USA. v. Faulks

• Decision Date: 04 November 1999
• Citation: 201 F.3d 208
• Parties: (3rd Cir. 2000) UNITED STATES OF AMERICA, v. JUAN FAULKS, Appellant NO. 98-2061 Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 208

201 F.3d 208 (3rd Cir. 2000)

UNITED STATES OF AMERICA, v. JUAN FAULKS, Appellant

NO. 98-2061

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: November 4, 1999

Filed January 18, 2000

On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Crim. No. 96-cr-00299-1) District Judge: Honorable Charles R. Weiner

Counsel for Appellant: PETER GOLDBERGER, ESQUIRE (ARGUED) Law Office of Peter Goldberger 50 Rittenhouse Place Ardmore, PA 19003-2276

Counsel for Appellee: MICHAEL R. STILES, ESQUIRE United States Attorney WALTER S. BATTY, JR., ESQUIRE (ARGUED) Assistant United States Attorney Chief of Appeals EMILY McKILLIP, ESQUIRE (ARGUED) Assistant United States Attorney PATRICIA A. ROSSI, ESQUIRE Assistant United States Attorney Office of the United States Attorney 615 Chestnut Street Philadelphia, PA 19106

Before: BECKER, Chief Judge, GREENBERG, and CUDAHY,^* Circuit Judges.

OPINION OF THE COURT

BECKER, Chief Judge.

This is a second sentencing appeal. The panel in the first appeal reversed the initial sentence and remanded for proceedings on defendant Juan Faulks's application for a downward departure for extraordinary acceptance of responsibility. The District Court thereupon held a full hearing and rejected the request for a downward departure in a written opinion. This appeal requires us to decide whether Faulks's sentencing must be returned to the District Court for a third time because that court, which imposed the new sentence by a written judgment, did so in Faulks's absence. We answer the question in the affirmative, and hold that Faulks must be resentenced in person, notwithstanding that in an ancillary proceeding after the new sentence was imposed, the District Court informed Faulks in open Court of the sentence it already had imposed.

We also conclude that neither: (1) the delivery of that information in open court; nor (2) the unlikelihood that pronouncement of the sentence in open court in the defendant's presence would have yielded a different sentence renders the error of pronouncement of sentence in absentia harmless. In our view, the notion that the sentencing court must "eyeball" the defendant at the instant it exercises its most important judicial responsibility, whose daunting character has not been eliminated by the Sentencing Reform Act and the Sentencing Guidelines, is far from a formality. Rather, it is the embodiment of a value deeply embedded in our polity (and our jurisprudence).

Although the District Court appears to have had a settled view of this case, we are satisfied that it will re-visit the matter with a completely open mind at the de novo resentencing that must now take place, perforce with an updated presentence report. We therefore reject the defendant's contention that we should remand for sentencing before a different judge.

I.

Pursuant to a plea agreement, Faulks pled guilty to cocaine distribution, money laundering, and criminal forfeiture of real property. The Government agreed to dismiss remaining counts of criminal forfeiture in exchange for Faulks's acquiescence in the administrative forfeiture of personal property described in the indictment. The prosecution also agreed to move for a downward departure under U.S.S.G. S 5K1.1 if Faulks provided substantial assistance in the prosecution of another offender. The Presentence Investigation Report calculated the sentencing guideline range for Faulks to be 87 to 108 months imprisonment. The District Court sentenced him to 95 months. A panel of this Court upheld the District Court's decision to impose a sentence within the guideline range, even though the court claimed to have granted the government's motion to depart below it. This Court interpreted the District Court's statement on granting the downward departure as harmless error. See United States v. Faulks, 143 F.3d 133, 137 (3d Cir. 1998).

Notwithstanding its approval of the District Court's treatment of the departure request, the panel reversed the judgment and remanded for consideration of whether Faulks, who had already received a three-level decrease under S 3E1.1 for acceptance of responsibility, deserved a departure under S 5K2.0 in view of his claim that his voluntary waiver of meritorious defenses to forfeiture constituted an "extraordinary" acceptance of responsibility. The District Court did not permit Faulks to build a record on this claim because it concluded that Faulks's plea agreement did not, in fact, foreclose him from contesting the civil forfeiture. The panel disagreed. Though the panel expressed doubt that Faulks's waiver merited a departure for extraordinary acceptance of responsibility, it opined that Faulks deserved the opportunity to develop a record on the claim. See id. at 138.

On remand, the District Court considered both Faulks's request for a departure based on his agreement not to contest the forfeitures and new claims of post-conviction rehabilitation. After receiving submissions and conducting a hearing, the District Court denied the motion. Faulks spoke at the hearing, was questioned by the Court, and his counsel later filed a supplemental memorandum. At the hearing, Faulks's attorney did not complain that Faulks's ability to speak to the court was inadequate or curtailed in any manner. As the hearing was ending, defense counsel noted that Faulks had a right to be present when the sentencing decision was issued. Despite the District Court's statement that it would probably announce its decision orally as well as by written form, it made its ruling via a memorandum opinion and order in Faulks's absence.

This appeal followed. Though the District Court's order is styled as a denial of Faulks's motion for a downward departure, it is plainly the final order of the District Court in this matter, as the District Court viewed the prior sentence as remaining in effect. We therefore have appellate jurisdiction under 28 U.S.C. S 1291 and 18 U.S.C. S 3742. After the notice of appeal was filed, and jurisdiction over this case was in this Court, the District Court announced its ruling in Faulks's presence.

II.

A.

In remanding the matter to the District Court, the prior panel "reversed" its judgment of sentence. The parties agree that the prior panel must be seen as directing a full resentencing.¹ Rule 43(a) of the Federal Rules of Criminal Procedure states in no uncertain terms that "[t]he defendant shall be present . . . at the imposition of sentence . . . ." The rule makes an exception for situations in which the proceeding involves a reduction or correction of sentence under Federal Rule of Criminal Procedure 35(b) or (c) or 18 U.S.C. S 3582(c). These exceptions are not applicable in this case. It is clear therefore that the District Court should have given its decision in open court with Faulks present. The government concedes this point. See Brief of Appellee at 13. The only question is what the remedy should be. The government maintains that Faulks has already received an adequate remedy, and that nothing more need be done other than the filing of a new judgment. We disagree.

We begin our analysis by noting that "[o]ne of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial." Illinois v. Allen, 397 U.S. 337, 338 (1970) (citing Lewis v. United States, 146 U.S. 370 (1892)). The oral pronouncement of sentence in the defendant's presence is therefore of special importance. A long line of cases provides that when the two sentences are in conflict, the oral pronouncement prevails over the written judgment. See, e.g., United States v. Chasmer, 952 F.2d 50, 52 (3d Cir. 1991); United States v. Daddino, 5 F.3d 262, 266 n.5 (7th Cir. 1993) (collecting cases); United States v. A-Abras, Inc., 185 F.3d 26, 29 (2d Cir. 1999). Thus, Rule 43's requirement that the defendant be present at the imposition of sentence is not a meaningless formality. Rather, as we have observed supra at page 3, it is a fundamental procedural guarantee that places the defendant before the judge at a culminating moment of the criminal judicial process.

In the past, this Court has ordered resentencing in the defendant's presence as a remedy for a violation of Rule 43. See Wilmore v. United States, 565 F.2d 269 (3d Cir. 1977). Faulks's case, however, involves an otherwise valid judgment of sentence that was reversed for resentencing on one specific issue. Nothing in the record suggests that the first sentencing order did not conform with Rule 43's requirements. There is therefore a question whether vacatur and remand is proper under these circumstances.

United States v. Moree, 928 F.2d 654 (5th Cir. 1991), involves analogous facts. In Moree, the Court of Appeals vacated a district court's sentence and remanded because of a misapplication of the Sentencing Guidelines. See id. at 655. On remand, the district court adjusted the sentence downward, but sentenced the defendant in absentia. See id. The Court of Appeals for the Fifth Circuit vacated the new sentence and remanded again. See id. at 656. The court noted that there is a significant difference between an appellate court's order to modify an existing sentence and the imposition of a new sentence after the first has been vacated. See id. at 655. It conceived the latter circumstance as presenting the need for the same constitutional and statutory protections a defendant receives when being sentenced by a judge exercising discretion. Quoting Justice Harlan, the court observed:

[T]he requirements of criminal justice . . . leave no doubt of [the defendant's] right to be present when a final determination of sentence is made. . . . Even if he has spoken earlier, a defendant has no assurance that when the time comes for final sentence the district judge will remember the defendant's words in his absence and give them due weight. Moreover, only at the final sentencing...