                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 28, 2013
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 12-3153
 v.                                           (D.C. No. 5:10-CR-40118-JAR-1)
                                                          (D. Kan.)
 TRAMAINE MONDALE BEADLES,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      A jury convicted Appellant Tramaine Mondale Beadles of one count of

bank robbery by force, violence, or intimidation in violation of 18 U.S.C. §§ 2


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
and 2113(a). The district court sentenced him to a term of 210 months

imprisonment, followed by three years supervised release, and ordered him to pay

victim restitution. Mr. Beadles appeals his sentence, contending the district court

committed plain error by conclusively determining his sentence prior to allowing

him his right of allocution at the sentencing hearing. We exercise jurisdiction

under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm.

                   I. Factual and Procedural Background

      On December 7, 2010, a federal grand jury indicted Mr. Beadles on one

count of robbing a bank by force, violence, or intimidation in violation of 18

U.S.C. §§ 2 and 2113(a). Following the government’s presentation at trial of its

evidence again him, Mr. Beadles sought a motion for judgment of acquittal on

grounds the government failed to present sufficient evidence to support a

conviction, which the district court took under advisement. Thereafter, Mr.

Beadles set forth his defense, including his testimony asserting his accomplice

coerced him into committing the robbery by making threats against him and his

loved ones, which the jury rejected in convicting him.

      Prior to sentencing, a probation officer prepared a presentence report based

on the 2011 United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”),

noting Mr. Beadles is a career criminal and calculating his total offense level at

32 and his criminal history category at VI, for a total recommended sentencing




                                         -2-
range of 210 to 240 months imprisonment. 1 Mr. Beadles did not file any

objections to the presentence report. At the sentencing hearing, the district court

denied Mr. Beadles’s motion for acquittal as well as his motion for judgment as a

matter of law–both grounded on his assertion the government failed to provide

sufficient evidence to meet its burden for conviction based on his coercion

defense. The district court also denied Mr. Beadles’s pro se motion for a new

trial, finding, in part, he provided “no newly-discovered evidence.”

      Following its rulings on these motions, the district court stated it would

announce the proposed findings of fact and also stated twice it would announce a

“tentative sentence.” It also explained it would “call for any statement or

testimony that any of the victims of this crime would like to give the Court” and

hear allocution from both Mr. Beadles’s counsel and Mr. Beadles, noting such

allocution was “his right.” It then explained the Guidelines range was 210 to 240

months imprisonment and stated:

      The Court’s tentative sentence is 210 months, with no term of
      probation because of the custodial sentence. Mr. Beadles would not
      be eligible for probation anyway under the [G]uidelines, although the
      statute allows for one to five years of probation. The statute, though,
      with respect to supervised release, calls for not more than three
      years. The [G]uidelines advise one to three years. The Court intends
      to impose a three-year term of supervised release.


      1
         While the parties and district court state the recommended Guidelines
range is 210 to 240 months imprisonment, our review of the 2011 Guidelines
Sentencing Table shows the recommended range is 210 to 262 months. However,
this does not affect our disposition on appeal.

                                        -3-
            There will be no fine. The statute allows for up to $250,000.
      The [G]uidelines advise [$]17,500 to $175,000.

           There will be restitution imposed, an order of restitution, in the
      amount of $12,815, per statute and [G]uidelines.

            And also, a $100 special assessment per statute and
      [G]uidelines.

             The Court intends to impose each of the mandatory and special
      conditions of supervision that are set forth ... in the presentence
      report.

      The district court then discussed the circumstances presented in conjunction

with the 18 U.S.C. § 3553(a) sentencing factors, including its belief a sentence of

210 months imprisonment was “sufficient, but not greater than necessary,” to

comply with the purposes of sentencing identified in that statute. At the

conclusion of its discussion on the proposed sentence, it allowed the government

to articulate any objections it had to the proposed sentence. In opposing the

proposed 210-month sentence and arguing for a sentence of 240 months, the

government suggested a longer sentence would better protect the public, given

Mr. Beadles had robbed several other banks prior to the instant offense. It also

provided the testimony of a bank manager on restitution and the emotional toll the

robbery caused her and other employees as well as offered the statement of

another bank employee affected by the robbery.

      Following this evidence, the district court announced, as it earlier

indicated, that it would hear from counsel and then Mr. Beadles. In his argument


                                         -4-
to the district court, Mr. Beadles’s counsel twice acknowledged a sentence of 210

months “would be an appropriate sentence,” noting such a sentence would reflect

mitigation for the coercion which caused him to commit the instant crime. Mr.

Beadles then addressed the court, stating he would “like to apologize to all” of the

bank employees and that he had not hidden anything from the agent who

interviewed him about the robbery. With regard to information he provided

authorities, he stated:

      And I still have not yet received any-any officer, anybody, coming to
      me and asking me am I all right. Is my family all right? I could
      have been killed all because I cooperated with you guys on my last
      case .... And it was just like if I didn’t have nothing, that was it. I
      mean, it’s like if I don’t tell, you all don’t want to do nothing for
      people. I told last time and they put me in this situation. That’s all I
      have to say.

      After Mr. Beadles’s allocution, the district court imposed the sentence,

explaining it had taken into account: (1) the fact Mr. Beadles is a career criminal

who robbed multiple banks; (2) the victimization of the bank employees in the

instant robbery who incurred emotional injury; (3) the fact the jury did not

believe and rejected Mr. Beadles’s coercion defense; and (4) his admission to

robbing the bank and the limited information he provided which helped in the

apprehension of his accomplice in the instant crime. After stating again that it

had taken these circumstances into consideration, it announced it was sentencing

Mr. Beadles at the low end of the Guidelines range to 210 months imprisonment

and three years supervised release and ordered him to pay restitution in the

                                         -5-
amount of $12,815.

                                 II. Discussion

      Mr. Beadles now appeals his sentence on grounds the district court

committed plain error by effectively denying him a meaningful right of allocution

when it formally decided and announced the length of his sentence prior to

allowing him to make any statement. In making this claim, Mr. Beadles asserts

the district court decided the specific terms of his sentence and announced them

in “seemingly conclusive” terms before offering him an opportunity to address the

court, as evidenced by the fact the announcement of the sentence “interspersed a

litany of definitive and conclusive sentencing terms among the ‘tentative’ ones.”

He also argues the district court’s subsequent invitation for him to address the

sentence did not “ameliorate” the error, given a reasonable person in his situation

would have interpreted its conduct as suggesting he had no meaningful

opportunity to influence his sentence through any statements to the court. In

support, he relies on our decision in United States v. Landeros-Lopez, 615 F.3d

1260 (10th Cir. 2010), where we found the district court violated a defendant’s

right to allocution when it made a “seemingly conclusive” announcement of

sentence before offering him an opportunity to speak. In making these assertions

on his right to allocution, Mr. Beadles concedes he failed to raise them before the

district court, and therefore, our standard of review is for plain error. The

government opposes the appeal, agreeing the standard of review is for plain error

                                          -6-
and arguing the district court’s announcement of the tentative sentence prior to

allowing Mr. Beadles his right of allocution was neither definitive nor conclusive

so as to communicate to him that he had no meaningful opportunity to influence

the sentence when addressing the court during his right of allocution. We agree.

      Because Mr. Beadles failed to raise the right of allocution issue before the

district court, our standard of review is for plain error. See United States v. Frost,

684 F.3d 963, 979 (10th Cir. 2012). Plain error occurs when: (1) there is an

error; (2) which is plain; (3) affecting the defendant’s substantial rights; and (4)

seriously affecting the fairness, integrity, or public reputation of the judicial

proceeding. See United States v. Barwig, 568 F.3d 852, 855 (10th Cir. 2009).

Under a plain error review, the burden is on the appellant to establish all four

elements. See United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004).

These elements are conjunctive, and only “[i]f all four prongs are satisfied, ...

may [we] then exercise our discretion to notice the forfeited error.” United States

v. Gonzalez Edeza, 359 F.3d 1246, 1250 (10th Cir. 2004) (internal quotation

marks omitted).

      To establish an error as “plain,” Mr. Beadles must establish the error was

clear or obvious; to show the alleged error affected a substantial right, he must

show the error was “prejudicial,” so that the error “must have affected the

outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725,

734 (1993). Stated another way, he must show “a reasonable probability that, but

                                          -7-
for the error claimed, the result of the proceeding would have been different.”

Dominguez Benitez, 542 U.S. at 81-82 (internal quotation marks omitted). As to

the fourth prong, in order to show the error seriously affected the fairness,

integrity, or public reputation of the judicial proceeding, Mr. Beadles must

demonstrate that a failure to correct the alleged error would result in a

“miscarriage of justice.” See United States v. Gonzalez-Huerta, 403 F.3d 727,

736 (10th Cir. 2005). One can establish such an error by demonstrating “a strong

possibility of receiving a significantly lower sentence” absent the error. United

States v. Meacham, 567 F.3d 1184, 1190 (10th Cir. 2009).

      Having determined our standard of review, we turn to the legal principles at

issue. Federal Rule of Criminal Procedure 32 requires, in part, that before

imposing a sentence the trial court must: (1) provide the defendant’s attorney an

opportunity to speak on the defendant’s behalf; (2) “address the defendant

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

mitigate the sentence”; (3) provide the government’s attorney an opportunity to

speak “equivalent to that of the defendant’s attorney”; and (4) allow victims of

the crime who are present at sentencing to be reasonably heard. See Fed. R.

Crim. P. 32(i)(4)(A)(i)-(iii) and (B). In this instance, the district court complied

with Rule 32 by allowing counsel, a victim in attendance, and Mr. Beadles to

address the court.




                                          -8-
      As to the issue of whether Mr. Beadles received a meaningful right of

allocution, we have explained that “[b]ecause allocution is vital to the sentencing

process, denial of this right requires reversal of the sentence imposed.”

Landeros-Lopez, 615 F.3d at 1264 (relying on Green v. United States, 365 U.S.

301, 304 (1961)). We have further held that:

      [i]f a court “definitively” announces a defendant’s sentence before
      giving him a chance to speak, the court commits reversible error
      because it “effectively communicates to the defendant that his
      sentence has already been determined, and that he would not have a
      meaningful opportunity to influence that sentence through his
      statements to the court.”

Frost, 684 F.3d at 979 (quoting Landeros-Lopez, 615 F.3d at 1268). “Such error

is generally not cured by the court’s later remark that it merely intended to

impose the sentence it announced.” Id. (internal quotation marks omitted).

However, we have found no plain error where the trial court simply announces its

intention to sentence a defendant within the Guidelines range prior to allowing

the defendant his right to allocution. See United States v. Mendoza-Lopez, 669

F.3d 1148, 1152 (10th Cir. 2012). Moreover, even where an allocution error

occurs, we have held such an error is “not automatically subject to reversal”

under the fourth prong of the plain error analysis, because the “denial of the right

of allocution is not a fundamental defect which inherently results in a complete

miscarriage of justice, nor an omission inconsistent with the rudimentary demands

of fair procedure.” Frost, 684 F.3d at 979 (internal quotation marks omitted).


                                         -9-
      In Landeros-Lopez, on which Mr. Beadles relies, the sentencing court

definitively announced, “it is and will be the judgment of this Court that the

defendant ... is hereby committed 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 ....” 615 F.3d at 1265. It then provided a

description of the conditions of confinement and supervised release, explained to

the defendant his right to appeal, and stated “[t]hat is the sentence the Court

intends to impose in this matter,” prior to asking, “[d]oes the defendant have

anything to say before the Court imposes this sentence?” Id. Under these

circumstances, we held Mr. Landeros-Lopez’s “right of allocution was violated”

because the sentencing court’s conclusive statements and definitive announcement

of the sentence to be imposed, prior to providing Mr. Landeros-Lopez an

opportunity to speak, “prematurely adjudged his sentence” and “effectively

communicated” to him “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.” Id. at 1268.

      The circumstances in Landeros-Lopez are dissimilar to those presented

here. In this case, prior to indicating what it proposed as a sentence term, the

district court twice stated it would announce a “tentative sentence” and expressly

stated it would receive evidence from the victims of the instant crime and hear

from Mr. Beadles and his counsel, thereby indicating it intended to receive this

                                         -10-
information prior to determining a final sentence. Prior to receiving such

evidence or hearing from Mr. Beadles, it also announced its intent to sentence

him within the Guidelines range, which we have previously held does not

constitute plain error in denying a meaningful opportunity to be heard. See

Mendoza-Lopez, 669 F.3d at 1152. In addition, after announcing what it intended

to impose with regard to not only the length of imprisonment but also supervised

release, fines, restitution, and special assessment, it permitted the government to

provide any objections to them as well as to present victim evidence in support

thereof, after which it allowed Mr. Beadles’s attorney an opportunity to make

similar objections to the proposed sentence, supervised release, and restitution

amount. It then permitted Mr. Beadles an opportunity to address the court with

respect to his sentence, and only then did it announce the final sentence imposed.

      These circumstances clearly illustrate the district court did not

predetermine the final sentence prior to Mr. Beadles’s allocution but, instead,

allowed the parties to object to the proposed sentence and provide argument in

support of the sentence they advocated. Indeed, after listening to the

government’s objection and argument, as well as receiving its evidence on harm

to the victims, it did not increase the sentence beyond the low end of the

Guidelines range. Furthermore, in arguing the proposed 210-month sentence was




                                        -11-
appropriate and reflected necessary mitigation of the sentence, 2 Mr. Beadles’s

counsel clearly attempted to counter the government’s argument for a higher

sentence. In addition, the district court addressed Mr. Beadles personally,

announced he would be invited to speak to the “tentative” sentence, and allowed

him to speak on that sentence, which also demonstrates the fact that Mr. Beadles

had a meaningful opportunity to influence his sentence.

      Moreover, in announcing the final sentence, it is evident the district court

considered the parties’ objections to the proposed sentence, the victims’

statements, and Mr. Beadles’s allocution, including his prior assistance to the

government, when it stated it had considered: (1) that Mr. Beadles is a career

criminal who robbed multiple banks (as argued by the government in objecting to

the proposed sentence); (2) the victims’ emotional injuries (as presented by the

victims in their statement and testimony); (3) the fact the jury rejected Mr.

Beadles’s coercion defense (as raised by Mr. Beadles’s counsel in requesting the

proposed 210-month sentence and discussed by Mr. Beadles in his allocution);

and (4) Mr. Beadles’s admission to robbing the bank and the provision of

information in the apprehension of his accomplice (as indicated in Mr. Beadles’s


      2
          We note Mr. Beadles’s challenge to his 210-month sentence on appeal,
after arguing for the proposed 210-month sentence at sentencing, is incredulous
and akin to the “invited error doctrine,” which precludes one from arguing the
district court erred in adopting a proposition he previously urged it to adopt. See
United States v. Quaintance, 608 F.3d 717, 721 n.2 (10th Cir. 2010); United
States v. Deberry, 430 F.3d 1294, 1302 (10th Cir. 2005).

                                        -12-
statements during his allocution that he cooperated with authorities).

      Thus, in viewing the sentencing hearing as a whole, we cannot say “a

public observer” would be left with the impression that Mr. Beadles did not have

a meaningful opportunity to influence his sentence before the district court

finalized it. See Frost, 684 F.3d at 981. As a result, no error occurred. However,

even if the circumstances presented somehow constituted an error that was clear

or obvious affecting a substantial right, Mr. Beadles has not shown the error

seriously affected the fairness, integrity, or public reputation of the judicial

proceeding, as required under the fourth prong of the plain error analysis. In

other words, he has not shown a strong possibility that he would have received a

significantly lower sentence, absent the alleged error. See Meacham, 567 F.3d at

1190. This is because Mr. Beadles fails to set forth any statement or other basis

that would convince us the district court would have granted a lower sentence

than it imposed had his right to allocution not been infringed, as claimed. See

Mendoza-Lopez, 669 F.3d at 1153-54. Our conclusion is bolstered by the fact he

received the very sentence he advocated at the sentencing hearing.




                                          -13-
                        III. Conclusion

For the above reasons, we AFFIRM Mr. Beadles’s sentence.



                             Entered by the Court:

                             WADE BRORBY
                             United States Circuit Judge




                              -14-
