Miguel Bustamante-Conchas was not allowed a chance to allocute before being sentenced.  As you may know, Allocution is the right of a defendant in a criminal case to say anything to the Judge that they wish to say with the hopes that the Judge would impose a lesser sentence.

The right to allocute is in the Federal Rule of Criminal Procedure 32( i)(4)(A)(ii) which says that federal courts must  “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 (where all the judges hear the case and decide instead of a panel) held that Bustamante-Conchas had been denied the right to allocate. Since he did not object at sentencing, the Court had to decide whether this was “Plain Error.”  In this case the court wrote that Plain error is shown where 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 first two prongs of that test were easily satisfied.  The court said, “a complete denial of allocution thus satisfies the first and second prongs of plain-error review.”

On the third prong, 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, should not be confused with, “a requirement that a defendant prove by a preponderance of the evidence that but for error things would have been different.” Rather, the court said that “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.”

On this, 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,” adding “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 defendants “need not identify the particular statements they wished to make” to show prejudice.

There are some situations where a defendant will not be able to show prejiduce with the denial of an allocution such as a mandatory minimum or a sentence pursuant to Fedaral R. Crim P. 11 11(c)(1)(C), or certain types of violations of supervised release cases.

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).

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

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