United States v. Julio Cesar Brand

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13874 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 28, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:10-cr-14012-JEM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
JULIO CESAR BRAND,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 28, 2011)
Before CARNES, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Julio Cesar Brand appeals his 60-month sentence that was imposed after he
pleaded guilty to conspiracy to possess with intent to distribute 100 or more
marijuana plants, in violation of 21 U.S.C. §§ 846 and 841(a)(1). At Brand’s
sentence hearing he admitted, through his counsel, that a 60-month sentence was
the minimum sentence required by law and “ask[ed] the Court to go ahead and
sentence him to 60 months.” See 21 U.S.C. § 841(b)(1)(B). And he did not object
when he was given a 60-month sentence. He now contends, however, that the
district court violated Federal Rule of Criminal Procedure 32 by failing to ask him
personally whether he wished to speak at the sentence hearing.
“[A] district court’s failure to afford a defendant the right of allocution will
be reviewed only for plain error where the defendant did not timely object.”
United States v. Dorman, 488 F.3d 936, 938 (11th Cir. 2007) (quoting United
States v. Prouty, 303 F.3d 1249, 1251 (11th Cir. 2002)). “We will correct plain
error only where (1) there is an error; (2) the error is plain or obvious; (3) the error
affects the defendant’s substantial rights in that it was prejudicial and not
harmless; and (4) the error seriously affects the fairness, integrity, or public
reputation of a judicial proceeding.” Id.Even assuming that the district court erred by not giving Brand an
opportunity to allocute, he was not prejudiced because he could not have received
a sentence of less than 60 months imprisonment—the minimum sentence required
by law. See 21 U.S.C. § 841(b)(1)(B). In fact, Brand does not even argue that he
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was prejudiced. There was no plain error.
AFFIRMED.
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