United States v. Bustamante-Conchas

FILED
United States Court of Appeals
Tenth Circuit

August 8, 2016
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 15-2025
MIGUEL BUSTAMANTE-
CONCHAS,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 1:13-CR-02028-JAP-2)

Todd A. Coberly, Coberly & Martinez, LLLP, Santa Fe, New Mexico, for
Appellant.

Sean J. Sullivan, Assistant United States Attorney (Damon P. Martinez, United
States Attorney, with him on the brief), Office of the United States Attorney,
Albuquerque, New Mexico, for Appellee.

Before TYMKOVICH, Chief Judge, LUCERO, and HOLMES, Circuit Judges.

TYMKOVICH, Chief Judge.

Miguel Bustamante-Conchas was convicted on drug distribution charges

and sentenced to 240 months in prison. At sentencing the district court found that
Bustamante-Conchas was responsible for a significant amount of drugs and for a

firearm in the possession of a co-conspirator, and then after a lengthy hearing

sentenced him before he could speak on his behalf to the court. He challenges on

appeal the district court’s factual findings at sentencing, as well as the court’s

failure to allow him to allocute before sentencing.

We conclude the factual findings are supported by the record and justify the

below-guideline sentence imposed by the court. Although the court should have

allowed Bustamante-Conchas to allocute, any error was not plain. We therefore

AFFIRM the sentence.

I. Background

A. Factual Background

After immigrating to the United States in 2007, Bustamante-Conchas

formed a heroin trafficking conspiracy with a friend, Baltazar Granados. Before

their 2013 arrest by the DEA, the pair often assisted customers in the distribution

of kilograms of heroin in the Albuquerque, New Mexico, area. They also cooked

heroin at Granados’s home, which he shared with his wife, Olga Fabiola Rosales-

Acosta. At Bustamante-Conchas’s direction, Granados delivered heroin in small

quantities to various customers, and collected the resulting cash payments. For

some of the time during the conspiracy, Bustamante-Conchas and Granados had

another partner known as “Edgar.” Eventually, Edgar left the conspiracy, but he

continued to visit the Granados’s home.

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 Bustamante-Conchas obtained heroin from multiple sources before his

arrest. To facilitate the enterprise, Bustamante-Conchas allowed two sources,

Joel Nunez-Haros and Pablo Felix-Sicairos, to use various homes he controlled in

Albuquerque. The first of these homes was one Bustamante-Conchas had rented

himself. Rather than live in the home, however, Bustamante-Conchas allowed

Nunez-Haros and Felix-Sicairos to store heroin and cash in the home for

safekeeping. When Bustamante-Conchas, Granados, and the pair of suppliers

were arrested in 2013, the police found over one-hundred grams of heroin and

nearly $90,000 in cash at the residence.

The second home, which Bustamante-Conchas owned, was located nearby.

Agents also searched this home and found another one-hundred grams of heroin

and other items commonly used in the drug trade.

A third home was rented by Granados’s wife because Bustamante-Conchas

wanted a home with a garage. After searching this residence, agents found nearly

nine kilograms of heroin.

Agents also searched Granados’s home, where they found 1.17 kilograms of

heroin and a Glock pistol.

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 B. Procedural Background

After Bustamante-Conchas’s co-defendants signed plea agreements, the

government obtained a superceding indictment. That indictment charged

Bustamante-Conchas with federal drug and firearm charges that, if proven, would

require a ten-year mandatory minimum sentence. After a week-long trial, the

district court dismissed the firearm charge and presented the remaining charges to

the jury. The jury found Bustamante-Conchas guilty of conspiracy to distribute

and intent to distribute one kilogram or more of heroin.

Prior to sentencing, Bustamante-Conchas’s counsel presented extensive

personal-history evidence regarding his unstable childhood, when he was often

hungry and in need of adequate clothing. The district court heard evidence that

Bustamante-Conchas’s uncles had abused him, and that he had subsequently

developed an alcohol abuse problem. In addition, Bustamante-Conchas’s first

child had died shortly after birth.

At the sentencing hearing, Bustamante-Conchas challenged several of the

factual findings in the presentence report, including the drug quantity

determination, which included all drugs and cash found at the three properties

discussed above. His attorney cross-examined government witnesses and argued

for the minimum, ten-year sentence, but the district court neglected to permit

Bustamante-Conchas to make a statement to the court as required by the Federal

Rules of Criminal Procedure. Fed. R. Crim. P. 32(i)(4)(A)(ii). Under the

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Guidelines, Bustamante-Conchas’s sentencing range was 292 to 365 months of

incarceration. In making this determination, the district court agreed with the

PSR and attributed all heroin and cash to Bustamante-Conchas. 1 The court also

agreed with the PSR’s two-level enhancement based on Granados’s firearm

possession. The court then sentenced Bustamante-Conchas to a below-guidelines

range of 240 months. To justify the downward variance, the district court

specifically noted Bustamante-Conchas’s harsh upbringing and the unfortunate

circumstances of his childhood. The district court also imposed a $100,000 fine.

II. Analysis

Bustamante-Conchas contends the district court erred in (1) attributing

excess drug quantities to him for purposes of his sentencing guidelines

calculation; (2) enhancing his sentence due to his co-conspirator’s possession of a

firearm; and (3) failing to allow him to allocute before sentencing.

A. Quantity of Drugs

Bustamante-Conchas claims the district court improperly attributed over

twelve kilograms of heroin to him at sentencing. We review sentences imposed

by the district court for abuse of discretion. See United States v. Zamora-

Solorzano, 528 F.3d 1247, 1249–50 (10th Cir. 2008). In addition, we review the

1
The district court converted the cash to its heroin equivalent, resulting in
a final total of over twelve kilograms.

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district court’s finding of facts during sentencing for clear error. See United

States v. Kitchell, 653 F.3d 1206, 1226 (10th Cir. 2011).

The sentencing court may take into account “relevant conduct” of the

defendant, which may go “beyond simply the conduct for which the defendant

was convicted.” United States v. Green, 175 F.3d 822, 836–37 (10th Cir. 1999);

see also USSG § 1B1.3. In the case of “jointly undertaken criminal activity,” the

Guidelines allow the district court to take into account “all reasonably foreseeable

acts and omissions of others in furtherance of the [criminal activity]”. USSG

§ 1B1.3(a)(1). To do this, the district court must undertake a two-step inquiry:

first, it must determine “the scope of the criminal activity the particular defendant

agreed to jointly undertake”; second, it must determine whether the “conduct of

others was both in furtherance of . . . and reasonably foreseeable in connection

with . . . the [criminal activity].” Id. cmt n.2. The district court must make

particularized findings as to both of these elements. See United States v.

Figueroa-Labrada, 720 F.3d 1258, 1267 (10th Cir. 2013). Bustamante-Conchas

claims the district court failed to make a particularized finding about the scope of

the criminal activity.

But to warrant appellate review, an argument must have been properly

preserved below by the appellant. See Richison v. Ernest Grp., Inc., 634 F.3d

1123, 1127–28 (10th Cir. 2011). If an argument was not presented to the district

court out of neglect, we generally find it forfeited. See id. at 1128. We review

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forfeited arguments for plain error, but only if the appellant asks for plain error

review in this court and puts forward arguments concerning its application. See

id. at 1130–31 (“[T]he failure to do so—the failure to argue for plain error and its

application on appeal—surely marks the end of the road for an argument for

reversal not first presented to the district court.”). In the case of procedural

challenges in the district court, the appellant must have specifically objected to

the contested procedure at the appropriate time. See United States v. Mendoza,

543 F.3d 1186, 1191 (10th Cir. 2008) (“A party must specifically object to the

district court’s procedure in order to preserve that issue for review.”); see also

United States v. Romero, 491 F.3d 1173, 1177 (10th Cir. 2007).

Bustamante-Conchas never objected to the district court’s alleged failure to

make a scope finding. When asked at oral argument where such an objection was

made, Bustamante-Conchas’s appellate counsel could not provide a specific cite

to the record. In fact, appellate counsel conceded at argument that Bustamante-

Conchas’s trial counsel did not raise the scope issue at sentencing. The record

confirms this: after the district court announced its findings regarding the quantity

of drugs, Bustamante-Conchas did not object based on any lack of a scope

finding. And in pre-hearing documents—which counsel relied on and referenced

during the hearing before the district court—Bustamante-Conchas framed his

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arguments in terms of foreseeability, not scope. 2 Without a timely objection on

the specific ground now argued, the issue of the district court’s scope finding was

forfeited. And because Bustamante-Conchas does not argue for plain error review

on appeal, we will not address the merits of his claim.

B. Dangerous Weapon Enhancement

The district court enhanced Bustamante-Conchas’s sentence for possessing

a dangerous weapon in connection with a drug offense. See USSG § 2D1.1(b)(1).

The court found that Bustamante-Conchas’s co-conspirator, Granados, had

possessed a firearm in connection with the drug conspiracy. Bustamante-Conchas

argues the district court relied on a clearly erroneous fact in making this

determination.

To apply the dangerous weapons enhancement, the government need not

prove that “the defendant personally possessed the firearm.” United States v.

Topete-Plascencia, 351 F.3d 454, 458 (10th Cir. 2003). Rather, it must show

only that a co-defendant or co-conspirator possessed such a weapon, and that such

possession was “known to the defendant or reasonably foreseeable to him.” Id.

(quoting United States v. Smith, 131 F.3d 1392, 1400 (10th Cir. 1997)). The

2
One of the referenced documents, Document 333 on the district court’s
docket, was filed under seal. We have reviewed this document, and—without
revealing its contents—we are satisfied that it framed Bustamante-Conchas’s
argument in terms of foreseeability and did not raise a scope objection.

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weapon must be present during the offense, and it must not be clearly improbable

that the weapon was connected with the offense. USSG § 2D1.1(b)(1) cmt n.11.

When making this determination, the district court may consider evidence

that would be inadmissible at trial, “provided that the information has sufficient

indicia of reliability to support its probable accuracy.” Id. § 6A1.3(a). Such

evidence may include hearsay, so long as it “bear[s] some minimal indicia of

reliability.” United States v. Cook, 550 F.3d 1292, 1296 (10th Cir. 2008) (quoting

United States v. Browning, 61 F.3d 752, 755 (10th Cir. 1995)) (internal quotation

marks omitted). The evidence supporting the hearsay need only be “sufficient to

vest some minimal confidence in the reliability” of the evidence. Id. at 1297. We

review the district court’s factual findings for clear error. See United States v.

Sallis, 533 F.3d 1218, 1122–23 (10th Cir. 2008).

At his arrest, the officers seized a Glock pistol from Granados’s home.

Granados’s wife, Rosales-Acosta, spoke to investigators about the origin of the

gun. She told investigators that her husband had previously stated that

Bustamante-Conchas had given him the gun as a form of protection. Specifically,

Bustamante-Conchas apparently intended Granados to use the gun as protection

against Edgar, the former trafficking partner. Although Rosales-Acosta testified

at Bustamante-Conchas’s trial, she did not testify as to these specific facts. But

the investigator to whom she spoke did.

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 Given the evidence before it, the district court did not clearly err in finding

Granados’s possession of the weapon was both foreseeable to Bustamante-

Conchas and connected to their joint criminal enterprise. Although the testimony

regarding Granados’s gun was hearsay, the record provided ample indicia of

reliability. The district court had the opportunity to observe Rosales-Acosta

testify—albeit not about the particular firearm at issue—and judge her credibility.

We have no reason to doubt the court’s credibility determination.

In addition, other evidence in the record supported her statement. First,

Rosales-Acosta had testified that Edgar had continued to appear at her (and

Granados’s) home after Edgar left the conspiracy. Edgar’s continued presence

corroborates Rosales-Acosta’s statements to the investigator that Bustamante-

Conchas had supplied the gun as a form of protection against Edgar. Second, the

record established that Granados worked underneath Bustamante-Conchas and

often took orders from him. As the district court noted, Bustamante-Conchas’s

giving Granados a gun was “analogous to other directions” he had given him. R.

at 1622. For example, in addition to making drug deliveries and collecting cash

payments on Bustamante-Conchas’s behalf, Granados had installed a statue of the

patron saint of drug dealers, Jesus Malverde, after Bustamante-Conchas instructed

him to do so. 3 Reviewing the record, the district court believed Rosales-Acosta’s

3
Jesus Malverde is a Mexican folklore hero from the late nineteenth
century. He has been compared to Robin Hood, in that he stole from the rich and
(continued...)

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claim because it paralleled other orders Bustamante-Conchas had given Granados.

Granados’s willingness to obey Bustamante-Conchas’s orders in the past made

Rosales-Acosta’s statements more reliable.

Thus, the district court did not clearly err when it found Granados’s

possession of the gun justified a sentence enhancement for Bustamante-Conchas.

Although some of the relevant testimony was hearsay, the record provided

sufficient indicia of reliability such that the district court could use it during

sentencing.

C. Opportunity to Allocute

Finally, Bustamante-Conchas argues the district court’s failure to allow him

to allocute before sentencing constitutes reversible error. Because he failed to

raise this objection at the time of sentencing, we review for plain error. See

supra. “Plain error occurs when there is (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.” United States v. Hinson,

585 F.3d 1328, 1333 (10th Cir. 2009).

3
(...continued)
gave to the poor. Some drug dealers believe a statue of Malverde in one’s home
has the power to make drugs invisible to police. See Matt Davis, Our Blessed
Saint of Narcotics?, The Portland Mercury (Mar. 15, 2007),
http://www.portlandmercury.com/news/our-blessed-saint-of-
narcotics/Content?oid=276901; see also Manuel Roig-Franzia, In the Eerie
Twilight, Frenetic Homage To a Potent Symbol, The Washington Post (July 22,
2007), http://www.washingtonpost.com/wp-
dyn/content/article/2007/07/21/AR2007072101366.html.

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 The Federal Rules of Criminal Procedure guarantee a defendant the right to

speak to the court before being sentenced. See Fed. R. Crim. P. 32(i)(4)(A)(ii)

(“Before imposing sentence, the court must . . . permit the defendant to speak or

present any information to mitigate the sentence . . . .”). And a denial of this

right is generally “not subject to harmless-error analysis” on de novo review.

United States v. Frost, 684 F.3d 963, 979 (10th Cir. 2012). Nonetheless, we have

held that such a denial does not always result “in a complete miscarriage of

justice, nor an omission inconsistent with the rudimentary demands of fair

procedure.” United States v. Mendoza-Lopez, 669 F.3d 1148, 1153 (10th Cir.

2012). Thus, an error by the district court with respect to allocution does not

necessarily warrant reversal under plain error review. See, e.g., Frost, 684 F.3d

at 979 (finding allocution error still needed to meet all four prongs of the plain

error test to warrant reversal); see also United States v. Reyna, 358 F.3d 344, 352

(5th Cir. 2004) (“We decline to adopt a blanket rule that once prejudice is found

under the rule stated above, the error invariably requires correction. As

recognized by the Supreme Court in Hill [v. United States, 368 U.S. 424, 428

(1962)], denial of the right to allocution ‘is not a fundamental defect that

inherently results in a complete miscarriage of justice nor an omission

inconsistent with the rudimentary demands of fair procedure.’”). But see United

States v. Adams, 252 F.3d 276, 287–88 (3d Cir. 2001) (presuming prejudice and

satisfaction of the plain error test from a denial of allocution).

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 Bustamante-Conchas contends that because the right to allocute is so

fundamental, its denial should automatically result in reversal—even under a

plain error standard. As support, he cites our recent opinion in United States v.

Craig, in which we stated in direct review of sentencing that “a complete denial

of allocution” requires reversal. 794 F.3d 1234, 1237 (10th Cir. 2015). In

support of that proposition, however, we cited cases that reviewed such errors de

novo, not for plain error. Id. (citing United States v. Castillo, 501 F. App’x 848,

849 (10th Cir. 2012) (“We review de novo whether the district court complied

with its Rule 32 obligations.”)). So the plain error test still must be met, as Frost

and Mendoza-Lopez require.

The government concedes that Bustamante-Conchas meets the first three

prongs of the plain error test, but contends he cannot meet the fourth. We agree.

Under the fourth prong of the test, we must examine “the seriousness of the

error . . . in the context of the case as a whole.” Mendoza-Lopez, 669 F.3d at

1153. In the allocution context, part of this inquiry is what the defendant “would

have said to the district court” had he been given the opportunity to speak. Frost,

684 F.3d at 980 (quoting United States v. Rausch, 638 F.3d 1296, 1302 (10th Cir.

2011)).

Looking at the case as a whole, we do not believe the district court’s error

was particularly egregious or affected the public reputation of the proceeding.

The district court heard arguments regarding Bustamante-Conchas’s defenses, and

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his request for a low-end sentence. The court invited the parties to comment on

the sentence multiple times. And after hearing such arguments, the district court

imposed a sentence well-below Bustamante-Conchas’s advisory guidelines range,

varying downward from a range of 292–365 months to an ultimate sentence of

240 months. Bustamante-Conchas does not direct us to any additional

information he would have provided to the district court had he been given the

opportunity to allocute. Although he acknowledges that he must meet the plain

error standard, Bustamante-Conchas devotes only a few pages in his brief to this

issue, and makes little attempt to show how his claim satisfies the fourth prong of

the test.

Because we find the district court’s failure to allow allocution did not rise

to the level of plain error, we will not remand for resentencing.

III. Conclusion

We AFFIRM the district court’s sentence.

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15-2025, United States v. Bustamante-Conchas
LUCERO, J., concurring in part and dissenting in part.

I concur in all but Section II.C of the majority opinion, in which my colleagues

hold the district court’s failure to provide Bustamante-Conchas an opportunity to allocute

at his sentencing hearing did not seriously affect the fairness, integrity, or public

reputation of judicial proceedings. (Majority Op. 11-14.) In my view, the fourth prong

of the plain error test is satisfied when, absent extraordinary circumstance, a district court

wholly neglects its duty to permit allocution. This much is required by our circuit

precedent.

The right to allocute is not a mere formality. Prior to sentencing a defendant to a

term of imprisonment, we require that a sentencing judge “address the defendant

personally in order to permit the defendant to speak.” Fed. R. Crim. P. 32(i)(4)(A)(ii).

This requirement “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.” United States v. Landeros-Lopez,

615 F.3d 1260, 1267 n.7 (10th Cir. 2010). “Providing a defendant with a meaningful

opportunity to speak on his own behalf advances the public perception of fairness.” Id. at

1267. In allowing a defendant to face his judge as an individual, we provide an

opportunity for a one-to-one conversation at the critical sentencing stage.

We have previously held a district court plainly errs when a defendant is permitted

to speak only after his sentence is definitively announced. Id. at 1265-66 & n.4. In that

case, we concluded the fourth prong of the plain error test was satisfied because “a
sentencing court undermines its own legitimacy when it invites a defendant to speak only

after making clear that his sentence is a foregone conclusion.” Id. at 1267. Such a

procedure violates the Supreme Court’s mandate that a sentencing judge must “leave no

room for doubt that the defendant has been issued a personal invitation to speak prior to

sentencing.” Id. at 1266-67 (quoting Green v. United States, 365 U.S. 301, 305 (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.”

Green, 365 U.S. at 304.

If a district court’s failure to permit allocution before sentencing seriously affects

the fairness, integrity, or public reputation of judicial proceedings, a fortiori, a court’s

failure to permit any allocution at all constitutes reversible error. In both scenarios, the

purpose of allocution remains unfulfilled because a defendant has not had the opportunity

to “present to the court his plea in mitigation.” Id. Landeros-Lopez is dispositive of the

issue before us.

To be sure, our circuit precedent decrees that an allocution error is not necessarily

error per se and therefore plain, but in each of the cases in which we have excused an

allocution error, the defendant was provided a meaningful opportunity to address the

court personally at some point in the sentencing proceedings. See United States v. Frost,

684 F.3d 963, 979-80 (10th Cir. 2012) (defendant invited to allocute after announcement

of a “proposed sentence,” giving defendant “an opportunity to influence the sentence

imposed”); United States v. Mendoza-Lopez, 669 F.3d 1148, 1152-54 (10th Cir. 2012)

(defendant invited to allocute on limited subject after court announced intention to

2
sentence within Guidelines, but “heard and carefully considered Mendoza-Lopez’s

arguments for a downward departure and variance”); United States v. Rausch, 638 F.3d

1296, 1301 (10th Cir. 2011) (defendant’s supervised release revoked without allocution,

but court warned of particular consequences of violation at prior hearings and “personally

invited Mr. Rausch to speak in mitigation of sentence” at prior hearing). But that is not

the situation in this case. Bustamante-Conchas was never offered the chance to speak at

his own sentencing hearing.

The majority notes that Bustamante-Conchas received a below-Guidelines

sentence. (Majority Op. 14.) But this factor cannot be dispositive; the defendant in

Landeros-Lopez also received a downwardly variant sentence. 615 F.3d at 1262. The

majority also faults Bustamante-Conchas for failing to proffer a proposed allocution to

this court. (Majority Op. 14.) Yet no such proffer was hinted at in Landeros-Lopez.

And the majority notes that counsel spoke on behalf of Bustamante-Conchas during the

sentencing hearing. But as the Supreme Court has recognized, even “[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, 365 U.S. at 304. Permitting counsel to

speak is not a sufficient substitute for allocution.

I agree with the Seventh Circuit that “in the vast majority of cases, the denial of

the right to allocution is the kind of error that undermines the fairness of the judicial

process.” United States v. Luepke, 495 F.3d 443, 451 (7th Cir. 2007). Our court has

recognized one exception: “Where the court personally invites the defendant to present

information to mitigate his sentence, and the defendant in fact does so, fairness is not

3
seriously affected, notwithstanding the presumption of prejudice.” Frost, 684 F.3d at

980. But the failure to afford a defendant any opportunity to address the court, even a

defendant who is ultimately sentenced below the Guidelines range, seriously affects the

fairness, integrity, or public reputation of the judicial proceedings. I would reverse and

remand to the district court to allow Bustamante-Conchas an opportunity to allocute

before resentencing.

4