United States v. Rodriguez-Velasquez

132 F.3d 698

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 9, 1998
• Docket: 97-5037
• Status: Published

Opinion

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 97-5037 Non-Argument Calendar ________________________

D. C. Docket No. 96-989-CR-JLK

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

GUILLERMO RODRIGUEZ-VELASQUEZ, Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Florida _________________________ (January 9, 1998)

Before TJOFLAT, BARKETT and HULL, Circuit Judges.

PER CURIAM:

Defendant/Appellant Guillermo Rodriguez-Velasquez appeals his sentence, alleging that

the district court failed to afford him his right of allocution under Federal Rule of Criminal

Procedure 32(a)(1)(C). Because Defendant waived his right to appeal that error and no manifest injustice occurred, we AFFIRM Defendant’s sentence.

I. BACKGROUND

Defendant Rodriguez-Velasquez pled guilty to a charge of importation of cocaine and

was sentenced to thirty-seven months in prison. The Court gave Defendant credit for acceptance

of responsibility and sentenced Defendant at the lowest range within the Guidelines. Defendant

had no objections to the amount of the prison sentence.

The government concedes that at the sentencing hearing, Defendant was not given an

opportunity to exercise his right of allocution. However, the government argues that this Court

nonetheless should affirm the sentence because Defendant waived his right to allocute. The

district judge specifically asked whether there were any “Jones objections,” and Defendant made

no objections to the court’s failure to afford Defendant the right of allocution:

The Court: Under U.S. versus Jones, is there anything further to be said at this time? ... Defendant’s Attorney: Nothing further, Judge. No objections on behalf of Jones.

(R. 3-3 to 4) The government argues that this Court should affirm the sentence because

Defendant failed to object and the court’s denial of Defendant’s right of allocution was not

“manifest injustice” under the facts here.

II. DISCUSSION

A. The Effect of Jones on Denial of the Right to Allocute

The government relies on United States v. Jones, 899 F.2d 1097 (11th Cir. 1990),

overruled on other grounds, United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993) (en banc),

which held that “[w]here the district court has offered the opportunity to object and a party is

2 silent or fails to state the grounds for objection, objections to the sentence will be waived for

purposes of appeal, and this court will not entertain an appeal based upon such objections unless

refusal to do so would result in manifest injustice.” Id. at 1103.

The only published Eleventh Circuit opinion this panel could locate addressing the effect

of Jones on the right of allocution is United States v. Tamayo, 80 F.3d 1514 (11th Cir. 1996). In

the resentencing hearing in Tamayo, the district court did not give the defendant an opportunity

to allocute; however, the defendant failed to object. Id. at 1521. On appeal, this Court applied

Jones’s standard of review, holding that the defendant had waived his right to allocute and

affirming absent any showing of “manifest injustice.” Id. at 1521.

As Defendant notes, in two other recently published opinions, this Court summarily

remanded cases for resentencing because of the district courts’ failure to afford the defendants

the right of allocution. United States v. Phillips, 936 F.2d 1252, 1255-56 (11th Cir. 1991)

(rejecting the government’s argument that addressing the defendant’s counsel was sufficient);

United States v. Taylor, 11 F.3d 149, 152 (11th Cir. 1994) (holding that in “proceedings that

impose a new sentence after vacation of the original sentence . . . the defendant has a right to be

present and allocute”); see also United States v. Medina, 90 F.3d 459, 465 n.8 (11th Cir. 1996)

(explaining in a footnote unessential to its holding that “[f]ailing to address a defendant

personally or failing to give a defendant the opportunity to make a statement requires

resentencing”). However, in those cases, the government did not contend that the defendant had

waived his right to allocute, and this Court did not discuss the effect of Jones on the right to

allocute. Thus the only Eleventh Circuit case to address directly the issue here holds that a

3 defendant’s failure to raise his right to allocute as a Jones objection constitutes waiver of that

right. Tamayo, 80 F.3d at 1521.1

In this case, the district court specifically asked for any Jones objections when sentencing

Defendant Rodriguez-Velasquez, and Defendant did not mention his right of allocution. Thus,

under Jones, Defendant waived his right to appeal the denial of his right of allocution. Once a

defendant has waived his right to allocute by failing to raise it as a Jones objection, this Court

will remand for resentencing only if manifest injustice would result otherwise. Tamayo, 80 F.3d

at 1521.

B. Application of the “Manifest Injustice” Standard

In applying the “manifest injustice” standard in Tamayo, this Court explained “that a trial

court’s failure to allow a defendant to allocute at sentencing is neither a constitutional error nor .

. . ‘a fundamental defect which inherently results in a complete miscarriage of justice, nor an

omission inconsistent with the rudimentary demands of fair procedure.” Id. at 1521-22 (citing

Hill v. United States, 368 U.S. 424, 428 (1962)). Turning to the facts of the particular case, the

Tamayo court noted that the defendant was given an opportunity to allocute at his original

sentencing, that the resentencing was limited in scope, and that the defendant failed to take

advantage of the district court’s invitation to file supplemental authority and objections within

1 The government perceives Tamayo to be inconsistent with Phillips and Taylor, but that inconsistency is more apparent than real. In any event, this panel is obliged “if at all possible, to distill from apparently conflicting prior panel decisions a basis of reconciliation and to apply that reconciled rule.” United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993). The best basis of reconciliation between the cases is that only Tamayo discusses the effect of Jones on the right to allocute.

4 ten days of the resentencing hearing. Id. at 1522. The court thus found no “manifest injustice”

and no reversible error. Id.

In this case, Defendant Rodriguez-Velasquez raised no objections to the amount of the

sentence and was given the lowest possible sentence within the Guidelines. Thus, denying

Defendant his right of allocution was harmless error and not “manifest injustice.” We therefore

AFFIRM Defendant’s sentence.