Miguel Angel Carranza-Baez v. United States

829 F.2d 1125, 1987 U.S. App. LEXIS 12681, 1987 WL 44866

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 24, 1987
• Docket: 86-3822
• Status: Unpublished

Opinion

829 F.2d 1125

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Miguel Angel CARRANZA-BAEZ, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 86-3822

United States Court of Appeals, Sixth Circuit.

September 24, 1987.

ORDER

Before ENGEL, MERRITT and RYAN, Circuit Judges.

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Petitioner brought this motion to vacate sentence under 28 U.S.C. Sec. 2255 questioning the constitutionality of a 1985 sentence for conspiracy to distribute cocaine. He specifically addressed the propriety of the plea acceptance procedure. The district court denied the relief sought and this appeal followed. On appeal the parties have briefed the issues.

Petitioner presents two issues on appeal. The first issue, centering on the contents and utilization of a presentencing report, was not presented to the district court and therefore will not be considered on appeal. Olund v. Swarthout, 459 F.2d 999, 1000 (6th Cir.), cert. denied, 409 U.S. 1008 (1972). The second issue concerns the denial of petitioner's right of allocution at sentencing. Although the Supreme Court has held that the denial of this right, found in Rule 32(a), Federal Rules of Criminal Procedure, is not an error that can be raised in a collateral attack under 28 U.S.C. Sec. 2255 absent certain 'aggravating circumstances,' Hill v. United States, 368 U.S. 424, 425-429 (1962), we need not go so far in the case at bar because the Court and the petitioner at sentencing carried on a lengthy exchange that meets the purposes of the Rule. (See Appendix pp. 16-33.) We affirm. Rules 9(b)(5), Rules of the Sixth Circuit.