United States v. Rodriguez-Velasquez , 132 F.3d 698 ( 1998 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 97-5037
Non-Argument Calendar
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D. C. Docket No. 96-989-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUILLERMO RODRIGUEZ-VELASQUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(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
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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
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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.
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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.
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