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United States v. Valdez-Aguirre

United States Court of Appeals, Tenth Circuit

July 3, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JESUS OCTAVIO VALDEZ-AGUIRRE, Defendant-Appellant.

         Appeal from the United States District Court for the District of Kansas (D.C. No. 2:14-CR-20071-JAR-1)

         Submitted 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.

          Thomas E. Beall, United States Attorney, and Carrie N. Capwell, Assistant United States Attorney, Kansas City, Kansas, for Plaintiff-Appellee United States of America.

          Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.

          BACHARACH, Circuit Judge.

         This 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).[1] 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.

         But 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.").[2] 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.

         One 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).

         In the 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.

         Because 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).

         We lack a Tenth Circuit precedent directly in point, and Mr. Valdez-Aguirre does not rely on a Supreme Court precedent, [3] a 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.

         I. The Trial Court's Conflicting Statements

         The 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 sentence."
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 allocution.[4]

         The court then made two statements describing what it intended to do:

1. "The Court does not intend to impose a fine."
2. "The Court does not intend to impose a denial of federal benefits . ...

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