[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12945 ELEVENTH CIRCUIT
JANUARY 6, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK
D. C. Docket No. 96-00004-CR-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KYLE MICHAEL BREWER,
a.k.a. Michael Brewer,
a.k.a. Rubber Duck,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(January 6, 2010)
Before DUBINA, Chief Judge, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Appellant Kyle Brewer appeals the district court’s denial of his motion for a
resentencing hearing. On appeal, Brewer argues that the district court violated
Rule 32 of the Federal Rules of Criminal Procedure when it resentenced him in
absentia. Brewer argues that he should have been afforded a resentencing hearing,
at which he would have had an opportunity to allocute. As a result of not being
afforded a resentencing hearing, Brewer generally argues that his rights to Due
Process and Equal Protection Under the Law were violated.
We have held that the established right to be present at sentencing does not
translate into a right to be present whenever a court modifies a sentence. United
States v. Jackson, 923 F.2d 1494, 1496 (11th Cir. 1991). We explained that a
“defendant’s right to be present extends to the imposition of a new sentencing
package after an original sentencing package is vacated in its entirety on appeal
and the case is remanded for resentencing.” Id. In contrast, “where the entire
sentencing package has not been set aside, a correction of an illegal sentence does
not constitute a resentencing requiring the presence of the defendant, so long as the
modification does not make the sentence more onerous.” Id. at 1497. We
emphasized that the defendant already had the opportunity to allocute during his
original sentencing hearing. Id. at 1496-97.
Here, the district court entered an amended judgment, vacating Brewer’s
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conviction and sentence imposed on Count Six. The district court did not alter the
sentences for the remaining counts of conviction. Nothing in the record suggests
that Brewer did not have the opportunity to challenge his sentencing information
and present mitigating evidence at his original sentencing hearing. See Id. at 1497.
Moreover, Brewer has presented nothing to show any reasonable possibility that,
if he had been afforded the opportunity to allocute at a resentencing hearing, the
district court would have imposed a different sentence. Accordingly, we affirm the
district court’s order denying Brewer’s motion for a resentencing hearing.
AFFIRMED.
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