United States v Bustamante-Conchas

Bustamante-Conchas sought en banc review of the panel decision holding there was no plain error in the district court failing to allow him to allocate at sentencing. The en banc court, 7-4, vacated and remanded. The majority held that on plain error review, defendants who demonstrate a lack of opportunity to allocate ordinarily will prove prejudice as there is a reasonable likelihood that the allocution may result in a different sentence. It held that sentences which are the minimum lawful sentence allowed or the low sentence in a plea deal would not demonstrate prejudice, but, otherwise proof of a lack of opportunity would be sufficient and here the district court did not invite allocution and had discretion to give an even lower sentence and thus prejudice was proven. The majority held that to satisfy the forth prong of plain error, seriously affects the fairness , integrity or public reputation of judicial proceedings, will ordinarily be proven by evidence of a complete absence of opportunity to allocate as allocution serves the interests of perceived fairness. It noted circuit precedent identifies resentencing after a firm sentence for probation violation was announced at the first sentencing and situations where a meaningful opportunity is provided which does not meet the standard of allocution under the Rules of Criminal Procedure 32 as situations where the prong will not be satisfied. However, it held here the lack of opportunity at an initial sentencing satisfies the fourth prong. It rejected any requirement for a proffer of what would have been said on appeal as requiring consideration of evidence outside the record and noting a person’s sincere regret is best evaluated at the district court in a live allocution. Chief judge Tymkovich, joined by Hartz, Holmes and Phillips dissented arguing that Bustamante-Conchas bore the burden of demonstrating actual, not presumed, prejudice, the majority wrongly shifted the burden to the government and Bustamante-Conchas failed to provide any evidence his allocution would have lowered his sentence particularly as strong arguments were presented by counsel. He further argued that prong four was not proven because the test should be case specific and fact intensive, not the presumption drive analysis of the majority and here no evidence as to what was not presented to the district court was offered on appeal and in any event the district court heard argument, considered the parties’ contentions and sentenced below the guidelines. Hartz, joined by Tymkovich and Phillips, added a dissent arguing that prejudice cannot be presumed from a lack of opportunity to allocate as allocution carries the risk of enhancing a sentence, the study relied upon by the majority does not support a finding of likelihood to get a better sentence on remand and when counsel forgets to bring the matter to the judges attention, it may be counsel is satisfied with the sentence or believes no reasonable opportunity exists to get a better one and here trial counsel had 14 days to notify the sentencing judge to the error and did not suggesting satisfaction with the sentence.