PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT 

UNITED STATES OF AMERICA,

 Plaintiff–Appellee,

v.

BLAS LANDEROS-LOPEZ, a/k/a 

Miguel Ayala Aguilar,

Defendant–Appellant.

No. 09-8056

 

Appeal from the United States District Court 

 for the District of Wyoming 

(D.C. No. 2:08-CR-00105-ABJ-21)

 

Edwin S. Wall, Edwin S. Wall, P.C., Salt Lake City, Utah, for Defendant–Appellant. 

Stuart S. Healy, III, Assistant United States Attorney, Cheyenne, Wyoming, for Plaintiff–

Appellee. 

 

Before LUCERO, HOLLOWAY, and MURPHY, Circuit Judges. 

LUCERO, Circuit Judge. 

 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 3, 2010

Elisabeth A. Shumaker 

Clerk of Court

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Blas Landeros-Lopez (“Landeros”) pled guilty to one count of conspiracy to 

traffic in methamphetamine. On appeal, Landeros argues that the district court failed to 

elicit a sufficient factual basis to support his guilty plea and denied him the right to speak 

at sentencing. Our decision today clarifies this circuit’s factual basis standard and 

explains the contours of the right of allocution. Exercising jurisdiction pursuant to 28 

U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm Landeros’ conviction, but vacate his 

sentence and remand for resentencing. 

I 

Landeros came to the attention of authorities when Alejandro Gonzalez, a known 

methamphetamine dealer, entered Landeros’ apartment while he was under police 

surveillance. Gonzalez informed law enforcement officers that he had purchased 

methamphetamine while inside. A subsequent search of the dwelling uncovered 

approximately 850 grams of methamphetamine, a loaded shotgun, and $2,800 in cash 

stored in a bedroom Landeros shared with his cousin, Fabian Landeros-Beltran. 

Landeros was indicted on one count of conspiracy to traffic in methamphetamine 

in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and § 846, and one count of possession 

of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. 

§ 924(c)(1)(A). In March 2009, he agreed to plead guilty to the conspiracy charge in 

exchange for dismissal of the firearm charge. 

At his plea hearing, Landeros was asked to submit a factual basis for his plea 

pursuant to Federal Rule of Criminal Procedure 11(b)(3). He denied knowing that any 

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methamphetamine sales had occurred in his apartment and denied benefitting from such 

sales. At the same time, Landeros acknowledged that Landeros-Beltran was selling 

methamphetamine and that he had accepted rent money from him.1

 A statement from the 

prosecutor establishing the amount of methamphetamine in Landeros’ constructive 

possession was also before the district court. Finding a factual basis for each element of 

conspiracy, the court accepted the plea. 

A Presentence Investigation Report (“PSR”) was then prepared, detailing the 

evidence against Landeros. This evidence included a recitation of facts from the 

prosecutor’s charging documents, as well as proffered statements from Gonzalez and 

another local drug dealer that implicated Landeros in drug distribution activities. 

Landeros did not object to these findings. The PSR calculated a sentencing range of 135 

to 168 months. 

At sentencing, the district court adopted this calculation but granted the 

government’s request for a downward departure. It further opted to vary Landeros’ 

sentence downward and imposed a term of imprisonment of 115 months. After 

specifying the conditions of Landeros’ confinement and supervised release, the district 

court stated: “That is the sentence the Court intends to impose in this matter. Does the 

defendant have anything to say before the Court imposes this sentence?” Landeros 

offered a brief apology, and the court concluded the proceeding. A judgment was entered 

 1

 Landeros also conceded that he was present when Gonzalez purchased 

methamphetamine at the apartment. 

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shortly thereafter. This appeal was then commenced. 

II 

Federal Rule of Criminal Procedure 11(b)(3) provides: “Before entering judgment 

on a guilty plea, the court must determine that there is a factual basis for the plea.” This 

rule is intended “to ensure the accuracy of the plea through some evidence that a 

defendant actually committed the offense.” United States v. Keiswetter, 860 F.2d 992, 

995 (10th Cir. 1988); see also United States v. Thomas, 367 F.3d 194, 197 (4th Cir. 2004) 

(“[Rule 11(b)(3)] ensures that the court make clear exactly what a defendant admits to, 

and whether those admissions are factually sufficient to constitute the alleged crime.” 

(quotations omitted)). When a defendant fails to object on Rule 11 grounds at 

sentencing, we review a district court’s acceptance of his plea for plain error. United 

States v. Edgar, 348 F.3d 867, 871 (10th Cir. 2003). “Plain error occurs when there is 

(1) error, (2) that is plain, which (3) affects the defendant’s substantial rights, and which 

(4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” 

United States v. Taylor, 514 F.3d 1092, 1100 (10th Cir. 2008). 

Landeros argues that the district court’s acceptance of his plea constituted plain 

error because there was an insufficient factual basis to support his conviction. He 

specifically contends that his “tortured colloquy” with the judge during his plea hearing 

failed to demonstrate the four elements of conspiracy: “(1) that two or more persons 

agreed to violate the law, (2) that the defendant knew at least the essential objectives of 

the conspiracy, (3) that the defendant knowingly and voluntarily became a part of it, and 

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(4) that the alleged coconspirators were interdependent.” United States v. Sells, 477 F.3d 

1226, 1235 (10th Cir. 2007) (quotations and alteration omitted). 

Yet, nothing in Rule 11(b)(3) restricts a district court’s consideration of a factual 

basis to its plea colloquy with the defendant alone. United States v. Moran, 452 F.3d 

1167, 1171 (10th Cir. 2006). We agree with the government that, when read in 

combination with the prosecutor’s statements and the plea colloquy, the PSR provides a 

sufficient factual basis for the court to accept Landeros’ plea. At the beginning of the 

hearing, the prosecutor established that the amount of methamphetamine in Landeros’ 

constructive possession totaled over 1.5 kilograms. Landeros admitted that LanderosBeltran was selling drugs, that he was present when Gonzalez purchased 

methamphetamine, and that he accepted drug proceeds from Landeros-Beltran to pay his 

rent. The PSR provided greater detail regarding Landeros’ conduct, including statements 

made by Gonzalez and another local drug dealer connecting Landeros and LanderosBeltran to drug-dealing operations. According to Gonzalez, the two cousins transported 

methamphetamine between Arizona and Colorado every two to three months.2

 

We disagree, however, that this evidence proves that a Rule 11 violation did not 

occur. “Rule 11 . . . contemplates the existence of the factual basis for the plea both 

when the court accepts the plea, and when it enters judgment on it.” Id. (emphasis 

added). A district court may look to evidence submitted after a guilty plea has been 

 2

 Gonzalez also stated that Landeros planned and oversaw these trips. 

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accepted to determine whether a factual basis for the plea continues to exist; if later 

evidence destroys the court’s initial factual-basis determination, it may withdraw its 

acceptance of a guilty plea. Id. But a judge’s initial determination must be based on 

information in the record at the time the plea is made. See Keiswetter, 860 F.2d at 996 

(“Rule 11[(b)(3)] [is based on] a subjective, rather than objective standard.” (referring to 

the substantive predecessor of Rule 11(b)(3))). 

Because the PSR was not prepared until after Landeros’ guilty plea was accepted, 

we cannot look to it in considering whether the district court correctly determined there 

was a factual basis for accepting the plea. We can, however, look to the PSR in 

evaluating whether any error affected Landeros’ substantial rights. See United States v. 

Vonn, 535 U.S. 55, 59 (2002) (“[A] reviewing court may consult the whole record when 

considering the effect of any error on substantial rights.”); see also United States v. 

Garcia, 587 F.3d 509, 520 (2d Cir. 2009) (“While the existence of a factual basis for the 

plea is determined on the basis of the record as of the plea proceeding, in assessing 

whether the error affects substantial rights, the record as a whole becomes relevant.” 

(citations omitted)). When the record as a whole demonstrates a sufficient factual basis 

for a plea, any Rule 11(b)(3) error committed by the district court is harmless. See

United States v. Adams, 961 F.2d 505, 511-13 (5th Cir. 1992).3

 

 3

 In United States v. Dominguez Benitez, the Supreme Court held that “a 

defendant who seeks reversal of his conviction after a guilty plea, on the ground that the 

district court committed plain error under Rule 11, must show a reasonable probability 

Continued . . . 

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As noted supra, the full record provides a sufficient factual basis to support 

Landeros’ guilty plea. Thus, any Rule 11(b)(3) error committed by the district court did 

not affect his substantial rights and does not warrant reversal of the conviction. 

III 

Landeros also contends he was denied the right of allocution. Federal Rule of 

Criminal Procedure 32(i)(4)(A)(ii) requires a district court to “address the defendant 

personally in order to permit the defendant to speak or present any information” before 

imposing a sentence. Because allocution is vital to the sentencing process, denial of this 

right requires reversal of the sentence imposed. Green v. United States, 365 U.S. 301, 

304 (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.”); United States v. Jarvi, 537 F.3d 1256, 1262 (10th Cir. 2008); (“[A] 

denial of allocution is per se prejudicial and requires a remand without an investigation of 

 

that, but for the error, he would not have entered the plea.” 542 U.S. 74, 83 (2004). 

However, the Dominguez Benitez rule is limited to evaluating “the effect of [an] omitted 

warning on a defendant’s decision” to enter a guilty plea—that is, an error affecting the 

knowing and voluntary nature of a defendant’s plea. Id. at 84. 

Rule 11(b)(3) errors are distinct from the type of error addressed in Dominguez 

Benitez: A district court must reject a defendant’s plea if it lacks a factual basis, even if 

the plea is knowingly and voluntarily made. See Libretti v. United States, 516 U.S. 29, 

42 (1995) (whether there is a factual basis for a plea “is a distinct inquiry” from whether 

a plea was knowingly and voluntarily made). Thus, whether Landeros would have plead 

guilty in spite of any Rule 11(b)(3) error is irrelevant; the issue is whether the district 

court’s alleged error in accepting the plea had a substantial effect on his rights. 

Accordingly, the Dominguez Benitez rule does not apply. 

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prejudice.”); United States v. Muniz, 1 F.3d 1018, 1025 (10th Cir. 1993) (“The right to 

allocution is an integral part of the sentencing process which if not fully afforded to the 

defendant requires a reversal of the sentence imposed.”), cert. denied, 510 U.S. 1002 

(1993).4

 4

 Despite our repeated pronouncements that allocution denials are per se 

prejudicial, this circuit has yet to formally adopt a standard of review for alleged 

violations of Rule 32’s right of allocution. In an unpublished decision, a panel of this 

court recently held that “we review de novo whether a district court denied a defendant 

his right to speak at sentencing,” notwithstanding the lack of an objection below. United 

States v. Beltran-Garcia, 338 F. App’x 765, 770, 774 (10th Cir. 2009) (unpublished). 

Likewise, our previous opinions concerning defendant allocution implicitly applied de 

novo review. See Jarvi, 537 F.3d at 1261-62; United States v. Archer, 70 F.3d 1149, 

1151-52 (10th Cir. 1995); Muniz, 1 F.3d at 1025. 

The Supreme Court has not expressly adopted a standard of review for allocution 

errors. See Green, 365 U.S. at 304-05. Although Fed. R. Crim. P. 52(b) requires that 

most errors raised for the first time on direct appeal are subject to plain-error review, the 

Court has left open the possibility that Rule 52(b) might not apply in a limited class of 

cases. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009); United States v. 

Olano, 507 U.S. 725, 732 (1993). 

Our sibling circuits have reached conflicting conclusions regarding whether Rule 

52(b) applies in the allocution context. Both the Sixth and the Eleventh Circuits review 

unpreserved allocution errors de novo, reasoning that these errors affect the legality of the 

sentencing process. United States v. Wolfe, 71 F.3d 611, 614 (6th Cir. 1995) (“[B]ecause 

the right of the defendant and his counsel to allocute at sentencing is given in Fed. R. 

Crim. P. 32, when the defendant alleges he was denied this right he will usually be 

arguing that his sentencing procedures were deficient as a matter of law.” (emphasis 

added)); United States v. Taylor, 11 F.3d 149, 151 (11th Cir. 1994) (“We review 

questions involving the legality of a criminal sentence de novo.”). Other circuits review 

allocution claims for plain error, but presume prejudice if there is any possibility a 

defendant could have received a lesser sentence if properly provided the opportunity to 

allocute. See United States v. Luepke, 495 F.3d 443, 451 (7th Cir. 2007); United States 

v. Reyna, 358 F.3d 344, 351-52 (5th Cir. 2004); United States v. Adams, 252 F.3d 276, 

287 (3d Cir. 2001). Still others review for plain error without presuming prejudice, or for 

Continued . . . 

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At the sentencing hearing, Landeros was afforded an opportunity to speak only 

after the district court conducted a lengthy recitation of his sentence. Toward the end of 

the hearing, the court announced: 

Pursuant to the Sentencing Reform Act of 1984 and those factors set 

forth in Title 18 United States Code Section 3553(a), it is and will be the 

judgment of this Court that the defendant, Blas Landeros, is hereby 

committed to the custody of the Bureau of Prisons to be imprisoned for a 

term of 115 months. 

Upon release from imprisonment this defendant shall be placed on 

supervised release for a term of five years . . . . 

(emphasis added). Having made these seemingly conclusive pronouncements, the court 

then described the conditions of confinement and supervised release, informed Landeros 

of his right to appeal, and stated: “That is the sentence the Court intends to impose in this 

matter. Does the defendant have anything to say before the Court imposes this 

sentence?” Landeros responded briefly: “Yes. I wish to apologize to those present. . . . 

 

harmless error. See United States v. Cole, 27 F.3d 996, 998 (4th Cir. 1994) (reviewing 

for plain error); United States v. Carper, 24 F.3d 1157, 1162 (9th Cir. 1994) (reviewing 

for harmless error). 

The parties do not substantively analyze the applicability of Rule 52(b), and we 

decline to decide this issue when it can be avoided on the record before us. Assuming 

arguendo plain error applies, that standard is met here. As noted, our prior precedent 

does make clear that allocution errors are per se prejudicial. Jarvi, 537 F.3d at 1261. 

Consequently, to the extent Rule 52(b) applies, we will examine only whether “there is 

(1) error, (2) that is plain, which . . . [(3)] seriously affects the fairness, integrity, or 

public reputation of judicial proceedings.” Taylor, 514 F.3d at 1100. As our discussion 

infra demonstrates, the district court’s legal error in adjudging Landeros’ sentence before 

providing him with the opportunity to allocute was plain and seriously affected the 

fairness of his judicial proceedings.

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I didn’t make those round trips that have been mentioned. And it was my cousin that 

brought me [to Wyoming]. That’s all.” Without formally imposing a sentence, the court 

concluded the proceeding. A judgment imposing a sentence of 115 months’ 

imprisonment was filed six days later. 

An almost identical factual situation came before the Seventh Circuit in United 

States v. Luepke. At Luepke’s sentencing hearing, the district court had discussed its 

rationale for fixing a sentence in the middle of the applicable guidelines range and stated, 

“[A]ccordingly . . . the defendant is committed to the custody of the Bureau of Prisons for 

imprisonment for a term of 240 months.” Luepke, 495 F.3d at 445 (quotation omitted). 

After detailing Luepke’s conditions of confinement and supervised release, the court 

continued, “[B]efore imposing any sentence in this matter I will call upon the defendant 

for those matters which he would like to bring to the Court’s attention.” Id. (quotation 

and emphasis omitted). Luepke gave a brief apology, and then the court asked whether, 

“before . . . imposing the sentence as previously announced,” defense counsel had any 

remaining issues to discuss. Id. (quotation and emphasis omitted). Defense counsel 

made a few comments, after which the court reminded him: “[W]e’re not through yet. I 

haven’t imposed the sentence.” Id. (quotation and emphasis omitted). Concluding the 

proceeding, the court stated, “[A]ll right . . . the Court does impose that sentence as 

previously announced.” Id. (quotation omitted, second alteration in original). 

Based on this sequence of events—and, in particular, the highly conclusive 

language used by the district court—the Seventh Circuit held that Luepke was denied a 

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meaningful allocution. It reasoned that the purposes of allocution are not served simply 

because “at some point before the close of a sentencing proceeding, a defendant is invited 

to speak.” Id. at 450. Instead, a district court “actually must take steps to communicate 

effectively to the defendant that, through his statement, he has a meaningful opportunity 

to influence the sentence.” Id. (emphasis omitted). Belatedly inviting the defendant to 

speak after announcing his sentence does not satisfy this standard, even if the sentence 

has yet to be formally imposed. The Luepke court reasoned that, when a defendant is 

invited to speak after a sentence has been adjudged, the defendant has “little incentive to 

share his thoughts on the matter of a sentence that he ha[s] every reason to believe ha[s] 

already been decided.” Id. In fact, “it would be quite reasonable for a defendant in such 

a situation to conclude that a manifestation of any disagreement with the court at that 

juncture would be interpreted as disrespectful and warranting additional sanctions.” Id. 

Accordingly, if a district court adjudges a sentence before the defendant has an 

opportunity to speak, 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. at 

448 (quotation omitted). 

This reasoning is grounded in longstanding Supreme Court precedent. In Green, a 

plurality of the Court affirmed that Rule 32 provides a defendant with a personal right to 

allocute. Recognizing that “[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 held 

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that merely permitting defense counsel to speak falls short of Rule 32’s dictate.5 365 

U.S. at 304. Instead, “trial judges should leave no room for doubt that the defendant has 

been issued a personal invitation to speak prior to sentencing.” Id. at 305 (emphasis 

added). 

A majority of the Court reiterated this requirement the following year. In Hill v. 

United States, it explained: “[In Green,] eight members of the Court concurred in the 

view that Rule 32[] requires a district judge before imposing [a] sentence to afford every 

convicted defendant an opportunity personally to speak in his own behalf.” 368 U.S. 

424, 426 (1962). Although the majority concluded that allocution errors generally do not 

constitute grounds for habeas relief under 28 U.S.C. § 2255, it reaffirmed Green’s rule in 

no uncertain terms: “There thus remains no doubt as to what . . . Rule [32] commands” 

with respect to allocution.6

 Hill, 368 U.S. at 426. Hill also reaffirmed the rule adopted in 

Van Hook v. United States, 365 U.S. 609 (1961) (per curiam)—a two-sentence opinion 

issued one month after Green—that the proper remedy for an allocution error raised on 

 5

 Green dealt with an earlier version of Rule 32. In enacting the current rule, 

Congress sought to solidify the conclusions reached in that case. See Luepke, 495 F.3d at 

449 & n.5. Rule 32 now separates the right of a defendant to speak on his own behalf 

from the right of a defendant to have counsel speak on his behalf. Compare Fed. R. 

Crim. P. 32(i)(4)(A)(i), with Fed. R. Crim. P. 32(i)(4)(A)(ii). 

6

 The dissent further remarked: “[D]ue observance of the requirements of Rule 

32[], resting as they do upon the anciently recognized right of a defendant to speak to the 

court before sentence is imposed, is important to the proper administration of justice in 

the federal courts.” Id. at 474-75 (Black, J., dissenting). 

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direct appeal is to remand for resentencing. Hill, 368 U.S. at 429 n.6. 

Our most recent pronouncement on the issue of allocution came in the 2008 case 

of United States v. Jarvi. We held there that a defendant “has a broad right to present any

information to mitigate [his] sentence.” Jarvi, 537 F.3d at 1262 (quotations omitted). A 

court therefore commits reversible error when it prevents a defendant from making his 

“best case” for a lenient sentence. Id. Although allocution does not encompass a right to 

re-argue the merits of a case, Muniz, 1 F.3d at 1025, a defendant “is entitled to have 

considered—at least once—his arguments for mitigation of sentence,” Jarvi, 537 F.3d at 

1262. 

Jarvi relied largely on the premise that trial courts must comply with the substance 

of Rule 32, rather than the mere form of the rule. See 537 F.3d at 1261-62. As the 

Seventh Circuit noted in Luepke, “[A]side from its practical role in sentencing, the right 

[of allocution] has value in terms of maximizing the perceived equity of the [sentencing] 

process.” 495 F.3d at 451 (quotation and emphasis omitted). Providing a defendant with 

a meaningful opportunity to speak on his own behalf advances the public perception of 

fairness.7

 Consequently, a sentencing court undermines its own legitimacy when it 

invites a defendant to speak only after making clear that his sentence is a foregone 

 7

 We note that there are additional benefits to defendant allocution. It 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. See Mary Margaret Giannini, Equal Rights for Equal 

Rites?: Victim Allocution, Defendant Allocution, and the Crime Victims’ Rights Act, 26 

Yale L. & Pol’y Rev. 431, 478-81 (2008). 

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conclusion. See Adams, 252 F.3d at 288 (concluding that denial of the right to allocute is 

the kind of error that “impact[s] the fairness, integrity or public reputation of judicial 

proceedings” (quotations omitted)). Although courts need not follow a prewritten script, 

they must “leave no room for doubt that the defendant has been issued a personal 

invitation to speak prior to sentencing.” Green, 365 U.S. at 305.8

 When a sentencing 

court adjudges a sentence prior to allocution, Green’s mandate is unsatisfied. 

By definitively announcing Landeros’ sentence before providing him with an 

opportunity to speak on his own behalf, the district court prematurely adjudged his 

sentence. The court’s conclusive statements effectively communicated to Landeros that 

his sentence had already been determined, and that he would not have a meaningful 

opportunity to influence that sentence through his statements to the court. 

Similarly, the court’s later remark that it merely “intended” to impose this 

sentence did not cure its initial error. This back-pedaling failed to indicate that the court 

would genuinely reconsider the adjudged sentence in light of any remarks made by the 

defendant. We ultimately conclude that Landeros’ right of allocution was violated, and 

that we must vacate his sentence. In doing so, we echo the sentiments of our sibling 

circuit: “Because the sentencing decision is a weighty responsibility, the defendant’s 

 8

 “It will normally be preferable for a district court to allow the defendant and his 

counsel to speak before ruling on the objections and passing sentence . . . because such a 

sequence enhances the perception that the judge is being impartial.” Luepke, 495 F.3d at 

615. Nonetheless, providing defendants with the opportunity to speak only after ruling 

on their objections to sentencing matters does not—in and of itself—violate a defendant’s 

allocution rights. See Wolfe, 71 F.3d at 614-15. 

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right to be heard must never be reduced to a [mere] formality . . . . [C]ourts must 

continue to be cautious to avoid the appearance of dispensing assembly-line justice.” 

United States v. Barnes, 948 F.2d 325, 331 (7th Cir. 1991). 

IV 

For the foregoing reasons, we AFFIRM Landeros’ conviction, but VACATE his 

sentence and REMAND to the district court for resentencing consistent with this opinion. 

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