from the United States District Court for the District of
Kansas (D.C. No. 2:14-CR-20071-JAR-1)
on the briefs:[*]
Virginia L. Grady, Federal Public Defender, and John T.
Carlson, Assistant Federal Public Defender, Denver, Colorado,
for Defendant-Appellant Jesus Octavio Valdez-Aguirre.
E. Beall, United States Attorney, and Carrie N. Capwell,
Assistant United States Attorney, Kansas City, Kansas, for
Plaintiff-Appellee United States of America.
LUCERO, MATHESON, and BACHARACH, Circuit Judges.
BACHARACH, Circuit Judge.
appeal involves allocution. When a convicted defendant
allocutes, he or she makes a statement in mitigation of the
sentence to be imposed. Allocution, Black's Law
Dict. 91 (Bryan A. Garner ed., 10th ed. 2014) (second
definition). The right to make such a statement is
guaranteed under the federal rules. Fed. R. Crim. P.
32(i)(4)(A)(ii). By definition, allocution is to take place
before the sentence is imposed. Otherwise, the defendant
would have little to gain from making a statement.
federal trial courts frequently approach sentencing with at
least some idea of what they intend to impose. See
Marvin E. Frankel & Leonard Orland, Sentencing
Commissions and Guidelines, 73 Geo. L.J. 225, 232 (1984)
(stating that "most judges, most of the time, sentence
the defendant according to the number of years they wrote
down after reading the probation materials"); Mark W.
Bennett, Confronting Cognitive "Anchoring
Effect" and "Blind Spot" Biases in Federal
Sentencing: A Modest Solution for Reforming a Fundamental
Flaw, 104 J. Crim. L. & Criminology 489, 531 (2014)
("I am confident most judges already formulate a
tentative sentence after reading and pondering the
[presentence report], but prior to the sentencing
hearing."). Thus, federal trial courts sometimes
announce a sentence before giving the defendant an
opportunity to allocute. With these announcements, problems
sometimes arise in two forms.
form involves a trial court's announcement of a
definitive sentence before giving the defendant an
opportunity to allocute. This sequence creates a violation
unless the court communicates its willingness to reconsider
the sentence in light of what the defendant says. See
United States v. Landeros-Lopez, 615 F.3d 1260, 1266-68
(10th Cir. 2010).
second form, the trial court announces a purportedly
tentative sentence, but makes further statements suggesting
that the court might have already made a decision. This is
what took place here when Mr. Jesus Octavio Valdez-Aguirre
was to be sentenced for drug conspiracy. See 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), 846; 18
U.S.C. § 2.
the defendant did not object in district court, we review the
sentence under the plain-error standard. See United
States v. Bustamante-Conchas, 850 F.3d 1130, 1137 (10th
Cir. 2017) (en banc). Under this standard, we can reverse
only if an error took place that was "clear or obvious
under current law." United States v. Pablo, 696
F.3d 1280, 1287, 1290 (10th Cir. 2012). An error is
ordinarily clear or obvious only when a precedent is
"directly in point" or a consensus exists in other
circuits. United States v. Smith, 815 F.3d 671, 675
(10th Cir. 2016). But even when precedent is lacking, an
error may be plain if the district court engaged in a clearly
erroneous application of statutory law. United States v.
Story, 635 F.3d 1241, 1248 (10th Cir. 2011).
a Tenth Circuit precedent directly in point, and Mr.
Valdez-Aguirre does not rely on a Supreme Court precedent,
consensus of other circuits, or a clearly erroneous
application of statutory law. As a result, we do not regard
the alleged error as clear or obvious.
The Trial Court's Conflicting Statements
trial court began by stating that it would announce a
tentative sentence. See R. vol. 4, at 6
("I'll start by announcing the following proposed
findings of fact and tentative sentence."). After this
statement, the trial court heard arguments by counsel
concerning a downward variance, then characterized the
announcement two times as a tentative sentence:
1. "So based on all of this, all [sic] announce the
following proposed findings of fact and tentative
2. "The Court's tentative sentence is 360 months,
followed by five years of supervised release . . . ."
Id. at 32. Mr. Valdez-Aguirre does not suggest that
the trial court plainly erred by announcing this
"tentative" sentence before allowing
court then made two statements describing what it intended to
1. "The Court does not intend to impose a fine."
2. "The Court does not intend to impose a denial of
federal benefits . ...