United States v. Jimenez, 61 F.4th 1281

Defendant Gerardo Benitez Jimenez is a repeated illegal reentry offender and was indicted under 8 U.S.C. § 1326 after completing an Oklahoma heroin-trafficking sentence.
He pleaded guilty without a plea agreement; the PSR recommended a guidelines range of 46–57 months (offense level 17, CHC V).
Benitez moved for downward departure and a downward variance; the court denied the departure motions and then denied the variance before inviting allocution, stating: “I will not vary from the advisory guideline level…”
The court then allowed allocution; Benitez apologized but the judge imposed 57 months (top of the guideline range).
No contemporaneous objection was made at sentencing, so the appeal is reviewed for plain error only.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court “definitively announced” the sentence before allocution in violation of Rule 32	Benitez: the court’s “I will not vary…” statement definitively announced a guideline sentence before he spoke	Government/District: the court did not announce a specific sentence; it denied the variance but did not unambiguously fix months	Not plain error — statement did not clearly and unambiguously announce a specific sentence (guideline range had multiple possible terms)
Whether the court implicitly limited the scope of allocution (conveyed futility of arguing for a variant)	Benitez: the pre-allocution ruling signaled futility and thus denied a meaningful opportunity to argue for a lower sentence	Government/District: no express prohibition; precedents requiring reversal involve clear or express limitations, not mere implication	Court assumed possible error but held it was not plain — no controlling precedent treating implicit limits as reversible plain error
Whether any allocution error requires reversal under plain-error standard	Benitez: error affected substantial rights because he received the maximum within the guideline range	Government/District: even if error, it is not plain because it is not contrary to clearly established law	Affirmed — defendant cannot show plain error warranting resentencing

Green v. United States, 365 U.S. 301 (U.S. 1961) (recognizing defendant’s right to make a statement and present mitigating information at sentencing)
United States v. Bustamante-Conchas, 850 F.3d 1130 (10th Cir. 2017) (en banc) (allocution is personal and reversal warranted for total denial of allocution; sets plain-error guidance)
United States v. Landeros-Lopez, 615 F.3d 1260 (10th Cir. 2010) (vacating where court decisively announced a specific sentence before allocution)
United States v. Jarvi, 537 F.3d 1256 (10th Cir. 2008) (reversible error where court expressly limited allocution’s scope)
United States v. Mendoza-Lopez, 669 F.3d 1148 (10th Cir. 2012) (court’s express instruction to restrict allocution to placement within the Guidelines can indicate unwillingness to consider below-guideline mitigation)
United States v. Valdez-Aguirre, 861 F.3d 1164 (10th Cir. 2017) (no plain error where court’s statements were mixed between tentative and final and defendant was still offered allocution)