Minimal Colloquy Sufficient For Conviction; Resentencing Ordered For Rule 11 Violation

United States v. Landeros-Lopez, ___ F.3d ___ , 2010 WL XXX, No. 09-8056 (10th Cir. 2010) (Wyo.)

Plea colloquy adequate to establish factual basis for drug conspiracy conviction. (Defendant said the drugs belonged to his roommate, he was present when roommate dealt the drugs, and he accepted rent–drug proceeds–from the roommate, but did not state anything to establish that he agreed to violate the law, knew the objective of the conspiracy, that he voluntarily became a part of the agreement). In accepting the plea, the court can consider what the defendant says as well as any other evidence presented–in this case, the prosecutor’s statement. Evidence in the PSR may be considered by the COA only to see if any Rule 11 error effected the defendant’s substantial rights. On appeal, the full record supported a factual basis for the defendant’s plea.

The district court invited the defendant to allocute only after pronouncing the sentence, using the “highly conclusive” words “it is and will be the sentence . . ..” The right to allocution is absolute, and if denied, requires a reversal of the sentence without any regard as to prejudice. Sentence vacated and remanded for resentencing.