Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 14, 2023
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 22-5017 v.
GERARDO BENITEZ JIMENEZ, a/k/a Gerardo Martinez-Jimenez, a/k/a Francisco Romero-Marte, a/k/a Felipe Damien Ulloa, a/k/a Javier Romero, a/k/a Antonio Benetes, a/k/a Carlos Gonzales-Ulloa, a/k/a Damien Virgen-Perez, a/k/a Carlos Gonzalez-Ulloa, a/k/a Gerardo Benitez- Jimenez,
Defendant - Appellant. _________________________________
Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:21-CR-00192-JFH-1) _________________________________
Kathleen Shen, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the brief), Denver, Colorado for Defendant – Appellant.
Thomas E. Duncombe, Assistant United States Attorney (Clinton J. Johnson, United States Attorney, with him on the brief), Tulsa, Oklahoma for Plaintiff – Appellee. _________________________________
Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges. _________________________________
BALDOCK, Circuit Judge. _________________________________ Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 2
A defendant’s right to allocution at sentencing is one of the oldest and most
important principles in our legal system. Green v. United States, 365 U.S. 301, 304 (1961);
United States v. Jarvi, 537 F.3d 1256, 1261 (10th Cir. 2008). Allocution serves several
critical functions in the sentencing process—it is a tool for providing information to the
sentencing court, it encourages sentencing judges to show mercy in appropriate cases, and
it strengthens the credibility of the criminal justice system by requiring sentencing judges
“to personally engage” with those they sentence. United States v. Bustamante-Conchas,
850 F.3d 1130, 1136 (10th Cir. 2017) (en banc). Thus, Federal Rule of Criminal Procedure
32(i)(4)(A)(ii) obligates district courts to “address the defendant in order to permit the
defendant to speak or present any information to mitigate the sentence.”
Here, we consider whether a district court violates that rule when the judge stops
short of “definitively announcing” a defendant’s sentence before allocution, but
nonetheless implicitly limits the scope of allocution. Because reversing under such
circumstances would represent an expansion of our existing precedents, a case on plain
error review—such as this one—is not the appropriate occasion for us to broaden the
application of our caselaw to new circumstances. Accordingly, we exercise jurisdiction
under 28 U.S.C. § 1291 and AFFIRM the district court’s judgment based on the standard
of review.
I.
Defendant Gerardo Benitez Jimenez is a habitual violator of immigration law.
Between 1995 and the incident that has brought him before us, Defendant has illegally
entered the United States from his native Mexico and been returned there on nine previous
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occasions.1 Despite this history, Defendant illegally returned to the United States yet again,
and was convicted of heroin trafficking in Oklahoma state court. That conviction yielded
an eight-year prison sentence, four of which were suspended. As a result of this charge,
the Government discovered Defendant was present in the United States without status and
issued an immigration detainer. Defendant completed his state sentence in April 2021 and
was transferred to federal custody pursuant to his immigration detainer. The Government
sought and obtained an indictment charging Defendant with one count of unlawfully
reentering the United States as a removed alien in violation of 8 U.S.C. § 1326. Defendant
pleaded guilty without a plea agreement and the case proceeded to sentencing.
The Probation Officer issued a presentence report (PSR) recommending an advisory
guideline range of 46 to 57 months’ imprisonment based upon an offense level of 17 and a
criminal history category of V. Defendant filed two motions for a downward departure
and another motion for a downward variance, each of which the Government opposed. At
sentencing, the district court first adopted the PSR without objection and denied
Defendant’s motions for a downward departure. The district court then considered
Defendant’s motion for a downward variance. Defendant’s counsel informed the district
judge he had nothing further to add to his previous arguments on the 3553(a) factors but
noted that he did “know that [Defendant] would like to address the court.” The district
judge responded that he would “give [Defendant] an opportunity to do that in a moment,”
but then asked the Government if it had anything further to add on the subject. When the
1 Defendant has been removed from the United State on four occasions and voluntarily departed five other times. 3 Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 4
Government indicated it did not wish to be heard, the district judge decided to rule on the
motion for variance before affording Defendant the opportunity to allocute. The district
judge explained that “[b]ased upon the information provided by the parties, I will not vary
from the advisory guideline level as the factors fail to separate this defendant from the
minerun [sic] of similarly situated defendants; therefore, defendant’s motion at docket
number 38 is denied.” After making this statement, and explaining his rationale in greater
detail, the district judge invited Defendant to allocute. Defendant apologized for his
wrongdoing and promised he would not offend again. Apparently unpersuaded, the district
judge sentenced Defendant to 57 months’ imprisonment—the maximum under the
guideline range.
On appeal, Defendant contends the district judge violated his right to allocution at
sentencing. Defendant, however, failed to object to this alleged violation before the district
court. Accordingly, we review Defendant’s claim only for plain error. Bustamante-
Conchas, 850 F.3d at 1137. “To demonstrate plain error, a litigant must show: ‘(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.’” Id. (quoting United States
v. Mike, 632 F.3d 686, 691–92 (10th Cir. 2011)).
II.
We begin by discussing the right of allocution and briefly surveying some of our
previous treatments of the issue. Federal Rule of Criminal Procedure 32 “explicitly affords
the defendant two rights.” Green, 365 U.S. at 304. First, a defendant has the right “to
make a statement [o]n his own behalf” and second, a defendant has the right “to present
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any information in mitigation of punishment.” Id. (internal quotation marks omitted).
These rights are personal to the defendant and cannot be satisfied by the statements of
counsel. Bustamante-Conchas, 850 F.3d at 1136. Consistent with these principles and the
right of allocution’s long history—dating back to the 17th Century—we have held that “the
defendant has a broad right to ‘present any information to mitigate the sentence.’” Jarvi,
537 F.3d at 1262 (emphasis in original) (quoting Fed. R. Crim. P. 32(i)(4)(A)(ii)). Thus,
our precedents cover a variety of scenarios where a district court violates the right of
allocution.
We start our survey with the clearest form of violation. As we recognized in
Bustamante-Conchas, the right of allocution is obviously and indefensibly violated when
the district court neglects it all together. We have never had difficulty concluding district
courts commit reversible error—even under a plain error standard of review—when they
fail to “personally address [the defendant] prior to imposing sentence or otherwise offer
him an opportunity to allocute.” Bustamante-Conchas, 850 F.3d at 1134, 1135.
While a total denial of allocution serves as a clear, but perhaps extreme example of
a violation of Rule 32, the right is also violated when the district court clearly limits the
scope of material the defendant can discuss. For example, in Jarvi, we addressed a case
where a district court refused to consider the defendant’s pro se motion objecting to the
PSR and then ordered the defendant not to discuss the pro se motion, or any arguments
based upon it, during allocution. 537 F.3d at 1258–59. We remanded the case for
resentencing and held the district judge’s decision to expressly narrow the scope of matters
available to the defendant for discussion during allocution violated Rule 32 and the right
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of allocution. Id. at 1261–62, 1264. In so doing, we emphasized that defendants have the
right to discuss any matter of their choosing during allocution. Id.
Similarly, in United States v. Mendoza-Lopez, we considered several potentially
problematic statements that the district court made during sentencing. 669 F.3d 1148 (10th
Cir. 2012), abrogated on other grounds by Bustamante-Conchas, 850 F.3d 1130. One of
the court’s statements invited the defendant to allocute only on the issue of where within
the guidelines range he ought to be sentenced. Id. at 1150, 1152. We concluded that
statement satisfied the first two prongs of the plain error test because it “indicate[d] the
court was not willing to listen to any statements or information [the defendant] might wish
to offer in support of a sentence below the advisory Guidelines range.” Id. at 1152. We
ultimately declined to remand the case, however, based upon an understanding of the third
and fourth prongs of plain error that no longer applies. See id. at 1153–54; Bustamante-
Conchas, 850 F.3d 1130.
Perhaps most commonly, a district court violates the right of allocution when it
“definitively announces” the sentence before it affords the defendant an opportunity to
allocute. Our opinion in United States v. Landeros-Lopez, 615 F.3d 1260 (10th Cir. 2010),
illustrates this point. In that case, the district judge announced that “it is and will be the
judgment of this Court that the defendant . . . is hereby committed to the custody of the
Bureau of Prisons to be imprisoned for a term of 115 months” before it afforded the
defendant an opportunity to allocute. Id. at 1265 (emphasis in original). In vacating and
remanding the case for resentencing, we explained district courts must effectively
communicate to defendants that they have “a meaningful opportunity to influence the
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sentence” through allocution. Id. at 1266 (quoting United States v. Luepke, 495 F.3d 443,
450 (7th Cir. 2007)). When district courts speak at sentencing with “highly conclusive
language,” the district court can ensure “the right of allocution is fulfilled only if the court
communicates that it will ‘genuinely reconsider the sentence in light of the elicited
statement.’” Id. (quoting Luepke, 495 F.3d at 448). Accordingly, we cautioned district
courts against “definitively announcing” sentences before allowing defendants to allocute
and we reminded them that “a sentencing court undermines its own legitimacy when it
invites a defendant to speak only after making clear that his sentence is a foregone
conclusion.” Id. at 1267, 1268 (citation omitted).
But this does not mean the right of allocution is completely unfettered. Instead, our
cases also show some restrictions or limitations on the right of allocution do not constitute
reversible error. For instance, a district court does not err when it announces its “intention”
to impose a particular sentence on a defendant. Mendoza-Lopez is instructive here. In that
case (in addition to the statements previously discussed) the district court informed the
defendant of its “intention to sentence within th[e] Guideline range” recommended in the
PSR before he had the opportunity to allocute. Mendoza-Lopez, 669 F.3d at 1150 (internal
quotation marks omitted). On appeal, the defendant argued this statement ran afoul of
Landeros-Lopez’s prohibition on “definitively announcing” sentences before allocution.
See id. at 1150–52. We rejected that argument. Instead, we held “mere statement[s] of
intention” were not “conclusive like those made in Landeros-Lopez” and that district courts
could announce their intention to sentence a defendant in a particular manner without
violating the right of allocution. Id. at 1152.
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Likewise, in United States v. Valdez-Aguirre, we held that a district court had not
erred by “interspersing some comments suggesting that the announced sentence was
tentative with other comments suggesting finality” prior to allocution. 861 F.3d 1164,
1167, 1169 (10th Cir. 2017). In reaching this holding, we concluded that because the
district court made “statements suggesting tentativeness” and because “the court ultimately
offered the defendant a chance to allocute before the announcement of a ‘final sentence,’”
reversal under a plain error standard was not justified. Id. at 1170 (citation omitted).
In sum, we have recognized several instances where a district court violates a
defendant’s right to allocution. The common thread between those violations is clear or
overt action by the district court. Under our controlling precedents, a violation of Rule 32
must be a total denial of allocution, an express limitation on allocution, or definitive
statement of the sentence to be imposed for us to deem it reversible under plain error
review.
III.
Defendant essentially raises two arguments on appeal. First, he claims the district
court violated his right to allocute when it announced its ruling on his motion for variance
by stating “I will not vary from the advisory guideline level as the factors fail to separate
this defendant from the minerun [sic] of similarly situated defendants.” See Appellant’s
Br. at 8–9. The main thrust of this argument is that this statement “definitively announced”
the sentence before Defendant’s allocution. See id. Second, Defendant intimates an
additional, related theory of error within the context of his first argument: He argues the
district court’s statement “clearly communicated to [him] that he would receive a guideline
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sentence, thereby denying [him] the meaningful opportunity to argue for a variant sentence
below the guidelines in his allocution.” Id. at 10. In other words, Defendant contends the
district court’s statement implicitly limited the scope of allocution by conveying to him
that it would be futile to argue for a sentence below the guideline range during his
allocution. We address each of these theories in turn.
A.
We first consider Defendant’s contention that the district court’s statement
“definitively announced” his sentence before he had the opportunity to allocute. Defendant
believes the district court’s use of the words “I will not vary from the advisory guideline
level” definitively informed him that he would receive a guideline sentence and therefore
violated Rule 32 and his right to allocution. Id. at 9 (emphasis in original). We disagree.
Defendant’s argument misunderstands our prohibition on district courts
“definitively announcing” sentences before defendants allocute. Defendant premises his
argument on the notion that a district court’s use of definitive language before allocution
is sufficient to establish a rule 32 violation. Id. at 8–10. Our precedents make clear,
however, that a district court’s “definitive announcement” of a sentence is only reversible
for plain error when it clearly and unambiguously communicates to the defendant the
specific sentence he will receive before allocution.
Take Landeros-Lopez—the case where we first used the phrase “definitively
announc[e]”—for example. 615 F.3d at 1268. In that instance, we took issue with the
district court’s pre-allocution statement “it is and will be the sentence of this Court that
Defendant . . . is hereby committed to be imprisoned for a term of 115 months” because
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“[t]he court’s conclusive statements effectively communicated to [the defendant] that his
sentence had already been determined” before he had a chance to speak. Landeros-Lopez,
615 F.3d at 1265, 1268 (emphasis in original). Simply put, the district court’s language
was both definitive, demonstrating that it had made up its mind about the sentence, and
clearly conveyed a specific sentence—115 months’ incarceration—to the defendant. The
district court’s conduct therefore qualified as a “definitive announcement” of sentence
before allocution.
Likewise, United States v. Slinkard—the other allocution opinion we issue today—
also tracks this principle. In Slinkard, the district court clearly communicated its
unwillingness to vary from the guideline range before it invited the defendant to allocute
by stating:
Based upon the information provided by the parties, I will not vary from the advisory guideline level as the factors fail to separate this defendant from the minerun [sic] of similarly situated defendants. The court finds that this defendant is a repeated and dangerous sex offender. There is no way in good conscience that I could ever allow this defendant to be among the public or near any child.
Slip Op. at 2–3. At first glance, this may appear similar to the district court’s conduct here.
Slinkard, however, contains a key distinguishing fact that explains the difference in
outcomes between the two cases: The sentencing guideline range in Slinkard contained
only one possible sentence—life imprisonment. Id. Thus, the district court’s decision to
use definitive language to communicate to the defendant that he would receive a guideline
range sentence also clearly and unambiguously communicated to the defendant the specific
sentence he would receive before allocution. Id. at 6–10.
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We therefore ask the following question to resolve this issue: Did the district court
clearly and unambiguously communicate the specific sentence it would impose to
Defendant when it ruled on his motion for variance before his allocution? The answer to
this question is clearly no. Unlike Landeros-Lopez, the district court did not specifically
announce the number of months Defendant would serve in prison before he allocuted.
Similarly, unlike Slinkard, the district court’s statement “I will not vary from the advisory
guideline level as the factors fail to separate this defendant from the minerun [sic] of
similarly situated defendants”—issued while denying Defendant’s motion for variance—
at most conveyed to Defendant that he would be sentenced somewhere within a guideline
range that contained more than one possible sentence. In this case, the applicable guideline
range called for an eleven-month range within which Defendant could be sentenced.
Accordingly, even if the district court’s statement clearly conveyed to Defendant that he
would receive a guideline range sentence—a fact we assume without deciding for the
purposes of this analysis—it does not amount to the clear and unambiguous enunciation of
a specific sentence. Therefore, the district court’s statement cannot constitute a “definitive
announcement” of sentence in violation of Rule 32 under our precedents and is not plain
error.
B.
Now that we have disposed of Defendant’s first—and primary—contention, we can
proceed to the related question of whether the district court’s statement impermissibly
limited the scope of Defendant’s allocution. Defendant asserts that he was denied “the
meaningful opportunity to argue for a variant sentence below the guidelines in his
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allocution” because the district court had already made clear that he would receive a
sentence within the guideline range. Appellant’s Br. at 10.
This theory of error fundamentally depends on the inferences Defendant may have
drawn from the district court’s statement “I will not vary from the advisory guideline level
as the factors fail to separate this defendant from the minerun [sic] of similarly situated
defendants; therefore, defendant’s motion at docket number 38 is denied.” We have
previously acknowledged the utility of considering the possible inferences a defendant
could draw from the district court’s statements at sentencing when considering possible
allocution violations. See Valdez-Aguirre, 861 F.3d at 1168–69. Based on Defendant’s
framing of the issue, we are concerned with two possible inferences from the district court’s
conduct. First, Defendant could conclude that the district court’s statement precluded him
from arguing for a variant sentence entirely. Second, Defendant could also conclude that
he could not revisit the arguments raised in his motion during allocution.
As a threshold matter, we think sufficient support exists in the record to conclude
that the district court’s statement at least implicitly limited the scope of Defendant’s
allocution. We specifically note that Defendant did not seek a variant sentence during his
allocution and that Defendant’s counsel acknowledged “the court’s ruling regarding the
motions for departure and variance” and sought a sentence at “the low end of the guidelines
[range]” immediately following Defendant’s allocution. Thus, we think it reasonable to
conclude the district court’s statements may have discouraged Defendant from fully
exercising his right to allocution. For this reason, along with those we address in our
discussion of our cases below, we will assume without deciding that Defendant can satisfy
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the error prong of plain error review. Nevertheless, as we will also explain below,
Defendant cannot show that any such error was plain.
We begin our analysis by noting that the first inference finds some support in
Mendoza-Lopez. Specifically, there is a certain degree of conceptual overlap between the
statement at issue here and the district court’s statement in Mendoza-Lopez inviting that
defendant to allocute on “where within [the Guidelines] range this Court should sentence”
because both statements convey, to varying degrees, that “the court was not willing to listen
to any statements or information [the defendant] might wish to offer in support of a
sentence below the advisory Guidelines range.” 669 F.3d at 1152 (first alteration in
original). Nonetheless, an error is plain only when it is “contrary to well-settled law”—
that is, it either runs afoul of the Supreme Court’s precedents or our own. United States v.
Ruiz-Gea, 340 F.3d 1181, 1187 (10th Cir. 2003) (citation omitted). The statement we
consider here falls well below this standard. In contrast to the district court’s statement in
this case, the district court in Mendoza-Lopez affirmatively and expressly limited the scope
of the defendant’s allocution because it instructed him to only discuss where within the
guideline range he should be sentenced. 669 F.3d at 1152. Mendoza-Lopez never went as
far as to hold it was plain error for a district court to convey the same message implicitly.
Thus, even if Defendant inferred that the district court’s denial of his motion for variance
precluded him from arguing for a variant sentence, the fact that the district court did not
affirmatively prohibit him from doing so means there is no plain error under Mendoza-
Lopez.
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Similarly, we can compare the second inference to the facts of Jarvi, where the
district court expressly limited the scope of allocution by ordering the defendant to not
discuss his pro se motion objecting to the PSR. 537 F.3d at 1258–59, 1261–62. Again,
Jarvi did not address the issue of a district court limiting the scope of allocution by
implication. And in this case, the district court did not expressly inform Defendant that he
could not discuss the arguments he presented in his motion for variance during his
allocution. Because neither cases nor those of the Supreme Court have held that implicit
limitations on allocution are reversible, we cannot conclude that the district court’s
statement here constitutes plain error.
IV.
In sum, we conclude the district court did not plainly err during Defendant’s
sentencing proceedings. We note for future reference, however, that district courts would
be well-advised to affirmatively inform defendants of the court’s willingness to consider
any argument they wish to present during allocution.2 See Fed. R. Crim. P. 32(i)(4)(A)(ii);
Landeros-Lopez, 615 F.3d at 1266. The judgment of the district court is AFFIRMED.
2 Sentencing is one of the most difficult tasks district judges perform. While each judge has their own style of sentencing, they are nevertheless obligated to ensure that they adhere to the requirements of the Federal Rules of Criminal Procedure and the precedents governing sentencing. Judges will hopefully err on the side of explaining a defendant’s right to allocution clearly and indicate their willingness to consider whatever they have to say in good faith. 14