                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    April 22, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 08-1027
 v.                                             (D.C. No. 07-CR-00379-LTB-1)
                                                           (D. Colo.)
 JUAN CARLOS MALDONADO-
 ZAMORA, a/k/a Jesus Maldonado-
 Zamora, a/k/a Manuel Marquez, a/k/a
 Jesus Maldojado Zamora,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, McKAY, and HARTZ, Circuit Judges.


      Defendant-Appellant Juan Carlos Maldonado-Zamora pled guilty to one

count of unlawful reentry in violation of 8 U.S.C. § 1326(a) and (b)(2). I R.

Docs. 1, 18, 24. On January 16, 2008, he was sentenced to 41 months’

imprisonment followed by three years’ supervised release. 1 I R. Doc. 24, at 2-3.

      *
        This order and judgment is not binding precedent, except under the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.
      1
        The Presentence Report (PSR) indicated a total offense level of 21,
applying a three-point downward adjustment for acceptance of responsibility.
I Supp. R. at 5 (PSR). The PSR calculated the guideline range as 41 to 51
months. I Supp. R. at 11 (PSR). The PSR discussed factors that would be
On appeal, Mr. Maldonado-Zamora argues that the district court infringed upon

his right to allocution when it cut off his lawyer’s argument seeking a departure

under the Sentencing Guidelines. He argues that Fed. R. Crim. P. 32(i)(4)(A)(i)

requires a district court to provide an opportunity for counsel to speak on a

defendant’s behalf and that the plea agreement in this case expressly allowed him

to request a departure at sentencing. Further, he argues that the district court

misunderstood its ability to depart. Our jurisdiction arises under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a), and we remand for resentencing.



                                     Background

      Mr. Maldonado’s plea agreement provided in pertinent part:

      Any estimation by the parties regarding the estimated advisory
      guideline application does not preclude either party from asking the
      Court to depart from the otherwise advisory guideline range at
      sentencing, if that party believes that there exists an aggravating or
      mitigating circumstance of a kind, or to a degree, not adequately
      taken into consideration by the Sentencing Commission in
      formulating the sentencing guidelines.

I R. Doc. 18 at 5.

      At the sentencing hearing, the district court indicated its intention to

sentence at the bottom of the advisory guideline range. Thereafter, counsel

sought to argue in favor of a departure:


relevant to a variance pursuant to 18 U.S.C. § 3553(a), but stated that there were
no factors known that would warrant a departure from the advisory guideline
range. I Supp. R. at 13-14.

                                      -2-
      [Counsel]:   Judge, I’m aware of what the Court has stated, but I
                   would just like to state that if a case was ripe for
                   departure from the bottom of the Guidelines I would like
                   to state some things that I believe support that in this
                   case.

                   Mr. Maldonado’s last conviction was a substantial time
                   in the past –


      The Court: Well, let’s stop right there. Under our local rule if there
                 was to be a response to the Presentence Report which
                 would invoke a departure under the advisory Guidelines,
                 it would be incumbent upon defense counsel to appraise
                 the Court, government counsel, and the probation officer
                 of the motion for departure, its specific basis, so that all
                 concerned could consult the advice of the Guidelines
                 with respect to a Guideline departure.

                   If there was to be a request for a variant sentence, that is
                   a sentence not within the advisory Guideline range, but
                   variant from it under 3553(a), it is likewise incumbent
                   upon counsel to advise the Court, government counsel,
                   and the probation officer of that request, so that analysis
                   and thought could be given to it before the sentencing
                   hearing.

                   We’ve received nothing like this.

      [Counsel]: I understand that, Judge.

II R. Doc. 35 at 3, 4-5. Thereafter, Mr. Maldonado-Zamora addressed the court

and the court imposed sentence.



                                     Discussion

      There is no question that a district court must afford a defendant an


                                         -3-
opportunity to speak on his own behalf prior to sentencing. Fed. R. Crim. P.

32(i)(4)(A)(ii); Hill v. United States, 368 U.S. 424, 426 (1962); Green v. United

States, 365 U.S. 301, 304 (1961) (plurality opinion). Prior to imposing sentence,

a district court also must “provide the defendant’s attorney an opportunity to

speak on the defendant’s behalf.” Fed. R. Crim. P. 32(i)(4)(A)(i). A defendant’s

right to have counsel speak on his behalf (like the right to allocution itself) assists

the trial court in fashioning an accurate and reliable sentence based on all relevant

information. United States v. Gutierrez, 555 F.3d 105, 110 (2d Cir. 2009).

      The government contends that, as a factual matter, the district court did not

prevent counsel from speaking on Mr. Maldonado-Zamora’s behalf because

counsel indicated he understood the court’s ruling, recounted that he had

submitted other materials, asked if the Defendant could make a statement, and

then counsel concluded his presentation. Aplee. Br. 14-16. None of these factors

suggest that counsel was allowed to make his argument for a downward departure

in the face of the district court’s ruling to the contrary.

      While a district court has some discretion to place reasonable limits on

what may be addressed, we are persuaded that the district court abused its

discretion when it denied counsel the right to address a downward departure.

Specifically, the district court did not permit defense counsel to argue this point

because of its belief that a “local rule” required a motion for a departure or




                                           -4-
variance to be filed prior to the sentencing hearing. 2 II R. Doc. 35 at 4. The

parties agree that no local rule required a party to file a motion for a downward

departure prior to the sentencing hearing. Aplt. Br. 20; Aplee. Br. 20-21.

      Although the government argues that the district court was likely referring

to how Rule 32 is interpreted in the district by local practice, or the practice of

requiring objections to the PSR in accordance with Fed. R. Crim. P. 32(f), those

grounds were not relied upon by the district court. Deciding this appeal on the

government’s interpretation would be in tension with the express words of the

district court (which relied upon a local rule). Moreover, we question how

counsel would know that was what the district court meant absent extraordinary

prescience. After all, the district court declined to entertain the argument for

want of a motion, not based upon the lack of objection.

      Our cases have allowed non-compliance with Rule 32's allocution right to

be raised on direct appeal, notwithstanding the failure to object, and the

government does not argue otherwise. United States v. Muniz, 1 F.3d 1018, 1025

(10th Cir. 1993); United States v. Gardner, 480 F.2d 929, 932 (10th Cir. 1973),

superseded by statute on other grounds as discussed in, Smith v. United States,

      2
         The District of Colorado has since amended its local rules to require a
party to file a motion for a departure or a variance eleven days before the
sentencing hearing. However, this rule did not go into effect until December 1,
2008. See United States District Court for the District of Colorado, Local Rules
of Practice,
http://www.cod.uscourts.gov/Documents/LocalRules/LR_wAppsAndAtts.pdf.
The sentencing hearing for this case was held on January 16, 2008.

                                         -5-
551 F.2d 1193, 1196-97 (10th Cir. 1977); Aplee. Br. at 13. Here, it is apparent

that counsel was attempting to make arguments in mitigation–by seeking a

downward departure. Given the Sentencing Guidelines, the ability to make

arguments for a departure or a variance is central to advocacy given a now-

advisory guidelines system. See Irizarry v. United States, 128 S. Ct. 2198, 2202-

03 (2008); United States v. Jarvi, 537 F.3d 1256, 1262 (10th Cir. 2008). Rather

than categorical notice requirements, a continuance for legitimate surprise would

be the better policy. See Irizarry, 128 S. Ct. at 2203.

      In view of the above, it is unnecessary to address Mr. Maldonado-Zamora’s

other arguments.

      REMANDED.



                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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