United States v. Landeros-Lopez

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH August 3, 2010

Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.
No. 09-8056
BLAS LANDEROS-LOPEZ, a/k/a
Miguel Ayala Aguilar,

Defendant–Appellant.

Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 2:08-CR-00105-ABJ-21)

Edwin S. Wall, Edwin S. Wall, P.C., Salt Lake City, Utah, for Defendant–Appellant.

Stuart S. Healy, III, Assistant United States Attorney, Cheyenne, Wyoming, for Plaintiff–
Appellee.

Before LUCERO, HOLLOWAY, and MURPHY, Circuit Judges.

LUCERO, Circuit Judge.
 Blas Landeros-Lopez (“Landeros”) pled guilty to one count of conspiracy to

traffic in methamphetamine. On appeal, Landeros argues that the district court failed to

elicit a sufficient factual basis to support his guilty plea and denied him the right to speak

at sentencing. Our decision today clarifies this circuit’s factual basis standard and

explains the contours of the right of allocution. Exercising jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm Landeros’ conviction, but vacate his

sentence and remand for resentencing.

I

Landeros came to the attention of authorities when Alejandro Gonzalez, a known

methamphetamine dealer, entered Landeros’ apartment while he was under police

surveillance. Gonzalez informed law enforcement officers that he had purchased

methamphetamine while inside. A subsequent search of the dwelling uncovered

approximately 850 grams of methamphetamine, a loaded shotgun, and $2,800 in cash

stored in a bedroom Landeros shared with his cousin, Fabian Landeros-Beltran.

Landeros was indicted on one count of conspiracy to traffic in methamphetamine

in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and § 846, and one count of possession

of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C.

§ 924(c)(1)(A). In March 2009, he agreed to plead guilty to the conspiracy charge in

exchange for dismissal of the firearm charge.

At his plea hearing, Landeros was asked to submit a factual basis for his plea

pursuant to Federal Rule of Criminal Procedure 11(b)(3). He denied knowing that any
-2-
methamphetamine sales had occurred in his apartment and denied benefitting from such

sales. At the same time, Landeros acknowledged that Landeros-Beltran was selling

methamphetamine and that he had accepted rent money from him.1 A statement from the

prosecutor establishing the amount of methamphetamine in Landeros’ constructive

possession was also before the district court. Finding a factual basis for each element of

conspiracy, the court accepted the plea.

A Presentence Investigation Report (“PSR”) was then prepared, detailing the

evidence against Landeros. This evidence included a recitation of facts from the

prosecutor’s charging documents, as well as proffered statements from Gonzalez and

another local drug dealer that implicated Landeros in drug distribution activities.

Landeros did not object to these findings. The PSR calculated a sentencing range of 135

to 168 months.

At sentencing, the district court adopted this calculation but granted the

government’s request for a downward departure. It further opted to vary Landeros’

sentence downward and imposed a term of imprisonment of 115 months. After

specifying the conditions of Landeros’ confinement and supervised release, the district

court stated: “That is the sentence the Court intends to impose in this matter. Does the

defendant have anything to say before the Court imposes this sentence?” Landeros

offered a brief apology, and the court concluded the proceeding. A judgment was entered

1
Landeros also conceded that he was present when Gonzalez purchased
methamphetamine at the apartment.

-3-
shortly thereafter. This appeal was then commenced.

II

Federal Rule of Criminal Procedure 11(b)(3) provides: “Before entering judgment

on a guilty plea, the court must determine that there is a factual basis for the plea.” This

rule is intended “to ensure the accuracy of the plea through some evidence that a

defendant actually committed the offense.” United States v. Keiswetter, 860 F.2d 992,

995 (10th Cir. 1988); see also United States v. Thomas, 367 F.3d 194, 197 (4th Cir. 2004)

(“[Rule 11(b)(3)] ensures that the court make clear exactly what a defendant admits to,

and whether those admissions are factually sufficient to constitute the alleged crime.”

(quotations omitted)). When a defendant fails to object on Rule 11 grounds at

sentencing, we review a district court’s acceptance of his plea for plain error. United

States v. Edgar, 348 F.3d 867, 871 (10th Cir. 2003). “Plain error occurs when there is

(1) error, (2) that is plain, which (3) affects the defendant’s substantial rights, and which

(4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

United States v. Taylor, 514 F.3d 1092, 1100 (10th Cir. 2008).

Landeros argues that the district court’s acceptance of his plea constituted plain

error because there was an insufficient factual basis to support his conviction. He

specifically contends that his “tortured colloquy” with the judge during his plea hearing

failed to demonstrate the four elements of conspiracy: “(1) that two or more persons

agreed to violate the law, (2) that the defendant knew at least the essential objectives of

the conspiracy, (3) that the defendant knowingly and voluntarily became a part of it, and
-4-
(4) that the alleged coconspirators were interdependent.” United States v. Sells, 477 F.3d

1226, 1235 (10th Cir. 2007) (quotations and alteration omitted).

Yet, nothing in Rule 11(b)(3) restricts a district court’s consideration of a factual

basis to its plea colloquy with the defendant alone. United States v. Moran, 452 F.3d

1167, 1171 (10th Cir. 2006). We agree with the government that, when read in

combination with the prosecutor’s statements and the plea colloquy, the PSR provides a

sufficient factual basis for the court to accept Landeros’ plea. At the beginning of the

hearing, the prosecutor established that the amount of methamphetamine in Landeros’

constructive possession totaled over 1.5 kilograms. Landeros admitted that Landeros-

Beltran was selling drugs, that he was present when Gonzalez purchased

methamphetamine, and that he accepted drug proceeds from Landeros-Beltran to pay his

rent. The PSR provided greater detail regarding Landeros’ conduct, including statements

made by Gonzalez and another local drug dealer connecting Landeros and Landeros-

Beltran to drug-dealing operations. According to Gonzalez, the two cousins transported

methamphetamine between Arizona and Colorado every two to three months.2

We disagree, however, that this evidence proves that a Rule 11 violation did not

occur. “Rule 11 . . . contemplates the existence of the factual basis for the plea both

when the court accepts the plea, and when it enters judgment on it.” Id. (emphasis

added). A district court may look to evidence submitted after a guilty plea has been

2
Gonzalez also stated that Landeros planned and oversaw these trips.

-5-
accepted to determine whether a factual basis for the plea continues to exist; if later

evidence destroys the court’s initial factual-basis determination, it may withdraw its

acceptance of a guilty plea. Id. But a judge’s initial determination must be based on

information in the record at the time the plea is made. See Keiswetter, 860 F.2d at 996

(“Rule 11[(b)(3)] [is based on] a subjective, rather than objective standard.” (referring to

the substantive predecessor of Rule 11(b)(3))).

Because the PSR was not prepared until after Landeros’ guilty plea was accepted,

we cannot look to it in considering whether the district court correctly determined there

was a factual basis for accepting the plea. We can, however, look to the PSR in

evaluating whether any error affected Landeros’ substantial rights. See United States v.

Vonn, 535 U.S. 55, 59 (2002) (“[A] reviewing court may consult the whole record when

considering the effect of any error on substantial rights.”); see also United States v.

Garcia, 587 F.3d 509, 520 (2d Cir. 2009) (“While the existence of a factual basis for the

plea is determined on the basis of the record as of the plea proceeding, in assessing

whether the error affects substantial rights, the record as a whole becomes relevant.”

(citations omitted)). When the record as a whole demonstrates a sufficient factual basis

for a plea, any Rule 11(b)(3) error committed by the district court is harmless. See

United States v. Adams, 961 F.2d 505, 511-13 (5th Cir. 1992).3

3
In United States v. Dominguez Benitez, the Supreme Court held that “a
defendant who seeks reversal of his conviction after a guilty plea, on the ground that the
district court committed plain error under Rule 11, must show a reasonable probability
Continued . . .
-6-
 As noted supra, the full record provides a sufficient factual basis to support

Landeros’ guilty plea. Thus, any Rule 11(b)(3) error committed by the district court did

not affect his substantial rights and does not warrant reversal of the conviction.

III

Landeros also contends he was denied the right of allocution. Federal Rule of

Criminal Procedure 32(i)(4)(A)(ii) requires a district court to “address the defendant

personally in order to permit the defendant to speak or present any information” before

imposing a sentence. Because allocution is vital to the sentencing process, denial of this

right requires reversal of the sentence imposed. Green v. United States, 365 U.S. 301,

304 (1961) (plurality opinion) (“As early as 1689, it was recognized that the court’s

failure to ask the defendant if he had anything to say before sentence was imposed

required reversal.”); United States v. Jarvi, 537 F.3d 1256, 1262 (10th Cir. 2008); (“[A]

denial of allocution is per se prejudicial and requires a remand without an investigation of

that, but for the error, he would not have entered the plea.” 542 U.S. 74, 83 (2004).
However, the Dominguez Benitez rule is limited to evaluating “the effect of [an] omitted
warning on a defendant’s decision” to enter a guilty plea—that is, an error affecting the
knowing and voluntary nature of a defendant’s plea. Id. at 84.

Rule 11(b)(3) errors are distinct from the type of error addressed in Dominguez
Benitez: A district court must reject a defendant’s plea if it lacks a factual basis, even if
the plea is knowingly and voluntarily made. See Libretti v. United States, 516 U.S. 29,
42 (1995) (whether there is a factual basis for a plea “is a distinct inquiry” from whether
a plea was knowingly and voluntarily made). Thus, whether Landeros would have plead
guilty in spite of any Rule 11(b)(3) error is irrelevant; the issue is whether the district
court’s alleged error in accepting the plea had a substantial effect on his rights.
Accordingly, the Dominguez Benitez rule does not apply.

-7-
prejudice.”); United States v. Muniz, 1 F.3d 1018, 1025 (10th Cir. 1993) (“The right to

allocution is an integral part of the sentencing process which if not fully afforded to the

defendant requires a reversal of the sentence imposed.”), cert. denied, 510 U.S. 1002

(1993).4

4
Despite our repeated pronouncements that allocution denials are per se
prejudicial, this circuit has yet to formally adopt a standard of review for alleged
violations of Rule 32’s right of allocution. In an unpublished decision, a panel of this
court recently held that “we review de novo whether a district court denied a defendant
his right to speak at sentencing,” notwithstanding the lack of an objection below. United
States v. Beltran-Garcia, 338 F. App’x 765, 770, 774 (10th Cir. 2009) (unpublished).
Likewise, our previous opinions concerning defendant allocution implicitly applied de
novo review. See Jarvi, 537 F.3d at 1261-62; United States v. Archer, 70 F.3d 1149,
1151-52 (10th Cir. 1995); Muniz, 1 F.3d at 1025.

The Supreme Court has not expressly adopted a standard of review for allocution
errors. See Green, 365 U.S. at 304-05. Although Fed. R. Crim. P. 52(b) requires that
most errors raised for the first time on direct appeal are subject to plain-error review, the
Court has left open the possibility that Rule 52(b) might not apply in a limited class of
cases. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009); United States v.
Olano, 507 U.S. 725, 732 (1993).

Our sibling circuits have reached conflicting conclusions regarding whether Rule
52(b) applies in the allocution context. Both the Sixth and the Eleventh Circuits review
unpreserved allocution errors de novo, reasoning that these errors affect the legality of the
sentencing process. United States v. Wolfe, 71 F.3d 611, 614 (6th Cir. 1995) (“[B]ecause
the right of the defendant and his counsel to allocute at sentencing is given in Fed. R.
Crim. P. 32, when the defendant alleges he was denied this right he will usually be
arguing that his sentencing procedures were deficient as a matter of law.” (emphasis
added)); United States v. Taylor, 11 F.3d 149, 151 (11th Cir. 1994) (“We review
questions involving the legality of a criminal sentence de novo.”). Other circuits review
allocution claims for plain error, but presume prejudice if there is any possibility a
defendant could have received a lesser sentence if properly provided the opportunity to
allocute. See United States v. Luepke, 495 F.3d 443, 451 (7th Cir. 2007); United States
v. Reyna, 358 F.3d 344, 351-52 (5th Cir. 2004); United States v. Adams, 252 F.3d 276,
287 (3d Cir. 2001). Still others review for plain error without presuming prejudice, or for
Continued . . .
-8-
 At the sentencing hearing, Landeros was afforded an opportunity to speak only

after the district court conducted a lengthy recitation of his sentence. Toward the end of

the hearing, the court announced:

Pursuant to the Sentencing Reform Act of 1984 and those factors set
forth in Title 18 United States Code Section 3553(a), it is and will be the
judgment of this Court that the defendant, Blas Landeros, is hereby
committed to the custody of the Bureau of Prisons to be imprisoned for a
term of 115 months.

Upon release from imprisonment this defendant shall be placed on
supervised release for a term of five years . . . .

(emphasis added). Having made these seemingly conclusive pronouncements, the court

then described the conditions of confinement and supervised release, informed Landeros

of his right to appeal, and stated: “That is the sentence the Court intends to impose in this

matter. Does the defendant have anything to say before the Court imposes this

sentence?” Landeros responded briefly: “Yes. I wish to apologize to those present. . . .

harmless error. See United States v. Cole, 27 F.3d 996, 998 (4th Cir. 1994) (reviewing
for plain error); United States v. Carper, 24 F.3d 1157, 1162 (9th Cir. 1994) (reviewing
for harmless error).

The parties do not substantively analyze the applicability of Rule 52(b), and we
decline to decide this issue when it can be avoided on the record before us. Assuming
arguendo plain error applies, that standard is met here. As noted, our prior precedent
does make clear that allocution errors are per se prejudicial. Jarvi, 537 F.3d at 1261.
Consequently, to the extent Rule 52(b) applies, we will examine only whether “there is
(1) error, (2) that is plain, which . . . [(3)] seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Taylor, 514 F.3d at 1100. As our discussion
infra demonstrates, the district court’s legal error in adjudging Landeros’ sentence before
providing him with the opportunity to allocute was plain and seriously affected the
fairness of his judicial proceedings.

-9-
I didn’t make those round trips that have been mentioned. And it was my cousin that

brought me [to Wyoming]. That’s all.” Without formally imposing a sentence, the court

concluded the proceeding. A judgment imposing a sentence of 115 months’

imprisonment was filed six days later.

An almost identical factual situation came before the Seventh Circuit in United

States v. Luepke. At Luepke’s sentencing hearing, the district court had discussed its

rationale for fixing a sentence in the middle of the applicable guidelines range and stated,

“[A]ccordingly . . . the defendant is committed to the custody of the Bureau of Prisons for

imprisonment for a term of 240 months.” Luepke, 495 F.3d at 445 (quotation omitted).

After detailing Luepke’s conditions of confinement and supervised release, the court

continued, “[B]efore imposing any sentence in this matter I will call upon the defendant

for those matters which he would like to bring to the Court’s attention.” Id. (quotation

and emphasis omitted). Luepke gave a brief apology, and then the court asked whether,

“before . . . imposing the sentence as previously announced,” defense counsel had any

remaining issues to discuss. Id. (quotation and emphasis omitted). Defense counsel

made a few comments, after which the court reminded him: “[W]e’re not through yet. I

haven’t imposed the sentence.” Id. (quotation and emphasis omitted). Concluding the

proceeding, the court stated, “[A]ll right . . . the Court does impose that sentence as

previously announced.” Id. (quotation omitted, second alteration in original).

Based on this sequence of events—and, in particular, the highly conclusive

language used by the district court—the Seventh Circuit held that Luepke was denied a
-10-
meaningful allocution. It reasoned that the purposes of allocution are not served simply

because “at some point before the close of a sentencing proceeding, a defendant is invited

to speak.” Id. at 450. Instead, a district court “actually must take steps to communicate

effectively to the defendant that, through his statement, he has a meaningful opportunity

to influence the sentence.” Id. (emphasis omitted). Belatedly inviting the defendant to

speak after announcing his sentence does not satisfy this standard, even if the sentence

has yet to be formally imposed. The Luepke court reasoned that, when a defendant is

invited to speak after a sentence has been adjudged, the defendant has “little incentive to

share his thoughts on the matter of a sentence that he ha[s] every reason to believe ha[s]

already been decided.” Id. In fact, “it would be quite reasonable for a defendant in such

a situation to conclude that a manifestation of any disagreement with the court at that

juncture would be interpreted as disrespectful and warranting additional sanctions.” Id.

Accordingly, if a district court adjudges a sentence before the defendant has an

opportunity to speak, 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. at

448 (quotation omitted).

This reasoning is grounded in longstanding Supreme Court precedent. In Green, a

plurality of the Court affirmed that Rule 32 provides a defendant with a personal right to

allocute. Recognizing that “[t]he most persuasive counsel may not be able to speak for a

defendant as the defendant might, with halting eloquence, speak for himself,” Green held

-11-
that merely permitting defense counsel to speak falls short of Rule 32’s dictate.5 365

U.S. at 304. Instead, “trial judges should leave no room for doubt that the defendant has

been issued a personal invitation to speak prior to sentencing.” Id. at 305 (emphasis

added).

A majority of the Court reiterated this requirement the following year. In Hill v.

United States, it explained: “[In Green,] eight members of the Court concurred in the

view that Rule 32[] requires a district judge before imposing [a] sentence to afford every

convicted defendant an opportunity personally to speak in his own behalf.” 368 U.S.

424, 426 (1962). Although the majority concluded that allocution errors generally do not

constitute grounds for habeas relief under 28 U.S.C. § 2255, it reaffirmed Green’s rule in

no uncertain terms: “There thus remains no doubt as to what . . . Rule [32] commands”

with respect to allocution.6 Hill, 368 U.S. at 426. Hill also reaffirmed the rule adopted in

Van Hook v. United States, 365 U.S. 609 (1961) (per curiam)—a two-sentence opinion

issued one month after Green—that the proper remedy for an allocution error raised on

5
Green dealt with an earlier version of Rule 32. In enacting the current rule,
Congress sought to solidify the conclusions reached in that case. See Luepke, 495 F.3d at
449 & n.5. Rule 32 now separates the right of a defendant to speak on his own behalf
from the right of a defendant to have counsel speak on his behalf. Compare Fed. R.
Crim. P. 32(i)(4)(A)(i), with Fed. R. Crim. P. 32(i)(4)(A)(ii).
6
The dissent further remarked: “[D]ue observance of the requirements of Rule
32[], resting as they do upon the anciently recognized right of a defendant to speak to the
court before sentence is imposed, is important to the proper administration of justice in
the federal courts.” Id. at 474-75 (Black, J., dissenting).

-12-
direct appeal is to remand for resentencing. Hill, 368 U.S. at 429 n.6.

Our most recent pronouncement on the issue of allocution came in the 2008 case

of United States v. Jarvi. We held there that a defendant “has a broad right to present any

information to mitigate [his] sentence.” Jarvi, 537 F.3d at 1262 (quotations omitted). A

court therefore commits reversible error when it prevents a defendant from making his

“best case” for a lenient sentence. Id. Although allocution does not encompass a right to

re-argue the merits of a case, Muniz, 1 F.3d at 1025, a defendant “is entitled to have

considered—at least once—his arguments for mitigation of sentence,” Jarvi, 537 F.3d at

1262.

Jarvi relied largely on the premise that trial courts must comply with the substance

of Rule 32, rather than the mere form of the rule. See 537 F.3d at 1261-62. As the

Seventh Circuit noted in Luepke, “[A]side from its practical role in sentencing, the right

[of allocution] has value in terms of maximizing the perceived equity of the [sentencing]

process.” 495 F.3d at 451 (quotation and emphasis omitted). Providing a defendant with

a meaningful opportunity to speak on his own behalf advances the public perception of

fairness.7 Consequently, a sentencing court undermines its own legitimacy when it

invites a defendant to speak only after making clear that his sentence is a foregone

7
We note that there are additional benefits to defendant allocution. It gives the
defendant an opportunity to apologize and express remorse, supplies a forum in which
defendants may challenge societal injustice, and may provide answers to victims’
questions regarding the crime. See Mary Margaret Giannini, Equal Rights for Equal
Rites?: Victim Allocution, Defendant Allocution, and the Crime Victims’ Rights Act, 26
Yale L. & Pol’y Rev. 431, 478-81 (2008).

-13-
conclusion. See Adams, 252 F.3d at 288 (concluding that denial of the right to allocute is

the kind of error that “impact[s] the fairness, integrity or public reputation of judicial

proceedings” (quotations omitted)). Although courts need not follow a prewritten script,

they must “leave no room for doubt that the defendant has been issued a personal

invitation to speak prior to sentencing.” Green, 365 U.S. at 305.8 When a sentencing

court adjudges a sentence prior to allocution, Green’s mandate is unsatisfied.

By definitively announcing Landeros’ sentence before providing him with an

opportunity to speak on his own behalf, the district court prematurely adjudged his

sentence. The court’s conclusive statements effectively communicated to Landeros that

his sentence had already been determined, and that he would not have a meaningful

opportunity to influence that sentence through his statements to the court.

Similarly, the court’s later remark that it merely “intended” to impose this

sentence did not cure its initial error. This back-pedaling failed to indicate that the court

would genuinely reconsider the adjudged sentence in light of any remarks made by the

defendant. We ultimately conclude that Landeros’ right of allocution was violated, and

that we must vacate his sentence. In doing so, we echo the sentiments of our sibling

circuit: “Because the sentencing decision is a weighty responsibility, the defendant’s

8
“It will normally be preferable for a district court to allow the defendant and his
counsel to speak before ruling on the objections and passing sentence . . . because such a
sequence enhances the perception that the judge is being impartial.” Luepke, 495 F.3d at
615. Nonetheless, providing defendants with the opportunity to speak only after ruling
on their objections to sentencing matters does not—in and of itself—violate a defendant’s
allocution rights. See Wolfe, 71 F.3d at 614-15.

-14-
right to be heard must never be reduced to a [mere] formality . . . . [C]ourts must

continue to be cautious to avoid the appearance of dispensing assembly-line justice.”

United States v. Barnes, 948 F.2d 325, 331 (7th Cir. 1991).

IV

For the foregoing reasons, we AFFIRM Landeros’ conviction, but VACATE his

sentence and REMAND to the district court for resentencing consistent with this opinion.

-15-