The Judge Never Let Me Speak at Sentencing. Is That Grounds for Appeal?

If a federal judge sentences you without ever letting you speak, the Tenth Circuit will usually throw out the sentence, even if your lawyer did not object at the time. The full Tenth Circuit (sitting "en banc," meaning all active judges) decided this on March 3, 2017, in United States v. Bustamante-Conchas.

What allocution is

Allocution is your right to speak to the judge before you are sentenced. You can say anything you want, in the hope the judge will give you less time.

Federal Rule of Criminal Procedure 32(i)(4)(A)(ii) requires the judge 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.

What happened

The judge sentenced Miguel Bustamante-Conchas without ever giving him a chance to speak. The Tenth Circuit agreed this was error.

But no one objected at sentencing, so he had to show "plain error." Under that test, there must be:

1. an error,
2. that is plain (clear or obvious),
3. that affected substantial rights, and
4. that seriously affects the fairness, integrity, or public reputation of court proceedings.

How the court applied the plain-error test

Prongs 1 and 2. The court said these were easily met: "a complete denial of allocution thus satisfies the first and second prongs of plain-error review."

Prong 3. You only need to show "a reasonable probability that, but for the error claimed, the result of the proceeding would have been different." The court said this is not the same as proving by a preponderance of the evidence (more likely than not) that things would have been different. Instead, "a reasonable probability is a probability sufficient to undermine confidence in the outcome."

The court held that, "without some exceptionally good reason to doubt that allocution would have mattered," a complete denial raises a reasonable probability of a lower sentence. As the court put it, "just as the Guidelines are ordinarily expected to have some impact on a sentence, there is at least a reasonable probability that allocution matters in the usual case."

Just as important, defendants "need not identify the particular statements they wished to make" to show harm.

There are limits. If you got the statutory mandatory minimum, the sentence could not have been lower, so you cannot show harm. The same goes for the minimum agreed term in a binding plea deal under Rule 11(c)(1)(C) that the judge already accepted.

Prong 4. Absent some unusual circumstance, a complete denial of allocution meets the fourth prong. The court said the denial of allocution "undermines the legitimacy of the sentencing process."

No need to tell the appeals court what you would have said

The court overruled its earlier cases suggesting a defendant must "proffer" (submit) the statement he would have made. It gave two reasons:

• Accepting a proffered statement "would violate the fundamental tenet that appellate courts will not consider material outside the record before the district court."
• "Appellate courts are in a poor position to assess an allocution statement."

This created a split with the Fifth Circuit, which requires such a proffer. United States v. Palacios, 844 F.3d 527, 532-33 (5th Cir. 2016) (collecting cases). In the Fifth Circuit, the proffer is a precondition to getting relief.

The sentence was reversed and the case sent back for resentencing. United States v. Bustamante-Conchas, 850 F.3d 1130 (10th Cir. 2017) (en banc).

What to do if you were not allowed to speak

Act quickly. In a federal criminal case, the notice of appeal is usually due within 14 days after the judgment is entered. Fed. R. App. P. 4(b)(1)(A). The judgment is the court's written order that states the sentence. If you have a sentencing transcript, it will show whether the judge ever asked you to speak. Keep in mind that the rules differ by circuit, as the split with the Fifth Circuit shows.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.