USA. v. Lawrence, 00-4278

• Citation: 248 F.3d 300
• Decision Date: 26 January 2001
• Docket Number: No. 00-4278,00-4278
• Parties: (4th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DESMOND CHARLES LAWRENCE, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 300

248 F.3d 300 (4th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DESMOND CHARLES LAWRENCE, Defendant-Appellant.

No. 00-4278

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: January 26, 2001

Decided: April 27, 2001

Appeal from the United States District Court for the District of South Carolina, at Columbia. Dennis W. Shedd, District Judge.

(CR-96-449)

COUNSEL ARGUED: Allen Bethea Burnside, Assistant Federal Public Defender, Columbia, South Carolina, for Appellant. John Michael Barton, Assistant United States Attorney, Columbia, South Carolina, for Appellee. ON BRIEF: J. Rene Josey, United States Attorney, Columbia, South Carolina, for Appellee.

Before WILKINSON, Chief Judge, WIDENER, Circuit Judge, and Raymond A. JACKSON, United States District Judge for the Eastern District of Virginia, sitting by designation.

Vacated and remanded for resentencing by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judge Widener and Judge Jackson joined.

OPINION

WILKINSON, Chief Judge:

In this case, we must decide whether Rule 43 of the Federal Rules of Criminal Procedure requires a defendant to be physically present at the imposition of sentence, or whether the rule permits a defendant to appear via video teleconference. On March 22, 2000 the district court sentenced Desmond Lawrence to 360 months in prison for two counts of bank robbery. Lawrence appeared in the Columbia, South Carolina courtroom through a video feed from his prison in Florence, Colorado. Because "presence" in Rule 43 means physical presence, we must vacate Lawrence's sentence and remand the case to the district court for further proceedings consistent with this opinion.

I.

On December 30, 1996 Desmond Lawrence pleaded guilty to bank larceny. See 18 U.S.C. S 2113(b)(1994). He admitted to robbing $1,591 from the Carolina First Bank. The evidence against Lawrence on this count was overwhelming. After he grabbed the money from an open teller drawer, Lawrence in his haste left some papers at the bank. These papers included his handwritten demand note and an envelope with his name on it. On January 6, 1997, a jury convicted Lawrence of attempting to rob another bank, First Union. See 18 U.S.C. S 2113(a). Both the Carolina First robbery and the First Union attempted robbery occurred within one hour of each other.

At sentencing, the district court upwardly departed from a range of 77 to 96 months to a range of 360 months to life because of Lawrence's past criminal history. See U.S.S.G.S 4A1.3. Because the statutory maximum on the two counts was a combined thirty years, the district court sentenced Lawrence to 360 months. At this sentencing hearing, Lawrence was unruly and abusive. Lawrence cursed at the hearing, sarcastically challenged the district court to sentence him to death, and repeatedly boasted of his intention to continue breaking the law. Lawrence, who is six feet, eight inches tall, and weighs about three hundred pounds, had to be restrained in some of his court appearances by a 50,000 volt stun belt.

This court subsequently vacated and remanded Lawrence's sentence because the district court did not adequately explain its reasons for the upward departure. See United States v. Lawrence, 161 F.3d 250, 255-56 (4th Cir. 1998). Soon after, the district court entered an order that the defendant's resentencing take place by video conference. The district court was concerned about Lawrence's behavior. In addition to his outbursts at trial and at sentencing, the district court noted that Lawrence had behaved violently while in custody prior to his 1997 trial. He was charged and pleaded guilty to the September 16, 1996 assault of federal prison officials in Atlanta, Georgia. Furthermore, he pleaded guilty to attempting to escape from federal prison in Atlanta. The district court also pointed out that Lawrence allegedly raped a female prisoner at the Lexington County, South Carolina jail, although the government did not pursue criminal action against Lawrence for this. Lawrence is currently incarcerated at the federal super-maximum security prison in Florence, Colorado. At the time of his resentencing, the Bureau of Prisons considered Lawrence "a danger for transport" and a "very dangerous individual due to his past behavior."

Lawrence filed an interlocutory appeal from the district court's video order, arguing that Rule 43 and the United States Constitution mandate his physical presence at sentencing. This court dismissed the interlocutory appeal because it was not ripe. See United States v. Lawrence, 201 F.3d 536, 537 (4th Cir. 2000). Lawrence then asked the district court to reconsider its order mandating a sentencing hearing via video teleconference in light of the fact that the United States Marshal's Service had recently transported Lawrence without incident to Atlanta, Georgia for a civil hearing. The district court denied this request, and held its resentencing hearing on March 22, 2000.

At the sentencing hearing, Lawrence was physically located at the Florence, Colorado prison. One of his attorneys was with Lawrence in Colorado, and another was present in the courtroom in Columbia, South Carolina. The judge, prosecutor, and all other court personnel were located in the Columbia courtroom. Eleven video monitors were placed in the courtroom. Lawrence could confer privately with his attorneys at any time. No technical problem occurred during the video sentencing. Lawrence and his attorneys strenuously objected to the video conferencing, arguing that interacting with a person on television is completely different from live interaction. The trial court overruled this objection. The district court also resentenced Lawrence to the statutory maximum of 360 months, upwardly departing under a de facto career offender analysis of Sentencing Guideline S 4A1.3 and S 4B1.1 and further upwardly departing underS 4A1.3 due to the likelihood that Lawrence would commit more crimes. Lawrence now appeals both the video sentencing procedure as well as the upward departures.

II.

Lawrence first argues that both the United States Constitution and Rule 43 of the Federal Rules of Criminal Procedure require a defendant's physical presence at sentencing hearings. We conclude that the plain text of Rule 43 mandates that a defendant be physically present at sentencing except when the rule specifically provides otherwise. Because Lawrence was not physically present at his sentencing hearing, and because his absence does not meet any of Rule 43's exceptions, his sentence must be vacated.¹

A.

Rule 43 requires a defendant to "be present" at every stage of the trial, including "at the imposition of sentence." Fed. R. Crim. P. 43(a). The Rule states in pertinent part:

(a) Presence Required. The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.

(b) Continued Presence Not Required. The further progress of the trial to and including the return of the verdict, and the imposition of sentence, will not be prevented and the defendant will be considered to have waived the right to be present whenever a defendant, initially present at trial, or having pleaded guilty or nolo contendere,

(1) is voluntarily absent after the trial has commenced (whether or not the defendant has been informed by the court of the obligation to remain during the trial),

(2) in a noncapital case, is voluntarily absent at the imposition of sentence, or

(3) after being warned by the court that disruptive conduct will cause the removal of the defendant from the courtroom, persists in conduct which is such as to justify exclusion from the courtroom.

Fed. R. Crim. P. 43.

The United States argues that the presence requirement of Rule 43 does not impose an absolute condition of a defendant's physical presence at sentencing in each and every case. Rather, it maintains that the practical realities of the criminal justice system necessitate giving district courts flexibility in certain cases by allowing innovative techniques such as video conferencing.

The plain meaning of the term "presence," however, belies such an interpretation of the rule. The Oxford English Dictionary defines "presence" as "[t]he fact or condition of being present; the state of being before, in front of, or in the same place with a person or thing; being there." Oxford English Dictionary (2d ed. 1989). And that dictionary further defines "present" as "[b]eing before, beside, with, or in the same place as the person to whom the word has relation; being in the place considered or mentioned; that is here (or there)." Id. Black's Law Dictionary has a similar definition of"present" -"[i]n attendance; not elsewhere." Black's Law Dictionary 1202 (7th ed. 1999).

Other dictionaries confirm that presence means physical presence. Webster's defines "presence" as "[t]he state or fact of being present," and "[i]mmediate proximity in time or space." Webster's II New College Dictionary 874 (1999). "Present" is then defined as "[b]eing at hand." Id. Another version of Webster's also makes clear that "presence" means physical presence. It defines "presence" as "the part of space within one's immediate vicinity." Merriam-Webster's Collegiate Dictionary 921 (10th ed. 1999).

Moreover, the context and structure of Rule 43 itself lends further support to presence meaning physical presence. Rule 43(b) speaks of being "initially present." Fed. R. Crim. P. 43(b). The rule then states that judges may remove a defendant if the defendant"persists in conduct which is such as to justify exclusion from the courtroom" if the judge warns "that disruptive conduct will cause the removal of the defendant from the courtroom." Id. at R. 43(b)(3) (emphasis added). It is difficult to imagine that a defendant can be"excl...