United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-2001

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United States of America,

Appellee,

v.

Eric Lamont Williams,

Appellant.

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Appeal from the United States

District Court for the 

Eastern District of Arkansas.

[UNPUBLISHED]

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Submitted: March 12, 2007

 Filed: June 25, 2007

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Before COLLOTON, BEAM and GRUENDER, Circuit Judges.

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PER CURIAM.

This is Eric Lamont Williams’s second direct appeal following his convictions

for conspiracy to possess with intent to distribute less than fifty kilograms of

marijuana, conspiracy to possess with intent to distribute more than five grams of

cocaine base, possession with intent to distribute less than fifty kilograms of

marijuana, and possession with intent to distribute more than five grams of cocaine

base. Prior to Williams’s first direct appeal, the district court sentenced him to 120

months’ imprisonment on each of the marijuana counts and 240 months’

imprisonment on each of the cocaine base counts, all to run concurrently. 
1

The late Honorable George Howard, Jr., United States District Judge for the

Eastern District of Arkansas.

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In Williams’s first appeal, we reversed his conviction for possession with intent

to distribute more than five grams of cocaine base due to a defect in the indictment

and remanded the case with directions to vacate that count of conviction. See United

States v. Williams, 429 F.3d 767, 775 (8th Cir. 2005) (“Williams I”). On remand, the

district court1

 complied with our directions and conducted a brief hearing in the

presence of Williams, his attorney and an assistant United States Attorney. The court

vacated Williams’s conviction on the relevant count and reduced the special

assessment by $100, leaving intact the remaining 240 month term of imprisonment.

At that point the following exchange took place:

THE COURT: If there’s nothing further we’ll bring this matter to a

close. Yes?

THE DEFENDANT: I have a Sixth Amendment violation. What I was

charged with was outside the scope of my indictment because I was

arrested on October 25th.

THE COURT: Well, at any rate the Eighth Circuit has affirmed the

other counts and I’m following the Eighth Circuit orders and will not

take any further action. Anything else?

[ASSISTANT U.S. ATTORNEY]: No, Your Honor.

THE DEFENDANT: Can I have a new appointment of counsel because

I want to continue my direct appeal on the issues that he addressed.

THE COURT: That will be up to you to solicit counsel, and if you want

to appeal and you are not able to hire one, you may solicit the assistance

of the clerk of this court who will assist you in drafting a notice of appeal

and will assist you in lodging that with the Eighth Circuit.
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If there’s nothing further we’ll bring this matter to a close. Marshal, he’s

in your custody.

With there being no additional comments, the district court terminated the hearing.

Williams appeals, arguing that the district court denied him allocution under Fed. R.

Crim. P. 32(i)(4)(A)(ii) at resentencing.

Ordinarily, we review the question of whether a criminal defendant was

afforded an opportunity for allocution de novo. See United States v. Kaniss, 150 F.3d

967, 969 (8th Cir. 1998). Neither Williams nor his counsel objected to the district

court’s purported denial of allocution, but it remains an open question in this circuit

whether we review for plain error in these circumstances. See Fed. R. Crim. P. 52(b);

United States v. Griggs, 431 F.3d 1110, 1114 n.4 (8th Cir. 2005). As in Griggs, we

believe that it is unnecessary to decide this question here because we hold that the

district court substantially complied with Rule 32(i)(4)(A)(ii).

We will assume without deciding that Williams had a right to allocution at his

resentencing hearing, even though the district court’s vacating the count for

possession with intent to distribute cocaine base had no effect on the length of

Williams’s prison term, see United States v. McKnight, 17 F.3d 1139, 1145 (8th Cir.

1994) (vacating some counts of conviction and holding that remand for resentencing

was unnecessary because the district court had ordered the prison terms on the vacated

counts to be served concurrently with the other counts). Even so, the transcript of the

resentencing hearing shows that on three occasions, the district court invited Williams

to comment, and Williams freely accepted the invitation on the first two of those

occasions. On the third occasion, Williams said nothing, and the court recessed. We

share the concern expressed in Griggs that “a district court should expressly comply

with Rule 32’s allocution requirement” by addressing the defendant personally. 431

F.3d at 1115. However, the facts of this case are nearly identical to those in Griggs,

where the district court asked prior to sentencing, “Anything else that anybody wants

to place on the record?” and Griggs remained silent. Id. at 1113. Here, not only did
2

Williams suggests that the district court “shut him off” and did not permit him

to speak on his own behalf. We see no evidence of this in the record. At most, the

district court declined Williams’s invitation to address the Sixth Amendment issue that

he raised.

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the district court offer three opportunities for Williams to allocute, but Williams in

fact spoke on his own behalf on two of those occasions.2

 On these facts, we hold that

the district court substantially complied with Rule 32(i)(4)(A)(ii). See id. at 1114.

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