United States v. Sealed One

21-118
United States v. Sealed Defendant One

United States Court of Appeals
for the Second Circuit

August Term 2021

Submitted: May 11, 2022
Decided: September 21, 2022

No. 21-118

UNITED STATES OF AMERICA,

Appellee,

v.

SEALED DEFENDANT ONE,

Defendant-Appellant. *

Appeal from the United States District Court
for the Southern District of New York
No. 20-cr-441, Cathy Seibel, Judge.

Before: NEWMAN, CHIN, and SULLIVAN, Circuit Judges.

Sealed Defendant One (the “Sealed Defendant”) appeals from a judgment
of conviction following his guilty plea to one count of transmitting a threat in
interstate commerce, one count of threatening to assault a federal law officer, and

* The Clerk of Court is respectfully directed to amend the caption as reflected above.
one count of obstruction of justice, in violation of 18 U.S.C. §§ 875(c), 115(a)(1)(B),
and 1505, respectively. At a sentencing proceeding conducted by videoconference
and under seal, the district court (Seibel, J.) sentenced Sealed Defendant
principally to eighty-four months’ imprisonment. On appeal, Sealed Defendant
argues that (1) the government breached the plea agreement, (2) his sentence was
procedurally unreasonable, and (3) the district court erred in conducting his
sentencing by videoconference.

We conclude that (1) the plea agreement expressly provided for the
government to take the very actions Sealed Defendant now characterizes as
breaches of that agreement, (2) the district court provided adequate notice and
factual support for the sentencing variances and enhancements it applied, and (3)
Sealed Defendant knowingly and voluntarily waived his right to be physically
present at sentencing. With respect to point (3), we also hold – as a matter of first
impression – that sealed sentencings conducted by videoconference do not
implicate Federal Rule of Criminal Procedure 53’s prohibition on “the
broadcasting of judicial proceedings from the courtroom” or the procedural
requirements associated with the CARES Act’s exception to Rule 53. Accordingly,
we AFFIRM the judgment of the district court.

AFFIRMED.

Jeffrey Chabrowe, New York, NY, for
Defendant-Appellant Sealed Defendant One.

Andrew DeFilippis (Sam Adelsberg, Karl
Metzner, on the brief), Assistant United
States Attorneys, for Damian Williams,
United States Attorney for the Southern
District of New York, New York, NY, for
Appellee United States of America.

RICHARD J. SULLIVAN, Circuit Judge:

Sealed Defendant One (the “Sealed Defendant”) appeals from the judgment

of conviction entered by the district court (Seibel, J.) following his guilty plea to

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one count of transmitting a threat in interstate commerce in violation of 18 U.S.C.

§ 875(c), one count of threatening to assault a federal law enforcement officer in

violation of 18 U.S.C. § 115(a)(1)(B), and one count of obstruction of justice in

violation of 18 U.S.C. § 1505. 1 At a sentencing proceeding conducted by

videoconference and under seal, the district court sentenced Sealed Defendant

principally to eighty-four months’ imprisonment. On appeal, Sealed Defendant

argues that (1) the government breached the plea agreement, (2) his sentence was

procedurally unreasonable, and (3) the district court erred in conducting his

sentencing by videoconference.

For the reasons explained below, we conclude that (1) the plea agreement

expressly provided for the government to take the very actions Sealed Defendant

now characterizes as breaches of that agreement, (2) the district court gave

adequate notice and identified adequate factual support for the sentencing

variances and enhancements it applied, and (3) Sealed Defendant knowingly and

voluntarily waived his right to be physically present at sentencing. With respect

1Decision of this case was delayed by the panel’s need to await its turn in a queue of cases pending
in this Circuit resolving questions on “what findings a district court must make . . . before it
proceeds to sentence a defendant by videoconference rather than in person,” United States v.
Leroux, 36 F.4th 115, 117 (2d Cir. 2022), following Congress’s enactment of the Coronavirus Aid,
Relief, and Economic Security Act of 2020 (the “CARES Act”), Pub. L. No. 116-136, 134 Stat. 281.
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to point (3), we also hold – as a matter of first impression – that sealed sentencings

conducted by videoconference do not implicate Federal Rule of Criminal

Procedure 53’s prohibition on “the broadcasting of judicial proceedings from the

courtroom” or the procedural requirements associated with the CARES Act’s

exception to Rule 53. Accordingly, we affirm the judgment of the district court. 2

I. BACKGROUND

For over two decades, Sealed Defendant served the Federal Bureau of

Investigation (the “FBI” or the “Bureau”) as a paid confidential source on sensitive

criminal and counterterrorism investigations. Toward the end of that tenure,

however, Sealed Defendant’s behavior led the FBI to doubt his discretion and

2Although we allowed the parties to submit their briefs and appendix under seal in this appeal,
we deem it appropriate to issue this Opinion on the public docket and for publication in the
Federal Reporter. There is a “strong presumption . . . under both the common law and the First
Amendment” that judicial documents – and especially judicial decisions, which “are used to
determine litigants’ substantive legal rights” – “should . . . be subject to public scrutiny.” Lugosch
v. Pyramid Co. of Onondaga, 435 F.3d 110, 121 (2d Cir. 2006) (citation omitted); see also United States
v. Amodeo, 71 F.3d 1044, 1048–50 (2d Cir. 1995); United States v. Amodeo, 44 F.3d 141, 145–46 (2d
Cir. 1995); United States v. Myers (In re Nat'l Broadcasting Co.), 635 F.2d 945, 949–54 (2d Cir. 1980);
Joy v. North, 692 F.2d 880, 893–94 (2d Cir. 1982); United States v. Biaggi (In re N.Y. Times Co.), 828
F.2d 110, 116 (2d Cir. 1987). That presumption, of course, “does not end the inquiry,” Lugosch,
435 F.3d at 120, and judicial decisions “may be sealed if . . . ‘[sealing] is essential to preserve higher
values and is narrowly tailored to serve that interest,’” In re N.Y. Times Co., 828 F.2d at 116
(quoting Press-Enter. Co. v. Superior Ct., 478 U.S. 1, 9 (1986)). Here, however, we have taken care
to omit from our Opinion any details that would compromise sensitive counterterrorism or law-
enforcement operations, endanger Sealed Defendant’s personal safety while incarcerated, or
otherwise personally identify him. Accordingly, we find that sealing this Opinion is not
“essential to preserve higher values,” and we decline to do so. Press-Enter. Co., 478 U.S. at 9.
4
trustworthiness. As a result, the FBI withdrew Sealed Defendant’s authorization

to conduct operational investigative activities for the Bureau and informed him

that he would no longer be tasked on FBI investigations. Sealed Defendant reacted

poorly to this news, sending a series of text messages to three FBI Agents and

Officers with whom he had previously worked, threatening to kill them. Based on

this conduct, the government charged Sealed Defendant with making threats in

interstate communications and threatening to assault a federal law enforcement

officer, in violation of 18 U.S.C. §§ 875(c) and 115(a)(1)(B), and a magistrate judge

issued a warrant for his arrest. After being taken into custody, Sealed Defendant

directed his wife to alert several suspected terrorists that they were subjects of

ongoing FBI counterterrorism investigations, to offer them Sealed Defendant’s

assistance in evading capture, and then to destroy the evidence of such

communications. Based on this conduct, the government additionally charged

Sealed Defendant with obstruction of justice, in violation of 18 U.S.C. § 1505.

In late 2020, Sealed Defendant entered into an agreement with the

government to plead guilty to all three charges. The plea agreement provided for

a Sentencing Guidelines range of forty-six to fifty-seven months’ imprisonment

(the “Stipulated Guidelines Range”). It also provided that either party could seek

5
a sentence outside of the Stipulated Guidelines Range, and “make all appropriate

arguments” in the event that the Probation Office were to calculate a Guidelines

range “different from [the range] stipulated to.” App’x at 9–10. Pursuant to the

plea agreement, Sealed Defendant pleaded guilty to all three charges in a

September 2020 plea hearing conducted – with Sealed Defendant’s explicit

consent – by videoconference. Due to the sensitivity of the national-security issues

implicated in this case, and to protect Sealed Defendant from retaliation for his

previous role as a law-enforcement cooperator, the district judge held the initial

plea hearing under seal and subsequently ordered that the entire case be kept

under seal.

Following Sealed Defendant’s guilty plea, the Probation Office prepared a

Presentence Investigation Report (the “PSR”) that calculated a Guidelines range of

fifty-one to sixty-three months’ imprisonment. In its sentencing memorandum,

the government stated that it did “not dispute the calculation of the . . . Guidelines

range set forth in the PSR,” id. at 54, and argued that an above-Guidelines sentence

was necessary to adequately punish Sealed Defendant for his betrayal of the FBI

and his willingness to aid those who seek to kill innocent Americans, to deter

others from similar activity, and to protect the public from further crimes that

6
Sealed Defendant might otherwise commit. In his sentencing memorandum,

Sealed Defendant sought a below-Guidelines, time-served sentence of twenty-six

months’ imprisonment, arguing that such a sentence would be appropriate in light

of his twenty years of fruitful cooperation with the FBI and various personal

mitigating factors.

After consulting with the parties, the district court scheduled Sealed

Defendant’s sentencing for December 2020. Due to the ongoing COVID-19

pandemic, however, this sentencing proceeding was conducted via Skype

videoconference. See Standing Order, In re Coronavirus/COVID-19 Pandemic,

No. 20-mc-176 (CM) (S.D.N.Y. Mar. 30, 2020), ECF No. 1 (finding that felony pleas

and felony sentencings under Federal Rules of Criminal Procedure 11 and 32,

respectively, could not be conducted in person without seriously jeopardizing

public health and safety). At the beginning of the proceeding, after the district

judge explained to Sealed Defendant that he had the right to an in-person

sentencing – and the option to postpone the proceeding until it could be safely

held in person – he and his counsel both affirmatively stated that they preferred

to proceed by videoconference. The district judge then confirmed that, consistent

with her order sealing the entire case, the only participants in the Skype

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videoconference were the parties, their counsel, members of Sealed Defendant’s

immediate family, and the judge herself. After hearing extensive argument from

the parties and providing lengthy discussion of the sentencing factors set forth in

18 U.S.C. § 3553(a), the district court sentenced Sealed Defendant to eighty-four

months’ imprisonment, to be followed by a three-year term of supervised release.

This appeal followed.

II. DISCUSSION

A. The Plea Agreement

Sealed Defendant contends that the government breached the plea

agreement by (1) advocating a sentence above the Stipulated Guidelines Range,

and (2) acquiescing in Probation’s calculation of a higher Guidelines range.

Neither contention is meritorious, however, because the plea agreement

contemplates the government might take those actions.

We review a plea agreement “in accordance with principles of contract law”

and look “to what the parties reasonably understood to be the terms of the

agreement” to determine whether a breach has occurred. United States v. Taylor,

961 F.3d 68, 81 (2d Cir. 2020) (citation omitted). Where, as here, a defendant did

8
not raise any argument that the government breached the plea agreement before

the district court, we review such claims for plain error. Id.

There was no error, much less plain error, in allowing the government to

advocate a sentence above the Stipulated Guidelines Range. The government and

Sealed Defendant expressly agreed that either party could “seek a sentence outside

of the Stipulated Guidelines Range based upon the factors” delineated in 18 U.S.C.

§ 3553(a). App’x at 9. Indeed, the government and Sealed Defendant both availed

themselves of this provision in arguing, respectively, for sentences above and

below the Stipulated Guidelines Range. Sealed Defendant offers no persuasive

explanation of how the plea agreement could be breached by conduct it expressly

permitted.

Likewise, the government’s failure to challenge Probation’s calculation of a

higher Guidelines range was not a violation of the plea agreement, which

permitted the parties “to make all appropriate arguments” in the event that

Probation calculated a Guidelines range “different from [the range] stipulated to.”

Id. at 9–10. The discrepancy between the Stipulated Guidelines Range and the

range in the PSR arose from an apparent error in the plea agreement, which

applied a three-level enhancement instead of a six-level enhancement in

9
connection with Sealed Defendant’s threats to federal law enforcement agents. See

U.S.S.G. § 3A1.2(a), (b). But section 3A1.2(b) clearly applies where the conditions

of section 3A1.2(a) are met “and the applicable Chapter Two guideline is from

Chapter Two, Part A.” Id. § 3A1.2(b). Since the parties stipulated that the section

3A1.2(a) enhancement applied and that the Guideline applicable to these offenses

was found in section 2A6.1 (i.e., Chapter Two, Part A), Probation correctly applied

the six-level enhancement for Sealed Defendant’s threats to law enforcement

officers. Accordingly, the government’s acquiescence to the PSR’s corrected

Guidelines calculation neither strayed from “what the parties reasonably

understood to be the terms of the agreement” nor “produce[d] serious unfairness”

for Sealed Defendant, and thus did not constitute a breach of the plea agreement

or plain error attributable to the district court. Taylor, 961 F.3d at 81–82 (citations

omitted).

B. Procedural Reasonableness

Sealed Defendant raises several challenges to the procedural reasonableness

of his sentence, arguing that: (1) the district court’s imposition of an above-

Guidelines sentence was a departure, not a variance, such that the district court

procedurally erred in failing to provide notice of its putative departure; (2) this

10
putative departure lacked sufficient factual support; and (3) the section 3A1.2(a)

enhancement lacked sufficient factual support.

We “review the procedural . . . reasonableness of a sentence under a

deferential abuse-of-discretion standard.” United States v. Richardson, 958 F.3d 151,

153 (2d Cir. 2020) (internal quotation marks omitted). As relevant to Sealed

Defendant’s challenge here, “[a] district court commits procedural error where it”

either (1) “makes a mistake in its Guidelines calculation,” (2) “rests its sentence on

a clearly erroneous finding of fact,” or (3) “fails adequately to explain its chosen

sentence.” United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). To

adequately explain its chosen sentence, a district court “must include an

explanation for any deviation from the Guidelines range.” Id. (internal quotation

marks omitted).

Contrary to Sealed Defendant’s assertion, his sentence is properly analyzed

as a variance from, not a departure under, the Guidelines. For starters, that is how

the district court characterized its own sentence, stating on the record at

sentencing that it was “going to vary upward.” App’x at 211 (emphasis added).

That characterization was undoubtedly correct as a matter of law. We have

explained that a “departure . . . refers only to non-Guidelines sentences imposed”

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on the basis of factors within “the framework set out in the Guidelines,” whereas a

“variance is a modification of the applicable Guidelines sentence ‘that a District

Court may find justified under . . . sentencing factors’” extrinsic to the Guidelines –

namely, those “set forth in 18 U.S.C. § 3553(a).” United States v. Stewart, 590 F.3d

93, 137 n.32 (2d Cir. 2009) (quoting Irizarry v. United States, 553 U.S. 708, 714–15

(2008)) (alterations omitted). Here, the record makes clear that the district court

relied on the section 3553(a) factors in imposing an above-Guidelines sentence.

After discussing such factors at length, the district court reasoned that “the

Guidelines . . . understate[d] the severity of the obstruction,” App’x at 209, thus

complying with section 3553(a)’s requirements to consider “the nature and

circumstance of the offense” and “for the sentence imposed to reflect the

seriousness of the offense,” 18 U.S.C § 3553(a)(1), (2)(A). The upshot is that the

district court had no duty to give advance notice of this variance. While district

courts must “give the parties reasonable notice that it is contemplating . . . a

departure,” Fed. R. Crim. P. 32(h) (emphasis added), this requirement does not

extend to variances, see Irizarry, 553 U.S. at 716; United States v. Gilmore, 599 F.3d

160, 167 (2d Cir. 2010).

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 Furthermore, the district court provided an adequate explanation of its

rationale for the upward variance in its analysis of the severity of Sealed

Defendant’s obstruction of justice. Sealed Defendant maintains that, because he

received a twelve-level enhancement for his obstruction-of-justice conviction’s

nexus to international or domestic terrorism, see U.S.S.G. § 2J1.2(b)(1)(C), and there

was no evidence that his obstruction caused actual harm, the district court

improperly determined that the obstruction Guideline was too lenient. The

Guidelines Manual provides that “[n]umerous offenses of varying seriousness

may constitute obstruction of justice” and “may, therefore, range from a mere

threat to an act of extreme violence.” Id. § 2J1.2, Background. The twelve-level

enhancement under section 2J1.2(b)(1)(C) that applied to Sealed Defendant simply

reflected the fact that the obstruction occurred in a matter related to international

or domestic terrorism; this enhancement, while significant, bears on the context in

which the obstruction occurred, not on the relative severity of Sealed Defendant’s

conduct or its actual consequences. The district court determined that Sealed

Defendant “was not just obstructing the [g]overnment’s investigation of his own

misconduct, he was affirmatively . . . assisting enemies of the United States,” and

that this conduct went beyond “garden variety obstruction, like taking the SIM

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card out of your phone.” App’x at 203–04. We see no reason to disturb the district

court’s finding that Sealed Defendant’s obstruction of justice, which involved

providing confidential information to suspected terrorists, justified varying

upward to reflect the seriousness of this offense.

We also reject Sealed Defendant’s contention that the facts before the district

court were insufficient to support the section 3A1.2 “Official Victim”

enhancement. Given the evidence that Sealed Defendant knew the victims of his

threats were government officers and that he threatened them because he was

removed from the government payroll, it was not clear error for the district court

to determine that he was motivated by actions his victims took in their official

capacity as federal agents. See United States v. Salim, 549 F.3d 67, 76 (2d Cir. 2008). 3

3 We also note that the parties stipulated to the Official Victim enhancement and the factual
underpinnings of that enhancement. Where “the record clearly demonstrates that the stipulation
was knowing . . . and voluntary,” as here, “a factual stipulation in a plea agreement is a valid
basis for a factual finding relevant to sentencing.” United States v. Granik, 386 F.3d 404, 413 (2d
Cir. 2004) (citations and internal quotation marks omitted). Because Sealed Defendant knowingly
entered the plea agreement and confirmed that he understood the government would have to
prove his guilt beyond a reasonable doubt at trial, the district court was justified in considering
his stipulated plea agreement as additional evidence to support the Official Victim enhancement.
See id. (permitting a factual finding based on a stipulation where “the plea agreement makes a
stipulation clearly and explicitly” and “the defendant signs the agreement and allocutes to
understanding the consequent loss of the right to put the government to its proof”).
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C. Sentencing by Videoconference

Finally, Sealed Defendant argues that the district court erred by sentencing

him via videoconference – variously characterizing this putative error as a

“CARES Act [v]iolation,” a “due process” violation under the “[F]ifth

[A]mendment,” and/or a violation of “Federal Rule of Criminal Procedure 43.”

Sealed Defendant Br. at 54–56 [hereinafter Sealed Defendant Br.]. In particular,

Sealed Defendant argues that the district court (1) “fail[ed] to lay [adequate]

factual foundation for its conclusion that [his] sentencing could not be further

delayed without doing serious harm to the interests of justice,” thereby

“violat[ing] the CARES Act requisites for remote sentencing,” and (2) “fail[ed] to

ensure that [his] waiver of his right to be present at sentencing was knowing and

voluntary.” Id. at 54 (capitalization standardized). But as discussed below, the

former of these requirements is inapplicable in this case, and the latter was indeed

satisfied here.

We recently held that, in order to invoke the CARES Act’s exception to

Federal Rules of Criminal Procedure 43 (which provides “a criminal defendant . . .

the right to be present during sentencing”) and 53 (which imposes a “general ban

on videoconferencing of criminal proceedings”), a district court must not only

15
secure the defendant’s knowing and voluntary waiver of his right to appear, but

must also provide an on-the-record explanation of its “specific reasons” for

“find[ing] . . . that the sentencing cannot be further delayed without serious harm

to the interests of justice.” Leroux, 36 F.4th at 120–21 (quoting United States v. Coffin,

23 F.4th 778, 779 (7th Cir. 2022) (quoting CARES Act, § 15002(b)(2)(A), 134 Stat.

at 529)) (alterations omitted). But since the sentencing-by-videoconference here

was conducted under seal, the district court did not need to abide by the CARES

Act’s full suite of procedural safeguards.

That is because the CARES Act is not a freestanding source of affirmative

rights for defendants or affirmative procedural obligations for sentencing courts.

Rather, it is a “statutory exception” that allows district courts to conduct

sentencings-by-videoconference in circumstances where they would otherwise be

forbidden under “Rule 43 and Rule 53[].” Id. at 120 (emphasis added). As we

explained in Leroux, Rule 53 “prohibits public videoconferencing of criminal

proceedings.” Id. (emphasis added). We now clarify that it applies only to public

videoconferencing – and not to videoconferencing of proceedings conducted

under seal. Rule 53, on its face, bars “the broadcasting of judicial proceedings,” Fed.

R. Crim. P. 53 (emphasis added), which clearly entails “public” distribution to

16
make something “widely known,” Broadcast, Merriam-Webster,

https://www.merriam-webster.com/dictionary/broadcast (last visited August 31,

2022) (emphasis added). 4

Here, the sentencing proceeding was neither “broadcast,” Fed. R. Crim.

P. 53, nor conducted by “public videoconferencing,” Leroux, 36 F.4th at 120. On

the contrary, the district court took care to confirm before going forward with the

proceeding that “[t]his whole case is sealed,” and that “there is nobody on this

[Skype] call who shouldn’t be” – i.e., no one other than Sealed Defendant, his wife,

and his defense counsel; the government’s lawyers; and the judge herself. App’x

at 122. Therefore, the sealed sentencing here fell outside of the prima facie scope

4 In so holding, we are mindful of our Court’s previous statement – in the dicta of a decision
concerning “whether we should create an exception to the common law right to inspect and copy
judicial records for videotaped depositions” – that Rule 53 “forbid[s] all filming in courtrooms
whether intended for private or for public use and whatever the subject.” United States v. Salerno (In
re CBS, Inc.), 828 F.2d 958, 959–60 (2d Cir. 1987) (emphasis added; other emphasis omitted). “But
dicta are not and cannot be binding.” Jimenez v. Walker, 458 F.3d 130, 142 (2d Cir. 2006) (internal
quotation marks and alteration omitted). Rather, only “[h]oldings – what is necessary to a
decision – are binding.” Id. (citation omitted). It is plain that CBS’s passing statement about
Rule 53 was not “necessary” to its bottom-line “decision,” id., that there is no “generalized right
of privacy enjoyed by participants in judicial proceedings” and therefore no “exception to the
common[-]law right to inspect and copy judicial records for videotaped depositions,” 828 F.2d at
959–60. Even if it were binding on us, the logic of CBS’s dicta would be readily distinguishable
from that of our holding here, insofar as it addressed a hypothetical involving after-the-fact
“private use” of a videotaped courtroom proceeding for purposes of using it as evidence in a
different proceeding. See id. at 959. In other words, the “private use” at issue in the CBS panel’s
hypothetical would still entail dissemination of a video recording to individuals and entities other
than the parties to the judicial proceeding being captured on video. Where, as here, a sealed
sentencing proceeding is conducted by videoconference, no such dissemination occurs.
17
of Rule 53, and the district court had no need to invoke the CARES Act’s exception

to Rule 53’s ban on public broadcasting of courtroom proceedings. Thus, even if

Sealed Defendant could establish that the district court failed to state adequately

“specific reasons” for “find[ing] . . . that [his] sentencing [could] []not be further

delayed without serious harm to the interests of justice,” Leroux, 36 F.4th at 120–

21, that would not avail him.

With Rule 53 off the table, the only live issue is Sealed Defendant’s

invocation of his right “[u]nder both the Constitution and . . . Rule 43(a)(3) . . . to

be present during sentencing.” Id. at 120. But even “[p]rior to the enactment of

the CARES Act,” we “recognized” that a defendant’s right to be physically present

at sentencing is waivable “as long as [his] waiver is knowing and voluntary.”

Leroux, 36 F.4th at 120 (citations omitted); see also United States v. Salim, 690 F.3d

115, 122 (2d Cir. 2012) (explaining that while “a criminal defendant has the right

to be present during sentencing” under “both the Constitution[’s] [Fifth

Amendment Due Process Clause] and Federal Rule of Criminal

Procedure 43(a)(3),” he “may waive [that] right” in “a non-capital case, . . . as long

as [such] waiver is knowing and voluntary”), superseded by statute on other grounds

as stated in Leroux, 36 F.4th at 120; Fed. R. Crim. P. 43(c)(1)(B) (“A defendant

18
who . . . pleaded guilty . . . waives the right to be present . . . in a noncapital case,

when the defendant is voluntarily absent during sentencing.”).

Here, it is readily apparent that Sealed Defendant did validly waive his right

to an in-person sentencing. While the government must prove “by a

preponderance of the evidence that a defendant waived his constitutional rights,”

Salim, 690 F.3d at 122 (citation omitted), that burden is easily met here. The district

court confirmed with both Sealed Defendant and his attorney that he understood

he had the right to be sentenced in person, that his sentencing could be delayed

until it could be conducted in person, and that he was waiving his right to

challenge his remote sentencing. Sealed Defendant also attested on the record that

no one had threatened or coerced him into proceeding via videoconference. These

facts confirm that Sealed Defendant intentionally relinquished his right to be

sentenced in person. See United States v. Olano, 507 U.S. 725, 733 (1993). And Sealed

Defendant offers no evidence that his waiver was either unknowing or

involuntary. Thus, a preponderance of the evidence shows that he waived his

right to an in-person sentencing.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

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