Allocution Error Normally Constitutes Plain Error, Tenth Circuit Holds

Miguel Bustamante-Conchas was not afforded an opportunity to allocute showing plain error before being sentenced. Allocution is the right of a criminal defendant to tell the judge anything he or she wishes, with the hope the judge might impose a lesser sentence. The right is currently embodied in Federal Rule of Criminal Procedure 32( i)(4)(A)(ii), which requires federal district courts to “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.”

The U.S. Court of Appeals for the Tenth Circuit, sitting en banc, held that Bustamante-Conchas had been improperly denied the right of allocution. However, because Bustamante-Conchas did not object to the error at the time of sentencing, the court had to decide whether Bustamate-Conchas could show “plain error.”

Plain error is shown when there is an

(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,” the court wrote.

The court found the first two prongs easily satisfied. According to the court, “a complete denial of allocution thus satisfies the first and second prongs of plain-error review.”

Concerning the third prong of the plain error test, the Tenth Circuit held that defendants need only show that “there is a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” A reasonable probability, the court explained, should not be confused with, “a requirement that a defendant proves by a preponderance of the evidence that but for error things would have been different.” Rather, the court indicated that “a reasonable probability is a probability sufficient to undermine confidence in the outcome.”

In this regard, the court held that “without some exceptionally good reason to doubt that allocution would have mattered, the complete denial of a defendant's right to allocute raises a reasonable probability of a lesser sentence.” According to the court, “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.”

Even more importantly, the court held the defendants “need not identify the particular statements they wished to make” to show prejudice.

On the other hand, the court explained, defendants who were sentenced to the statutory mandatory minimum or pursuant to a binding Fed. R. Crim. P. 11(c)(1)(C) plea agreement would not be able to show prejudice.

Finally, the court held that “absent some unusual circumstance ... a complete denial of allocution at a defendant's sentencing hearing will satisfy the fourth prong of the plain-error test.”

According to the court, the denial of allocution “undermines the legitimacy of the sentencing process.”

The court also overruled its prior cases which held that a “defendant must proffer an allocution statement to obtain relief.” The court did so because “accepting a proffered allocution statement would violate the fundamental tenet that appellate courts will not consider material outside the record before the district court.” Also, “appellate courts are in a poor position to assess an allocution statement.”

In refusing to require a proffer of what the defendant’s allocution would have been to demonstrate prejudice, the Tenth Circuit created a split with the Fifth Circuit which specifically requires such a statement as a precondition to being afforded relief. United States v. Palacios, 844 F.3d 527, 532-33 (5th Cir. 2016) (collecting cases).

Bustamante-Conchas’s sentence was accordingly reversed, and the case was remanded for resentencing. See United States v. Bustamante-Conchas, No. 15-2025 (10th Cir. 2017).