from the United States District Court for the District of New
Mexico (D.C. No. 1:13-CR-02028-JAP-2)
A. Coberly, Coberly & Martinez, LLLP, Santa Fe, New
Mexico, for Defendant-Appellant.
J. Sullivan, Assistant United States Attorney (Damon P.
Martinez, United States Attorney, with him on the briefs)
Office of the United States Attorney, Albuquerque, New
Mexico, for Plaintiff-Appellee.
Barbara E. Bergman, University of Arizona, James E. Rogers
College of Law, Tucson, Arizona, Norman R. Mueller, Haddon,
Morgan & Foreman, P.C., Denver, Colorado, Paul W. Hughes
and Michael B. Kimberly, Mayer Brown LLP, Washington, D.C.,
for Amicus Curiae, The National Association of Criminal
TYMKOVICH, Chief Judge, KELLY, BRISCOE, LUCERO, HARTZ,
HOLMES, MATHESON, BACHARACH, PHILLIPS, McHUGH, and MORITZ,
Circuit Judges. [*]
LUCERO, Circuit Judge.
granted en banc review in this case because it involves a
clear failure of the trial court to ask the defendant if he
had anything to say on his behalf before imposing sentence-a
failure to personally address the defendant and offer an
opportunity to allocute. Because our jurisprudence has been
somewhat contradictory, we also chose to grant en banc
rehearing in order to refine the manner in which we conduct
plain-error review following such a denial. For the reasons
we state hereafter, the denial of allocution in the instant
case satisfies the third prong of United States v.
Olano, 507 U.S. 725 (1993), and also requires a
conclusion that the fourth prong of Olano was met by
the defendant. This necessitates reversal of our previous
course, the best practice is for the district court in its
trial manuals and other memory prompts to always offer
defendants the opportunity to allocute on their behalf.
Federal Rule of Criminal Procedure 32 requires no less. Cases
of this type arise only when the court and counsel forget
this obvious step.
prior cases, we have stated that a complete denial of
allocution at a defendant's initial sentencing hearing is
per se or presumptively prejudicial. We now clarify that in a
rare number of cases, such errors may not result in
prejudice. In particular, defendants who receive the minimum
permissible sentence will be unable to demonstrate that an
allocution error affected their substantial rights. Further,
we conclude that a formal presumption is unwarranted. Rather
than shifting the burden of proof at the third prong of the
plain-error test from the defendant to the government, we
think it more accurate to say that in ordinary cases,
defendants meet this burden simply by showing that they were
denied the right to meaningfully address the court.
adopt a similar approach with respect to the requirement that
a defendant demonstrate a forfeited error seriously affected
the fairness, integrity, or public reputation of judicial
proceedings. That is, absent some extraordinary circumstance,
defendants satisfy this burden if a complete denial of
allocution occurs at their initial sentencing hearing. This
rule applies regardless of whether the defendant has
proffered a proposed allocution statement on appeal.
these principles to the case at bar, we conclude that Miguel
Bustamante-Conchas has established plain error. Accordingly,
we vacate his sentence and remand for resentencing.
was charged with conspiracy to distribute one kilogram or
more of a mixture and substance containing a detectable
amount of heroin, possession with intent to distribute one
kilogram or more of a mixture and substance containing a
detectable amount of heroin, and possession of a firearm
during and in relation to a drug-trafficking crime. The
district court dismissed the gun charge at the close of the
government's case. A jury found Bustamante-Conchas guilty
of both drug charges.
pre-sentence investigation report ("PSR")
calculated a total offense level of 40 and a criminal history
category of I, resulting in a Guidelines range of 292 to 365
months. Bustamante-Conchas objected to the PSR's drug
quantity calculations, its inclusion of enhancements for
possessing a firearm and maintaining a place for distributing
drugs, its allegations regarding the conspiracy's
structure, and other factual statements. He also moved for a
downward variance, based largely on his difficult upbringing.
The motion detailed an impoverished childhood in which
Bustamante-Conchas was sent to live with his grandparents,
suffered abuse from uncles in his household, and struggled
with alcohol addiction. He also submitted letters from family
members and others attesting to his good character. The
government urged a within-Guidelines sentence of 292 months,
arguing that Bustamante-Conchas' childhood circumstances
were not so severe as to warrant a variance. It also
submitted documents to contest Bustamante-Conchas' claims
of good character.
district court held a sentencing hearing on January 13, 2015,
at which it primarily considered drug quantity. The
government summarized evidence from trial and presented
supplemental evidence regarding drug quantities found at four
separate locations. After considering lengthy argument from
counsel, the district court accepted the government's
contention that quantities at each residence were reasonably
foreseeable to Bustamante-Conchas. The parties also disputed
whether Bustamante-Conchas should be subject to the sentence
enhancements recommended in the PSR. The district court
concluded both enhancements were proper.
adopting the PSR's offense-level calculations, the
district court turned to Bustamante-Conchas' motion for a
downward variance. Defense counsel requested a sentence of
120 months, pointing to potential sentencing disparities
between Bustamante-Conchas and his co-conspirators, and
arguing that defendants should not be punished for exercising
their right to proceed to trial. Defense counsel also briefly
noted the points raised in her motion: that
Bustamante-Conchas had been abused and neglected as a child,
and had struggled with alcohol addiction. The government
argued for a sentence of 292 months, citing the devastating
consequences of heroin addiction, the need for deterrence,
and Bustamante-Conchas' key role in the conspiracy. The
district court questioned whether a within-Guidelines
sentence would be necessary if Bustamante-Conchas was barred
from returning to the country.
the end of the nearly four-hour hearing, the district court
stated that it intended to impose a sentence of 240 months.
In providing the reasons for its decision, the court noted
Bustamante-Conchas' personal history and alcohol issues.
The court further stated its concern with avoiding
unwarranted sentencing disparities. It requested additional
comment from defense counsel, who argued that the sentence
would be disparate as compared to similar offenders. After
formally announcing a sentence of 240 months, the court asked
if there was any reason that sentence should not be imposed.
Neither party objected, and the sentence was imposed. The
court did not personally address Bustamante-Conchas prior to
imposing sentence or otherwise offer him an opportunity to
filed a timely appeal. A divided panel of this court affirmed
his sentence. United States v. Bustamante-Conchas,
832 F.3d 1179 (10th Cir. 2016). Regarding
Bustamante-Conchas' claim that the district court plainly
erred by denying him the right to allocute, the panel
majority held that the error did not seriously affect the
fairness, integrity, or public reputation of judicial
proceedings. Id. at 1186. It noted that the
"district court heard arguments regarding
Bustamante-Conchas's defenses, and his request for a
low-end sentence"; the "court invited the parties
to comment on the sentence multiple times"; "the
district court imposed a sentence well-below
Bustamante-Conchas's advisory guidelines range"; and
"Bustamante-Conchas does not direct us to any additional
information he would have provided to the district court had
he been given the opportunity to allocute." Id.
We granted rehearing en banc, limited to the allocution
issue, and vacated the panel opinion. United States v.
Bustamante-Conchas, 838 F.3d 1038, 1039 (10th Cir.
Rule 32, a district court must "address the defendant
personally in order to permit the defendant to speak or
present any information to mitigate the sentence." Fed.
R. Crim. P. 32(i)(4)(A)(ii). This Rule codifies the right of
allocution, which has existed at common law for centuries.
See Green v. United States, 365 U.S. 301, 304 (1961)
(plurality opinion). The common law right to allocute served
a distinctly different purpose than Rule 32: Because criminal
defendants were historically barred from testifying on their
own behalf, allocution provided the sole opportunity for
defendants to plead certain legal defenses. See United
States v. Ward, 732 F.3d 175, 181 (3d Cir. 2013);
see also Boardman v. Estelle, 957 F.2d 1523, 1533
(9th Cir. 1992) (Hall, J., dissenting). But developments in
criminal procedure have not diminished "the need for the
defendant, personally, to have the opportunity to present to
the court his plea in mitigation." Green, 365
U.S. at 304.
provides a defendant with two rights: "to make a
statement in his own behalf, and to present any information
in mitigation of punishment." Green, 365 U.S.
at 304 (quotations omitted). Because the former entitlement
is necessarily personal, a district court cannot discharge
its duties under Rule 32 by permitting counsel to offer
argument in mitigation. Id.; see also United
States v. Myers, 150 F.3d 459, 461 (5th Cir. 1998)
("Rule 32 envisions a personal colloquy between the
sentencing judge and the defendant." (emphasis
omitted)). As the Court in Green explained in an
oft-quoted passage, "[t]he most persuasive counsel may
not be able to speak for a defendant as the defendant might,
with halting eloquence, speak for himself." 365 U.S. at
defendants an opportunity to personally address the court
advances several ends. First, it serves an informational
function by allowing defendants "to present mitigating
circumstances." Ward, 732 F.3d at 181. Our
court has previously recognized that allocution provides an
unusually "broad right to present any
information to mitigate the sentence." United States
v. Jarvi, 537 F.3d 1256, 1262 (10th Cir. 2008)
(quotation omitted). We have thus held that the right of
allocution is denied when a district court attempts to unduly
limit the scope of a defendant's allocution statement.
Id.; see also United States v. Sarno, 73
F.3d 1470, 1503-04 (9th Cir. 1995) (right to allocute denied
if defendant is permitted to argue only for a
within-Guidelines sentence); United States v. De Alba
Pagan, 33 F.3d 125, 129 (1st Cir. 1994) ("[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
allocution permits "the defendant to present personal
characteristics to enable the sentencing court to craft an
individualized sentence." Ward, 732 F.3d at
181. It "is designed to temper punishment with mercy in
appropriate cases, and to ensure that sentencing reflects
individualized circumstances." De Alba Pagan,
33 F.3d at 129; see also United States v. Barnes,
948 F.2d 325, 329 (7th Cir. 1991) ("The right to
allocution is the right to have your request for mercy
factored into the sentencing decision."). Recognizing
the possibility of mercy "reinforces the individuality
of both the defendant and the sentencer" and reaffirms
that a sentencing judge must "exercise discretion in a
wise and humane way." Kimberly A. Thomas, Beyond
Mitigation: Towards a Theory of Allocution, 75 Fordham
L. Rev. 2641, 2661 (2007).
requiring a sentencing judge to personally engage with a
defendant enhances "the appearance of fairness in the
criminal justice system." Ward, 732 F.3d at
181. "In an age of staggering crime rates and an
overburdened justice system, courts must continue to be
cautious to avoid the appearance of dispensing assembly-line
justice." Barnes, 948 F.2d at 331. Allocution
thus "has value in terms of maximizing the perceived
equity of the process." Id. at 328 (quoting 3
ABA Standards for Criminal Justice 18-459 (2d ed. 1980)).
Accordingly, "even in situations where a defendant's
comments stand little chance of influencing the sentencing
judge, the right retains a symbolic significance."
United States v. Quintana, 300 F.3d 1227, 1231 (11th
Cir. 2002). Allocution can also supply "a forum in which
defendants may challenge societal injustice, and may provide
answers to victims' questions regarding the crime."
United States v. Landeros-Lopez, 615 F.3d 1260, 1267
n.7 (10th Cir. 2010) (citing Mary Margaret Giannini,
Equal Rights for Equal Rites?: Victim Allocution,
Defendant Allocution, and the Crime Victims' Rights
Act, 26 Yale L. & Pol'y Rev. 431, 478-81
the right to allocute is important, most circuits, including
ours, have held that unpreserved allocution errors are
subject to plain-error review under Fed. R. Crim. P. 52(b).
See United States v. Rausch, 638 F.3d 1296, 1299 n.1
(10th Cir. 2011); United States v. Luepke, 495 F.3d
443, 446-48 (7th Cir. 2007); United States v. Reyna,
358 F.3d 344, 350-51 (5th Cir. 2004) (en banc); United
States v. Prouty, 303 F.3d 1249, 1251-52 (11th Cir.
2002); United States v. Adams, 252 F.3d 276, 278-79,
284-85 (3d Cir. 2001); United States v. Cole, 27
F.3d 996, 998 (4th Cir. 1994). But see United States v.
Wolfe, 71 F.3d 611, 614 (6th Cir. 1995) (applying de
novo review to unpreserved allocution error); De Alba
Pagan, 33 F.3d at 129 n.4 (stating that because "it
is the court's obligation to invite the defendant's
remarks . . ., a defendant ordinarily will not be held to
have waived the right of allocution merely because he did not
seek to address the court"). We adhere to our prior
decisions on this score, mindful of the Supreme Court's
admonition that creating exceptions to Rule 52(b) can
"skew the Rule's careful balancing of our need to
encourage all trial participants to seek a fair and accurate
trial the first time around against our insistence that
obvious injustice be promptly redressed." Johnson v.
United States, 520 U.S. 461, 466 (1997) (quotation
omitted). To demonstrate plain error, a litigant must show:
"(1) error, (2) that is plain, which (3) affects
substantial rights, and which (4) seriously affects the
fairness, integrity, or public reputation of judicial
proceedings." United States v. Mike, 632 F.3d
686, 691-92 (10th Cir. 2011) (quotation omitted).
not need to tarry on the first two prongs of the plain-error
test. The district court failed to "address the
defendant personally in order to permit the defendant to
speak or present any information to mitigate the
sentence." Fed. R. Crim. P. 32(i)(4)(A)(ii). Although
the district court asked generally for comment before
formally imposing sentence, its failure to personally address
Bustamante-Conchas was "contrary to well-settled law,
" United States v. Ruiz-Gea, 340 F.3d 1181,
1187 (10th Cir. 2003), from both this circuit and the Supreme
Court, see Hill, 368 U.S. at 426 ("Rule 32(a)
requires a district judge before imposing [a] sentence to
afford every convicted defendant an opportunity personally to
speak [on] his own behalf."); Landeros-Lopez,
615 F.3d at ...