                                                                        FILED
                                                            United States Court of Appeals
                                   PUBLISH                          Tenth Circuit

                UNITED STATES COURT OF APPEALS                      July 3, 2017

                                                               Elisabeth A. Shumaker
                       FOR THE TENTH CIRCUIT                       Clerk of Court
                       _________________________________


    UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

    v.                                                No. 15-3275

    JESUS OCTAVIO VALDEZ-
    AGUIRRE,

             Defendant-Appellant.


                        _________________________________

              Appeal from the United States District Court
                       for the District of Kansas
                   (D.C. No. 2:14-CR-20071-JAR-1)
                      _________________________________

Submitted on the briefs: *

Virginia L. Grady, Federal Public Defender, and John T. Carlson, Assistant
Federal Public Defender, Denver, Colorado, for Defendant-Appellant Jesus
Octavio Valdez-Aguirre.

Thomas E. Beall, United States Attorney, and Carrie N. Capwell, Assistant
United States Attorney, Kansas City, Kansas, for Plaintiff-Appellee United
States of America.
                       _________________________________
*
      We conclude that oral argument would not materially help us to
decide this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
Thus, we are deciding the appeal based on the briefs.
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

BACHARACH, Circuit Judge.
                  _________________________________

      This appeal involves allocution. When a convicted defendant

allocutes, he or she makes a statement in mitigation of the sentence to be

imposed. Allocution, Black’s Law Dict. 91 (Bryan A. Garner ed., 10th ed.

2014) (second definition). 1 The right to make such a statement is

guaranteed under the federal rules. Fed. R. Crim. P. 32(i)(4)(A)(ii). By

definition, allocution is to take place before the sentence is imposed.

Otherwise, the defendant would have little to gain from making a

statement.

      But federal trial courts frequently approach sentencing with at least

some idea of what they intend to impose. See Marvin E. Frankel & Leonard

Orland, Sentencing Commissions and Guidelines, 73 Geo. L.J. 225, 232

(1984) (stating that “most judges, most of the time, sentence the defendant

according to the number of years they wrote down after reading the


1
      “Allocution” can also refer to a district court’s address to convicted
defendants, stating that they can make statements in mitigation of the
sentences to be imposed. Allocution, Black’s Law Dict. 91 (Bryan A.
Garner ed., 10th ed. 2014) (first definition). But in this opinion,
“allocution” refers only to the defendant’s statement, not the trial court’s
address.

                                     -2-
probation materials”); Mark W. Bennett, Confronting Cognitive

“Anchoring Effect” and “Blind Spot” Biases in Federal Sentencing: A

Modest Solution for Reforming a Fundamental Flaw, 104 J. Crim. L. &

Criminology 489, 531 (2014) (“I am confident most judges already

formulate a tentative sentence after reading and pondering the [presentence

report], but prior to the sentencing hearing.”). 2 Thus, federal trial courts

sometimes announce a sentence before giving the defendant an opportunity

to allocute. With these announcements, problems sometimes arise in two

forms.

      One form involves a trial court’s announcement of a definitive

sentence before giving the defendant an opportunity to allocute. This

sequence creates a violation unless the court communicates its willingness

to reconsider the sentence in light of what the defendant says. See United

States v. Landeros-Lopez, 615 F.3d 1260, 1266-68 (10th Cir. 2010).

      In the second form, the trial court announces a purportedly tentative

sentence, but makes further statements suggesting that the court might

have already made a decision. This is what took place here when Mr. Jesus




2
      The drafters of the federal rules apparently contemplated this reality
by requiring trial courts to announce prior to the sentencing when they are
considering departures on grounds not identified in the presentence report
or a party’s prehearing submissions. Fed. R. Crim. P. 32(h).

                                      -3-
Octavio Valdez-Aguirre was to be sentenced for drug conspiracy. See 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), 846; 18 U.S.C. § 2.

      Because the defendant did not object in district court, we review the

sentence under the plain-error standard. See United States v. Bustamante-

Conchas, 850 F.3d 1130, 1137 (10th Cir. 2017) (en banc). Under this

standard, we can reverse only if an error took place that was “clear or

obvious under current law.” United States v. Pablo, 696 F.3d 1280, 1287,

1290 (10th Cir. 2012). An error is ordinarily clear or obvious only when a

precedent is “directly in point” or a consensus exists in other circuits.

United States v. Smith, 815 F.3d 671, 675 (10th Cir. 2016). But even when

precedent is lacking, an error may be plain if the district court engaged in

a clearly erroneous application of statutory law. United States v. Story, 635

F.3d 1241, 1248 (10th Cir. 2011).

      We lack a Tenth Circuit precedent directly in point, and Mr. Valdez-

Aguirre does not rely on a Supreme Court precedent, 3 a consensus of other

3
      In his reply brief, Mr. Valdez-Aguirre shifted his argument, relying
on one passage in the Supreme Court’s opinion in Green v. United States:
“As early as 1689, it was recognized that [a] court’s failure to ask the
defendant if he had anything to say before sentence was imposed required
reversal.” 365 U.S. 301, 304 (1961).

      For two reasons, Mr. Valdez-Aguirre’s argument is waived. First, it
was omitted in his opening brief. United States v. Benoit, 713 F.3d 1, 12
n.2 (10th Cir. 2013) (deeming an argument waived because the defendant
had failed to raise it in his opening brief). Second, the perfunctory

                                      -4-
circuits, or a clearly erroneous application of statutory law. As a result, we

do not regard the alleged error as clear or obvious.

I.    The Trial Court’s Conflicting Statements
      The trial court began by stating that it would announce a tentative

sentence. See R. vol. 4, at 6 (“I’ll start by announcing the following

proposed findings of fact and tentative sentence.”). After this statement,

the trial court heard arguments by counsel concerning a downward

variance, then characterized the announcement two times as a tentative

sentence:

      1.    “So based on all of this, all [sic] announce the following
            proposed findings of fact and tentative sentence.”

      2.    “The Court’s tentative sentence is 360 months, followed by five
            years of supervised release . . . .”

Id. at 32. Mr. Valdez-Aguirre does not suggest that the trial court plainly

erred by announcing this “tentative” sentence before allowing allocution. 4



reference to Green does not develop a distinct argument regarding what the
sentencing court said. See United States v. Hardman, 297 F.3d 1116, 1131
(10th Cir. 2002) (“Arguments raised in a perfunctory manner . . . are
waived.”).
4
      Three other circuits have upheld the procedure of announcing a
tentative sentence prior to allocution. United States v. Burgos-Andújar,
275 F.3d 23, 28-31 (1st Cir. 2001); United States v. Laverne, 963 F.2d 235,
236-38 (9th Cir. 1992); United States v. Boose, 403 F.3d 1016, 1017 (8th
Cir. 2005) (per curiam); see also United States v. Self, 461 F. App’x 375,
380 (5th Cir. 2012) (holding that the defendant’s right to allocution was
not violated when, before inviting the defendant to speak, the district court

                                     -5-
      The court then made two statements describing what it intended to

do:

      1.   “The Court does not intend to impose a fine.”

      2.   “The Court does not intend to impose a denial of federal
           benefits . . . .”
Id. These statements suggested that the sentence being announced was

merely tentative. See United States v. Mendoza-Lopez, 669 F.3d 1148, 1152

(10th Cir. 2012) (discussing language regarding “intent” as non-

definitive), overruled in part on other grounds by United States v.

Bustamante-Conchas, 850 F.3d 1130, 1143-44 (10th Cir. 2017) (en banc).

      The potential problem exists in what the trial court said next,

interspersing some comments suggesting that the announced sentence was

tentative with other comments suggesting finality. Some of the language

suggested that the court had already made up its mind on the sentence:


had announced an intent to sentence the defendant “as required by the
guidelines”).

      The Fourth Circuit Court of Appeals has also suggested approval of
this procedure. In a case involving plain-error review, the Fourth Circuit
asserted that “there is simply nothing improper about the fact that the
district court . . . stated that 480 months seemed to be an appropriate
sentence before [the defendant’s] allocution.” United States v. Engle, 676
F.3d 405, 425 (4th Cir. 2012). The court added that “‘[w]hen a judge
announces a sentence before hearing an allocution, it is fair to assume that
such a sentence is tentative and that the judge will consider the defendant’s
statements before imposing a final sentence.’” Id. (alteration in original)
(quoting United States v. Burgos-Andújar, 275 F.3d 23, 30 (1st Cir. 2001)).

                                     -6-
      After considering all of these factors and the advisory
      sentencing guidelines, the nature and circumstances of the
      offense, and Mr. Valdez’ history and characteristics, the Court
      has decided to sentence him to a term of 360 months
      imprisonment, followed by five years of supervised release.

R. vol. 4, at 33-34. Similarly, the district court stated that “Mr. Valdez is

ordered to pay a special assessment of $100 to the Crime Victims Fund.”

Id. at 34. And the court said that “imposition of a fine is waived,” rather

than merely something that was being considered. Id. These references

suggested that the announced sentence was final. See United States v.

Landeros-Lopez, 615 F.3d 1260, 1265, 1268 (10th Cir. 2010) (stating that

finality of the sentence is suggested by similar language, such as “it is and

will be the judgment of this Court” and “this defendant shall be placed on

supervised release for a term of five years”). 5



5
      In his opening brief, Mr. Valdez-Aguirre argues that the district court
made another statement suggesting that the announced sentence was final:
“The Court believes that this sentence is sufficient, but not greater than
necessary, to reflect the seriousness of the offense, promote respect for the
law, provide just punishment, afford adequate deterrence and protect the
public from further crimes.” R. vol. 4, at 34. But this statement does not
indicate that the announced sentence was final rather than tentative.

       In addition, in his supplemental opening brief, Mr. Valdez-Aguirre
appears to argue that other statements made by the court indicated that the
sentence being announced was final. But we do not consider this argument,
for it went beyond the scope of the order for supplemental briefing. That
order authorized supplemental briefs only to address the potential effect of
United States v. Bustamante-Conchas, 850 F.3d 1130 (10th Cir. 2017) (en
banc).

                                      -7-
      But the trial court intermittently used other language suggesting that

the announced sentence was tentative. For example, the trial court twice

referred to what it intended to do, stating that it

           “does not intend to impose a denial of federal benefits,
            finding that it is not a necessary punitive sanction in light
            of the significant imprisonment sentence the Court
            intends to impose” and

           “intends to impose the mandatory and special conditions
            of supervision set forth in . . . the presentence report.”

R. vol. 4, at 34-35. These statements suggested that the announced

sentence was tentative. See p. 6, above.

      After announcing the sentence, the court asked the parties if they had

any further objections. 6 The court then invited Mr. Valdez-Aguirre to

allocute: “[B]efore I impose final sentence, would you like to address me

directly in your behalf?” 7 R. vol. 4, at 36. When he declined to do so, the


6
      In the government’s view, this statement suggested that the sentence
announced was merely tentative. The government takes the same position
regarding another statement by the court: “In determining the particular
sentence to be imposed, the Court has considered . . . .” R. vol. 4, at 33
(emphasis added). For the sake of argument, we may assume that these
statements did not indicate that the announced sentence was tentative.
7
      The government contends that “[t]he manner in which the district
court phrased this question communicated to the defendant that the
sentence it had just discussed was not the final sentence, but rather its
proposed sentence and was still subject to modification.” Appellee’s Resp.
Br. at 11. Mr. Valdez-Aguirre appears to misunderstand the government’s
contention. According to Mr. Valdez-Aguirre, the government is

                                      -8-
court imposed a final sentence, which was identical to the sentence earlier

described as tentative.

II.   Two Plausible Inferences

      What was the defendant to make of this combination of statements?

Some statements suggested that the trial court had already made up its

mind, and other statements suggested that the court hadn’t. Two plausible

inferences exist.

      One, embraced by the government, is that the trial court framed the

entire discussion from the outset as its description of a “tentative”

sentence. Under this vantage point, the trial court’s more definitive

remarks are immaterial because the entire discussion had already been

identified as tentative rather than final. This view is supported by various

statements that the trial court made throughout the hearing, such as the

statement to the defendant that he could address the court before

imposition of the “final sentence.” Id. at 36.

      But another inference is also plausible: that the trial court revealed

its actual intention by announcing the decision before allowing the

defendant to allocute. Id. at 34. The defendant did not speak English and



contending that he should have “infer[red] from [the district court’s]
‘manner’ something” that had not been said. Appellant’s Reply Br. at 2.
The government did not make this contention.

                                     -9-
dropped out of school in eighth grade. 8 Before being allowed to allocute,

he had heard his attorney present three grounds for a downward variance

and heard the trial court reject each of them. Against this backdrop, Mr.

Valdez-Aguirre could easily have viewed allocution as futile or even

disrespectful. See United States v. Landeros-Lopez, 615 F.3d 1260, 1266

(10th Cir. 2010) (indicating that when the defendant is invited to speak

after announcement of the final sentence, the defendant could reasonably

think that expression of disagreement with the trial court could be viewed

as disrespectful and lead to harsher punishment).

     If the defendant had objected in district court, reversal might

arguably have been appropriate. But under plain-error review, we can

reverse only if the alleged error had been clear or obvious.

     The alleged error here is not clear or obvious under our prior

opinions. In drawing this conclusion, we consider (1) United States v.

Theis, 853 F.3d 1178 (10th Cir. 2017) and (2) United States v. Beadles,

508 F. App’x 807 (10th Cir. 2013).

     In Theis, we addressed a similar fact-pattern under plain-error

review. 853 F.3d at 1183. We concluded that the defendant had failed to
8
      Mr. Valdez-Aguirre apparently assumes that we should consider his
particular circumstances, such as his inability to understand English. For
this assumption, Mr. Valdez-Aguirre does not provide any authority. For
the sake of argument, however, we can assume that Mr. Valdez-Aguirre is
correct.

                                     -10-
show that a similar alleged error seriously affected the fairness, integrity,

or public reputation of the judicial proceeding. Id. Though the issue

differed, our analysis sheds light on whether the alleged error here would

have been clear or obvious.

      At the sentencing hearing in Theis, the district court initially heard

argument from the defendant’s attorney. Following the argument, the court

said that it would allow “further allocution, as well as any statement Mr.

Theis would like to make to the [c]ourt” after the court “announced

proposed findings of fact and [a] tentative sentence.” Id. at 1182

(alterations in original). The court then heard argument from the

government and announced the “proposed findings of fact and . . . tentative

sentence.” Id. (ellipsis in original). In the course of this announcement, the

court expressed its intent to impose certain “terms of imprisonment.” Id.

At one point, the court stated that it “ha[d] decided” on a particular term of

imprisonment and supervised release. Id. (alteration in original).

      But the court later

           asked whether the defendant or the government had objections
            “to the sentence as tentatively announced” and

           invited the defendant “to address the [c]ourt directly [on his]
            own behalf” before imposition of the “final sentence.”




                                     -11-
Id. at 1182-83 (alterations in original). The defendant accepted that

invitation, reading a lengthy letter in which he apologized and encouraged

the court to impose a more lenient sentence. The court thanked the

defendant and responded to some of his comments. Finally, the court

imposed the sentence previously described. Id. at 1183.

     We affirmed on appeal, reasoning that the defendant had enjoyed a

meaningful opportunity to address the trial court and present mitigating

circumstances. Id. We based this reasoning on three observations. First,

“the district court [had] not definitively announce[d] Theis’ sentence

before giving him an opportunity to speak.” Id. Second, there was no

indication that the defendant had believed that the sentence was final, for

he had made a lengthy argument for a more lenient sentence. Id. Third, the

court’s response to the defendant’s statement showed consideration of the

defendant’s statement. Id.

     We also addressed similar circumstances in an unpublished opinion:

United States v. Beadles, 508 F. App’x 807 (10th Cir. 2013). At the

sentencing hearing in Beadles, the district court said twice that it would

announce a tentative sentence. 508 F. App’x at 809. The court also stated

that it would hear allocution from the defendant. Id. But in making the

announcement prior to allocution, the court interspersed language



                                    -12-
suggesting both finality and tentativeness. For example, the court said that

“[t]here will be no fine,” “[t]here will be restitution” for a particular

amount, and the sentence will include a special assessment of $100. Id. But

the court interspersed these comments with tentative language, such as an

intent to impose particular conditions of supervision. Id.

      After announcing the sentence, the court heard from the government,

a victim of the defendant’s crime, and the defendant’s attorney. The court

then invited Mr. Beadles to make a statement if he wished. Mr. Beadles

made a statement and the court imposed the final sentence, which was

identical to the sentence earlier described as tentative. Id. at 809-10. On

appeal, Mr. Beadles contended that he had been denied a meaningful right

of allocution. Id. at 808. We disagreed, holding that the district court had

not erred. Id. at 812-13.

      Theis and Beadles are not binding, for the panel in Theis did not

squarely decide whether an error had taken place and Beadles is an

unpublished opinion. In addition, in both Theis and Beadles, the defendants

allocuted, and Mr. Valdez-Aguirre did not.

      Nevertheless, in Theis, when faced with a combination of pre-

allocution statements similar to the one at issue here, we expressly

concluded that the district court had not definitively announced the



                                      -13-
defendant’s sentence before giving him an opportunity to speak. 853 F.3d

at 1183. And though Beadles was nonprecedential, the panel’s holding

under similar facts suggests that any potential error here would not have

been clear or obvious.

      Under Theis and Beadles, the trial court did not make a clear or

obvious error. The trial court framed the entire discussion with three initial

characterizations of its announcement as a tentative sentence. With that

framing, one can plausibly infer that everything else was merely a detailed

explanation for the tentative sentence.

      This viewpoint is subject to another competing, more problematic

inference, for the trial court said that it had “decided” on the sentence,

“ordered” Mr. Valdez-Aguirre to pay a special assessment, and “waived” a

fine. R. vol. 4, at 33-34. These comments suggested that the court might

have already made up its mind.

      But the trial court interspersed these comments with statements

suggesting tentativeness, such as statements of its intent. And, the court

ultimately offered the defendant a chance to allocute before the

announcement of a “final sentence.” Id. at 36. Guided by Theis and

Beadles, we do not view the trial court’s alleged error as clear or obvious.




                                     -14-
As a result, we affirm under the plain-error standard. 9




9
     Mr. Valdez-Aguirre also contends that the law of allocution would
benefit from this bright-line rule:

      If a district court makes any pre-allocution statement
      anticipating the sentence—whether couched in terms of an
      “intent” or a “proposal” or a “tentative sentence,” the right of
      allocution is fulfilled only if the court subsequently
      communicates that it will reconsider the sentence in light of
      any statement made by the defendant.

Appellant’s Opening Br. at 12 (emphasis in original). In addition, Mr.
Valdez-Aguirre argues that a reversal would deter the sentencing court
from violating the right to allocution in other cases. But we are not
reviewing these issues on a clean slate, for Mr. Valdez-Aguirre’s failure to
object in district court triggers the plain-error standard. See p. 4, above. In
light of his failure to satisfy this standard, we would not reverse even if
the bright-line rule were beneficial and a reversal would provide an
effective deterrent.

                                     -15-
