author: JERRY E. SMITH, Circuit Judge:

text:
    Jacob COOPER, Plaintiff-Appellee, v. Lynn BROWN, Defendant-Appellant.
    No. 16-60042
    United States Court of Appeals, Fifth Circuit.
    Filed December 27, 2016

      Brandon Lyle Flechas, Stroud Law Firm, P.C., Southaven, MS, for Plaintiff-Appellee.

      Daniel J. Griffith, Esq., Jamie Ferguson Jacks, Esq., Jacks Griffith Luciano, P.A., Cleveland, MS, for Defendant-Appellant.
    Before STEWART, Chief Judge, SMITH and DENNIS, Circuit Judges.
   JERRY E. SMITH, Circuit Judge:

Officer Lynn Brown appeals the denial of his motion for summary judgment based on qualified immunity (“QI”). Because it was clearly established that Brown’s conduct constituted excessive force in violation of the Fourth Amendment, we affirm.

I.

A.

One night in April 2013, Jacob Cooper was pulled over by Officer Michael Press-grove on suspicion of driving under the influence (“DUI”). Believing that Cooper was intoxicated, Pressgrove administered a portable breath test, then returned to his patrol vehicle. Cooper panicked and fled on foot into a residential neighborhood, where he took shelter inside a “cubbyhole,” a small wood-fenced area used to store trash bins between two houses.

Because there was a passenger in his squad car, and DUI is a misdemeanor offense, Pressgrove decided not to pursue Cooper. Instead, he radioed for backup, providing Cooper’s description and explaining that he was a DUI suspect and on foot. Brown was one of the officers to respond, arriving with his police dog Sunny, a Belgian Malinois. Pressgrove testified that he did not request a K9 unit and that it would have been unusual to deploy a K9 unit for a misdemeanor DUÍ. Press-grove also testified that although he did not know whether Cooper was armed, he had no reason to believe that Cooper had a weapon.

Upon entering the residential neighborhood with Brown, Sunny discovered Cooper in his hiding place and bit him on the calf. The parties dispute whether Sunny initiated the attack or whether, instead, Brown ordered it. Nonetheless, the facts following the initial bite are undisputed: Sunny continued biting Cooper for one to two minutes. During that time, Cooper did not attempt to flee or to strike Sunny. Brown instructed Cooper to show his hands and to submit to him. At the time of that order, Cooper’s hands were on Sunny’s head. Brown testified that he could see Cooper’s hands and could appreciate that he had no weapon. Brown then ordered Cooper to roll onto his stomach. He complied, and Brown handcuffed him. But he did not order Sunny to release the bite until after he had finished handcuffing Cooper. As a result of the bite, Cooper suffered years of severe pain from lower-leg injuries that required multiple surgeries, including reconstruction and skin grafts.

B.

Cooper sued Brown under 42 U.S.C. § 1983, alleging that Brown’s use of force was objectively unreasonable under the Fourth Amendment. After discovery, Cooper moved for partial summary judgment as to Brown’s individual liability, and Brown moved for summary judgment on the basis of QI. The district court granted Cooper’s motion and denied Brown’s. It determined that Brown’s use of the police dog was objectively unreasonable, given that Cooper was not actively resisting arrest and was suspected of only a misdemeanor DUI. It further decided that Cooper’s right was .clearly established.

II.

We review de novo the denial of summary judgment based on QI. Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010). Under the collateral-order doctrine, a denial of summary judgment based on QI is immediately appealable to the extent that the appeal turns on a question of law. Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012). On interlocutory appeal, we have jurisdiction to “review the materiality of any factual disputes, but not their genuineness.” Hogan v. Cunningham, 722 F.3d 725, 730-31 (5th Cir. 2013). “Once a defendant invokes qualified immunity, the burden shifts to, the plaintiff to show that the defense is not available.” Kovacic, 628 F.3d at 211. But where factual disputes exist, we accept the plaintiffs version. Hogan, 722 F.3d at 731.

III.

QI provides government officials with immunity from suit “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). We apply a two-part test: (1) whether the plaintiff has alleged a violation of an actual constitutional right; and (2) if so, whether the right was clearly established at the time of the violation. Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008). Both questions are matters of law. Brothers v. Zoss, 837 F.3d 513, 517 & n.8 (5th Cir. 2016).

A.

Cooper alleges that Brown violated his Fourth Amendment rights by applying excessive force. To prevail on an excessive-force claim, he must show “(1) injury, (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.” Elizondo v. Green, 671 F.3d 506, 510 (5th Cir. 2012) (quoting Collier v. Montgomery, 569 F.3d 214, 218 (5th Cir. 2009)). The record plainly shows that Cooper suffered an injury, but Brown contends that his application of force was objectively reasonable.

In excessive-force claims, the reasonableness of an officer’s conduct depends on the “facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). We must adopt “the perspective of a reasonable officer on the scene, rather than [judge] with the 20/20 vision of hindsight.” Id. Our inquiry is “whether the officer[’s] actions [we]re ‘objectively reasonable’ in light of the facts and circumstances confronting [him], without regard to [his] underlying intent or motivation.” Id. at 397, 109 S.Ct. 1865.

Application of the Graham factors shows that Brown’s conduct was objectively unreasonable. DUI is a serious offense, Brothers, 837 F.3d at 519, so that factor favors Brown. But the other factors push heavily for Cooper.

No reasonable officer could conclude that Cooper posed an immediate threat to Brown or others. Cooper was not suspected of committing a violent offense, and Brown testified that Pressgrove, when calling for backup, had not warned that Cooper might be violent. Moreover, Brown could see Cooper’s hands and knew he had no weapon. Indeed, Brown’s own expert testified that there was no evidence that would have led a reasonable officer to believe that Cooper was a threat. Thus, this factor weighs strongly for Cooper.

On the third factor, ■ Cooper was not actively resisting arrest, or attempting to flee or to strike Sunny. The only act of “resistance” that Brown identifies is Cooper’s failure to show his hands because, although they were on Sunny’s head and visible to Brown, Brown wanted Cooper to raise his hands. Given that Sunny was still latched onto Cooper’s calf at the time, the failure to raise his hands can hardly be characterized as “active resistance.” But even if it was, any “resistance” ended quickly. Brown ordered Cooper to roll onto his stomach, and Cooper complied with that order. At that point, no reasonable' officer could believe that Cooper was actively resisting arrest; to ■ the contrary, he was actively complying. And yet Brown still did not command Sunny to release the bite.

Moreover, Brown was required to “assess not only the need for force, but also ‘the relationship between the need and the amount of force used.’ ” Brown subjected Cooper to a lengthy dog attack that inflicted serious injuries, even though he had no reason to believe that Cooper posed a threat, and without first attempting to negotiate.. And he continued applying force even after Cooper was actively complying with his orders. Brown’s own expert conceded that there was no reason for Brown to permit Sunny to continue attacking once Cooper was on his stomach. The. expert’s testimony is telling:

Q: Once Mr. Cooper rolled to his stomach and put his hands where Officer Brown told him to put his hands, was there any reason to leave the dog on at that point?
A: I cannot think of any reason to allow the dog to remain physically engaged after that point.
Q: In fact, officers cuff suspects in this manner routinely, correct?
A: Yes, sir.
Q: Without the use of a dog?
A: Yes, sir.
Q: And, in fact, most arrests occur without the use of a dog, correct?
A: Yes, sir, overwhelmingly.
Q: Okay. Is there any evidence you can show the jury in this case to account why Officer Brown could not order his dog to a backup position once Mr. Cooper was on his stomach instead of leaving the dog on?
A: No, sir.

The undisputed facts establish that Brown’s use of force was objectively unreasonable. To be clear, we do not say that any application of force to a compliant arrestee is per se unreasonable, and we do not opine on the line of reasonableness. Instead, we state only the obvious: Under the facts in this record, permitting a dog to continue biting a compliant and nonthreatening arrestee is objectively unreasonable.

B.

The second part of the QI inquiry looks to whether the right was clearly established at the time of the violation. “To answer that' question in the affirmative, we must be able to point to controlling authority—or a robust consensus of persuasive authority—that defines the contours of the right in question with a high degree of particularity.” Morgan v. Swanson, 659 F.3d 359, 371-72 (5th Cir. 2011) (en banc) (internal quotation marks and citation omitted). But “this does not mean that ‘a case directly on point’ is required.” Id. at 372 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). Rather, “existing precedent must have placed the statutory or constitutional question beyond debate.” Id. at 372 (quoting al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074 (emphasis added)).

The central concept is “fair warning.” Id. at 372; Newman, 703 F.3d at 763. “The law can be clearly established despite notable factual distinctions between the. precedents relied on. and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.” Newman, 703 F.3d at 763 (quoting Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (internal quotation marks omitted)). “Furthermore, ‘in an obvious case,’ the Graham excessive-force factors themselves ‘can clearly establish the answer, even without a body of relevant case law.’ ” Id. at 764 (quoting Brosseau v. Haugen, 543 U.S. 194, 199, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004)) (internal quotation marks omitted).

Cooper’s right was clearly established. Our caselaw makes certain that once an arrestee stops resisting, the degree of force an officer can employ is reduced. “[Although the right to make an arrest necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it, the permissible degree of force depends on [the Graham factors].” Bush v. Strain, 513 F.3d 492, 502 (5th Cir. 2008) (internal quotation marks omitted). In Bush, we held that it was objectively unreasonable for an officer to slam an arrestee’s face into a nearby vehicle when the arrestee “was not resisting arrest or attempting to flee.” Id. Similarly, we declared in Neuman, 703 F.3d at 762, that tasing an arrestee was objectively unreasonable where “[t]he videos d[id] not show Newman attempting to strike either officer, holding a weapon, or even reaching for his waistband,” and “[t]he officers did not try to warn each other ... that Newman had a weapon, which might be expected if either officer truly thought that at the time.”

In the same way, Cooper was not attempting to resist arrest or flee, and Brown had no reason to think that he posed an immediate threat. Moreover, the fact that Bush and Neuman are not dog-bite cases does not shield Brown. “Lawfulness of force ... does not depend on the precise instrument used to apply it. Qualified immunity will not protect officers who apply excessive and unreasonable force merely because their means of applying it are novel.” Id. at 763-64 (footnotes omitted). Thus, Brown had “fair warning” that subjecting a compliant and non-threatening arrestee to a lengthy dog attack was objectively, unreasonable.

This comports with decisions of sister circuits that have considered similar facts. In Priester v. City of Riviera Beach, 208 F.3d 919, 923-24 (11th Cir. 2000), the Eleventh Circuit held that it was objectively unreasonable for officers to allow a dog to bite and hold a suspect for two minutes—which it described as “an eternity”—where he was compliant with orders and not resisting arrest. The Eleventh Circuit confronted the question a second time in Edwards v. Shanley, 666 F.3d 1289 (11th Cir. 2012). There, a man was pulled over for a traffic violation and fled on foot. When the officers encountered him, he was lying on his stomach with his hands exposed. The man verbally surrendered, shouting, “[Y]ou got me. I only ran because of my license.” Nonetheless, the officers released their dog and permitted it to continue biting him for five to seven minutes. Id. at 1292-93. The court held that the officers’ conduct violated the constitution. Its application of the Graham factors is instructive:

Critical to this determination is the fact that, .in subjecting Edwards to the dog attack, Officer Shanley increased the force applied at the same time the threat presented by Edwards decreased. To be sure, the seriousness of Edwards’s fleeing Officer Lovett had not changed, and thus under the first Graham factor we accept that Officer Shanley had some reason to approach Edwards with concerns for his own safety. But insofar as fleeing from the police raises doubt about the danger an individual poses, Edwards mitigated that doubt by laying prone with his hands exposed and begging to surrender. As a result, the second and third Graham factors weigh in favor of Edwards’s argument that extraordinary force was not necessary or appropriate for the entire duration of the dog attack.

Id. at 1296.

To the same effect, the Ninth Circuit held that “it was clearly established that excessive duration of the bite and improper encouragement of a continuation of the attack by officers could constitute excessive force that would be a constitutional violation.” Watkins v. City of Oakland, 146 F.3d 1087, 1093 (9th Cir. 1998). And the Sixth Circuit denied QI to an officer who “allowed a ‘bite and hold’ dog, whose training was questionable, to attack two suspects who were not actively fleeing and who, because of proximity, showed no ability to evade police custody.” Campbell v. City of Springboro, 700 F.3d 779, 789 (6th Cir. 2012).

IV.

Although Brown appeals the partial summary judgment for Cooper, we lack appellate jurisdiction to review that decision. Under 28 U.S.C. § 1291, we have jurisdiction only over “final ; decisions. The district court entered partial summary judgment for Cooper “as to the issue of liability,” but it did not decide damages. “Such judgments are by their terms interlocutory, and where assessment' of damages or awarding of other relief remains to be resolved have never been considered to be ‘final’ within the meaning of 28 U.S.C. § 1291.” Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976) (citation omitted). Because the partial summary judgment was not “final,” it is not properly before this court as part of the QI appeal.

The order denying qualified immunity is AFFIRMED. The appeal of the partial summary judgment for Cooper is DISMISSED for want of appellate jurisdiction.

      . Cooper also asserted a claim against the City of Horn Lake. The district court entered summary judgment for the city, and that decision is not addressed on this appeal.

      . Brown contends that the fact that Cooper was unsearched made Cooper more of a threat. Although this will sometimes be a relevant fact—for example, where a plaintiff is suspected of committing a violent crime—it is not enough, standing alone, to permit a reasonable officer to characterize a suspect as an immediate threat.

      . See Goodwin v. City of Painesville, 781 F.3d 314, 325 (6th Cir. 2015) (observing that the plaintiff’s "failure to present his hands to be cuffed was due to Taser-induced involuntary convulsions” and that this could not constitute active resistance under Graham); Kopf v. Wing, 942 F.2d 265, 268 (4th Cir. 1991) ("We believe that a jury could find it objectively unreasonable to require someone to put his hands up and calmly surrender while a police dog bites his scrotum.”); Malone v. City of Fort Worth, No. 4:09-CV-634-Y, 2014 WL 5781001, at *10 n.5 (N.D. Tex. Nov. 6, 2014) (“The Court wonders how a man, who is prone on the ground and being attacked by a dog, can reasonably be expected to expose his hands and unflinchingly hold them behind his back.”).
      Brown acknowledged that it might prove difficult for a suspect to convey his surrender while fending off a dog attack;
      Q. Officer Brown, you can understand how somebody who is being bitten by a Malinois would be slightly distracted while you’re giving them a verbal command?
      A, Right.

      . Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (quoting Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir. 1999)); see also Poole v. City of Shreveport, 691 F.3d 624, 629 (5th Cir.2012) (noting that officers are permitted to respond to escalating verbal and physical resistance with "measured and ascending” responses).

      . See Deville, 567 F.3d at 167-68 (holding that a reasonable jury could find that the degree of force used was not justified where the officer "engaged in very little,, if any, . negotiation” with the suspect and "instead quickly resorted to breaking her. driver’s side wjndow and dragging her out of the vehicle.”).

      . Although Brown and Cooper dispute whether Brown ordered Sunny to attack, that fact is not material to our holding. Even if the dog attacked of its own volition, Brown permitted the attack to continue for one to two minutes.

      . See also Mason v. Lafayette City-Par. Consol. Gov't, 806 F.3d 268, 277-78 (5th Cir. 2015) ("The present case is an ‘obvious one where Graham and Gamer alone offer a basis for decision.’") (quoting Brosseau, 543 U.S. at 199, 125 S.Ct. 596).

      . Our decision in Anderson v. McCaleb, 480 Fed.Appx. 768, 773 (5th Cir. 2012) (per curiam), is also closely on point. Because it is unpublished, it does not constitute clearly established law for purposes of QI, but it aptly illustrates the established right. There, a suspect was pulled over and fled on foot. When the officers encountered him in a backyard, he was holding an iPod, which the officers claimed to think was a weapon. One officer tased the plaintiff five or six times, including after the plaintiff was on the ground and no longer resisting. We denied QI because the officer "should have known that he could not continue to shock [the plaintiff] with the taser after he was no longer resisting arrest.” Id.

      , Though the parties assume jurisdiction is proper, ‘‘[w]e must always be sure of our appellate jurisdiction and, if there is doubt, we must address it, sua sponte if necessary.” USPPS, Ltd. v. Avery Dennison Corp., 647 F.3d 274, 277 (5th Cir. 2011) (quoting Castaneda v. Falcon, 166 F.3d 799, 801 (5th Cir. 1999)).

      . The district court left the damages issue for the jury trial, which it stayed pending this appeal.

      . See also Way v. Reliance Ins. Co., 815 F.2d 1033, 1034 (5th Cir. 1987) (per curiam) (dismissing an appeal for lack of jurisdiction because the partial summary judgment was not final); Halliburton Co. Benefits Comm. v. Graves, 191 Fed.Appx. 248, 250-51 (5th Cir. 2006) (per curiam) (same).

      , Some courts have used the doctrine of "pendent appellate jurisdiction” to review partial-summary-judgment orders alongside orders denying QI. E.g., Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 549 (6th Cir. 2002). This court, however, has held that "[pjendent appellate jurisdiction should be exercised only in 'rare and unique’ circumstances,” where the non-final claim is "inextricably intertwined” with the QI inquiry. Gros v. City of Grand Prairie, 209 F.3d 431, 436-37 (5th Cir. 2000) (quoting Woods v. Smith, 60 F.3d 1161, 1166 n.29 (5th Cir. 1995)). We generally have resisted efforts to bootstrap non-final claims into QI appeals. See Gros, 209 F.3d at 437; Cutler v. Stephen F. Austin State Univ., 767 F.3d 462, 468 (5th Cir. 2014); Cantu v. Rocha, 77 F.3d 795, 805 (5th Cir. 1996); see also Guillemard-Ginorio v. Contreras-Gomez, 490 F.3d 31, 37 n.4 (1st Cir. 2007) (declining to consider a partial summary judgment in a QI appeal because of "the well-established rule of reviewing only a district court's final decisions.”). Because there are no “rare and unique” circumstances here, we decline to exercise pendent appellate jurisdiction.


source: Caselaw Access Project

author: CARL E. STEWART, Chief Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Jose PALACIOS, Jr., Defendant-Appellant
    No. 14-40279
    United States Court of Appeals, Fifth Circuit.
    Filed December 27, 2016

      John Richard Berry, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    Jeremy B. Gordon, Jeremy Gordon, P.L.L.C., Mansfield, TX, for Defendant-Appellant.

      Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
   CARL E. STEWART, Chief Judge:

Jose Palacios, Jr. (“Palacios”) appeals his 144-month sentence for possession with the intent to distribute 100 kilograms or more of marijuana. He asserts that the district court committed reversible error by denying him the right of allocution before pronouncing his sentence. We agree. Accordingly, we VACATE and REMAND for resentencing.

I. BACKGROUND

Palacios, a licensed attorney, became involved in a drug trafficking conspiracy wherein he oversaw the organization’s drug transportation activities, was involved in the collection of narcotics proceeds, and represented members of the organization in state legal proceedings to gain access to privileged information regarding law enforcement activity. Palacios was arrested on July 28, 2013. On August 20, 2013, he and his coconspirators were named in a twenty-one count superseding indictment alleging that they had, inter alia, engaged in a conspiracy to traffic narcotics. Palac-ios pleaded guilty to Count Fifteen, possession with the intent to distribute 100 kilograms or more of marijuana.

The district court sentenced Palacios and his codefendants on March 6, 2014. Palacios’s pre-sentence report (“PSR”) placed him at an offense level of 38 with a category I criminal history. Based on this information, the advisory range pursuant to the U.S. Sentencing Guidelines was five to forty years’ imprisonment, with a term of at least four years of supervised release. The PSR recommended that the district court reduce Palacios’s offense level if he clearly accepted responsibility for his crime but also recommended that the court depart upwardly in sentencing him because he had abused his position as an attorney.

During sentencing, the district court reiterated Palacios’s right to raise any issues he had with the PSR. The court explained to Palacios that to receive a reduction in his offense level for acceptance of responsibility, he would have to “generally” describe his wrongful conduct that constituted the instant offense. The court asked Palacios, “Do you want to tell me what it is that you did in this conspiracy?” Palacios spoke in detail about his role in the conspiracy, explaining that he arranged for the transportation and delivery of marijuana to at least three different locations.

Following Palacios’s statement, the district court reduced his offense level by two points. The following exchange ensued:

THE COURT: All right. So I’m going to give him his two points off for acceptance. I assume the Government will move for the third?
THE GOVERNMENT: The Government so moves, your Honor.
THE COURT: All right, which I grant. Okay. Anything else you want to add? I did review the letter from the church.
MR- GARCIA [Palacios’s counsel]: Yes, your Honor, also the classes that he’s been taking while incarcerated in Willa-cy County. We also ask the Court to consider the age of his young son, your Honor.
THE COURT: Right.

Palacios’s counsel then offered as an additional mitigating factor that Palacios had no criminal history. Following counsel’s statement, the district court directly addressed Palacios: ,

THE COURT: Mr. Palacios, as I’m sure you know, your ex-wife was well-thought of and a very competent prosecutor here in this court. So I feel like [I] know your family a little bit already. And as I was telling your father, you know, it’s a shame when I see this family drug connection .... I hope you are able to help yourself in the future so that you don’t have to .serve all of this lengthy sentence.

The district court then ■ calculated Palac-ios’s offense level as 33. The resulting applicable Guidelines range was 135-168 months. The court sentenced him to 144 months’ imprisonment and five years’ supervised release. The district court explained to Palacios that he had the right to appeal but did not ask him any further questions.

Palacios 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, Palacios includes a lengthy statement he claims he would have made at sentencing if given the opportunity to allo-cute. In this statement, he apologizes to society, the victims of his crimes, and his family—particularly his young son. He explains the financial difficulties that drove him to his “horrible decision” and asserts that he takes responsibility for his actions. He additionally describes the efforts he has made to rehabilitate himself while incarcerated and details his past charitable and volunteer work. ■

II. DISCUSSION

Palacios 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. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)); see also United States v. Perez, 460 Fed.Appx. 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. Right to Allocution

Palacios argues that although the district court allowed him the opportunity to speak with regard to acceptance of responsibility, the court did not allow him “the right to speak on any subject of his choosing prior to imposition of sentence.” 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); see also United States v. Legg, 439 Fed.Appx. 312, 313 (5th Cir. 2011) (per curiam) (determining that extensive discussion between district court and defendant did not constitute a “specific and unequivocal” allocution opportunity): “[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.” Magwood, 445 F.3d at 829 (quoting Echegollen-Barrueta, 195 F.3d at 789) (alteration in original) (internal quotation omitted).

Although Palacios and the district court engaged in discussion prior to the imposition of his sentence, the record does not show that Palacios was given a specific and unequivocal opportunity to speak in mitigation of his sentence. After Palacios described his role in the conspiracy and the district court granted him a reduction for acceptance of responsibility, the district court then stated, “Okay. Anything else you want to add? I did review the letter from the church.” Palacios’s counsel responded to the court’s question with the statement: “Yes, your Honor, also the classes that he’s been taking while incarcerated in Willacy County. We also ask the Court to consider the age of his young son, your Honor.” It is unclear from the record to whom the district court addressed' its open-ended question. The fact that (1) the immediately preceding dialogue had been between the court and the prosecution and (2) the court never interrupted defense counsel to clarify that its question had been directed to Palacios, makes plausible the conclusion that the question was not directed at Palacios but rather to his attorney. That any such ambiguity exists demonstrates that Palacios was not given a specific and unequivocal opportunity to speak. See Magwood, 445 F.3d at 829. Thus, we conclude that the first two prongs of the plain error test have been met: the district court erred in failing to provide Palacios "with an allocution opportunity, and that error was clear and obvious. See id.; United States v. Perez, 460 Fed.Appx. 294, 299-300 (5th Cir. 2012) (per curiam); Legg, 439 Fed.Appx. at 313.

B. Defendant’s Substantial Rights

The third prong of the plain error analysis—harm to the defendant’s substantial rights—is also satisfied. “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 allocution, 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 Palacios was sentenced to 144 months’ imprisonment, a mid-range sentence in the advisory guidelines range of 135 to 168 months of imprisonment, we hold that the error affected his substantial rights. See Magwood, 445 F.3d at 829; Reyna, 358 F.3d at 353.

C. Discretion to Correct the Error

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. 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.” Id. at 356 (Jones, J., concurring); see also Magwood, 445 F.3d at 830 (determining that the defendant, who simply challenged a facial violation of the denial of the right to allocute and who did not challenge his sentence, failed to establish that a miscarriage of justice occurred).

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. “[I]f the defendant had a prior opportunity to allocute, or if the defendant fails to explain what exactly he or she would have said during allocution that might mitigate the sentence, then the case is one of those ‘limited class of cases’ in which we will decline to exercise our discretion to correct the error.” Id. at 606 (quoting Reyna, 358 F.3d at 352). We have also considered whether defense counsel offered mitigating arguments on behalf of the defendant. 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). Although the presence of such arguments may support affirming the sentence, such statements do not preclude this court from exercising its discretion to correct the error. See id.

Here, Palácios was not given' a prior opportunity to allocute. He was, however, given an opportunity to speak before the district court imposed his sentence. During the sentencing hearing, the district court reiterated to Palacios his right to raise any issues he had with the PSR and gave him the opportunity to describe “what wrongful conduct [he] did that constituted [the] offense.” In response, Palacios provided a detailed answer describing his unlawful actions. However, although the district court went beyond “barely addressing the defendant] at all,” see Avila-Cortez, 582 F.3d at 604, 607 (finding reversible error where the only time the defendant spoke was when he twice said “Yes, sir” in response to whether he had received and reviewed the PSR), it never gave Palacios an explicit opportunity to speak freely, see Magwood, 445 F.3d at 829. Palacios was effectively limited to talking about any issues he had with the PSR; telling the district court generally “what wrongful conduct [he] did that constituted [the] offense”; and discussing his role in the conspiracy. Thus, this consideration does not weigh definitively in either direction.

However, other factors weigh strongly in favor of correcting the district court’s error. Palacios provided in his appellate brief a statement of what he would have said had he been given the. opportunity to allocute. This statement is specific, thorough, and gives “detail, expression, [and] expansion” to the statements provided by defense counsel. See Avila-Cortez, 582 F.3d at 606. It provides specific facts about Palacios’s professional accomplishments, charitable activities and family life, and efforts to better himself while incarcerated—any of which might have convinced the district court to impose a lesser sentence. See id. (correcting the error where the defendant “specifie[d] precisely” what he would have told the district court to mitigate his sentence); United States v. Lister, 229 Fed.Appx. 334, 338-39 (5th Cir. 2007) (per curiam) (correcting the error where the defendant specified in his brief what he would have included in his allocution statement); cf. United States v. Neal, 212 Fed.Appx. 328, 332 (5th Cir. 2007) (per curiam) (declining to correct the error where the defendant “assert[ed] only con-clusionally [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”).

Moreover, although Palacios’s defense counsel made a few, somewhat cursory, mitigating statements on Palacios’s behalf, these brief points were not sufficient to supplant Palacios’s right to plead his own case at allocution. In Avila-Cortez, we exercised our discretion to correct the error where the defendant explained in his brief that he would have told the district court that he had a specific strategy to address his problem with alcohol and that he was making plans to return permanently to Mexico with his wife. 582 F.3d at 606. The defendant’s counsel, by contrast, had only “summarily referred to this mitigating evidence in his argument.” See id. Similarly, here, defense counsel “did not present to the court the same quantity or quality of mitigating evidence that [the defendant] would have given had he been able to allocute.” See id. At the sentencing hearing, defense counsel only summarily referred to the fact that Palacios was taking classes while incarcerated, has a young son, and had no prior criminal history. In his appellate brief, however, Palacios adds detail and description to these assertions, presents additional mitigating evidence, and does all of this in his own voice. See Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961) (As Justice Frankfurter explained, “The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.”). Further, as in Avila-Cortez, the record in this case does not indicate that the district court contemplated, or subsequently rejected, defense counsel’s mitigating statements. See Avila-Cortez, 582 F.3d at 604, 606; cf. Magwood, 445 F.3d at 830.

These considerations weigh in favor of correcting the district court’s error, and, consistent with this court’s precedent, Palacios has “show[n] some objective basis that would have moved the trial court to grant a lower sentence.” See Magwood, 445 F.3d at 830 (internal quotation marks omitted); cf. Legg, 439 Fed.Appx. at 313 (finding the defendant failed to show such an objective’ basis where the facts and assertions he contended he would have presented to mitigate his sentence were either considered by the district court and deemed unpersuasive or did not undermine the court’s reasons for imposing the sentence); United States v. Coleman, 280 Fed.Appx. 388, 392 (5th Cir. 2008) (per curiam) (finding no miscarriage of justice where the defendant did not point to anything “that arguably would have impacted the district court’s thinking”).

The Government urges us to consider, inter alia, (1) that the district court had a “comprehensive” view of Palacios through the substantial PSR, the experience of sentencing Palacios’s coconspirators, and its knowledge of Palacios’s ex-wife and family, and (2) that Palacios, a former prosecutor and defense lawyer, “would have' been his own best advocate if there had been anything else to say.” We do not find these factors sufficient to outweigh the previous considerations. The existence of a voluminous PSR and the presence of other codefendants at sentencing do not per se negate the occurrence of a miscarriage of justice, and the Government cites no authority that would suggest otherwise. Additionally, even assuming that Palacios had been aware of his right to allocute based on his professional experience, mere awareness of that right is not the proper inquiry under Rule 32. Moreover, during sentencing, Palacios was not appearing as a defense attorney but rather as a criminal defendant facing severe penalties and likely under significant stress. Thus, while these considerations could perceivably carry slight weight, we do not find them dispositive.

III. CONCLUSION

In sum, we conclude that the district court’s failure to provide Palacios the opportunity to allocute before sentencing amounted to plain error that affected his substantial rights, warranting this court’s exercise of discretion to correct the error. See Reyna, 358 F.3d at 352-53. Accordingly, we VACATE and REMAND for resentencing.

      . For example, during sentencing, ■ defense .counsel asked the district court "to consider the age of [Palacios's] young son.” By contrast, in his appellate brief, Palacios states ■ that he would have said:
      I would like to apologize to my own family.... Most importantly, my son Joey, for leaving him without a father. Not a day goes by that I don’t regret all the things that I have done that has [sic] led me to standing before you today. These actions have taken me away from the most important responsibility to be bestowed upon me— fatherhood. I have failed miserably in setting a good example for him. And although I have tried to raise a little boy with a strong moral code, my actions will nonetheless affect the way he looks at me. I only hope that one day he will find it in his heart to forgive me for abandoning him when he needs me the most. Being taken into custody in his presence is something that will always tear at my heart and my conscience.

      . Specifically, defense .counsel stated: “Yes, your Honor, also the classes that he's been taking while incarcerated in Willacy County. We also ask the Court to consider the age of his young son, your Honor.” Counsel then added: "The fact that Mr. Palacios, you know, has no criminal history, your Honor.”

      . Palacios's ex-wife is a^ prosecutor who had previously appeared in the district court, and Palacios’s brother and father were codefen-dants who had been sentenced by the court.

      . We are aware that in Dkt. No. 16-40164, United States v. Chavez-Perez, also up on appeal, we held that the district court's failure to provide the defendant the right to allocute did not amount to reversible error. In contrast to the instant case, we determined that the final prong of the plain error test was not met because no miscarriage of justice had occurred. Because the defendant in Chavez-Perez failed to demonstrate 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 declined to exercise our discretion to correct the error,


author: JERRY E. SMITH, Circuit Judge: JAMES L. DENNIS,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Arturo MALDONADO-OCHOA Defendant-Appellant.
    No. 15-40424
    United States Court of Appeals, Fifth Circuit.
    Filed December 27, 2016

      Anna Elizabeth Kalluri, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
    Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Philip G. Gallagher, Assistant Federal Public Defenders, John Moreno Parras, Federal Public Defender’s Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.
    Arturo Maldonado-Ochoa, Pro Se..
    Before STEWART, Chief Judge, SMITH and DENNIS, Circuit Judges.
   JERRY E. SMITH, Circuit Judge:

Arturo Maldonado-Ochoa appeals a sentence that includes an enhancement for “intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.” United States Sentencing Guidelines (U.S.S.G.) § 2Ll.l(b)(6). The enhancement was for transporting unrestrained illegal aliens for an extremely short distance. Finding no error, we affirm.

I.

Border Patrol agents in an unmarked vehicle noticed a pickup going east on a levee road just north of the Rio Grande River, the Mexican border. The truck stopped, and a number of individuals emerged from the nearby brush. Some of them entered the truck’s cab, while others climbed into its bed. Someone then covered the bed with a tarp. The agents immediately activated their lights and siren and approached the truck. The driver was “attempting to reverse” when the pickup came to a sudden stop and its occupants got out and fled into the brush. The agents gave chase and apprehended ten, all illegal aliens, including the driver, Maldonado-Ochoa. He later admitted that he was the driver and that, by driving the truck, he would have received free transportation “all the way to Minnesota, where [he] used to live.”

Maldonado-Ochoa did not transport the aliens very far. One of them said that the truck “began to move” before a siren was heard and the vehicle came to a stop. The presentence report (“PSR”) notes that the truck “appeared to be attempting to reverse before it stopped.” The plea agreement states that the. truck “started to move” before Maldonado-Ochoa and his passengers became aware of the agents. At the sentencing hearing, the government contended that “there was very limited movement, but there was movement.”

Under the plea agreement, Maldonado-Ochoa pleaded guilty of one count of conspiracy to transport an illegal alien within the United States and two counts of transporting an illegal alien within the United States for the purpose of commercial advantage and private financial gain, in violation of 8 U.S.C. § 1324. In return, the government moved to dismiss the remaining counts and urged downward adjustments.

The PSR calculated a total offense level of 13: a base offense level of 12 per U.S.S.G. § 2L1.1(a)(3), a three-level enhancement for transporting between 6 and 24 illegal aliens per U.S.S.G. § 2L1.1(b)(2)(A), and a two-level downward adjustment for acceptance of responsibility per U.S.S.G. § 3E1.1(a). Given a criminal history score of 16, the recommended guidelines range was 33 to 41 months of imprisonment, with a maximum of ten years.

At sentencing, the district court granted the government’s motion for a two-level downward departure for early disposition under U.S.S.G. § 5K3.1. But the court also informed Maldonado-Ochoa that it was considering a Section 2L1.1(b)(6) enhancement for “intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.” The court observed that Maldonado-Ochoa had transported illegal aliens in the bed of his truck and that doing so “ordinarily warrant[s] that enhancement.”

Defense counsel maintained that there was not “any type of significant movement,” no one was injured, Maldonado-Ochoa had done “the safe thing” and stopped when the agents pulled him over, transporting adults in the bed of a truck is legal in Texas, and, for all Maldonado-Ochoa knew, he could have been transporting the aliens only a short distance (he had no idea how far he was going because he was just following directions as he received them). In response, the court said that there would have been more movement if the agents had not interceded, the legality of transporting adults in the bed of a truck has no bearing on whether the sentencing enhancement applies, transporting illegal aliens in the bed of a truck triggers a Section 2L1.1(b)(6) enhancement under Fifth Circúit' precedent regardless of whether the aliens were harmed during the trip, and Maldonado-Ochoa’s ignorance of where he was going makes him seem even more' reckless, given that he had “no way of knowing ... how far and what kind of roads he was going to travel.”

The court decided to apply the.enhancement, resulting in a guideline range of 33 to 41 months, then imposed a sentence of 37 months plus three years of supervised release. Without the Section 2Ll.l(b)(6) enhancement, the range would have been 27 to 33 months. On appeal, Maldonado-Ochoa challenges only that enhancement.

H.

We review a district court’s interpretation of the Sentencing Guidelines de novo. United States v. Torres, 601 F.3d 303, 305 (5th Cir. 2010) (per curiam). Section 2L1.1(b)(6) applies, by' its terms, where “the offense involved ‘ intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.” The application notes provide,

Reckless conduct to which the adjustment ... applies includes a wide variety of conduct (e.g., transporting persons in the trunk or engine compartment of a motor vehicle; carrying substantially more passengers than the rated capacity of a motor vehicle or vessel; harboring persons in a crowded, dangerous, or inhumane condition; or guiding persons through, or abandoning persons in, a dangerous or remote geographic area without adequate food, water, clothing, or protection from the elements).

U.S.S.G. § 2L1.1, cmt. n.5. Section 2L1.1(b)(6)’s expansive language “must be given some restrictive meaning.” United States v. Solis-Garcia, 420 F.3d 511, 516 (5th Cir. 2005). Moreover, in applying that subsection, courts must engage in a “fact-specific inquiry.” United States v. Mata, 624 F.3d 170, 174 (5th Cir. 2010) (per curiam) (footnote and internal quotation marks omitted). Accordingly, we have avoided creating bright-line rules for this provision.

Maldonado-Ochoa posits that he should not be subject to the Section 2L1.1(b)(6) enhancement. He concedes that “transporting unrestrained aliens in the bed of a pickup truck may create a risk of injury or even death, thus qualifying for a § 2L1.1(b)(6) enhancement,” but he reasons that because he drove the passengers only a de minimis distance at a de minimis speed before being promptly stopped by Border Patrol agents, he never subjected the aliens to “a substantial risk of death or serious bodily injury.”

We disagree. The moment Maldonado-Ochoa started to drive with unrestrained persons lying in the bed of his truck, he subjected them to a substantial risk of death or serious bodily injury.

We have repeatedly held that the Section 2Ll.l(b)(6) enhancement is appropriate where the defendant transported unrestrained aliens in the bed of a pickup truck. The logic is straightforward: Transporting anyone in the bed of a pickup is inherently dangerous. The leading case is United States v. Cuyler, 298 F.3d 387 (5th Cir. 2002), in which the defendant was driving on an interstate with four illegal aliens in the bed of his pickup. We held that Section 2L1.1(b)(6) applied because the aliens “easily could have been thrown from the truck and almost certainly would have been injured in the event of an accident.” Id. at 390. Though the defendant was driving on a highway, in recent years we have interpreted the holding to apply any time a defendant transported unrestrained aliens in a pickup bed that was not covered by a camper shell. In fact, on at least ten occasions we have affirmed a district court’s decision to apply the enhancement against a defendant caught transporting unrestrained aliens in a pickup bed without a camper shell.

Maldonado-Ochoa urges us to carve out an exception to the Cuyler line of cases for defendants who, like him, have transported illegal aliens only a very short distance. But unfortunately for Maldonado-Ochoa, we have already encountered similar facts. In Castro Mendoza, 412 Fed.Appx. at 709, we upheld the application of Section 2L1.1(b)(6) against a defendant who was caught driving a pickup truck' with unrestrained aliens in the bed, even though, as acknowledged in the defendant’s brief, he drove just two miles and at a slow rate of speed. Likewise, in Romero, 328 Fed. Appx. at 301, we held that Section 2L1.1(b)(6) applied against a defendant who had driven her pickup a relatively short distance at slow speeds. To trigger the enhancement, a defendant who drives a truck with unrestrained aliens lying in the bed does not need to be driving at high speeds for long periods. Any distance or elapsed time can be viewed, in the context of all the facts, as putting those persons at “substantial risk of death or serious bodily injury.”

The only real difference between Maldonado-Ochoa and the defendants in previous cases involving unrestrained illegal aliens lying in pickup truck beds is that Maldonado-Ochoa happened to get caught immediately. Had the agents not been there, it is plausible that he would have driven the truck a considerable distance. We know that at least two of the aliens were bound for Houston, 345 miles to the north. It is possible that Maldonado-Ochoa would have driven only part of the way before arriving at a stash house or some other rendezvous point. But it is a stretch to claim, as defense, counsel did at sentencing, that Maldonado-Ochoa “could have been ... just going around the block.”

This court has consistently held that Section 2L1.1(b)(6) applies against defendants who have transported unrestrained aliens in a pickup truck bed that was not covered with a camper'.,shell. Although avoiding the temptation to impose a bright-line rule, and cognizant that we look to the specific facts of each case involving this enhancement, see note 2, supra, we recognize ho blanket exception for defendants who are caught early ins their journeys. The high risk of serious injury or death remains.

AFFIRMED.

JAMES L. DENNIS,

Circuit Judge' dissenting:

The majority opinion holds that an offense that consisted of stopping a pickup truck, loading undocumented immigrants into the cab and bed of the truck, and “attempting to reverse” before stopping the truck involved “intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.” The fact that convinces the majority that risk of serious injury or death was present in this case is the fact that, had he not been caught by law enforcement, Maldonado-Ochoa could have driven the truck “a considerable distance.” Slip op. at 538. Because the majority opinion fails to consider whether a substantial risk was actually created in the course, of Maldonado-Ochoa’s particular offense, as our precedent requires, I respectfully dissent.

Fifth Circuit precedent provides that “[t]he contours of [the § 2L1.1] sentencing enhancement depend on a careful application of the guidelines on a case-specific basis” and its application “requires a fact-specific inquiry.” United States v. Zuniga-Amezquita, 468 F.3d 886, 888-89 (5th Cir. 2006). We have explained that “a substantial risk requires a strong probability that the event ... will occur.” Rodriguez v. Holder, 705 F.3d 207, 213 (5th Cir. 2013); see also United States v. Lackey, 617 Fed. Appx. 310, 314 (5th Cir. 2015) (citing Rodriguez in the context of sentencing enhancements). In United States v. Cuyler, 298 F.3d 387, 391 (5th Cir. 2002), the first Fifth Circuit case to consider the application of § 2L1.1 to the transportation of persons in the bed of a pickup, we clarified that “the issue is whether this particular offense ‘intentionally or recklessly creat[ed] a substantial risk of death or serious bodily.injury to another person.’” (Emphasis added, alteration in original).

The relevant caselaw demonstrates how a fact-specific analysis should unfold. In Cuyler, we considered the application of the § 2L1.1 enhancement to an offense that involved driving undocumented immigrants on the highway in the bed of a pickup. Id. at 388-89. Before concluding that the enhancement properly applies “to the smuggling-of aliens in the bed of a pickup , truck while driving on the highway,” we observed that “[ajliens who are unrestrained easily can be thrown from the bed of the pickup in the event of an accident or other driving maneuver of the sort that is unavoidable in highway driving.” Id. at 391. In other words, we analyzed the risks inherent in the activity actually engaged in to determine whether the offense “involved intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.” § 2L1.1(b)(6).

In United States v. Angeles-Mendoza, 407 F.3d 742, 751 (5th Cir. 2005), we stated that Cuyler “dictates that the adjustment .is appropriate where the smuggled aliens are transported in the bed of a pickup truck.” However, a closer review of that opinion reveals that we did not simply apply a per se rule. Rather, we examined the facts of the offense and concluded, “Over the long distances that the aliens were transported in this operation, there existed the similar, substantial risk that the aliens might ‘be thrown from the bed of the pickup in the event of an accident or other driving maneuver of the sort'” Id. at 751 n.17 (quoting Cuyler, 298 F.3d at 391). And in United States v. Mendoza, 412 Fed.Appx. 708, 709 (5th Cir. 2011), we held that the appellant “ha[d] not shown his case to be distinguishable from Cuyled’ because, “[although [he] traveled only a short distance with the unsecured aliens, the potential for an accident still existed.”

In this case, the potential for an accident did not exist. The Government has the burden of proving by a preponderance of the evidence the facts necessary to support the § 2L1.1(b)(6) enhancement. United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011). Yet while the Government’s brief states that “the risk of harm to an unsecured person travelling any distance in the bed of a pickup truck is inherent due to the possibility of an accident or other injury,” the Government did not attempt to show that a substantial risk of death or serious bodily injury is created when a vehicle merely “attempt[s] to reverse.” The majority opinion’s theory that, “[h]ad the agents not been there, [Maldonado-Ochoa] would have driven the truck a considerable distance,” slip op. at 538, is irrelevant: our precedent requires us to look at the offense as it was committed, not as it might have been. See Cuyler, 298 F.3d at 391.

As explained above, “a substantial risk requires a strong probability that the event ... will occur.” Rodriguez, 705 F.3d at 213 (emphasis added). The undisputed factual record states that the truck “appeared to be attempting to reverse before it stopped,” but that “as the vehicle started to move, agents activated emergency lights and were able to stop the vehicle.” Such minimal movement simply does not create a “strong probability” that death or serious bodily injury will result.

Maldonado-Ochoa’s actual offense did not involve intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person. In direct contradiction of our precedent, the majority opinion reaches a contrary result by imagining how a risk could have manifested under different circumstances rather than by looking at the facts of the offense itself. I respectfully dissent.

      . See, e.g., United States v. Mateo Garza, 541 F.3d 290, 294-95 (5th Cir. 2008) (explaining that this circuit does not apply per se rules in Section 2L1.1(b)(6) cases); United States v. Zuniga-Amezquita, 468 F.3d 886, 889 (5th Cir. 2006) (stating that “a single, bright-line test is not necessarily appropriate for a guideline that must be applied to a wide variety of factual settings.”).

      . See United States v. Romero, 328 Fed.Appx. 300, 301 (5th Cir. 2009) (per curiam) (quoting United States v. Angeles-Mendoza, 407 F.3d 742, 751 (5th Cir. 2005)) ("Cuyler ‘dictates that the [Section 2L1.1(b)(6)] adjustment is appropriate where the smuggled aliens are transported in the bed of a pickup truck.’ ”); United States v. Guevara-Hernandez, 251 Fed. Appx. 859, 860 (5th Cir. 2007) (per curiam) ("Transporting aliens in the bed of. a pickup truck creates a substantial risk of death or serious bodily injury.”); Angeles-Mendoza, 407 F.3d at 751 ("[T]he [Section 2L1.1(b)(6)] adjustment is appropriate where the smuggled aliens are transported in the bed of a pickup truck.”).

        . United States v. Magallan-Rodriguez, 530 Fed.Appx. 318, 322 (5th Cir. 2013) (per curiam); United States v. Nino, 482 Fed.Appx. 920, 922 (5th Cir. 2012) (per curiam); United States v. Castro Mendoza, 412 Fed.Appx. 708, 709 (5th Cir. 2011) (per curiam); Romero, 328 Fed.Appx. at 301; United States v. Diaz-Resen

        dez, 263 Fed.Appx. 425, 428 (5th Cir. 2008); Guevara-Hernandez, 251 Fed.Appx. at 860; United States v. Teran, 236 Fed.Appx. 82, 84 (5th Cir. 2007) (per curiam); Angeles-Mendoza, 407 F.3d at 751; United States v. Garza, 97 Fed.Appx. 487, 488 (5th Cir. 2004) (per curiam); Cuylet, 298 F.3d at 390-91.
      Once this court did hold that the Section 2L1.1(b)(6) enhancement should not apply to a defendant who transported unrestrained aliens in the back of a pickup. But in that case, the truck’s bed was covered by a camper shell, which would have prevented the aliens from being thrown out of the truck in an accident. United States v. Pineda-Jimenez, 212 Fed.Appx. 369, 373 (5th Cir. 2007). In United States v. Trujillo-Reyes, 318 Fed.Appx. 286, 288 (5th Cir. 2009) (per curiam), however, we determined that a defendant who drove a pickup at high speeds over a long distance with unrestrained illegal aliens in the bed was subject to the enhancement, even though the truck bed was covered by a camper shell.
      Regardless of those decisions, the bed of the truck Maldonado-Ochoa was driving was covered with a tarp, not a camper shell. Covering a truck bed with a tarp does not protect the aliens who are lying underneath it. Angeles-Mendoza, 407 F.3d at 751 n.16.

      . Maldonado-Ochoa also claims that because of the brevity of his trip, he did not "transport” the aliens "in any meaningful sense,” Wé reject that- notion. Maldonado-Ochoa pleaded guilty of a crime that includes "transport or moye” . in its definition. 8 U.S.C. § 1324(a)(1)(A)(ii). He told the district court that he agreed with the plea agreement’s recital of facts, which says that he "transported or moved” at least one illegal alien. "Move” and "transport” are synonyms, and there is no reason to believe that "transport” should have a special, more restrictive meaning in this context. See, e.g., Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 203, 5 S.Ct. 826, 29 L.Ed. 158 (1885) ("Transportation implies the taking up of persons or property at some point and putting them down at another.”); Black’s Law Dictionary 1729 (10th ed. 2014) (defining "transportation” as “movement of goods or persons from one place to another by a carrier.”); 18 Oxford English Dictionary 423 (2d ed. 1989) (defining “transport” as "[t]o carry, convey, or remove from one place or person to another; to convey acrpss.”).

      . It is not clear exactly how far the defendant traveled in Mendoza. However, the PSR’s description of the route taken by the defendant reveals that the distance travelled was more than de minimis. See PRS at 3-4, United States v. Mendoza, No. 2:09-cr-00737-AM (W. D. Tex., 2010).


text:
    UNITED STATES of America, Plaintiff-Appellee v. Angel Rodolfo CHAVEZ-PEREZ, Defendant-Appellant
    No. 16-40164
    United States Court of Appeals, Fifth Circuit.
    Filed December 27, 2016

      Jimmy Eric Pardue, Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Philip G. Gallagher, Assistant Federal Public [Defenders, Federal Public Defender’s Office, Houston, TX, for Defendantr-Appellant.
    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 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 hard-pressed 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. 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. 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:

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?
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 objéct 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. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)); see also United States v. Perez, 460 Fed.Appx. 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 retux-ning, 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 Fed.Appx. at 299 (determining that district court’s questioning of defendant on several topics did not constitute allocution opportunity); United States v. Legg, 439 Fed.Appx. 312, 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 px-ison 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 i-esponse 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 erx-ed 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 lights’ ..., 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.

B.

While we will ordinarily remand for re-sentencing 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 rale 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 Fed.Appx. 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,” 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, 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 Fed.Appx. 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 calculating Ohavez-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. 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, 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 Fed.Appx. 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 alco hol”).

III. CONCLUSION

For the foregoing reasons, the sentence of Defendant-Appellant Angel Rodolfo Chavez-Perez is AFFIRMED.

      . 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.

      . 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.”

      . 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.

      ; During the sentencing hearing, the district court stated to defense counsel:
      I’m land 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.”

      . 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.”

      . 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 tó 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.