Filed: Apr. 22, 2009
Latest Update: Feb. 21, 2020
Summary: FILED United States Court of Appeals Tenth Circuit April 22, 2009 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 08-1027 v. (D.C. No. 07-CR-00379-LTB-1) (D. Colo.) JUAN CARLOS MALDONADO- ZAMORA, a/k/a Jesus Maldonado- Zamora, a/k/a Manuel Marquez, a/k/a Jesus Maldojado Zamora, Defendant - Appellant. ORDER AND JUDGMENT * Before KELLY, McKAY, and HARTZ, Circuit Judges. Defendant-Appellant Juan Carlos Maldonado-Z
Summary: FILED United States Court of Appeals Tenth Circuit April 22, 2009 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 08-1027 v. (D.C. No. 07-CR-00379-LTB-1) (D. Colo.) JUAN CARLOS MALDONADO- ZAMORA, a/k/a Jesus Maldonado- Zamora, a/k/a Manuel Marquez, a/k/a Jesus Maldojado Zamora, Defendant - Appellant. ORDER AND JUDGMENT * Before KELLY, McKAY, and HARTZ, Circuit Judges. Defendant-Appellant Juan Carlos Maldonado-Za..
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FILED
United States Court of Appeals
Tenth Circuit
April 22, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 08-1027
v. (D.C. No. 07-CR-00379-LTB-1)
(D. Colo.)
JUAN CARLOS MALDONADO-
ZAMORA, a/k/a Jesus Maldonado-
Zamora, a/k/a Manuel Marquez, a/k/a
Jesus Maldojado Zamora,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and HARTZ, Circuit Judges.
Defendant-Appellant Juan Carlos Maldonado-Zamora pled guilty to one
count of unlawful reentry in violation of 8 U.S.C. § 1326(a) and (b)(2). I R.
Docs. 1, 18, 24. On January 16, 2008, he was sentenced to 41 months’
imprisonment followed by three years’ supervised release. 1 I R. Doc. 24, at 2-3.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
1
The Presentence Report (PSR) indicated a total offense level of 21,
applying a three-point downward adjustment for acceptance of responsibility.
I Supp. R. at 5 (PSR). The PSR calculated the guideline range as 41 to 51
months. I Supp. R. at 11 (PSR). The PSR discussed factors that would be
On appeal, Mr. Maldonado-Zamora argues that the district court infringed upon
his right to allocution when it cut off his lawyer’s argument seeking a departure
under the Sentencing Guidelines. He argues that Fed. R. Crim. P. 32(i)(4)(A)(i)
requires a district court to provide an opportunity for counsel to speak on a
defendant’s behalf and that the plea agreement in this case expressly allowed him
to request a departure at sentencing. Further, he argues that the district court
misunderstood its ability to depart. Our jurisdiction arises under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a), and we remand for resentencing.
Background
Mr. Maldonado’s plea agreement provided in pertinent part:
Any estimation by the parties regarding the estimated advisory
guideline application does not preclude either party from asking the
Court to depart from the otherwise advisory guideline range at
sentencing, if that party believes that there exists an aggravating or
mitigating circumstance of a kind, or to a degree, not adequately
taken into consideration by the Sentencing Commission in
formulating the sentencing guidelines.
I R. Doc. 18 at 5.
At the sentencing hearing, the district court indicated its intention to
sentence at the bottom of the advisory guideline range. Thereafter, counsel
sought to argue in favor of a departure:
relevant to a variance pursuant to 18 U.S.C. § 3553(a), but stated that there were
no factors known that would warrant a departure from the advisory guideline
range. I Supp. R. at 13-14.
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[Counsel]: Judge, I’m aware of what the Court has stated, but I
would just like to state that if a case was ripe for
departure from the bottom of the Guidelines I would like
to state some things that I believe support that in this
case.
Mr. Maldonado’s last conviction was a substantial time
in the past –
The Court: Well, let’s stop right there. Under our local rule if there
was to be a response to the Presentence Report which
would invoke a departure under the advisory Guidelines,
it would be incumbent upon defense counsel to appraise
the Court, government counsel, and the probation officer
of the motion for departure, its specific basis, so that all
concerned could consult the advice of the Guidelines
with respect to a Guideline departure.
If there was to be a request for a variant sentence, that is
a sentence not within the advisory Guideline range, but
variant from it under 3553(a), it is likewise incumbent
upon counsel to advise the Court, government counsel,
and the probation officer of that request, so that analysis
and thought could be given to it before the sentencing
hearing.
We’ve received nothing like this.
[Counsel]: I understand that, Judge.
II R. Doc. 35 at 3, 4-5. Thereafter, Mr. Maldonado-Zamora addressed the court
and the court imposed sentence.
Discussion
There is no question that a district court must afford a defendant an
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opportunity to speak on his own behalf prior to sentencing. Fed. R. Crim. P.
32(i)(4)(A)(ii); Hill v. United States, 368 U.S. 424, 426 (1962); Green v. United
States,
365 U.S. 301, 304 (1961) (plurality opinion). Prior to imposing sentence,
a district court also must “provide the defendant’s attorney an opportunity to
speak on the defendant’s behalf.” Fed. R. Crim. P. 32(i)(4)(A)(i). A defendant’s
right to have counsel speak on his behalf (like the right to allocution itself) assists
the trial court in fashioning an accurate and reliable sentence based on all relevant
information. United States v. Gutierrez,
555 F.3d 105, 110 (2d Cir. 2009).
The government contends that, as a factual matter, the district court did not
prevent counsel from speaking on Mr. Maldonado-Zamora’s behalf because
counsel indicated he understood the court’s ruling, recounted that he had
submitted other materials, asked if the Defendant could make a statement, and
then counsel concluded his presentation. Aplee. Br. 14-16. None of these factors
suggest that counsel was allowed to make his argument for a downward departure
in the face of the district court’s ruling to the contrary.
While a district court has some discretion to place reasonable limits on
what may be addressed, we are persuaded that the district court abused its
discretion when it denied counsel the right to address a downward departure.
Specifically, the district court did not permit defense counsel to argue this point
because of its belief that a “local rule” required a motion for a departure or
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variance to be filed prior to the sentencing hearing. 2 II R. Doc. 35 at 4. The
parties agree that no local rule required a party to file a motion for a downward
departure prior to the sentencing hearing. Aplt. Br. 20; Aplee. Br. 20-21.
Although the government argues that the district court was likely referring
to how Rule 32 is interpreted in the district by local practice, or the practice of
requiring objections to the PSR in accordance with Fed. R. Crim. P. 32(f), those
grounds were not relied upon by the district court. Deciding this appeal on the
government’s interpretation would be in tension with the express words of the
district court (which relied upon a local rule). Moreover, we question how
counsel would know that was what the district court meant absent extraordinary
prescience. After all, the district court declined to entertain the argument for
want of a motion, not based upon the lack of objection.
Our cases have allowed non-compliance with Rule 32's allocution right to
be raised on direct appeal, notwithstanding the failure to object, and the
government does not argue otherwise. United States v. Muniz, 1 F.3d 1018, 1025
(10th Cir. 1993); United States v. Gardner,
480 F.2d 929, 932 (10th Cir. 1973),
superseded by statute on other grounds as discussed in, Smith v. United States,
2
The District of Colorado has since amended its local rules to require a
party to file a motion for a departure or a variance eleven days before the
sentencing hearing. However, this rule did not go into effect until December 1,
2008. See United States District Court for the District of Colorado, Local Rules
of Practice,
http://www.cod.uscourts.gov/Documents/LocalRules/LR_wAppsAndAtts.pdf.
The sentencing hearing for this case was held on January 16, 2008.
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551 F.2d 1193, 1196-97 (10th Cir. 1977); Aplee. Br. at 13. Here, it is apparent
that counsel was attempting to make arguments in mitigation–by seeking a
downward departure. Given the Sentencing Guidelines, the ability to make
arguments for a departure or a variance is central to advocacy given a now-
advisory guidelines system. See Irizarry v. United States,
128 S. Ct. 2198, 2202-
03 (2008); United States v. Jarvi,
537 F.3d 1256, 1262 (10th Cir. 2008). Rather
than categorical notice requirements, a continuance for legitimate surprise would
be the better policy. See
Irizarry, 128 S. Ct. at 2203.
In view of the above, it is unnecessary to address Mr. Maldonado-Zamora’s
other arguments.
REMANDED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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