuted, he could have

explained in greater detail why his experience made him particularly wellsuited for the job in Mexico and that his children had the financial resources

to visit him.

The majority opinion declines to vacate Villegas’s sentence in large

part because, in its view, the information Villegas would have presented at

allocution was also found in letters from his family members, which the court

reviewed. Although the letters and the proposed allocution contain some

overlapping information, that is not fatal to Villegas’s case. As we said in

Figueroa-Coello, for us to affirm despite allocution error, “[t]he defendant

must fail to present any objective basis upon which the district court would

probably have changed its mind.” 920 F.3d at 266. For one, it is unclear

whether the district court specifically contemplated the entirety of the

letters’ contents. The record reveals only that the court at sentencing was

cognizant of the house made available to Villegas in Mexico, which the letters

mention.

In any event, the contents of the letters are not a substitute for

allocution. The letters mention that Villegas would have a job and a house in

Mexico, and that he had been sober for a period of time. Villegas could have

discussed in detail why he would remain in Mexico, why the job and home

are a good fit for him, and the details of his struggles, past successes, and

future plans related to his alcoholism. As the Supreme Court has said, “[t]he

most persuasive counsel”—or family members, I would add—“may not be

-7a-

PETITION APPENDIX

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

speak for himself.” Green v. United States, 365 U.S. 301, 304 (1961). As in

Aguirre-Romero, a case in which we vacated the sentence, “[Villegas]

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.” United States v. Aguirre-Romero, 680 F. App’x 291,

297 (5th Cir. 2017). Under our precedent, that is enough to vacate and

remand.

*

*

*

Rule 32 says that district courts must address the defendant at

sentencing to allow him to speak for himself. Fed. R. Crim. P. 32(i)(4)(A)(ii).

That is not just empty formalism; it protects the fairness, integrity, and public

reputation of our judicial proceedings, precisely what the fourth prong of the

plain-error analysis addresses.

So too does the most basic rule-of-law

principle: Treat like cases alike. We have corrected many allocution errors

in cases like this. See, e.g., Figueroa-Coello, 920 F.3d at 266–68; Palacios, 844

F.3d at 532–34; Avila-Cortez, 582 F.3d at 606–07; Aguirre-Romero, 680 F.

App’x at 296–97; United States v. Lister, 229 F. App’x 334, 339 (5th Cir.

2007). We should do the same here. Thus, I respectfully dissent.

-8a-