Ronald Lank v. United States

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-3577
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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* [UNPUBLISHED]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. *
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Submitted: March 5, 1999
Filed: May 5, 1999
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Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.
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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.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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