USCA1 Opinion
June 8, 1992 [NOT FOR PUBLICATION]
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No. 92-1058
UNITED STATES,
Appellee,
v.
JOSEPH M. SABATINO, JR.,
Defendants, Appellants.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jose Antonio Fuste, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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Selya, Circuit Judge.
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Joseph M. Sabatino, Jr. on brief pro se.
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Per Curiam. This court's August 15, 1991 mandate
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affirmed appellant's conviction, affirmed certain
enhancements to his sentence, vacated two other enhancements,
directed that appellant "be sentenced at the higher end of
BOL 23," and "remanded to the district court for further
proceedings consistent with this opinion." Thereafter,
without holding any further hearing or calling appellant back
to court, the district court reduced defendant's sentence
from 108 months (the heaviest sentence at BOL 29, criminal
history category I) to 57 months (the heaviest sentence at
BOL 23, criminal history category I). Defendant has appealed
(not from the amended judgment reducing his sentence to 57
months but from a subsequently entered order denying
defendant's request to be present at resentencing) contending
that he was entitled to be present at resentencing. We
disagree.
Contrary to defendant's argument, this court's
mandate directed the district court to impose a specific
sentence, the sentence at the "higher end" of BOL 23.
Defendant reads "higher end" to mean "higher half" or any
point above the midline of BOL 23, but this reading makes no
sense. As defendant had originally been sentenced at the
highest point in BOL 29, criminal history category I, once
this court determined that certain enhancements did not apply
(for vulnerable victim, U.S.S.G. 3A1.1, and use of
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coercion, U.S.S.G. 2G1.1) and that the correct BOL was 23,
there would have been no reason for this court to direct the
district court to choose some point in the upper half of BOL
23. Rather, plainly read, the mandate directed the very
sentence the district court imposed.
Defendant contends that once this court vacated the
vulnerable victim and coercion adjustments, he felt he could
accept responsibility and that a resentencing hearing should
have been held so that he could so argue. The government,
coming from the other direction, suggests that it should be
permitted to move for an upward departure. We leave for
another day the question whether such issues could have been
raised on remand had our mandate been written differently,
for example, had it simply vacated the entire sentence and
remanded for resentencing. See, e.g., United States v.
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Moree, 928 F.2d 654 (5th Cir. 1991). But it did not. Under
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its terms as written, the district court had no discretion to
impose any sentence other than 57 months. If either party
wished to expand the scope of the remand, the proper course
would have been to seek relief from this court.
The question remains whether, consistent with Fed.
R. Cr. P. 43(c)(4), the district court properly could correct
defendant's sentence in his absence. Rule 43(c)(4) states
that a defendant's presence is not required "[a]t a reduction
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of sentence under Rule 35." (Emphasis added). Defendant's
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sentence was corrected pursuant to Rule 35(a), which is
entitled "Correction of a Sentence on Remand." (Emphasis
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added). Rule 35(b), in contrast, is labelled "Reduction of
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Sentence for Changed Circumstances" (emphasis added), but is
not applicable as it applies to government requests to reduce
the sentence of a defendant who has substantially assisted
the government. These labels -- "correction" in Rule 35(a)
and "reduction" in Rule 35(b) -- do not necessarily control
whether a defendant's presence is required. In the present
case, the "correction" pursuant to Rule 35(a) was manifestly
a "reduction." Because the terms of our mandate directed a
specific sentence, no purpose would have been served by the
defendant's presence at correction of sentence. There was
nothing he or his counsel could have said that could properly
have influenced the sentencing court to impose a different
sentence since our mandate left no room for sentencing
discretion. In these circumstances, the sentence
"correction" was a "reduction" within the scope of Fed. R.
Cr. P. 43(c)(4), and defendant's presence was not required
under the term of the rule. Nor, in the circumstances of the
present case, did defendant have any constitutional right to
be present when his sentence was reduced. United States v.
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Jackson, 923 F.2d 1494, 1496-97 (11th Cir. 1991) ("In
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constitutional terms, a remedial sentence reduction is not a
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critical stage of the proceedings; so, the defendant's
presence is not required.").
Affirmed.
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