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 Carlos 

Gonzalez-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 Federal Public Defender (Virginia L. Grady, Federal Public 

Defender, with her on the brief), Denver, Colorado for Defendant – Appellant. 

Thomas E. Duncombe, Assistant United States Attorney (Clinton 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: 1
2 

A defendant’s right to allocution at sentencing 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. 2008). Allocution serves several 

critical functions in the sentencing process—it is a tool for providing information to the 

sentencing court, it encourages sentencing judges to show mercy in appropriate cases, and 

it strengthens the credibility of the criminal justice system by requiring 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 district courts to “address the defendant in order to permit the 

defendant to speak or present any information to mitigate the sentence.” 

Here, we consider whether a district court violates that rule when the judge stops 

short of “definitively announcing” a defendant’s sentence before allocution, but 

nonetheless implicitly limits the scope of allocution. Because reversing under such 

circumstances would represent an expansion of our existing precedents, a case on plain 

error review—such as this one—is not the appropriate occasion for us to broaden the 

application of our caselaw to new circumstances. 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 Jimenez is a habitual violator of immigration law. 

Between 1995 and the incident that has brought him before us, Defendant has illegally 

entered the United States from his native Mexico and been returned there on nine previous 

Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 2
3 

occasions.1

 Despite this history, Defendant illegally returned to the United States yet again, 

and was convicted of heroin trafficking in Oklahoma state court. That conviction yielded 

an eight-year prison sentence, four of which were suspended. As a result of this charge, 

the Government discovered Defendant was present in the United States without status and 

issued an immigration detainer. Defendant completed his state sentence in April 2021 and 

was transferred to federal custody pursuant to his immigration detainer. 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 plea 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’ imprisonment based upon an offense level of 17 and a 

criminal history category of V. Defendant filed two motions for a downward departure 

and another motion for a downward variance, each of which the Government opposed. At 

sentencing, the district court first adopted the PSR without objection and denied 

Defendant’s motions for a downward departure. The district court then considered 

Defendant’s motion for a downward variance. Defendant’s counsel informed the district 

judge he had nothing further to add to his previous arguments on the 3553(a) factors but 

noted that he did “know that [Defendant] would like to address 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 United State on four occasions and voluntarily 

departed five other times. 

Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 3
4 

Government indicated it did not wish to be heard, the district judge decided to rule on the 

motion for variance before affording Defendant the opportunity to allocute. The district 

judge explained that “[b]ased upon the information provided by the parties, I will not vary 

from the advisory guideline level as the factors fail to separate this defendant from the 

minerun [sic] of similarly situated defendants; therefore, defendant’s motion at docket 

number 38 is denied.” After making this statement, and explaining his rationale in greater 

detail, the district judge invited Defendant to allocute. Defendant apologized for his 

wrongdoing and promised he would not offend again. 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 Defendant’s claim only for plain error. BustamanteConchas, 850 F.3d at 1137. “To demonstrate plain error, a litigant must show: ‘(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.’” Id. (quoting United States 

v. Mike, 632 F.3d 686, 691–92 (10th Cir. 2011)). 

II. 

 We begin by discussing the right of allocution and briefly surveying some of our 

previous treatments of the issue. Federal Rule of Criminal Procedure 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 second, a defendant has the right “to present 

Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 4
5 

any information in mitigation of punishment.” Id. (internal quotation marks omitted). 

These rights are personal to the defendant and 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 history—dating back to the 17th Century—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) (quoting Fed. R. Crim. P. 32(i)(4)(A)(ii)). Thus, 

our precedents cover a variety of scenarios where 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 obviously and indefensibly violated when 

the district court neglects it all together. We have never had difficulty concluding district 

courts commit reversible error—even under a plain error standard of review—when they 

fail to “personally address [the defendant] prior 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 violated 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 discuss the pro se motion, or any arguments 

based upon it, during allocution. 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 during allocution violated Rule 32 and the right 

Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 5
6 

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 court made during sentencing. 669 F.3d 1148 (10th 

Cir. 2012), abrogated on other grounds by Bustamante-Conchas, 850 F.3d 1130. One of 

the court’s statements invited the defendant to allocute 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 the plain error test because it “indicate[d] the 

court was not willing to listen to any statements or information [the defendant] might wish 

to offer in support of a sentence below the advisory Guidelines range.” Id. at 1152. We 

ultimately declined to remand the 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 commonly, a district court violates the right of allocution when it 

“definitively announces” the sentence before it affords the defendant an opportunity 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 imprisoned for a term of 115 months” before it afforded the 

defendant an opportunity to allocute. Id. at 1265 (emphasis in original). In vacating and 

remanding the case for resentencing, 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: 6
7 

sentence” through allocution. Id. at 1266 (quoting United States v. Luepke, 495 F.3d 443, 

450 (7th Cir. 2007)). When district courts speak at sentencing with “highly conclusive 

language,” the district court can ensure “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. (quoting Luepke, 495 F.3d at 448). Accordingly, we cautioned district 

courts against “definitively announcing” sentences before allowing 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 right of allocution is completely unfettered. Instead, our 

cases also show some restrictions or limitations on the right of allocution do not constitute 

reversible error. For instance, a district court does not err when it announces 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 opportunity to allocute. Mendoza-Lopez, 669 F.3d at 1150 (internal 

quotation marks omitted). On appeal, the defendant argued this statement ran afoul of 

Landeros-Lopez’s prohibition on “definitively announcing” 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: 7
8 

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 concluded that because the 

district court made “statements suggesting tentativeness” and because “the court ultimately 

offered the defendant a chance to allocute before the announcement of a ‘final sentence,’” 

reversal under a plain error standard was not justified. Id. at 1170 (citation omitted). 

In sum, we have recognized several instances 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 guideline 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 his 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: 8
9 

sentence, thereby denying [him] the meaningful opportunity to argue for 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 sentence below the guideline range during his 

allocution. We address each of these theories in turn. 

A. 

 We first consider Defendant’s contention that the district court’s statement 

“definitively announced” his sentence before he had the opportunity 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 sentence 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 defendants allocute. Defendant premises his 

argument on the notion that a district court’s use of definitive language before allocution 

is sufficient to establish a rule 32 violation. Id. at 8–10. Our precedents make clear, 

however, that a district court’s “definitive announcement” of a sentence is only reversible 

for plain error when it clearly and unambiguously communicates to the defendant the 

specific sentence he will receive before allocution. 

Take Landeros-Lopez—the case where we first used 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 imprisoned for a term of 115 months” because 

Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 9
10 

“[t]he court’s conclusive statements effectively 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 (emphasis in original). Simply put, the district court’s language 

was both definitive, demonstrating that it had made up its mind about the sentence, and 

clearly conveyed a specific sentence—115 months’ incarceration—to the defendant. The 

district court’s conduct therefore qualified as a “definitive announcement” 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 guideline range before it invited 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 separate this defendant from the 

minerun [sic] of similarly situated defendants. 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 glance, this may appear similar to the district court’s conduct here. 

Slinkard, however, contains a key distinguishing fact that explains the difference in 

outcomes between the two cases: The 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 the defendant that he would receive a guideline 

range sentence also clearly and unambiguously communicated to the defendant the specific 

sentence he would receive before allocution. Id. at 6–10. 

Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 10
11 

 We therefore ask the following question to resolve 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 variance 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 would serve in prison before he allocuted. 

Similarly, unlike Slinkard, the district court’s statement “I will not vary from the advisory 

guideline level as the factors fail to separate 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 sentence. In this case, the applicable guideline 

range called for an eleven-month range within which Defendant could be sentenced. 

Accordingly, even if the district court’s statement clearly conveyed to Defendant that he 

would receive a guideline range sentence—a fact we assume without deciding for the 

purposes of this analysis—it does not amount to the clear and unambiguous enunciation of 

a specific sentence. Therefore, the district court’s statement cannot constitute a “definitive 

announcement” of sentence in violation 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 the 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 variant sentence below the guidelines in his 

Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 11
12 

allocution” because the district court had already made clear that he would receive a 

sentence within the guideline range. Appellant’s Br. at 10. 

This theory of error fundamentally depends on the inferences Defendant may have 

drawn from the district court’s statement “I will not vary from the advisory guideline level 

as the factors fail to separate this defendant from the minerun [sic] of similarly situated 

defendants; therefore, defendant’s motion at docket number 38 is denied.” We have 

previously acknowledged the utility of considering the possible inferences a defendant 

could draw from the district court’s statements 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 two 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. Second, Defendant could also conclude that 

he could not revisit the arguments raised in his motion during allocution. 

As a threshold matter, we think sufficient support 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 Defendant did not seek a variant sentence during his 

allocution and that Defendant’s counsel acknowledged “the court’s ruling regarding the 

motions for departure and variance” and sought a sentence at “the low end of the guidelines 

[range]” immediately following Defendant’s allocution. 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: 12
13 

the error prong of plain error review. Nevertheless, as we will also explain below, 

Defendant cannot show that any such error was plain. 

We begin our analysis by noting that the first inference finds some support in 

Mendoza-Lopez. Specifically, there is a certain degree of conceptual overlap between the 

statement at issue here and the district court’s statement in Mendoza-Lopez inviting that 

defendant to allocute on “where within [the Guidelines] range this Court should sentence” 

because both statements convey, to varying degrees, that “the court was not willing to listen 

to any statements or information [the defendant] 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 only when it is “contrary to well-settled law”—

that is, it either runs afoul of the Supreme Court’s precedents or our own. United States v. 

Ruiz-Gea, 340 F.3d 1181, 1187 (10th Cir. 2003) (citation omitted). The statement we 

consider here falls well below this standard. In contrast to the 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 sentenced. 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 inferred that the district court’s denial 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: 13
14 

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 expressly inform Defendant that he 

could not discuss the arguments he presented in his motion for variance during his 

allocution. Because neither cases nor those of the Supreme Court have held that implicit 

limitations on allocution are reversible, we cannot conclude that the district court’s 

statement here constitutes plain error. 

IV. 

 In sum, we conclude the district court did not plainly err during Defendant’s 

sentencing proceedings. We note for future reference, however, that district courts would 

be well-advised to affirmatively inform defendants of the court’s willingness 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 most difficult tasks district judges perform. While each judge 

has their own style of sentencing, they are nevertheless obligated to ensure 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 willingness to consider whatever they have to 

say in good faith. 

Appellate Case: 22-5017 Document: 010110825891 Date Filed: 03/14/2023 Page: 14