FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS September 30, 2016
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-2025
MIGUEL BUSTAMANTE-CONCHAS,
Defendant - Appellant.
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ORDER
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Before TYMKOVICH, Chief Judge, KELLY, BRISCOE, LUCERO, HARTZ,
GORSUCH, HOLMES, MATHESON, BACHARACH, PHILLIPS, McHUGH, and
MORITZ, Circuit Judges.
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This matter is before the court on appellant’s Petition for Rehearing En Banc. We
also have a response from the United States. In addition, on September 9, 2016, the
appellant filed an unopposed Motion for Leave to File Reply to Appellee’s Response to
Appellant’s Petition for Rehearing En Banc.
Upon consideration, a poll was called and the request for en banc rehearing is
GRANTED limited to the issues identified below. See 10th Cir. R. 35.6 (noting the effect
of the grant of en banc rehearing is to vacate the judgment and restore the case on the
docket). The parties shall file supplemental memorandum briefs addressing these issues:
1. Is the third or fourth prong of the plain error test satisfied when a defendant is
not offered any chance to speak at his original sentencing hearing?
2. Should extraordinary circumstances serve as an exception to any answer above?
If so, what should constitute extraordinary circumstances?
3. Should a defendant be required to proffer a proposed allocution statement to
establish that an allocution error seriously affected the fairness, integrity, or public
reputation of judicial proceedings?
The appellant’s supplemental brief shall be filed on or before Monday October 31,
2016. The United States’ supplemental brief shall be filed on or before Thursday
December 1, 2016. The appellant may file an optional reply on or before Friday
December 16, 2016. Within 2 business days of the electronic filing of each brief 20 hard
copies must be received in the office of the clerk. In addition, the primary briefs shall be
limited to 20 pages in length in a 13 or 14 point font, and any reply shall be limited to 10
pages in length.
The appeal will be set for en banc hearing on Tuesday January 17, 2017 at the
Byron White United States Courthouse in Denver. The parties will be advised of the
exact time and will receive additional information regarding the hearing via separate
communication. In light of the January hearing date requests for extension of time on the
briefing are strongly discouraged.
Finally, the motion to file a reply in support of the petition for en banc rehearing is
denied as unnecessary.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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