United States v. Marlin Lynn Brown

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3654
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Marlin Lynn Brown, *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 15, 2006
Filed: June 16, 2006
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Before RILEY, MAGILL, and GRUENDER, Circuit Judges.
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PER CURIAM.
Marlin Lynn Brown appeals the district court1 order denying his resentencing
motion. For the reasons that follow, we affirm.
Brown was sentenced in March 2004 to 346 months in prison, the bottom of
the applicable Sentencing Guidelines range, after a jury found him guilty of armed
bank robbery, brandishing a firearm, and being a felon in possession of a firearm. We
affirmed on direct appeal. See United States v. Brown, 408 F.3d 1049, 1050-52 (8th
1
The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.
Cir. 2005) (per curiam) (rejecting challenges to suppression ruling and sufficiency of
evidence, deferring ineffective-assistance claims, and rejecting sentencing challenges
related to Brown’s prior convictions). In June 2005, Brown filed this “petition for
resentencing based on judicial error,” asserting he was denied an opportunity to speak
on his own behalf at his sentencing hearing. See Fed. R. Crim. P. 32(i)(4)(A)(ii).
The district court acknowledged that at the sentencing hearing, Brown was told
he would have the opportunity to speak on his own behalf, but later he was not asked
if he wanted to speak. Nevertheless, the court found that because Brown did not raise
the allocution issue on direct appeal, his only option was to raise it collaterally, and
the failure to allow allocution was not a constitutional error that could be raised by
collateral attack. We agree. See Hill v. United States, 368 U.S. 424, 426-28 (1962)
(“failure of a trial court to ask a defendant represented by an attorney whether he has
anything to say before sentence is imposed is not of itself an error of the character or
magnitude cognizable under a writ of habeas corpus,” and “[i]t is an error which is
neither jurisdictional nor constitutional”; sentencing court’s failure to afford
opportunity for allocution is neither fundamental defect which inherently results in
complete miscarriage of justice, nor omission inconsistent with rudimentary demands
of fair procedure).
Accordingly, we affirm the judgment of the district court. See 8th Cir. R. 47B.
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