Ronald Lank v. United States ( 1999 )


Menu:
  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 98-3577
    ___________
    Ronald August Lank, Jr.,                 *
    *
    Appellant,                  *
    * Appeal from the United States
    v.                                 * District Court for the
    * Western District of Missouri
    United States of America,                *
    *      [UNPUBLISHED]
    Appellee.                   *
    ___________
    Submitted:   March 5, 1999
    Filed: May 5, 1999
    ___________
    Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.
    ___________
    PER CURIAM.
    Ronald August Lank, Jr., appeals from the final judgment entered in the District
    Court1 for the Western District of Missouri, denying his 28 U.S.C. § 2255 motion to
    vacate his sentence. After a jury found Lank guilty of armed bank robbery and
    interstate transportation of a stolen motor vehicle, in violation of 18 U.S.C. §§ 2113
    and 2312, the district court sentenced him to a total of 210 months imprisonment. We
    1
    The Honorable Scott O. Wright, United States District Judge for the Western
    District of Missouri.
    affirmed Lank’s convictions and sentence. See United States v. Lank, 
    108 F.3d 860
    (8th Cir. 1997). In the § 2255 motion at issue here, Lank claimed the district court
    violated his right to allocution, the presentence report (PSR) contained a prejudicial
    factual inaccuracy, and his counsel was ineffective for failing to raise these issues at
    sentencing and on direct appeal. For reversal, Lank argues the district court
    erroneously denied his motion. For the reasons discussed below, we affirm.
    Upon de novo review, see United States v. Duke, 
    50 F.3d 571
    , 576 (8th Cir.),
    cert. denied, 
    516 U.S. 885
    (1995), we conclude the district court properly denied
    § 2255 relief. Our review of the sentencing transcript persuades us that the district
    court sufficiently complied with Fed. R. Crim. P. 32(c)(3)(C) by asking, before it
    imposed sentence, “Mr. Lank, do you have anything you’d like to add?” See Fed. R.
    Crim. P. 32(c)(3)(C) (before imposing sentence, district court must address defendant
    personally and determine whether he wishes to make statement and present mitigating
    information). Our review of the record also persuades us that the district court
    sufficiently complied with Fed. R. Crim. P. 32(c)(1) by finding the PSR’s version of the
    contested matter to be correct after considering additional evidence that had been
    presented at sentencing. See Fed. R. Crim. P. 32(c)(1) (district court must make
    specific finding as to each contested matter or determination that finding is not
    necessary because matter will not be taken into account at sentencing). Because the
    foregoing claims are without merit, we agree with the district court that Lank’s related
    ineffective-assistance claim also fails. See Dyer v. United States, 
    23 F.3d 1424
    , 1426
    (8th Cir. 1994).
    Last, we decline to address Lank’s argument, which was never raised in the
    district court, that his counsel was ineffective for failing to argue that the government
    did not prove an element of the armed-robbery offense.
    Accordingly, the judgment is affirmed.
    -2-
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -3-