United States Court of Appeals,

Eleventh Circuit.

No. 97-5037

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Guillermo RODRIGUEZ-VELASQUEZ, Defendant-Appellant.

Jan. 9, 1998.

Appeal from the United States District Court for the Southern District of Florida. (No. 96-989-crJLK), James lawrence King, Judge.

Before TJOFLAT, BARKETT and HULL, Circuit Judges.

PER CURIAM:

Defendant/Appellant Guillermo Rodriguez-Velasquez appeals his sentence, alleging that the

district court failed to afford him his right of allocution under Federal Rule of Criminal Procedure

32(a)(1)(C). Because Defendant waived his right to appeal that error and no manifest injustice

occurred, we AFFIRM Defendant's sentence.

I. BACKGROUND

Defendant Rodriguez-Velasquez pled guilty to a charge of importation of cocaine and was

sentenced to thirty-seven months in prison. The Court gave Defendant credit for acceptance of

responsibility and sentenced Defendant at the lowest range within the Guidelines. Defendant had

no objections to the amount of the prison sentence.

The government concedes that at the sentencing hearing, Defendant was not given an

opportunity to exercise his right of allocution. However, the government argues that this Court

nonetheless should affirm the sentence because Defendant waived his right to allocute. The district
judge specifically asked whether there were any "Jones objections," and Defendant made no

objections to the court's failure to afford Defendant the right of allocution:

The Court: Under U.S. versus Jones, is there anything further to be said at this time?

...

Defendant's Attorney: Nothing further, Judge. No objections on behalf of Jones.

(R. 3-3 to 4) The government argues that this Court should affirm the sentence because Defendant

failed to object and the court's denial of Defendant's right of allocution was not "manifest injustice"

under the facts here.

II. DISCUSSION

A. The Effect of Jones on Denial of the Right to Allocute

 The government relies on United States v. Jones, 899 F.2d 1097 (11th Cir.1990), overruled

on other grounds, United States v. Morrill, 984 F.2d 1136 (11th Cir.1993) (en banc), which held that

"[w]here the district court has offered the opportunity to object and a party is silent or fails to state

the grounds for objection, objections to the sentence will be waived for purposes of appeal, and this

court will not entertain an appeal based upon such objections unless refusal to do so would result

in manifest injustice." Id. at 1103.

The only published Eleventh Circuit opinion this panel could locate addressing the effect of

Jones on the right of allocution is United States v. Tamayo, 80 F.3d 1514 (11th Cir.1996). In the

resentencing hearing in Tamayo, the district court did not give the defendant an opportunity to

allocute; however, the defendant failed to object. Id. at 1521. On appeal, this Court applied Jones's

standard of review, holding that the defendant had waived his right to allocute and affirming absent

any showing of "manifest injustice." Id. at 1521.

 As Defendant notes, in two other recently published opinions, this Court summarily
 1

The government perceives Tamayo to be inconsistent with Phillips and Taylor, but that

inconsistency is more apparent than real. In any event, this panel is obliged "if at all possible, to

distill from apparently conflicting prior panel decisions a basis of reconciliation and to apply that

reconciled rule." United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir.1993). The best basis

of reconciliation between the cases is that only Tamayo discusses the effect of Jones on the right

to allocute. 

remanded cases for resentencing because of the district courts' failure to afford the defendants the

right of allocution. United States v. Phillips, 936 F.2d 1252, 1255-56 (11th Cir.1991) (rejecting the

government's argument that addressing the defendant's counsel was sufficient); United States v.

Taylor, 11 F.3d 149, 152 (11th Cir.1994) (holding that in "proceedings that impose a new sentence

after vacation of the original sentence ... the defendant has a right to be present and allocute"); see

also United States v. Medina, 90 F.3d 459, 465 n. 8 (11th Cir.1996) (explaining in a footnote

unessential to its holding that "[f]ailing to address a defendant personally or failing to give a

defendant the opportunity to make a statement requires resentencing"). However, in those cases,

the government did not contend that the defendant had waived his right to allocute, and this Court

did not discuss the effect of Jones on the right to allocute. Thus the only Eleventh Circuit case to

address directly the issue here holds that a defendant's failure to raise his right to allocute as a Jones

objection constitutes waiver of that right. Tamayo, 80 F.3d at 1521.1

 In this case, the district court specifically asked for any Jones objections when sentencing

Defendant Rodriguez-Velasquez, and Defendant did not mention his right of allocution. Thus, under

Jones, Defendant waived his right to appeal the denial of his right of allocution. Once a defendant

has waived his right to allocute by failing to raise it as a Jones objection, this Court will remand for

resentencing only if manifest injustice would result otherwise. Tamayo, 80 F.3d at 1521.

B. Application of the "Manifest Injustice" Standard

 In applying the "manifest injustice" standard in Tamayo, this Court explained "that a trial
court's failure to allow a defendant to allocute at sentencing is neither a constitutional error nor ...

"a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission

inconsistent with the rudimentary demands of fair procedure'." Id. at 1521-22 (citing Hill v. United

States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)). Turning to the facts of the

particular case, the Tamayo court noted that the defendant was given an opportunity to allocute at

his original sentencing, that the resentencing was limited in scope, and that the defendant failed to

take advantage of the district court's invitation to file supplemental authority and objections within

ten days of the resentencing hearing. Id. at 1522. The court thus found no "manifest injustice" and

no reversible error. Id.

In this case, Defendant Rodriguez-Velasquez raised no objections to the amount of the

sentence and was given the lowest possible sentence within the Guidelines. Thus, denying

Defendant his right of allocution was harmless error and not "manifest injustice." We therefore

AFFIRM Defendant's sentence.