Category Archives: Legal Analysis

The Tenth Circuit’s Inconsistent Reasoning in United States v. Bustamante-Conchas

By Josh Burger-Caplan, CLS’18

The United States Court of Appeals for the Tenth Circuit recently ruled en banc in the case of United States v. Bustamante-Conchas,[1] and in doing so clarified its position on denial of the right to allocute at sentencing. The court focused on the third and fourth prongs of the test for plain error developed in United States v. Olano, which requires that, for a finding of plain error there must be “(1) error, (2) that is plain, which (3) affects substantial rights and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.”[2]


Though Bustamante-Conchas had not been explicitly given the opportunity to speak on his own behalf during his sentencing,[3] the district court sentenced him to two years less prison time than the lowest end of the recommended guideline range,[4] On appeal of his sentence, a panel of the Tenth Circuit denied Bustamante-Conchas’ request for a remand for resentencing, pointing out that he had received a sentence below his guideline range and that he had not shown that there was any additional information he would have provided to the court if he had been given the opportunity to allocute.[5] As such, Bustamante-Conchas had failed to make the necessary showing that the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings.[6] The Tenth Circuit granted a rehearing en banc on the issue of denial of allocution, and reversed.[7]


In reversing the decision of the panel, the Tenth Circuit adopted the reasoning of several other circuits regarding the denial of allocution in the face of a statutory minimum sentence, stating that “[i]f a sentence could not have been lower, a defendant cannot show prejudice.”[8] In so doing, the court adopted a view of “prejudice” that is limited, and ignores the values of allocution other than mitigation of sentence, which, somewhat ironically, the court had previously described in depth.[9]


In order to show prejudice, one must show that the error had “substantial and injurious effect or influence in determining the . . . verdict.”[10] The Supreme Court has also stated that one must show “a reasonable probability that but for [the error claimed], the result of the proceeding would have been different.”[11] But this leaves open the questions of who may define “injurious” and whether the different outcome spoken of must necessarily have been a lower sentence. In the Tenth Circuit’s estimation, it is the judge who decides what is injurious, and that if a sentence could not have been lowered, the defendant could not have been injured. However, this ignores the possibility that a defendant’s view of what is “injurious” to the verdict is not in line with that of the judge.


If a defendant is appealing a statutory minimum sentence, we cannot assume that the object of his appeal is a lower sentence. The requirement in Olano is that to show prejudice, one must show a reasonable probability that but for the error, the outcome may have been different. So what happens where a defendant asserts that they would have made an argument of anger or grievance that would have had a reasonable probability of driving their sentence upward, and they are prejudiced by their inability to do so? Certainly such an argument would be consonant with the tenth circuit’s understanding of the alternative bases for allocution beyond reduction in sentence. For a fully-informed defendant who sees the loss of that opportunity as a benefit denied, it seems paternalistic of the courts to argue that there is, in fact, no prejudice in such a situation.

[1] United States v. Bustamante-Conchas, 2017 WL 838216 (10th Cir. 2017). (hereinafter “Bustamante-Conchas en banc”)

[2] United States v. Price, 265 F.3d 1097, 1107 (10th Cir. 2001) (summarizing the test developed in United States v. Olano, 507 U.S. 725 (1993)).

[3] Id. at *2 (“The court did not personally address Bustamante-Conchas prior to imposing sentence or otherwise offer him an opportunity to allocute.”).

[4] Bustamante-Conchas en banc at *1, *2 (stating that the guideline range was 292 to 265 months, and that the court announced a sentence of 240 months).

[5] United States v. Bustamante-Conchas, 832 F.3d 1179, 1186 (10th Cir. 2016). (hereinafter “Bustamante-Conchas”)

[6] Id.

[7] Bustamante-Conchas en banc at *2.

[8] Id. at *7.

[9] Id. at *3 (discussing how allocution “maximizes the perceived equity of the process” and “suppl[ies] ‘a forum in which defendants may challenge societal injustice, and may provide answers to victims’ questions regarding the crime.”).

[10] United States v. Dominguez-Benitez, 542 U.S. 74, 81 (2004) (quoting Kotteakos v. United States, 328 U.S. 750, 776).

[11] Id. at 82 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).

The Use of the Winters Doctrine in the Fight for an Interest in Groundwater

Dale Williams, CLS’17

Native American tribes across the country are fighting for water rights.[1] In southern California, the Agua Caliente Band of Cahuilla Indians has been working for recognition of its interest in the groundwater of Coachella Valley.[2] The tribe brought suit against the Coachella Valley Water District and the Desert Water Agency to assert its rights to the groundwater and its right to participate in making decisions regarding the groundwater.[3] The agencies manage the Coachella aquifer, which has been over-drafted and filled with low-quality water, practices the tribe has objected to for years.[4]

On March 7, 2017, the Ninth Circuit upheld the District Court for the Central District of California’s summary judgment in favor of the Agua Caliente tribe. The tribe had filed suit in May 2013 against the two local water agencies, arguing that “it has a federally reserved right and an aboriginal right to the groundwater underlying the reservation.”[5] While the district court found that the tribe does not have an aboriginal right to the groundwater, the court granted a partial summary judgment in favor of the tribe, holding that “the reserved rights doctrine applies to groundwater and that the United States reserved appurtenant groundwater when it established the Tribe’s reservation.”[6]

In deciding this question, the Ninth Circuit applied the Winters doctrine, derived from Winters v. United States[7], which held that “the creation of an Indian reservation impliedly reserves water rights to the tribe or tribes occupying the territory, that those water rights are reserved in order to carry out the purposes for which the lands were set aside, and that the rights are paramount to water rights later perfected under state law.”[8] The Ninth Circuit found that the U.S. impliedly reserved water rights when creating the Agua Caliente Reservation.[9] The primary purpose of the establishment of the reservation was “to create a home for the Tribe,” which required water.[10] The court went on to hold that the Winters doctrine and the tribe’s reserved water rights extend to groundwater.[11]

The case, which was divided into three phases, will return to federal court to determine “whether the Tribe beneficially owns the ‘pore space’ of the groundwater basin underlying the Agua Caliente Reservation and whether a tribal right to groundwater includes the right to receive water of a certain quality”[12] (Phase II). Phase III of the litigation will “quantify any identified groundwater rights.”[13]

[1] See Stand with Standing Rock, Standing Rock Sioux Tribe (2017) available at

[2] Agua Caliente Band of Cahuilla Indians, Agua Caliente Band of Cahuilla Indians Has Rights to Groundwater, Ninth Circuit Confirms (March 7, 2017) available at

[3] Ian James, Calif. Tribe Wins Appeal in Landmark Water Case, USA Today (March 7, 2017)

[4] Supra note 2.

[5] Agua Caliente Band v. Coachella Valley Water Dist., No. 15-55896, slip op. at 9 (9th Cir. Mar. 7, 2017).

[6] Id. at 10.

[7] Winters v. United States, 207 U.S. 562 (1908).

[8] Felix S. Cohen, Handbook of Federal Indian Law 1210 (2012 Ed.).

[9] Supra note 5.

[10] Id. at 17.

[11] Id.

[12] Id. at 10.

[13] Id.

Trial by Most of a Jury: The Court’s Failure to Fully Incorporate the Sixth Amendment

Ethan Thomas, CLS ’17

Though the right to a criminal trial by jury seems to be a quintessential element of due process, it remains one of the few provisions of the Bill of Rights still not fully incorporated into the Fourteenth Amendment’s Due Process Clause. This allows for juries in state courts to return a guilty verdict without unanimous consensus, presenting serious concerns for the rights of criminal defendants, especially as issues of jury composition persist.

It may seem intuitive today that states do not have carte blanche to restrict free speech or perform unreasonable searches and seizures, as the Bill of Rights enumerates these protections. The Bill of Rights’ restrictions on government, however, were not constitutionally mandated at the state level until fairly recently: only in the twentieth century did the Supreme Court find most of the first eight Amendments to be “incorporated” into the Fourteenth Amendment’s guarantee of due process.

Though the Supreme Court rejected Justice Black’s view that the Due Process Clause necessarily incorporated the entire Bill of Rights against the states,[1] the Court has ultimately found, piecewise, that most of the provisions of the Bill of Rights apply. The Court explicitly recognized incorporation of the Bill of Rights’ provisions beginning in Gitlow v. New York[2] in 1925 (freedom of speech and freedom of the press) and most recently in McDonald v. Chicago[3] in 2010 (individual right to bear arms).

Unincorporated Rights and the Sixth Amendment

The only provisions that have not been incorporated are the Sixth Amendment’s right to a unanimous verdict,[4] the Fifth Amendment’s requirement of a grand jury, the Seventh Amendment’s right to a jury trial in civil cases, and the Eighth Amendment’s prohibition of excessive fines.[5] Also, while the Supreme Court has not itself incorporated the Third Amendment, the Second Circuit found that it was incorporated against the states, noting that the absence of precedent on this issue was likely due to its extremely rare invocation.[6]

Curiously, although due process refers on its face to procedure, these few exceptions to incorporation consist mostly of the Bill of Rights’ actual procedural guarantees.

Absent authoritative case law fully incorporating the Sixth Amendment right to a trial by jury, the states are free to determine whether jury verdicts must be unanimous. In practice, this has permitted Louisiana and Oregon to allow ten out of twelve jurors to convict a criminal defendant[7]—a practice upheld by the Supreme Court in 1972 in Apodaca v. Oregon.[8] In the 4–1–4 Apodaca decision, with Justice Powell concurring in the judgment, the Court declined to incorporate the unanimous jury requirement against the states, allowing Louisiana and Oregon to continue allowing criminal convictions by only ten of twelve jurors.[9] Last year, again on appeal from a criminal conviction by a non-unanimous jury in Louisiana, the Court denied a petition for certiorari to reconsider its decision in Apodaca.[10]

The Court’s decision not to hear this issue is confusing not only because of its importance, but also because overturning Apodaca should be an easy decision.

The Case for Incorporation

In McDonald, the most recent Supreme Court incorporation case, the Court discussed what it meant for a right to be “of such a nature” as to be “included in the conception of due process of law.”[11] The Court noted that different formulations include “immutable principles of justice which inhere in the very idea of free government…”[12] rights “so rooted in the traditions and conscience of our people as to be ranked as fundamental;”[13] and principles “essential to a fair and enlightened system of justice.”[14]

Excluding the requirement of a unanimous verdict in a criminal jury trial from the notion of due process is textually perplexing as well as substantively disturbing. Unlike most of the rights that have been incorporated, this is an actual component of procedure. It is rooted solidly in common law, and has been thought to apply to the federal government since the Constitution’s ratification.[15] Justice Powell even recognized this historical support in Apodaca, but he did not find that the practice was authoritative with respect to the states.[16] It is difficult to find a right more entrenched in history and tradition than the right to jury unanimity, and because the jury is the cornerstone of a “fair and enlightened system of justice,” traditional rules regarding the threshold for a jury conviction should not be subject to loosening by the states in criminal trials, where the stakes are particularly high.

Further, the notions discussed in McDonald are incompatible with partial incorporation, i.e., recognizing that the states are bound only to a weaker form of a constitutional guarantee.[17] If a right is “fundamental” and inherent “in the very idea of free government,” it makes little sense to guarantee only part of that right when a state court happens to be exercising jurisdiction. Holding to the notion that a trial by jury is fundamental but not as necessary in state courts is at odds with the principles of incorporation. Interestingly, Justice Powell was the lone justice in Apodaca who advocated this split approach: the four-justice plurality and the four dissenting justices all advocated uniform application of their respective interpretations. Though eight Justices agreed that partial incorporation was not the solution, the rule stands today.[18]

Non-Unanimous Jury Convictions Raise Serious Concerns About the Rights of Criminal Defendants

Aside from the problems inherent in lowering the threshold for conviction, allowing a conviction over the dissent of two jurors—as Louisiana and Oregon do—presents concerns about jury composition as well. It is well-settled that procedures preventing diversity on a jury can pose constitutional problems, and this issue persists today.[19] However, the principle that a jury should represent multiple perspectives from the community is substantially watered down if one or two minority jurors can be essentially vetoed. Further, this substantially hampers the power of jury nullification[20] or jury review[21] —which can be especially important in the context of prosecutions motivated by a discriminatory purpose—by eliminating the ability of one or two jurors to block a conviction when they perceive a fundamental defect in the law.

By denying certiorari on this issue, the Court allowed the Apodaca decision to stand and permitted two states to continue convicting criminal defendants without unanimous verdicts. The incorporation doctrine as articulated by substantial precedent culminating with McDonald nonetheless demonstrates that the Fourteenth Amendment should require unanimous jury verdicts in criminal trials.

[1] “The due process clause of the Fourteenth Amendment… does not draw all the rights of the federal Bill of Rights under its protection.” Adamson v. California, 332 U.S. 46, 53 (1947); see also Id. (Black, J., dissenting) at 71–72 (“My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored,… persuades me that one of the chief objects that the provisions of the Amendment’s first section… were intended to accomplish was to make the Bill of Rights, applicable to the states.”) (citations omitted).

[2] Gitlow v. New York, 268 U.S. 652, 664 (“the ‘liberty’ protected by the Fourteenth Amendment includes the liberty of speech and of the press”).

[3] McDonald v. Chicago, 561 U.S. 742, 791 (“We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right [as applied to individuals in recent case law].”).

[4] The Sixth Amendment’s guarantee of a trial by an impartial jury implies, at least with respect to the federal government, additional requirements such as unanimity. See Andres v. Unites States, 333 U.S. 740, 748 (1948) (“Unanimity in jury verdicts is required where the Sixth and Seventh Amendments apply.”); see also Kate Riordan, Ten Angry Men: Unanimous Jury Verdicts in Criminal Trials and Incorporation After McDonald, 101 J. Crim. L. & Criminology 1403, 1408 (2011).

[5] See McDonald, 561 U.S. at 765 n.13 (enumerating the unincorporated constitutional rights).

[6] Engblom v. Carey, 677 F.2d. 957, 961 (2d Cir. 1982).

[7] LA Const. art. I, §17 (requiring concurrence of ten jurors to render a verdict in a criminal case, unless the punishment is capital); OR Const. art. I, §11 (requiring concurrence of ten jurors to render a verdict in a criminal case, except for first degree murder).

[8] Apodaca v. Oregon, 406 U.S. 404 (1972).

[9] Id.

[10] Jackson v. Louisiana, 134 S.Ct. 1950 (Mem.) (2014) (denying certiorari).

[11] McDonald, 561 U.S. at 743 (quoting Twining v. New Jersey, 211 U.S. 78, 99 (1908)).

[12] Id. at 760 (quoting Twining, supra n.11, at 102).

[13] Id. (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).

[14] Id. (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)) (internal quotation marks omitted).

[15] “[T]he requirement of unanimity arose during the Middle Ages and had become an accepted feature of the common-law jury by the 18th century.” Apodaca, 406 U.S. 404 at 407–08; See also 1 John Adams, A Defence of the Constitutions of Government of the United States, 376 (1797) (“it is the unanimity of the jury that preserves the rights of mankind…”).

[16] Apodaca, 406 U.S. 369 (Powell, J., concurring in the judgment) (“In an unbroken line of cases reaching back into the late 1800’s, the Justices of this Court have recognized, virtually without dissent, that unanimity is one of the indispensable features of federal jury trial.”); see also Riordan at 1414 (citing same).

[17] In fact, the court there says that “incorporated Bill of Rights protections are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” McDonald, 561 U.S. at 765 (citations and internal quotation marks omitted).

[18] The Court in McDonald explicitly recognized Apodaca as an “exception” to the rule against partial incorporation, noting this oddity in how the votes split, and said that Apodaca “does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government.” Id. at 766 n.14.

[19] See, e.g., Batson v. Kentucky, 476 U.S. 79 (1986) (holding that use of peremptory strikes to purposefully exclude black jurors warrants reversal). This term, the Supreme Court heard arguments in Foster v. Chatman, a case alleging that Georgia discriminatorily struck black jurors on the basis of race. Supreme Court Docket 14-8349; Petition for Writ of Certiorari, 2015 WL 2457657.

[20] See James Kachmar, Silencing the Majority: Permitting Nonunanimous Jury Verdicts in Criminal Trials, 28 Pac. L. J. 273, 307–308 (1996).

[21] Akhil Amar discusses the theory of the role of the jury in “refus[ing]” to follow a law it deems unconstitutional.” Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction, 98–104 (1998). This narrower theory may provide a more legitimate basis for seeking to preserve the power of the jury not to apply a law.