*1 1223 (6th 39, Coffey, 40 the court’s United States v. 871 F.2d sentence to fulfill interdependent Harrison, original intent.” United (8th Cir.1997) 135, 138 (citing Unit 113 F.3d § nothing provides in There is 2255 which 723, Binford, 108 F.3d ed v. States right that defendant has either an absolute Cir.1997)). present right or of allocution. The in find- Thus, court was correct this case noted that because 924(c) challenging § convic- ing that given defendant
tion, expecta- waived whatever the defendant imposition of his address finality had in on the he the sentence sentence, original to be was not entitled the sen- drug conviction because related present when district court corrected his interdependent. By challenging are tences pursuant sentence to a collateral successful 924(c) conviction, as- § the defendant addition, disputed attack. there are no that, although his overall sumed the risk facts this case and the defendant has not reduced, sentence on would be sentence that submitted additional evidence drug alone could be revisited count go mitigation to the of his sentence. See legal situa- light changed enhanced 487, States, Machibroda v. United 368 U.S. Gordils, 103; See, e.g., 117 F.3d at tion. 510, 514, 495, (1962); 473 82 7 L.Ed.2d S.Ct. at 1172. Hillary, 106 F.3d 1025, 1030 Todaro, United States The defendant also contends 943, 113 508 U.S. process court violated his due (1993). 2424, 124 S.Ct. L.Ed.2d 645 rights resentencing “Imposing him. Thus, the not have a appropri defendant does that the Guidelines make sentence § is not fun right pursuant present defendant’s] ate for conduct and to [the 2255 to be Harrison, F.3d at damentally unfair.” 113 resentencing. allocute at his bar, total 138. In the case at the defendant’s reduced he was resen- sentence has been V. according original to the court’s sen tenced Edgar is AF- Judge The decision of By resentencing the defen tencing plan. FIRMED. dant, simply put court him back position he would have faced under 924(c) was later law if the conviction that unsound, legally prohibit deemed had Consequently, pro the due
enhancement. not violated rights
cess of the defendant were resentencing.
as a result of the IY. argues that he right of right or the resentencing. the time of The
allocution at pursuant to 28 was resentenced Darryl SIMMONS, Defendant-Appellant. “a court 2255 which states that No. 97-1763. without entertain and determine such motion production prisoner at requiring the States Court of hearing.” right no There is constitutional 23, Argued 1997. Oct. Constit allocution under 424, States, 368 U.S. tion. Hill v. United u Decided Nov. 417 L.Ed.2d right speak defendant’s imposition Fed.R.Crim.P. of sentence under
32(e)(3)(C), applies original sentence subsequent resentencing.
and not *2 EVANS, Judge.
TERENCE T. Circuit judge abuse her Does dis orders, cretion when she as a condition of release, supervised that a defendant submit drug testing and treatment at the discre probation tion of a officer when the defen years dant was convicted 7 earlier cocaine, distributing unrelated case for vio supervised years ago release 2 in the lated by testing positive ingesting for earlier case cocaine, case, although in the it and bills, passing involved counterfeit $20 marijuana bag and cocaine were found connected contained money? additional counterfeit We think merely stating implies question the obvi ous answer —of course not. The guidelines permit drug testing treatment and supervised “if as condition of release court has reason to believe that the defen narcotics, dant is an abuser of other con trolled substances or alcohol.” U.S.S.G. 5B1.4(b)(23). itWhen comes to controlled substances, unlike alcohol which can con legally, sumed a user is definition an abuser. So here it was not an abuse of judge for discretion to find that Darryl provision fit this guidelines sliding like a hand into an Isoton appeal point, major er. on His this issue stresses, is without merit. issue, As a final Simmons claims that judge erred when she denied a counsel, discharge appointed motion to issue, James A. this Graham. On like the one, last look for an abuse of discretion. passed a batch of counterfeit $20 Chicago’s Midway Airport. bills at His coun- paid terfeit bills for a Southwest Airlines airport. ticket and certain other items at the charge, Without a conceivable defense to the pled guilty passing counterfeit notes in violation of 18 When plea, guilty although every- he entered his thing between Simmons and Graham Eve, Amy Barry (argued), St. Rand Elden hunky-dory, prob- not have been no serious Atty. Appellate Office the U.S. Criminal lems came to the fore. In Div., told IL, Chicago, Plaintiff-Appellee. for “straight up that Graham had been IL, (argued), Chicago, James A. Graham He also said he had no doubt [him].” Defendant-Appellant. acting Graham was in his best interest. Sev- however, POSNER, later, days reported Before eral and Graham EVANS, RIPPLE Judges. step a motion that Simmons wanted him to act, sufficiently detailed Because the was was denied. aside. representations made the defen- and the real of evidence was devoid record plea hearing, only days change at the one—be- dant an irreconcilable alone conflict —let before, put Graham, clearly contradicted the claim not be- we do tween Simmons that counsel forth in the motion her discretion judge abused lieve the district in Mr. best interest. More- all that un- acted motion. It’s not denying *3 over, no evidence in the record of unhappy with his there was for a defendant usual lack by him an irreconcilable conflict or total of com- appointed for especially one lawyer, munication. court, lawyer is the bearer often the the tell lawyer must often tidings. The of bad op- Mr. never asked for another hear, to he doesn’t want news apprise the court of circum- portunity to holding is all prosecutor the fact that like already the record stances not disclosed is to make and the best defense the cards Moreover, court’s the court. as the The minor medicine. and take some deal notes, identify opinion Mr. Simmons cannot was and Graham spat between any prejudice he suffered as a result of ordinary. nothing out of Therefore, if there was er- court’s decision. ror, it it did “not re- was harmless because never note that Simmons in a of ... defendant’s Sixth sult violation only plea, so the withdraw his sought right to effective assistance of Amendment by having he could claim
possible prejudice
Zillges,
For these is
Affirmed. of RIPPLE, concurring. opinion join judgment of I emphasize that I write court. Messino, UNDERWOOD, Paul William of truncated treatment de- court’s Messino, Christopher Christopher B. would not to withdraw fense counsel’s motion Messino, Messino, and Richard Clement than circumstances other pass muster under Defendants-Appellants. here. See United unique presented ones 95-2925, 95-2926, 95-2155, Nos. 371-73 Zillges, 978 F.2d and 95-3124. that, although the important to note It is Appeals, States Court January the motion for had noticed defense attorney nor his neither Mr. Simmons 21, 1997. Nov. therefore waived appeared. Mr. Simmons Elden, further on the basis Mat- expand Barry Rand unhappiness Schneider, counsel. The Office of thew M.