By Josh Burger-Caplan, CLS’18
The United States Court of Appeals for the Tenth Circuit recently ruled en banc in the case of United States v. Bustamante-Conchas, and in doing so clarified its position on denial of the right to allocute at sentencing. The court focused on the third and fourth prongs of the test for plain error developed in United States v. Olano, which requires that, for a finding of plain error there must be “(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.”
Though Bustamante-Conchas had not been explicitly given the opportunity to speak on his own behalf during his sentencing, the district court sentenced him to two years less prison time than the lowest end of the recommended guideline range, On appeal of his sentence, a panel of the Tenth Circuit denied Bustamante-Conchas’ request for a remand for resentencing, pointing out that he had received a sentence below his guideline range and that he had not shown that there was any additional information he would have provided to the court if he had been given the opportunity to allocute. As such, Bustamante-Conchas had failed to make the necessary showing that the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. The Tenth Circuit granted a rehearing en banc on the issue of denial of allocution, and reversed.
In reversing the decision of the panel, the Tenth Circuit adopted the reasoning of several other circuits regarding the denial of allocution in the face of a statutory minimum sentence, stating that “[i]f a sentence could not have been lower, a defendant cannot show prejudice.” In so doing, the court adopted a view of “prejudice” that is limited, and ignores the values of allocution other than mitigation of sentence, which, somewhat ironically, the court had previously described in depth.
In order to show prejudice, one must show that the error had “substantial and injurious effect or influence in determining the . . . verdict.” The Supreme Court has also stated that one must show “a reasonable probability that but for [the error claimed], the result of the proceeding would have been different.” But this leaves open the questions of who may define “injurious” and whether the different outcome spoken of must necessarily have been a lower sentence. In the Tenth Circuit’s estimation, it is the judge who decides what is injurious, and that if a sentence could not have been lowered, the defendant could not have been injured. However, this ignores the possibility that a defendant’s view of what is “injurious” to the verdict is not in line with that of the judge.
If a defendant is appealing a statutory minimum sentence, we cannot assume that the object of his appeal is a lower sentence. The requirement in Olano is that to show prejudice, one must show a reasonable probability that but for the error, the outcome may have been different. So what happens where a defendant asserts that they would have made an argument of anger or grievance that would have had a reasonable probability of driving their sentence upward, and they are prejudiced by their inability to do so? Certainly such an argument would be consonant with the tenth circuit’s understanding of the alternative bases for allocution beyond reduction in sentence. For a fully-informed defendant who sees the loss of that opportunity as a benefit denied, it seems paternalistic of the courts to argue that there is, in fact, no prejudice in such a situation.
 United States v. Bustamante-Conchas, 2017 WL 838216 (10th Cir. 2017). (hereinafter “Bustamante-Conchas en banc”)
 United States v. Price, 265 F.3d 1097, 1107 (10th Cir. 2001) (summarizing the test developed in United States v. Olano, 507 U.S. 725 (1993)).
 Id. at *2 (“The court did not personally address Bustamante-Conchas prior to imposing sentence or otherwise offer him an opportunity to allocute.”).
 Bustamante-Conchas en banc at *1, *2 (stating that the guideline range was 292 to 265 months, and that the court announced a sentence of 240 months).
 United States v. Bustamante-Conchas, 832 F.3d 1179, 1186 (10th Cir. 2016). (hereinafter “Bustamante-Conchas”)
 Bustamante-Conchas en banc at *2.
 Id. at *7.
 Id. at *3 (discussing how allocution “maximizes the perceived equity of the process” and “suppl[ies] ‘a forum in which defendants may challenge societal injustice, and may provide answers to victims’ questions regarding the crime.”).
 United States v. Dominguez-Benitez, 542 U.S. 74, 81 (2004) (quoting Kotteakos v. United States, 328 U.S. 750, 776).
 Id. at 82 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).