PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. GERARDO BENITEZ JIMENEZ, a/k/a Gerardo Martinez-Jimenez, a/k/a Francisco Romero-Marte, a/k/a Felipe Damien Ulloa, a/k/a Javier Romero, a/k/a Antonio Benetes, a/k/a Carlos Gonzales-Ulloa, a/k/a Damien Virgen-Perez, a/k/a CarlosGonzalez-Ulloa, a/k/a Gerardo BenitezJimenez, Defendant - Appellant. No. 22-5017

________________ _________________ Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:21-CR-00192-JFH-1)

________________ _________________ Kathleen Shen, Assistant Fede ral Public Defender (Virginia L. Grady, Federal Public Defender, with her on the brief), Denver, Colorado for Defenda nt – Appellant. Thomas E. Duncombe, Assistant United States Attorney (Clinto n J. Johnson, United States Attorney, with him on the brief), Tulsa, Oklahoma for Plaintiff – Appellee.

________________ _________________ Before HARTZ , BALDOCK , and BACHARACH , Circuit Judges.

________________ _________________ BALDOCK , Circuit Judge.

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### March 14, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 12 A defendant’s right to allocution at sent encing is one of the oldest and most important principles in our legal system. Green v. United States , 365 U.S. 301, 304 (1961); United States v. Jarvi , 537 F.3d 1256, 1261 (10th Cir. 2 008). Allocution serves several critical functions in the sentencing process—it is a tool for providin g information to the sentencing court, it encourages sentencing judges to show me rcy in appropriate cases, and it strengthens the credibility of the criminal justice system by requi ring sentencing judges “to personally engage” with those they sentence. United States v. Bustamante-Conchas , 850 F.3d 1130, 1136 (10th Cir. 2017) (en banc). Thus, Federal Rule of Criminal Procedure 32(i)(4)(A)(ii) obligates distri ct courts to “address the defe ndant in order to permit the defendant to speak or pres ent any information to m itigate the sentence.” Here, we consider whether a district court violates that rule when the judge stops short of “definitively announcing” a defenda nt’s sentence befo re allocution, but nonetheless implicitly limits the scope of a llocution. Because reversing under such circumstances would represent an expansion of our existi ng precedents, a case on plain error review—such as this one—is not the a ppropriate occasion for us to broaden the application of our caselaw to new circumstance s. Accordingly, we exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM the district court’s judgment based on the standard of review. I. Defendant Gerardo Benitez Ji menez is a habitual violat or of immigration law. Between 1995 and the incident that has brou ght him before us, Defendant has illegally entered the United States from hi s native Mexico and been returned there on nine previous Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 23 occasions. 1 Despite this history, De fendant illegally returned to the United States yet again, and was convicted of heroin tr afficking in Oklahoma state court. That conviction yielded an eight-year prison sentence, four of which we re suspended. As a result of this charge, the Government discovered Defendant was pres ent in the United States without status and issued an immigration detainer. Defendant co mpleted his state sentence in April 2021 and was transferred to federal custody pursuant to his immigration detain er. The Government sought and obtained an indictment charging Defendant with one count of unlawfully reentering the United States as a removed alien in violation of 8 U.S. C. § 1326. Defendant pleaded guilty without a pl ea agreement and the case proceeded to sentencing. The Probation Officer issued a presentence report (PSR) recommending an advisory guideline range of 46 to 57 months’ imprisonme nt based upon an offens e level of 17 and a criminal history category of V. Defendant filed two motio ns for a downward departure and another motion for a downward variance, each of which the Government opposed. At sentencing, the district court first adopt ed the PSR without objection and denied Defendant’s motions for a downward departur e. The district court then considered Defendant’s motion for a downward variance. Defendant’s counsel in formed the district judge he had nothing further to add to his previous argument s on the 3553(a) factors but noted that he did “know that [Defendant] would like to addr ess the court.” The district judge responded that he would “give [Defendant ] an opportunity to do that in a moment,” but then asked the Government if it had anything further to add on the subject

. When the

1 Defendant has been removed from the UnitedState on four occasions and voluntarily departed five other times. Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 34 Government indicated it did not wi sh to be heard, the district judge decided to rule on the motion for variance before afford ing Defendant the opportunity to allocute. The district judge explained that “[b]ased upon the information pr ovided by the partie s, I will not vary from the advisory guideline level as the factor s fail to separate th is defendant from the minerun [sic] of similarly situated defendan ts; therefore, defendant’s motion at docket number 38 is denied.” After making this statement, and expl aining his rationale in greater detail, the district judge i nvited Defendant to allocute. Defendant apologized for his wrongdoing and promised he would not offend ag ain. Apparently unpersuaded, the district judge sentenced Defendant to 57 months ’ imprisonment—the maximum under the guideline range. On appeal, Defendant contends the district judge violated his right to allocution at sentencing. Defendant, however, failed to object to this alleged violation before the district court. Accordingly, we review De fendant’s claim only for plain error. BustamanteConchas , 850 F.3d at 1137. “To demonstrate plai n error, a litigant must show: ‘(1) error, (2) that is plain, which (3) affects substan tial rights, and which (4) seriously affects the fairness, integrity, or public reputa tion of judicial proceedings.’” Id. (quoting United States v. Mike , 632 F.3d 686, 691–92 (10th Cir. 2011)). II. We begin by discussing the right of a llocution and briefly su rveying some of our previous treatments of the issue. Federal Ru le of Criminal Proced ure 32 “explicitly affords the defendant two rights.” Green , 365 U.S. at 304. First, a defendant has the right “to make a statement [o]n his own behalf” and se cond, a defendant has the right “to present Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 45 any information in mitiga tion of punishment.” Id. (internal quotation marks omitted). These rights are personal to the defendant a nd cannot be satisfied by the statements of counsel. Bustamante-Conchas , 850 F.3d at 1136. Consistent with these principles and the right of allocution’s long hist ory—dating back to the 17th Cent ury—we have held that “the defendant has a broad right to ‘present any information to mitigate the sentence.’” Jarvi , 537 F.3d at 1262 (emphasis in original) (quo ting Fed. R. Crim. P. 32(i)(4)(A)(ii)). Thus, our precedents cover a variety of scenarios wh ere a district court violates the right of allocution. We start our survey with the clearest form of violation. As we recognized in Bustamante-Conchas , the right of allocution is obviousl y and indefensibly violated when the district court neglects it all together. We have never had difficu lty concluding district courts commit reversible error—even under a plain error standard of review—when they fail to “personally address [the defendant] pr ior to imposing sentence or otherwise offer him an opportunity to allocute.” Bustamante-Conchas , 850 F.3d at 1134, 1135. While a total denial of allocution serves as a clear, but perhaps extreme example of a violation of Rule 32, the right is also viol ated when the district court clearly limits the scope of material the defendant can discuss. For example, in Jarvi , we addressed a case where a district court refused to consider the defendant’s pro se motion objecting to the PSR and then ordered the defendant not to di scuss the pro se motion, or any arguments based upon it, during allocu tion. 537 F.3d at 1258–59 . We remanded the case for resentencing and held the district judge’s decision to expressly narrow the scope of matters available to the defendant for discussion duri ng allocution violated Rule 32 and the right Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 56 of allocution. Id. at 1261–62, 1264. In so doing, we emphasized that defendants have the right to discuss any matter of their choosing during allocution. Id. Similarly, in United States v. Mendoza-Lopez , we considered several potentially problematic statements that the district cour t made during sentencing. 669 F.3d 1148 (10th Cir. 2012), abrogated on other ground s by Bustamante-Conchas , 850 F.3d 1130. One of the court’s statements invited the defendant to allo cute only on the issue of where within the guidelines range he ought to be sentenced. Id. at 1150, 1152. We concluded that statement satisfied the first two prongs of th e plain error test because it “indicate[d] the court was not willing to listen to any statements or informati on [the defendant] might wish to offer in support of a sentence below the advisory Guidelines range.” Id. at 1152. We ultimately declined to remand th e case, however, based upon an understanding of the third and fourth prongs of plain error that no longer applies. See id. at 1153–54; BustamanteConchas , 850 F.3d 1130. Perhaps most common ly, a district court violates th e right of allocution when it “definitively announces” the sent ence before it affords the de fendant an op portunity to allocute. Our opinion in United States v. Landeros-Lopez , 615 F.3d 1260 (10th Cir. 2010), illustrates this point. In that case, the district judge announced that “ it is and will be the judgment of this Court that the defendant . . . is hereby committed to the custody of the Bureau of Prisons to be impris oned for a term of 115 months” before it afforded the defendant an opportun ity to allocute. Id. at 1265 (emphasis in original). In vacating and remanding the case for resenten cing, we explained district courts must effectively communicate to defendants that they have “a meaningful opportunity to influence the Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 67 sentence” through allocution. Id. at 1266 (quoting United States v. Luepke , 495 F.3d 443, 450 (7th Cir. 2007)). When district courts sp eak at sentencing with “highly conclusive language,” the district court can ensure “the right of allocution is fulfilled only if the court communicates that it w ill ‘genuinely reconsider the sent ence in light of the elicited statement.’” Id. (quoting Luepke , 495 F.3d at 448). Accordin gly, we cautioned district courts against “definitively a nnouncing” sentences before allowi ng defendants to allocute and we reminded them that “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, 1268 (citation omitted). But this does not mean the righ t of allocution is completely unfettered. Instead, our cases also show some restrict ions or limitations on the right of allocution do not constitute reversible error. For instance, a district cour t does not err when it an nounces its “intention” to impose a particular sentence on a defendant. Mendoza-Lopez is instructive here. In that case (in addition to the statements previously discussed) the district court informed the defendant of its “intention to sentence within th [e] Guideline range” recommended in the PSR before he had the o pportunity to allocute. Mendoza-Lopez , 669 F.3d at 1150 (internal quotation marks omitted). On appeal, the de fendant argued this statement ran afoul of Landeros-Lopez ’s prohibition on “definitively announci ng” sentences before allocution. See id. at 1150–52. We rejected that argument. Instead, we held “mere statement[s] of intention” were not “conclusive like those made in Landeros-Lopez ” and that district courts could announce their intention to sentence a defendant in a particular manner without violating the right of allocution. Id. at 1152. Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 78 Likewise, in United States v. Valdez-Aguirre , we held that a district court had not erred by “interspersing some comments suggesting that the announced sentence was tentative with other comments suggesting finality” prior to allocution. 861 F.3d 1164, 1167, 1169 (10th Cir. 2017). In reaching this holding, we conclude d that because the district court made “statements suggesting tent ativeness” and because “the court ultimately offered the defendant a chance to allocute before the announ cement of a ‘final sentence,’” reversal under a plain error st andard was not justified. Id. at 1170 (citation omitted). In sum, we have recognized several inst ances where a district court violates a defendant’s right to allocution. The common thread between those violations is clear or overt action by the district court. Under our controlling precedents, a violation of Rule 32 must be a total denial of allocution, an express limitation on allocution, or definitive statement of the sentence to be imposed for us to deem it reversible under plain error review. III. Defendant essentially raises two arguments on appeal. First, he claims the district court violated his right to allocute when it announced its ruling on his motion for variance by stating “I will not vary from the advisory gui deline level as the factors fail to separate this defendant from the minerun [sic] of similarly situated defendants.” See Appellant’s Br. at 8–9. The main thrust of this argument is that this statement “definitively announced” the sentence before Defendant’s allocution. See id. Second, Defendant intimates an additional, related theory of error within the context of hi s first argument: He argues the district court’s statement “clearly communicated to [him] that he would receive a guideline Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 89 sentence, thereby denying [him] the meaningful opportunity to argue fo r a variant sentence below the guidelines in his allocution.” Id. at 10. In other words, Defendant contends the district court’s statement implicitly limited the scope of allocution by conveying to him that it would be futile to argue for a se ntence below the guideline range during his allocution. We address each of these theori es in turn. A. We first consider Defendant’s contentio n that the districtcourt’s statement “definitively announced” his sent ence before he had the opportun ity to allocute. Defendant believes the district court’s use of the words “ I will not vary from the advisory guideline level ” definitively informed him that he would receive a guideline sent ence and therefore violated Rule 32 and his right to allocution. Id. at 9 (emphasis in original). We disagree. Defendant’s argument misunderstands our prohibition on district courts “definitively announcing” sentences before defe ndants allocute. De fendant premises his argument on the notion that a district court’ s use of definitive language before allocution is sufficient to establis h a rule 32 violation. Id. at 8–10. Our precedents make clear, however, that a district court’s “definitive ann ouncement” of a sentence is only reversible for plain error when it clearly and unambig uously communicates to the defendant the specific sentence he will receive before allocution. Take Landeros-Lopez —the case where we first us ed the phrase “definitively announc[e]”—for example. 615 F.3d at 1268. In that instance, we took issue with the district court’s pre-allocution statement “ it is and will be the sentence of this Court that Defendant . . . is hereby committed to be im prisoned for a term of 115 months” because Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 910 “[t]he court’s conclusive statements effectivel y communicated to [the defendant] that his sentence had already been determined” before he had a chance to speak. Landeros-Lopez , 615 F.3d at 1265, 1268 (emphasi s in original). Simply put, th e district court’s language was both definitive, demonstra ting that it had made up its mind about the sentence, and clearly conveyed a specific sentence—115 months’ incarcera tion—to the defendant. The district court’s conduct therefore qualified as a “definitive announ cement” of sentence before allocution. Likewise, United States v. Slinkard —the other allocution opinion we issue today— also tracks this principle. In Slinkard , the district court clearly communicated its unwillingness to vary from the gu ideline range before it invite d the defendant to allocute by stating: Based upon the information provided by the parties, I will not vary from the advisory guideline level as the factors fail to separa te this defendant from the minerun [sic] of similarly situated de fendants. The court finds that this defendant is a repeated and dangerous sex offender. There is no way in good conscience that I could ever allow this defendant to be among the public or near any child. Slip Op. at 2–3. At first glan ce, this may appear similar to th e district court’s conduct here. Slinkard , however, contains a key distinguishing fact that explains the difference in outcomes between the two cases: Th e sentencing guideline range in Slinkard contained only one possible sentence—life imprisonment. Id. Thus, the district court’s decision to use definitive language to communicate to th e defendant that he wo uld receive a guideline range sentence also clearly and unambiguously communicated to the de fendant the specific sentence he would receive before allocution. Id. at 6–10. Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 1011 We therefore ask the following question to resolv e this issue: Did the district court clearly and unambiguously communicate the specific sentence it would impose to Defendant when it ruled on his motion for varian ce before his allocution? The answer to this question is clearly no. Unlike Landeros-Lopez , the district court did not specifically announce the number of months Defendant woul d serve in prison befo re he allocuted. Similarly, unlike Slinkard , the district court’s statement “I will not vary from the advisory guideline level as the factors fail to separa te this defendant from the minerun [sic] of similarly situated defendants”—issued while denying Defendant’s motion for variance—

at most conveyed to Defendant that he would be sentenced somewhere within a guideline range that contained more than one possible sent ence. In this case, the applicable guideline range called for an eleven-month range with in which Defendant could be sentenced. Accordingly, even if the district court’s st atement clearly conveyed to Defendant that he would receive a guideline range sentence—a fa ct we assume with out deciding for the purposes of this analysis—it does not amount to the clear and unambig uous enunciation of a specific sentence. Therefore, the district court’s statement cannot constitute a “definitive announcement” of sentence in vi olation of Rule 32 under our precedents and is not plain

error. B. Now that we have disposed of Defendant’s first—and primary—contention, we can proceed to the related question of whether th e district court’s statement impermissibly limited the scope of Defendant’s allocution. Defendant asserts that he was denied “the meaningful opportunity to argue for a vari ant sentence below the guidelines in his Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 1112 allocution” because the district court had al ready made clear that he would receive a sentence within the guideline rang e. Appellant’s Br. at 10. This theory of error fundamentally depe nds on the inferences Defendant may have drawn from the district court’s statement “I wi ll not vary from the advisory guideline level as the factors fail to separate this defendan t from the minerun [sic] of similarly situated defendants; therefore, defendant’s motion at docket number 38 is denied.” We have previously acknowledged the ut ility of considering the possi ble inferences a defendant could draw from the district court’s statemen ts at sentencing when considering possible allocution violations. See Valdez-Aguirre , 861 F.3d at 1168–69. Based on Defendant’s framing of the issue, we are concerned with tw o possible inferences from the district court’s conduct. First, Defendant could conclude that the district court’s statement precluded him from arguing for a variant sentence entirely. Se cond, Defendant could also conclude that he could not revisit the arguments ra ised in his motion during allocution. As a threshold matter, we think sufficient s upport exists in the record to conclude that the district court’s statement at least implicitly limited the scope of Defendant’s allocution. We specifically note that Defendan t did not seek a variant sentence during his allocution and that Defendant’s counsel ack nowledged “the court’s ruling regarding the motions for departure and variance” and sought a se ntence at “the low end of the guidelines [range]” immediately following Defendant’s a llocution. Thus, we think it reasonable to conclude the district court’s statements may have discouraged Defendant from fully exercising his right to allocution. For this reason, along with those we address in our discussion of our cases below, we will assume without deciding that Defendant can satisfy Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 1213 the error prong of plain error review. Neve rtheless, as we will also explain below, Defendant cannot show that any such error was plain. We begin our analysis by no ting that the first inference finds some support in Mendoza-Lopez . Specifically, there is a certain de gree of conceptual overlap between the statement at issue here and the district court’s statement in Mendoza-Lopez inviting that defendant to allocute on “whe re within [the Guidelines] ra nge this Court should sentence” because both statements convey, to varying degr ees, that “the court was not willing to listen to any statements or information [the defe ndant] might wish to offer in support of a sentence below the advisory Guidelines range .” 669 F.3d at 1152 (first alteration in original). Nonetheless, an error is plain onl y when it is “contrary to well-settled law”— that is, it either runs afoul of the S upreme Court’s precedents or our own. United States v. Ruiz-Gea , 340 F.3d 1181, 1187 (10t h Cir. 2003) (citation omitte d). The statement we consider here falls well below th is standard. In contrast to th e district court’s statement in this case, the district court in Mendoza-Lopez affirmatively and expressly limited the scope of the defendant’s allocution because it instructed him to only discuss where within the guideline range he should be sent enced. 669 F.3d at 1152. Mendoza-Lopez never went as far as to hold it was plain error for a district court to convey the same message implicitly. Thus, even if Defendant inferre d that the district court’s de nial of his motion for variance precluded him from arguing for a variant sentence, the fact that the district court did not affirmatively prohibit him from doing so means there is no plain error under MendozaLopez

. Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 1314 Similarly, we can compare the second inference to the facts of Jarvi , where the district court expressly limited the scope of allocution by ordering the defendant to not discuss his pro se motion objecting to the PSR. 537 F.3d at 1258–59, 1261–62. Again, Jarvi did not address the issue of a district court limiting the scope of allocution by implication. And in this case , the district court did not expr essly inform Defendant that he could not discuss the argume nts he presented in his mo tion for variance during his allocution. Because neither cases nor those of the Supreme Court have held that implicit limitations on allocution are reversible, we ca nnot conclude that the district court’s statement here constitutes plain error. IV. In sum, we conclude the district c ourt did not plainly err during Defendant’s sentencing proceedings. We not e for future reference, however, that district courts would be well-advised to affirmatively inform defe ndants of the court’s w illingness to consider

any argument they wish to present during allocution. 2 See Fed. R. Crim. P. 32(i)(4)(A)(ii); Landeros-Lopez , 615 F.3d at 1266. The judgment of the district court is AFFIRMED

.

2 Sentencing is one of the mo st difficult tasks district judge s perform. While each judge has their own style of sentencing, they are neve rtheless obligated to ensu re that they adhere to the requirements of the Federal Rules of Criminal Procedure and the precedents governing sentencing. Judges will hopefully err on the side of explaining a defendant’s right to allocution clearly and indicate their w illingness to consider whatever they have to say in good faith. Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 14