What does a district court need to say about the sentence before asking an accused to allocute in order to commit reversible plain error?

In United States v. Slinkard, 2023 WL 2484934 (10th Cir., Mar. 14, 2023) (NDOK) and United States v. Benitez-Jimenez, 2023 WL 2484646 (10th Cir., Mar. 14, 2023) (NDOK), the panel explains what a district court cannot say before an accused’s allocution. In Slinkard, before allocution, the district court said “There is no way in good conscience that I could ever allow this defendant to be among the public or near any child.” Then the court asked Slinkard if he had anything to say. He did not. The court sentenced him to two concurrent life terms. In Benitez, the district court ruled on a downward variance request before asking Benitez if he something to say. The court explained that “based upon the information provided by the parties, I will not vary from the advisory guideline level as the factors fail to separate this defendant from the minerun [sic] of similarly situated defendants; therefore, defendant’s motion . . . is denied.” Thereafter, the court invited Benitez to allocute. Benitez apologized for his misconduct and promised he would not misbehave again. The court sentenced him to a prison term of 57 months, the high end of the guideline imprisonment range. Both cases were reviewed for plain error by the same panel. In Slinkard it held that the district court clearly erred by “definitively announcing Mr. Slinkard’s life sentence before allocution.” According to circuit precedent, being denied the right to allocute is presumptively prejudicial and thus satisfies plain error’s third prong. Only an “extraordinary circumstance” overcomes this presumption. Here, the government didn’t identify any extraordinary circumstance. Besides, there was a possibility of a less severe sentence because the guideline imprisonment range was 30 years to life and Slinkard had been given a 30 year term in state court for the same misconduct. The fourth plain error element also was satisfied. Denying allocution “subverts public values.” The judicial proceedings are “seriously affected” when the district court does not give the accused a “meaningful opportunity” to speak and “present mitigating circumstances.” The opportunity to allocute was not meaningful because the court told Slinkard he was not getting a prison term less than life. The panel said on remand the case should go to a different judge. The appearance of impropriety was too marked not to do so. The court’s commentary at sentencing suggested a strong personal belief which would be difficult to set aside on remand. Given that “preserving the appearance of justice” is an “essential purpose of the right of allocution” reassignment best ensures fairness. And assignment to a different judge would not impose a substantial burden on the judiciary. Unlike, Slinkard, Benitez did not convince the panel that he satisfied plain error’s four elements. The panel said the district court did not clearly and unambiguously communicate the specific sentence it would impose on Benitez when it ruled on his downward variance motion before his allocution. Although the district court might have conveyed it would impose a guideline sentence, that is not the same as announcing a specific sentence pre-allocution. Still, the panel noted that from the court’s comments Benitez reasonably could have concluded he was categorically precluded from arguing for a lower sentence and that in allocution he could not reargue the points he made in his motion. Although the court’s procedure may have been incorrect, it did not amount to plain error. “Even if [Benitez] inferred that the district court’s denial of his motion for variance precluded him from arguing for a variant sentence, the fact that the district court did not affirmatively prohibit from doing so means there is no plain error under” the circuit’s precedent. Benitez gets no relief because neither the circuit, nor the Supreme Court has held that “limiting the scope of allocution by implication” is “reversible” error.