USA. v. Lawrence, No. 00-4278

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtAppeal from the United States District Court for the District of South Carolina, at Columbia. Dennis W. Shedd; Before WILKINSON, Chief Judge, WIDENER; WILKINSON
Citation248 F.3d 300
Parties(4th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DESMOND CHARLES LAWRENCE, Defendant-Appellant. Argued:
Decision Date26 January 2001
Docket NumberNo. 00-4278

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)

Page 301

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

Page 302

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

Page 303

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...

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56 practice notes
  • U.S. v. Burke, No. 02-5470.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 1 Octubre 2003
    ...290 F.3d 1244, 1248 (10th Cir.2002) (holding that video-conferencing at sentencing violated Rule 43); United States v. Lawrence, 248 F.3d 300, 303-04 (4th Cir.2001) (same); United States v. Navarro, 169 F.3d 228, 235-39 (5th Cir.1999) (same); Valenzuela-Gonzalez v. United States Dist. Court......
  • U.S. v. Abdelhadi, No. 1:03CR610.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • 26 Julio 2004
    ...from sentencing. See Crosby v. United States, 506 U.S. 255, 258-59, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993); United States v. Lawrence, 248 F.3d 300, 304 (4th Cir.2001) ("The voluntary waiver exception in Rule 43(b)(2) likewise encompasses the situation where a defendant impliedly waives his r......
  • Clark v. United States, Civil No. 15-cv-726-JPG
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • 3 Marzo 2016
    ...641 F.3d 758, 764-65 (6th Cir. 2011); United States v. Torres-Palma, 290 F.3d 1244, 1245-48 (10th Cir. 2002); United States v. Lawrence, 248 F.3d 300, 301, 303-04 (4th Cir. 2001); United States v. Navarro, 169 F.3d 228, 235-39 (5th Cir. 1999)). However, only two courts have found that the j......
  • U.S. v. Hadden, No. 03-7508.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 7 Febrero 2007
    ...Criminal Rule 43 provides that a defendant must be present at "sentencing." Fed R.Crim. P. 43(a)(3).16 See also United States v. Lawrence, 248 F.3d 300, 302 (4th Cir.2001) ("[T]he plain text of Rule 43 mandates that a defendant be physically present at sentencing. . . ."). For reasons alrea......
  • Request a trial to view additional results
56 cases
  • U.S. v. Burke, No. 02-5470.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 1 Octubre 2003
    ...290 F.3d 1244, 1248 (10th Cir.2002) (holding that video-conferencing at sentencing violated Rule 43); United States v. Lawrence, 248 F.3d 300, 303-04 (4th Cir.2001) (same); United States v. Navarro, 169 F.3d 228, 235-39 (5th Cir.1999) (same); Valenzuela-Gonzalez v. United States Dist. Court......
  • U.S. v. Abdelhadi, No. 1:03CR610.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • 26 Julio 2004
    ...from sentencing. See Crosby v. United States, 506 U.S. 255, 258-59, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993); United States v. Lawrence, 248 F.3d 300, 304 (4th Cir.2001) ("The voluntary waiver exception in Rule 43(b)(2) likewise encompasses the situation where a defendant impliedly waives his r......
  • Clark v. United States, Civil No. 15-cv-726-JPG
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • 3 Marzo 2016
    ...641 F.3d 758, 764-65 (6th Cir. 2011); United States v. Torres-Palma, 290 F.3d 1244, 1245-48 (10th Cir. 2002); United States v. Lawrence, 248 F.3d 300, 301, 303-04 (4th Cir. 2001); United States v. Navarro, 169 F.3d 228, 235-39 (5th Cir. 1999)). However, only two courts have found that the j......
  • U.S. v. Hadden, No. 03-7508.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 7 Febrero 2007
    ...Criminal Rule 43 provides that a defendant must be present at "sentencing." Fed R.Crim. P. 43(a)(3).16 See also United States v. Lawrence, 248 F.3d 300, 302 (4th Cir.2001) ("[T]he plain text of Rule 43 mandates that a defendant be physically present at sentencing. . . ."). For reasons alrea......
  • Request a trial to view additional results

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