                                                         [DO NOT PUBLISH]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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