United States v. David Davis, Jr. ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-3822
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
David Lee Davis, Jr.
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: April 8, 2013
Filed: June 19, 2013
[Unpublished]
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Before WOLLMAN, BEAM, and MURPHY, Circuit Judges.
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PER CURIAM.
David Lee Davis, Jr., appeals from the judgment of the district court1
sentencing him to 262 months’ imprisonment. Davis argues that the district court
1
The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
erred in denying his motion for a downward variance before affording him an
opportunity to allocute and in imposing an unreasonable sentence. We affirm.
Under Federal Rule of Criminal Procedure 32(i)(4)(A)(ii), the district court
must, before imposing sentence, “address the defendant personally in order to permit
the defendant to speak or present any information to mitigate the sentence[.]” This
rule does not, however, “give [a defendant] the right to address the court at any
particular time before the court imposes sentence.” United States v. Diaz-Arenas, 46
F.3d 784, 785 (8th Cir. 1995) (per curiam). “We have found no error as long as the
court gives the defendant an opportunity to speak prior to the imposition of sentence.”
United States v. Hoffman, 707 F.3d 929, 937-38 (8th Cir. 2013).
After hearing the parties’ arguments on Davis’s motion for a downward
variance, the district court stated: “I recognize that I can vary or depart if I wanted to
here for overstated criminal history or for any other reason. . . . This is not a case
where I feel compelled to do that.” After further explanation by the district court,
Davis’s counsel advised the court that Davis “would also like to allocute before his
sentence is pronounced.” The district court responded that Davis “certainly” could
allocute and that “[m]aybe that will change my mind.” After the allocution, the
district court provided additional explanation before imposing the sentence. In these
circumstances, Davis was not denied his right to presentence allocution. See United
States v. Barrett, 552 F.3d 724, 728 (8th Cir. 2009) (no plain error where the district
court, “[a]fter indicating its intention to impose a 120-month sentence on Count 1, . . .
allowed [the defendant] an opportunity to speak . . . [and] then imposed a 120-month
sentence on Count 2” (internal citation omitted)); United States v. Boose, 403 F.3d
1016, 1017 (8th Cir. 2005) (per curiam) (affirming judgment where the district court
“indicated its intention to impose a 270-month sentence, [but] no sentence was
imposed until after giving [the defendant] the opportunity to speak” and “assured [the
defendant] that it would listen to what he had to say” before imposing sentence).
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With respect to Davis’s second argument, we conclude that the district court
did not commit significant procedural error or abuse its discretion and that the
sentence—which was at the bottom of the United States Sentencing Guidelines
range—was not substantively unreasonable. See United States v. Feemster, 572 F.3d
455, 461-62 (8th Cir. 2009) (en banc) (standard of review); United States v. Struzik,
572 F.3d 484, 488 (8th Cir. 2009).
The judgment is affirmed.
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