LUCERO, Circuit Judge, joined by KELLY, BRISCOE, MATHESON, BACHARACH, McHUGH, and MORITZ, Circuit Judges.
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
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,
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.
Bustamante-Conchas filed a timely appeal. A divided panel of this court affirmed his sentence.
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.
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."
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."
Second, allocution permits "the defendant to present personal characteristics to enable the sentencing court to craft an individualized sentence."
Third, requiring a sentencing judge to personally engage with a defendant enhances "the appearance of fairness in the criminal justice system."
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).
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,"
To satisfy the third prong of plain-error review, a defendant generally must demonstrate that an error was "prejudicial, meaning that there is a reasonable probability that, but for the error claimed, the result of the proceeding would have been different."
The Supreme Court has held that "[n]ormally, although perhaps not in every case, the defendant must make a specific showing of prejudice to satisfy" the third prong of plain-error review.
Our descriptions track those of the majority of our sibling circuits to have considered the issue.
We agree, as discussed in greater detail in Section II.D.
The Supreme Court adopted a similar framework for plain-error review in cases in which a district court improperly calculated the Guidelines range but nonetheless sentenced a defendant to a term within the correct range.
So too here. Just as the Guidelines are ordinarily expected to have some impact on a sentence,
Of course, there are some instances in which good reason for doubt exists. Several courts have held that an allocution error is not prejudicial if a defendant receives the lowest possible sentence.
A defendant sentenced to the statutory minimum is the clearest example of a sentence that cannot be lowered (absent a motion by the government based on substantial assistance).
In this case, Bustamante-Conchas received a sentence of 240 months, substantially below his Guidelines range. Yet the district court retained discretion to vary further.
If a defendant satisfies the first three prongs of the plain-error test, we may correct the error "only if it seriously affects the fairness, integrity or public reputation of judicial proceedings."
Some courts appear to have adopted a rule that allocution errors necessarily qualify under the fourth prong, at least for cases that satisfy the first three prongs.
As with the third prong, however, we decline to adopt a per se rule or a formal presumption. Instead, we conclude that absent some unusual circumstance as hereafter described, a complete denial of allocution at a defendant's sentencing hearing will satisfy the fourth prong of the plain-error test.
A district court's failure to permit allocution undermines "the legitimacy of the sentencing process."
Even in instances in which a significantly lesser sentence is unlikely, a denial of allocution subverts other public values. In a survey of federal district judges, a large majority of respondents stated that allocution serves "other important purposes." Bennett, 65 Ala. L. Rev. at 749. District judges noted that allocution provides an opportunity for the defendant to participate in the sentencing process; "benefits the victim, the victim's family, and the defendant's family"; provides judges and the public with a better understanding of the defendant; and helps the defendant to accept responsibility.
Nevertheless, there are rare circumstances in which an allocution error does not satisfy the fourth prong. In some cases, a district court makes clear — following an initial opportunity to allocute — that
Similarly, remand may not be warranted if a defendant was not wholly denied the opportunity to allocute. That is, if the defendant was offered a meaningful opportunity to address the court and present mitigating circumstances, but the district court failed to fully comply with Rule 32. For example, in
The government argues that a defendant cannot satisfy the fourth prong of the plain-error standard without proffering a proposed allocution statement on appeal. In several prior cases, we noted that defendants' failure to proffer statements undercut their claims of plain error.
Moreover, much of the value of an allocution statement lies in its ability to convey sincere remorse. "[I]t is not only the content of the defendant's words that can influence a court, but also the way he says them."
Applying the foregoing principles to the case at bar, we conclude that the district court's failure to permit Bustamante-Conchas an opportunity to allocute seriously affected the fairness, integrity, and public reputation of judicial proceedings. Bustamante-Conchas was not given a meaningful opportunity to address the court.
We
This case requires us to consider the application of the plain error standard of review to the denial of a defendant's right of allocution. I agree with the majority that an allocution error reviewed for plain error does not automatically result in reversal. I write separately to clarify the proper allocation of the burden for the third and fourth prongs of the plain error test. And, unlike the majority, I would hold Bustamante-Conchas is not entitled to relief here, because he fails to meet his burden of establishing the district court's allocution error affected his substantial rights, or that the error seriously affected the fairness, integrity, or public reputation of the sentencing proceedings.
Therefore, I respectfully dissent.
"[D]enial of the right to allocution `is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure.'" United States v. Bausch, 638 F.3d 1296, 1301 (10th Cir. 2011) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)). Instead, a defendant seeking reversal of an allocution error that he failed to raise in the district court must establish "there is (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. Hinson, 585 F.3d 1328, 1333 (10th Cir. 2009). Like the majority, I discuss only the third and fourth prongs of the plain error test, as the first two prongs are not at issue in this appeal.
It is the defendant who bears the burden of meeting the plain error test. See United States v. Vonn, 535 U.S. 55, 62-63, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Olano, 507 U.S. 725, 734-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). And to satisfy the third prong of plain error, the defendant must show the error affected his substantial rights-in other words, he must demonstrate the error affected the outcome of the district court proceedings. United States v. Gonzalez-Huerta, 403 F.3d 727, 732-33 (10th Cir. 2005) (en banc). In particular, the defendant "must show `a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.` See id. at 733 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 124, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (alterations incorporated)).
Notwithstanding these well settled principles, the majority effectively shifts the burden to the government by recognizing a de facto presumption of prejudice for allocution errors any time the possibility remains a defendant could have received a lower sentence but for the alleged error. That is, under the majority's approach, a defendant like Bustamante-Conchas who receives a below-guidelines sentence that is still above the statutory mandatory minimum satisfies the third prong of plain error simply because he might have received a lesser sentence. The majority does not require the defendant to make any specific showing of a reasonable probability he would have received a lower sentence absent the error. In doing so, the majority "relieves [the defendant] of his burden of proving prejudice" in what is likely the vast majority of cases and impermissibly flips the plain error standard on its head. See United States v. Cole, 27 F.3d 996, 1001 (4th Cir. 1994) (Luttig, J., dissenting); see also United States v. Reyna, 358 F.3d 344, 354 (5th Cir. 2004) (en banc) (Jones, J., concurring) ("By adopting a `presumed prejudice' approach to the
We have previously rejected a presumption of prejudice. On plain error review, the defendant bears the burden of showing, "based on the record on appeal, that the error affected his substantial rights" — namely, resulted in cognizable, not hypothetical, prejudice. Gonzalez-Huerta, 403 F.3d at 733. And the defendant must carry this burden "even when the underlying error is constitutional — as is not the case here." Id. (analyzing non-constitutional Booker error). Thus, the Supreme Court has consistently required criminal defendants to bear the burden of establishing plain error, even in the context of Rule 11's statute-like requirement that the court ensure a guilty plea is voluntary — a rule which, unlike the right of allocution, has significant constitutional underpinnings. See Vona, 535 U.S. at 59, 67, 122 S.Ct. 1043; see also Reyna, 358 F.3d at 354-55 (Jones, J., concurring) ("I agree that a defendant's right of allocution is important, but can it be more important than the right to enter a voluntary guilty plea, which was in Vonn held subject to plain-error review without presumed prejudice?").
This burden cannot and should not be shifted to the government. We have previously characterized the allocation of the burden on plain error review as "one of the essential characteristics distinguishing plain error from harmless error." Gonzalez-Huerta, 403 F.3d at 736; see also Reyna, 358 F.3d at 354 (Jones, J., concurring) ("Justice Souter's opinion in Vonn expressly distinguishes between harmless error and plain error review based on which party bears the burden to prove that a violation of a defendant's substantial rights has taken place."). And we have stated, "[s]hifting the burden to the appellee would seriously blur this distinction and would be inconsistent with our precedent." Gonzalez-Huerta, 403 F.3d at 736. Accordingly, we have expressly rejected a presumption of prejudice in other contexts, such as non-constitutional Booker error raised for the first time on appeal. See id. ("[W]e do not adopt the ... burden-shifting approach and hold that [the defendant] bears the burden to establish by a reasonable probability based upon the record on appeal that his substantial rights were affected by the District Court's mandatory application of the Guidelines."). Because I can discern no reason to depart from our precedents, I decline to join the majority in recognizing a de facto presumption of prejudice for allocution errors reviewed for plain error.
Without the benefit of the majority's burden-shifting approach, Bustamante-Conchas cannot satisfy the third prong of the plain error test, because he fails to provide the court any indication he would have received a lower sentence had he been permitted to allocute. Instead, he argues prejudice should be presumed for the denial of a defendant's right of allocution, either in every circumstance or when there is some possibility a defendant could have received a lesser sentence if he had been permitted to allocute. These arguments amount to speculation at best. It is far from clear the denial of the right of allocution always results in a harsher sentence or that it did so here. In fact, "many defendants may incriminate themselves further by speaking up at sentencing." Reyna, 358 F.3d at 355 (Jones, J., concurring). And, in this case, the district court heard and considered extensive personal-history evidence regarding, among other things, Bustamante-Conchas's unstable childhood, substance abuse issues, and the death of his first child. Surely if there was something else that might have materially
The majority likewise impermissibly shifts the burden to the government on the fourth prong of plain error by adopting a rule that, "absent some extraordinary circumstance," a defendant meets his burden if he is completely denied the opportunity to allocute at his original sentencing hearing. (Maj. Op. at 1133-34). "Under the fourth prong of plain-error review, a court may exercise its discretion to notice a forfeited error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings." Gonzalez Huerta, 403 F.3d at 736. Thus, we "will not notice a non-constitutional error, such as the one in the case before us, unless it is both `particularly egregious' and our failure to notice the error would result in a `miscarriage of justice.'" Id. (quoting United States v. Gilkey, 118 F.3d 702, 704 (10th Cir. 1997)). "This is a demanding standard, and of course, depends on the facts of the particular case." Gonzalez-Huerta, 403 F.3d at 737. Accordingly, we have generally held reversal is warranted "only in those rare cases in which core notions of justice are offended." Id. at 739. In making this determination, we examine "the seriousness of the error ... in the context of the case as a whole." United States v. Mendoza-Lopez, 669 F.3d 1148, 1153 (10th Cir. 2012).
The majority recognizes that "[t]he fourth prong is meant to be applied on a case-specific and fact-intensive basis." (Maj. Op. at 1141) (quoting Puckett v. United States, 556 U.S. 129, 142, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009)). Nevertheless, it adopts a de facto presumption that a complete denial of allocution at a defendant's original sentencing hearing automatically satisfies the fourth prong of plain error, absent extraordinary circumstances. But as we have previously recognized, "the Supreme Court has never shifted the burden to the appellee to establish that the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings." Gonzalez-Huerta, 403 F.3d at 737. The majority does exactly that by requiring the government to meet a newly framed extraordinary circumstances test.
I would instead follow the Fifth Circuit's approach from United States v. Reyna, where the en banc court emphasized that the fourth prong of the plain-error test is a fact-specific, contextual inquiry. The court thus held it would "conduct a thorough review of the record to determine if [it] should exercise [its] discretion to correct the [allocution] error." 358 F.3d at 353. The court recognized that the class of cases where an allocution error does not violate the fourth prong of plain error may be limited, id. but it did not relieve the defendant of his burden, as the majority does today.
And considering the district court's error in the context of this case as a whole, I cannot agree with the majority that Bustamante-Conchas has demonstrated the district court's error was particularly egregious or affected the public reputation of the sentencing proceeding. The district court heard arguments regarding Bustamante-Conchas's defenses, and it considered his request for a low-end sentence, which was supported by numerous letters from Bustamante-Conchas's family and friends. At the hearing, the court invited the parties to comment on the sentence multiple times. And after considering such arguments, the district court imposed a sentence well below Bustamante-Conchas's advisory guidelines range, varying
Like the majority, I would not require defendants to proffer a proposed allocution statement. But I would at least ask defendants to direct the court to something the defendant's allocution could have corrected. For example, a defendant could advise us that his lawyer forgot to plead for mercy, or failed to raise family issues, or mention an unstructured childhood as grounds for a lighter sentence. Yet 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, nor does he explain why a reasonable public observer would have been left with the impression the sentencing proceedings were unfair or lacked legitimacy. On this record, I cannot agree with the majority that the district court's denial of allocution offended core notions of justice.
In sum, I would not relieve a defendant who raises an allocution error for the first time on appeal of his burden of showing there was a reasonable probability he would have received a different sentence but for the error and the error undermined the fairness and public reputation of the sentencing proceedings. And because I would find the district court's failure to permit Bustamante-Conchas to allocute did not rise to the level of plain error in this case, I would not remand for resentencing.
HARTZ, Circuit Judge, dissenting, joined by TYMKOVICH, Chief Judge, and PHILLIPS, Circuit Judge:
I join Chief Judge Tymkovich's dissent and add a few words about the prejudice prong of plain-error review.
One requirement for obtaining relief under plain-error review is that the appellant demonstrate that there was "a reasonable probability that, but for the error claimed, the result of the proceeding would have been different." United States v. Algarate-Valencia, 550 F.3d 1238, 1242 (10th Cir. 2008) (internal quotation marks omitted). The majority opinion states that "a defendant who shows he has been denied the right to allocute has met his burden of demonstrating prejudice absent some extraordinary circumstance...." Maj. Op. at 1139. But the probability of prejudice is an empirical question. What is the evidence or commonsense reasoning to support the majority's rule (which I cannot distinguish from a presumption of prejudice)?
The majority opinion notes that 80% of federal district judges who responded to a survey said that allocution is at least somewhat important in sentencing. See id. at 1139-40 (citing Mark W. Bennett, Last Words: A Survey and Analysis of Federal Judges' Views on Allocution in Sentencing, 65 Ala. L. Rev. 735, 757-58 (2014) (Bennett)).
But even if the survey evidence showed that allocution had assisted defendants frequently enough to constitute a "reasonable probability," that would still not resolve this case. The question addressed by the article — how often has allocution assisted defendants? — is not the relevant question here. The set of defendants we should consider is not those defendants who have exercised the opportunity to make a statement at sentencing. Rather, the relevant set of defendants is those whose attorneys did not request that the defendant be given an opportunity to make a statement after the sentencing judge neglected to address the defendant on the matter. In other words, the question we should be asking is what is the expected utility of allocution when the right to allocute has been forfeited. The answer to the question addressed by the article and the answer to the relevant question may be quite different because the failure of defense counsel to object when the sentencing judge does not call on the defendant to make a statement has significant probative value. It seems to me that if we are to indulge any presumption in this case, it should be that a defense counsel's failure to insist on allocution indicates that allocution would not have been reasonably likely to materially assist the defendant.
This conclusion follows from the nature and practice of allocution. There is no need for counsel to make a snap decision about whether the defendant should address the court. As acknowledged by defense counsel at oral argument, all competent defense attorneys know the importance of allocution and prepare for it. Counsel will discuss allocution with the defendant and, if it appears that the defendant may benefit from it, prepare the defendant to make a statement. In this light, what are the possible reasons why an attorney would not insist on allocution if the trial judge neglected to call on the defendant personally? First, the defendant may have decided, regardless of what counsel advised, not to speak. Second, after hearing what the defendant could say and how the defendant would say it, defense counsel may think that the potential benefit of allocution is negligible or does not justify taking the risk of causing harm. Third, defense counsel may have prepared the defendant for allocution but forgot to insist on allocution at sentencing.
Certainly, in the first two circumstances we should not reverse for resentencing. What about the third? I suspect that such an oversight can occur. At oral argument, defense counsel suggested that trial counsel in this case forgot because of the length of the sentencing proceeding. Possibly, but if counsel believed that the defendant could be significantly assisted by making a statement to the court, one would think that the attorney would take precautions not to forget to do something so valuable. The likelihood of a memory lapse diminishes further when, as here, the sentencing judge provided two reminders, asking if there were any other comments on the proposed sentence and if there was any reason why the sentence should not be imposed. Perhaps more importantly, if defense counsel had expected the defendant's statement to be significantly helpful and the court then imposes a harsher sentence
For these reasons, I cannot agree that in the general case we should assume that when defense counsel does not object to the failure of a trial judge to ask the defendant if he or she wishes to make a statement before sentencing, there is a reasonable probability that allocution would have resulted in a lower sentence.
Additionally, Judge Hartz notes that a defendant who is denied an opportunity to allocute might be able to raise the issue in a Fed. R. Crim. P. 35 motion, or seek habeas relief. (
First, the question was squarely presented to this court: Bustamante-Conchas, the party with the burden of demonstrating plain error, argues that he has established prejudice because a lesser sentence was available. Second, because we granted en banc review in this case to address a recurring issue in our circuit, concerns of judicial economy counsel in favor of deciding the issue on the merits rather than relying on waiver principles.
