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United States v. Bustamante-Conchas

United States Court of Appeals, Tenth Circuit

March 3, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,

         Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:13-CR-02028-JAP-2)

          Todd A. Coberly, Coberly & Martinez, LLLP, Santa Fe, New Mexico, for Defendant-Appellant.

          Sean 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 Defense Lawyers.


          LUCERO, Circuit Judge.

         We 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 panel opinion.

         Of 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.

         In 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.

         We 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.

         Applying 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.


         Bustamante-Conchas 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.

         A 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.

         The 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.

         After 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.

         Toward 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 allocute.

         Bustamante-Conchas 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. 2016).

         II A

         Under 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.[1]

         Rule 32 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 304.

         Granting 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 sentence.").[2]

         Second, 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).

         Third, 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 (2008)).


         Although 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").[3] 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).

         We do 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 ...

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