United States v. Rogers

Order

Our prior opinion in this case, 270 F.3d 1076 (2001), affirmed Rogers’s conviction but vacated his sentence of 70 months’ imprisonment and remanded for resentencing within the range of 51 to 63 months. The district judge imposed a 51-month sentence, the best outcome Rogers reasonably could have hoped for. Yet he has filed a second appeal.

His contention is that the district judge denied him the right of allocution — though how this could be prejudicial given that the district judge offered allocution at the initial sentencing and imposed a 51-month sentence on remand, Rogers does not explain. What is more, the district judge found that Rogers had refused to appear for sentencing. He claims to have been physically unable to appear, but the district judge found that he was malingering. That finding is not clearly erroneous. A person who voluntarily fails to appear for sentencing has waived any right of allocution. United States v. Smith, 26 F.3d 739, 749 (7th Cir.1994).

Affirmed.