United States v. Elrader Browning, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 25, 2021
• Docket: 20-50035
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 20-50035 20-50116 Plaintiff-Appellee, D.C. No. 2:87-cr-00571-SVW-1 v.

ELRADER BROWNING, Jr., MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Submitted March 16, 2021**

Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.

In these consolidated appeals, Elrader Browning, Jr., appeals pro se from the

district court’s orders denying his motions under former Federal Rule of Criminal

Procedure 35(a) (1987). We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). In Appeal No. 20-50035, Browning contends that the district court failed,

under a preponderance of the evidence standard, to make the requisite factual

findings regarding drug types and amounts in relation to his sentences for violating

21 U.S.C. § 841(a). This claim is time-barred because Browning did not bring it

within 120 days of the imposition of his sentence. See United States v. Montalvo,

581 F.3d 1147, 1153 (9th Cir. 2009) (under former Rule 35(a), challenges to the

manner in which the sentence was determined must be brought within 120 days of

sentencing).

In Appeal No. 20-50116, Browning contends that the amended judgment

entered by the district court on March 10, 2017, is illegal because it increased his

sentence and because the district court failed to hold a resentencing hearing. The

record belies Browning’s contention that the amended judgment imposed

additional penalties. Rather, the district court properly amended the judgment

solely to vacate the conviction and sentence on Count 1 in compliance with this

court’s order in No. 16-71091. As this court decided in that case, no resentencing

proceedings were required in connection with the entry of the amended judgment.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Browning’s motion for appointment of a special master under Federal Rule

2 20-50035 & 20-50116 of Appellate Procedure 48(a) is denied.

AFFIRMED.

3 20-50035 & 20-50116