United States v. Mendoza-Lopez, No. 10-1499 (10th Cir. 2012)
Annotate this CaseDefendant-Appellant Salvador Mendoza-Lopez appeals his sentence, arguing the district court denied him his right of allocution. Mendoza-Lopez pleaded guilty to one count of unlawful re-entry after removal. The Presentence Investigation Report (PSR) recommended a sentence of seventy months. Defendant filed motions for departure and variance, seeking a forty-month sentence. He argued he qualified for a downward departure under the Guidelines because his criminal history category over-represented the seriousness of his prior record. At sentencing, Defendant's counsel reiterated at length his arguments for a departure and variance. The district court, in a lengthy statement from the bench, denied both motions and accepted the PSR's recommended Guidelines range of seventy to eighty-seven months. Immediately thereafter the court said: "[i]t's the Court['s] intention to sentence within that Guideline range." It then invited both Defendant's counsel, and Defendant himself to address "where within that range this Court should sentence." The court assured defense counsel it had taken into account the Guidelines' factors and would continue to do so when it imposed sentence. At his opportunity to speak, Defendant said: "I would simply like to say that I apologize, I’m sorry for having come back. I’d like you to know that I have small children in Mexico who need me to support them by working. That’s really all." The district court sentenced Defendant to seventy months, stating that it was "sympathetic with the fact that the defendant has a wife and two small children that very much need him back home." Defendant appealed his sentence, arguing the district court violated his right of allocution by definitively announcing its intention to impose a sentence within the advisory Guidelines range before inviting him to speak. Upon review, the Tenth Circuit concluded that the district court erred by inviting Defendant to speak with respect to where within the Guidelines range the court should sentence him. This error, however, did not seriously affect the fairness, integrity, or public reputation of judicial proceedings, and the Court affirmed Defendant's sentence.
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