United States v. Bustamante-Conchas
850 F.3d 1130
| 10th Cir. | 2017Background
- Miguel Bustamante-Conchas was convicted of heroin-distribution offenses; PSR produced a Guidelines range of 292–365 months; district court adopted the PSR but varied to a 240-month sentence.
- At sentencing the court asked counsel for comment and asked generally whether there was any reason the sentence should not be imposed, but never personally addressed Bustamante-Conchas or offered him an opportunity to allocute.
- Defense counsel asked for a 120-month sentence and presented mitigating materials (abusive childhood, addiction); the government urged 292 months.
- Bustamante-Conchas appealed, claiming the district court plainly erred by denying allocution; a divided panel affirmed, but the court granted en banc review limited to the allocution issue.
- The en banc majority held the court’s failure to personally invite allocution was plain error that satisfied Olano’s third and fourth prongs and vacated and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court’s failure to address the defendant personally before sentencing is error and plain error | Bustamante-Conchas: Rule 32 requires a personal colloquy; complete denial is contrary to settled law and therefore plain error | Government: allocution error can be harmless in many cases; no automatic reversal | Held: It was error and plain — failure to personally address the defendant violated Fed. R. Crim. P. 32 and is plain error. |
| Whether prejudice (Olano prong 3) should be presumed or required to be specifically shown | Bustamante-Conchas: prejudice is shown because a lower sentence was possible; a complete denial ordinarily satisfies prong 3 | Government: defendant must prove specific reasonable probability of a different result; no presumption | Held: No formal presumption, but in the ordinary allocution case a defendant who shows complete denial meets the defendant’s burden to show prejudice absent extraordinary circumstances (e.g., statutory minimum or other compelling reason sentence could not be lower). |
| Whether the allocution error satisfies Olano prong 4 (serious effect on fairness, integrity, or public reputation) | Bustamante-Conchas: complete denial at initial sentencing undermines legitimacy and appearance of fairness; remand required | Government: defendant must proffer what he would have said and show record-level effect | Held: No per se rule, but absent unusual circumstances a complete denial at initial sentencing satisfies prong 4; here remand required. |
| Whether a defendant must proffer an allocution statement on appeal to obtain relief | Government: appellate proffer necessary to show what allocution would have added | Bustamante-Conchas: proffer not required; appellate courts should not consider extra-record material | Held: Rejected requirement to proffer; appellate courts will not consider extra-record evidence and proffers are poorly suited to assess sincerity or persuasiveness. |
Key Cases Cited
- Green v. United States, 365 U.S. 301 (U.S. 1961) (recognizing personal right to allocution and that counsel cannot substitute for defendant’s own statement)
- Hill v. United States, 368 U.S. 424 (U.S. 1962) (allocution error is not jurisdictional or automatically reversible on collateral review)
- Olano v. United States, 507 U.S. 725 (U.S. 1993) (plain-error review framework)
- Molina-Martinez v. United States, 136 S. Ct. 1338 (U.S. 2016) (in the ordinary case, Guidelines error alone can show prejudice under Olano prong 3)
- United States v. Jarvi, 537 F.3d 1256 (10th Cir. 2008) (discussing breadth of allocution right)
- United States v. Rausch, 638 F.3d 1296 (10th Cir. 2011) (allocution and plain-error discussion)
- United States v. Reyna, 358 F.3d 344 (5th Cir. en banc 2004) (en banc treatment of allocution error and plain-error review)
- United States v. Gonzalez-Huerta, 403 F.3d 727 (10th Cir. 2005) (describing demanding nature of Olano prong 4 inquiry)