UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. THOMAS JAMES ZAJAC, Defendant - Appellant. No. 20-4123 (D.C. No. 2:06-CR-81-CW-JCB-1) (D. Utah)

ORDER AND JUDGMENT *

Before TYMKOVICH, SEYMOUR, and EBEL, Circuit Judges.

In September of 2010, Thomas Zajac wa s convicted on a multicount indictment for bombing the Salt Lake City library. Initially, he was senten ced to 420 months imprisonment, including a 360-month sentence for using or carrying a destructive device in violation of 18 U.S.C. § 924(c)(1)(B)(ii). That part of the conviction was vacated by

the district court after the Supreme Court determined that § 924(c) was unconstitutionally

vague. United States v. Davis , 139 S. Ct. 2319, 2336 (2019).

* This order and judgment is not binding preceden t, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 28, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 20-4123 Document: 010110638545 Date Filed: 01/28/2022 Page: 12 Thereafter, on November 6, 2020, the dist rict court resentenced Mr. Zajac to 258 months imprisonment with credit for time serv ed on the remaining coun ts. In arriving at this new sentence, the district court relied on its mistaken belief that 18 U.S.C. § 844(i) required the sentence on Count 1 to run cons ecutively to the sentences on the remaining counts. Rec., vol. II at 83, 88, 98. As th is mistake of law constitutes plain error, we reverse and remand for resentencing. Background In September 2006, Thomas Zajac plac ed and detonated a homemade bomb in the Salt Lake City Library. The bomb resulted in property damage but no personal injury. Approximately a month later, the Salt Lake City Police Department received a threatening letter which incl uded unreleased details about the bombing and additional

threats about a future bomb that would be la rger and designed to kill. Federal agents soon linked the bomb and the threatening le tter to Mr. Zajac, who held an apparent grudge against the Salt Lake police for a 2004 DUI that his son received. Mr. Zajac was indicted, convicted, and u ltimately sentenced on the following six counts: Count 1, attempting to damage and destroy a buildin g using an explosive device in violation of 18 U.S.C. § 844(i); Count 2, using or carrying a destructive device in

relation to a crime of violence in viola tion of 18 U.S.C. § 924 (c)(1)(B)(ii); Count 3, possessing an unregistered destructive device in violation of 26 U. S.C. § 5861(d); Count 4, being a felon in possession of a destru ctive device in viola tion of 18 U.S.C. § 922(g)(1); Count 5, possessing a destruc tive device following a domestic violence Appellate Case: 20-4123 Document: 010110638545 Date Filed: 01/28/2022 Page: 23 conviction in violation of 18 U.S.C. § 922(g)(9); a nd Count 6, willfully using the mail to threaten the use of explosives in violation of 18 U.S.C. § 844(e). After Count 2 was vacated by the district court in a § 2255 pr oceeding, Mr. Zajac was resentenced. In this appeal he asserts th at during the resentencing the district court plainly erred because of its mistaken belief th at that a sentence under 18 U.S.C. § 844(i) must run consecutively to the remaining counts. 1

Standard of Review Neither Mr. Zajac nor the government obje cted to the district court’s erroneous assertion that it was required to run the § 84 4(i) sentence consecutively to all other counts. Consequently, we review for plain er ror. 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 re putation of judicial proceedings. United States v. Finnesy , 953 F.3d 675, 691 (10th Cir. 2020) (quotations and citations omitted).

Discussion As we have noted, during the November 6, 2020 sentencing hearing the district court repeatedly expressed the mistaken belie f that it was required to run the § 844(i) sentence consecutively to the ot her counts. The plain langua ge of § 844(i) has no such requirement: “Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building...sha ll be imprisoned for not less

1 Mr. Zajac also asserts allocution errors in this appeal but it is not necessary to reach the merits of those claims because a ny such alleged errors can be corrected on remand. Appellate Case: 20-4123 Document: 010110638545 Date Filed: 01/28/2022 Page: 34 than 5 years and not more than 20 years, fined under this title, or both . . . .” 18 U.S.C. § 844(i). The district court’s error was therefor e plain, satisfying the first and second prong of the plain error standard. A sentence im posed under a plainly erroneous belief that a

statute commands a sentence to run consecu tively to sentences on other counts also satisfies the third and fourth prongs of the pl ain error standard because the integrity of the judicial process is challenged where the court fails to correct such an obvious error. See

United States v. Sabillon-Umana , 772 F.3d 1328, 1333 (10th Cir. 2014); see also MolinaMartinez v. United States , 578 U.S. 189, 203, 204 (2016) (citing Sabillon-Umana , 772 F.3d at 1333, 1334); United States v. Silva , 981 F.3d 794, 802- 03 (2020) (citing SabillonUmana , 772 F.3d at 1333-34). In remanding for resentencing, we pass no judgment on the propri ety of the overall sentence. We merely remand this matter to th e district court for re sentencing with the knowledge that there is no statutory requir ement that the sentence on Count 1 run consecutively to the sentences on the remaining counts.

Entered for the Court

Stephanie K. Seymour Circuit Judge Appellate Case: 20-4123 Document: 010110638545 Date Filed: 01/28/2022 Page: 4United States v. Zajac, No. 20-4123, EBEL , J., concurring. I concur fully in the majority order and judgment in this case. I agree with the panel that Zajac’s sentence must be reve rsed and this case remanded for resentencing because the district court mistakenly believed that Zajac’s sentence on Count 1 had to run consecutively to his sentences on the remain ing counts. I write separately because I believe the district court also denied Zaja c an adequate opportun ity for allocution. Addressing that error briefly here may aid th e district court in avoiding further error on

remand. Rule 32(i)(4)(A)(ii), Fed. R. Crim. P., re quires the district court, before imposing sentence, to “address the defendant personally in order to permit the defendant to speak or present information to m itigate the sentence.” “Trial judges . . . should . . . unambiguously address themselv es to the defendant” and “should leave no room for

doubt that the defendant ha s been issued a personal invitation to speak prior to sentencing.” Green v. United States, 365 U.S. 301, 305 (1961 ) (plurality). “[T]he right

of allocution is denied when a district c ourt attempts to unduly limit the scope of a

defendant’s allocution statement.” United Stat es v. Bustamante-Conchas, 850 F.3d 1130, 1136 (10th Cir. 2017) (reh’g en banc) (citing ca ses). That is essentially what occurred here, not by design but because of how the sentencing procee ding unfolded. Briefly stated, after Zajac’s conviction on Count 2 was vacated, the district court conducted the sentencing procee ding at issue here in order to resentence Zajac on his remaining five convictions. The court, af ter indicating it was “inclined to apply the Appellate Case: 20-4123 Document: 010110638545 Date Filed: 01/28/2022 Page: 52 sentencing packaging” doctrine to resentence Zajac (II R. 83), heard from the attorneys on each side as to their sentencing recommenda tion. The court then stated: “I want to hear from Mr. Zajac, but I believe before I a llow him to talk to the Court and before I make a judgment, I should alert you and give you an opportunity to respond as to how I’m thinking about this at the present time.” (Id. at 86–87.) Then the court addressed, for the first time and in some detail, how it in tended to apply the sentencing packaging doctrine to divide Zajac’s remaining convic tions into three groups and then impose a sentence for each group, resultin g in a total sentence above the advisory sentencing guideline range. The court then asked each atto rney if he had any further argument. The prosecutor spoke briefly, accepting the court’ s position; defense co unsel made a longer argument. The court then addressed Zajac pe rsonally and asked: “M r. Zajac, do you wish to make any further statement to the Court?” (Id. at 90.) Zajac apparently believed that the court wanted him to address just the court’s structural plan to break the sentencing into the three groups. Zajac indicated it was his understanding from the PSR and from discussions with defense counsel that the advisory guideline range was between 62 and 78 months. I thought that that is what we were work ing within given that that is the [PSR] report. And I’m not sure what you’re describing when you break it into three groups because I am simply not clear what the nomen clature is but that is about as much as I kn ow to say about it. (Id.) The district court then clarified how the court intended to calculate Zajac’s new

sentence. The court then conclu ded its explana tion by stating: Appellate Case: 20-4123 Document: 010110638545 Date Filed: 01/28/2022 Page: 63 So with that additional clarifica tion you need to understand, Mr. Zajac, that the Court is going to impose a sentence that is above the guideline sentence. THE DEFENDANT: Okay. THE COURT: Anything further from anyone before I proceed and make a judgment as to what the appropriate sentence in this case should be? [PROSECUTOR]: Nothing from th e United States, Your Honor. [DEFENSE COUNSEL]: Nothing, Your Honor. (Id. at 91–92.) The sentencing co urt then imposed sentence. The court’s use of the phrase “any furt her statement,” coming on the heels of the attorneys’ statements addressi ng the district court’s propos ed method for determining his sentence, would have signaled to an objectiv ely reasonable person in Zajac’s position that the district court wanted him, at that time, just to address the court’s proposed sentencing method. See United States v. Platero, 564 F. App’x 927, 930 (10th Cir. 2014) (unpublished) (rejecting defendant’s argument that the district c ourt denied him an adequate opportunity fo r allocution because the sentencing court issued the defendant an “objectively clear invitation . . . to allocute”). Under these circumstances, the court never addressed Zajac personally to give him a clear and unambiguous opportun ity for allocution on any subj ect other than the court’s proposed sentencing procedure to provide sepa rate sentences for each of three groups of convictions. The court’s invitation to Zajac cannot reasonably be understood to have been a broad-gauged invitation to Zajac to a llocute generally on any matter other than the court’s specified tripartite procedure. After the court had re ceived everybody’s Appellate Case: 20-4123 Document: 010110638545 Date Filed: 01/28/2022 Page: 74 statements and was prepared to issue the sentence, the court asked generally of everybody collectively “[a]nything further from anyone.” (II R. 92.) Because that inquiry was not directed specifically to Zajac, it also wa s insufficient. See Bustamante-Conchas, 850 F.3d at 1135, 1137 (holding that sentencing court’s genera l inquiry, asking “if there was any reason that [the already announced] sent ence should not be imposed,” did not satisfy Rule 32(i)(4)(A)(ii)’s requirement that th e district court address the defendant personally); see also United States v. Tayl or, 457 F. App’x 835, 837 (11th Cir. 2012) (unpublished) (holding district court denied defendant his right to allocution when the

court asked “‘whether counsel or his client ha d anything they wished to add’ or whether there was ‘anything else anyone wants to say’” (alterations omitted)). The sentencing

court failed to “leave no room for doubt” that it had issued Zajac “a personal invitation to speak [in allocution] prior to se ntencing,” Green, 365 U.S. at 305. 1 This violated Rule 32(i)(4)(A)(ii). The district court will have an opportuni ty to correct that error on resentencing.

1 Although in a Rule 32(i)(4)(A)( ii) challenge, we evaluate what the court said rather than how the defendant interpreted the court’s i nvitation for allocution, when the allocution invitation on its face is ambiguous or inadequa te, we can look to the defendant’s response but only as evidence of the intr insic ambiguity of the allocutio n offer itself. That is, the test is ultimately not whether the defendant misunderstood the offe r but rather whether the offer itself was clear and unambiguous and di rected specifically to the defendant. See Platero, 564 F. App’x at 930. Appellate Case: 20-4123 Document: 010110638545 Date Filed: 01/28/2022 Page: 8