United States v. Elrader Browning, Jr.

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 20-50035
20-50116
Plaintiff-Appellee,
D.C. No. 2:87-cr-00571-SVW-1
v.
ELRADER BROWNING, Jr., MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted March 16, 2021**
Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.
In these consolidated appeals, Elrader Browning, Jr., appeals pro se from the
district court’s orders denying his motions under former Federal Rule of Criminal
Procedure 35(a) (1987). We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
In Appeal No. 20-50035, Browning contends that the district court failed,
under a preponderance of the evidence standard, to make the requisite factual
findings regarding drug types and amounts in relation to his sentences for violating
21 U.S.C. § 841(a). This claim is time-barred because Browning did not bring it
within 120 days of the imposition of his sentence. See United States v. Montalvo,
581 F.3d 1147, 1153 (9th Cir. 2009) (under former Rule 35(a), challenges to the
manner in which the sentence was determined must be brought within 120 days of
sentencing).
In Appeal No. 20-50116, Browning contends that the amended judgment
entered by the district court on March 10, 2017, is illegal because it increased his
sentence and because the district court failed to hold a resentencing hearing. The
record belies Browning’s contention that the amended judgment imposed
additional penalties. Rather, the district court properly amended the judgment
solely to vacate the conviction and sentence on Count 1 in compliance with this
court’s order in No. 16-71091. As this court decided in that case, no resentencing
proceedings were required in connection with the entry of the amended judgment.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Browning’s motion for appointment of a special master under Federal Rule
2 20-50035 & 20-50116
of Appellate Procedure 48(a) is denied.
AFFIRMED.
3 20-50035 & 20-50116