                                                                           FILED
                           NOT FOR PUBLICATION                              APR 29 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-50155

             Plaintiff - Appellee,               D.C. No. 3:04-CR-00253-H-1

 v.
                                                 MEMORANDUM *
FRANCISCO KELLY-PALMER,

             Defendant - Appellant.


                  Appeal from the United States District Court
                     for the Southern District of California
            Honorable Marilyn L. Huff, Chief District Judge, Presiding

                        Argued and Submitted April 8, 2010
                               Pasadena, California

                                        Filed

Before: FRIEDMAN,** D.W. NELSON, and REINHARDT, Circuit Judges.

      1. We need not decide whether, as the appellant Francisco Kelly-Palmer

contends, Rule 32 of the Federal Rules of Criminal Procedure entitled him to



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
               Daniel M. Friedman, United States Circuit Judge for the Federal
Circuit, sitting by designation.
allocute twice in this proceeding: first, before the district court revoked his

supervised release imposed for an earlier conviction (which Kelly-Palmer did) and,

second, before the court sentenced him for such violation. We so conclude

because, in his allocution to the district court, the sole statement Kelly-Palmer

made related to the sentence, and he contended only that his sentence should be

served concurrently with, and not consecutively to, the sentence for his prior

conviction.

      Kelly-Palmer, a Mexican citizen, has a history of attempting to enter the

United States illegally and of being removed. The supervised release here at issue

was imposed in 2004 following his conviction for making a false statement to a

federal official during an attempted illegal entry. In 2008 he was convicted of an

additional illegal entry and of making false statements to a federal official and

sentenced to twenty-four months confinement. In the interim, the government had

instituted a district court proceeding to revoke his prior supervised release.

      At the hearing in the revocation proceeding, the district court asked Kelly-

Palmer whether he would “like to address the Court before the Court acts on this

petition?” The following colloquy ensued:

              THE DEFENDANT (Through interpreter): I ask that you
              give me an opportunity and that if you can unite the case.



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             THE COURT: You say—by unite, you mean run [the
             sentences] together?

             THE DEFENDANT: Yes.

      After ruling that Kelly-Palmer had violated his supervised release [ER

45–48], the district court stated: “Then the issue next becomes does the Court run

[the sentence] concurrently or consecutively.”

      When the district court indicated that it would impose a sentence of twelve

months confinement—the bottom of the Sentencing Guidelines

range—consecutive to the prior sentence of twenty-four months, it rejected

counsel’s suggestion that part of those twelve months be served concurrently with

the twenty-four months. [ER 49]. Kelly-Palmer then stated:

             THE DEFENDANT: Tell her [Chief District Judge
             Huff] that’s fine, but couldn’t she put [the
             sentences] together, and I will not come back?

             THE COURT: The Court has considered that, and
             the Court believes in this instance, based on all of
             the information before the Court, that I’m not
             putting them together. I’m running them
             consecutive, which means one after the other. [ER
             50]

      As the foregoing facts show, when Kelly-Palmer allocuted, before the

district court ruled on the revocation of his supervised release, he did not address

the merits of that issue. Instead, he discussed only the sentence and contended


                                           3
only that the two sentences should run concurrently rather than consecutively. He

made the same single point when he spoke after the court had announced the

sentence but before determining how it would be served. In these circumstances,

there is no reason to believe that, if he had been given a second allocution, he

would have said anything different from, or in addition to, what he had said about

the sentence in his prior statements: that his new sentence should be served

concurrently with, and not consecutively to, his prior sentence.

         The right of allocution is the right of the defendant personally to address the

court before the sentence is imposed. See Fed. R. Crim. P. 32.1; Green v. United

States, 365 U.S. 301, 304, 307 (1961). Kelly-Palmer was given and exercised that

right.

         2. The district court properly relied upon Kelly-Palmer’s previous violations

of supervised release in determining the sentence. Although those prior violations

occurred in other cases, they were all part of Kelly-Palmer’s single general course

of conduct—illegal entry into the United States, lying to federal officials,

convictions for those offenses, removal from this country and reentry to it

unlawfully—in violation of his supervised release. They were pertinent in setting

his sentence. In view of those facts and the Sentencing Guidelines direction that

“imprisonment imposed upon the revocation of . . . supervised release shall . . . be


                                             4
served consecutively to any sentence of imprisonment that the defendant is

serving,” U.S.S.G. § 7B1.3(f), the consecutive sentence was reasonable.

      3. The district court properly considered and discussed the relevant

sentencing factors in 18 U.S.C. § 3553(a). The court’s failure to discuss particular

factors does not mean that the court did not consider them. See, e.g., United States

v. Ressam, 593 F.3d 1095, 1119 (9th Cir. 2010). The district court adequately

articulated and explained the reasons why it determined that, in view of Kelly-

Palmer’s past conduct, a sentence of twelve months consecutive imprisonment was

appropriate.

AFFIRMED.




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