In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-3230
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MIGUEL NAVARRETE, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 21-CR-73-JPS — J.P. Stadtmueller, Judge.
____________________
ARGUED SEPTEMBER 12, 2022 — DECIDED DECEMBER 13, 2023
____________________
Before EASTERBROOK, KIRSCH, and JACKSON-AKIWUMI,
Circuit Judges.
EASTERBROOK, Circuit Judge. Miguel Navarrete was
charged with possessing a firearm, which as a felon he could
not lawfully do. 18 U.S.C. §§ 922(g)(1), 924(a)(2). Both Navar-
rete and the prosecutor proceeded by video under the CARES
Act, which during the COVID pandemic permitted arraign-
ments and sentencings by video when four criteria are
2 No. 21-3230
satisfied. See Pub. L. 116-136, §15002(b)(2) (Mar. 27, 2020). Na-
varrete was arraigned and pleaded not guilty, by video, on
May 7, 2021. He gave consent on the record, and all necessary
findings were made. On August 26 he pleaded guilty, again
by video, and again consented on the record. Again all neces-
sary findings were made. He was sentenced on November 19
to 58 months’ imprisonment, a term below the bottom of the
range (77 to 96 months) calculated under the Sentencing
Guidelines. That proceeding, too, occurred by video.
Instead of calling himself fortunate, Navarrete appealed.
He contends that he is entitled to be resentenced because he
did not appear personally in court. But for the CARES Act, in-
person sentencing would have been required. Fed. R. Crim. P.
43(a). And Navarrete maintains that the CARES Act did not
authorize the use of video at his sentencing, because the judge
neglected to put his consent on the record. Perhaps everyone
in the room assumed that, having consented twice already
(for the arraignment and the change of plea), Navarrete was
happy with appearance by video. The judge asked his lawyer
whether “you or your client have any reason to advance this
morning as to why the Court ought not proceed today with
the imposition of sentence in this case?” Defense counsel re-
plied, “No, Your Honor.” Still, failing to protest an appear-
ance by video differs from consent. It is unfortunate that the
judge, prosecutor, and defense counsel all missed the need for
Navarrete’s formal consent on the record.
Navarrete’s current lawyer recognizes that his predeces-
sor neglected to raise the issue in the district court but insists
that lack of oral consent leads to automatic reversal. Counsel
uses the rubric of “plain error,” but even the plainest of errors
does not generate automatic reversal. See, e.g., United States v.
No. 21-3230 3
Olano, 507 U.S. 725 (1993); Greer v. United States, 141 S. Ct. 2090
(2021). The Court explained in Olano that the plain-error
standard leads to reversal only if the error is clear (“plain”),
affects substantial rights, and seriously affects the fairness, in-
tegrity, or public reputation of judicial proceedings. 507 U.S.
at 735–37. We held in United States v. Hernandez, 37 F.4th 1316,
1318–19 (7th Cir. 2022), that failure to obtain consent on the
record to appearance by video does not satisfy the plain-error
standard.
Today’s appeal shows why that makes sense. A defendant
appearing by video is not being sentenced in absentia (a possi-
bility that Rule 43(a) is designed to block). Defendant, coun-
sel, and judge see one another and can converse (and did).
Navarrete could make allocution, and his counsel could pre-
sent arguments in mitigation—which he did, with notable
success. Navarrete thus enjoyed the “substantial” part of the
entitlement secured by Rule 43(a), and the absence of a formal
consent on the record to a video appearance that was evi-
dently voluntary on the defendant’s part doesn’t call the jus-
tice system into disrepute. Navarrete does not contend that, if
asked for consent on the record, he would have refused, nor
does he even try to show how an in-person procedure would
have differed from his actual sentencing. The requirements of
plain-error review have not been satisfied.
To obtain the benefit of automatic reversal, it is not enough
to argue plain error. Instead a defendant must establish struc-
tural error—and we read Navarrete’s brief as making such an
argument, despite its use of plain-error language. The brief
calls it “per se error,” which seems to be his paraphrase of
structural error. Before the CARES Act was adopted, we too
used the language of “per se error” when a judge sentenced a
4 No. 21-3230
defendant over a video link. United States v. Bethea, 888 F.3d
864, 867 (7th Cir. 2018). The problem at the time of Bethea was
the absence of any authority for a defendant to appear by
video. The CARES Act provided that authority. A judge’s ne-
glect to ensure that all statutory conditions have been satisfied
differs in substance from conducting a proceeding in an ut-
terly unauthorized way.
As for structural error:
Only in a “very limited class of cases” has the Court con-
cluded that an error is structural, and “thus subject to au-
tomatic reversal” on appeal. Neder v. United States, 527
U.S. 1, 8 (1999).
Structural errors are errors that affect the “entire conduct
of the [proceeding] from beginning to end.” [Arizona v.]
Fulminante, 499 U.S. [279,] 309 [(1991)]. The “highly excep-
tional” category of structural errors includes, for exam-
ple, the “denial of counsel of choice, denial of self-repre-
sentation, denial of a public trial, and failure to convey to
a jury that guilt must be proved beyond a reasonable
doubt.” United States v. Davila, 569 U.S. 597, 611 (2013).
By contrast, discrete defects in the criminal process—such
as the omission of a single element from jury instructions
or the omission of a required warning from a Rule 11 plea
colloquy—are not structural because they do not “neces-
sarily render a criminal trial fundamentally unfair or an
unreliable vehicle for determining guilt or innocence.”
Neder, 527 U.S. at 9 (omission of element from jury in-
structions); see also [United States v.] Dominguez Benitez,
542 U.S. [74,] 81 n.6 [(2004)] (omission of Rule 11 warning
from plea colloquy).
Greer, 141 S. Ct. at 2099–2100 (cleaned up). The absence of con-
sent on the record to appearance by video during sentencing
did not affect the “entire conduct” of the proceedings and did
No. 21-3230 5
not “necessarily” render the outcome unreliable. It is at worst
a “discrete defect” outside the domain of structural error.
As far as we can tell, none of the courts of appeals has held
that failure to obtain on-the-record consent to video sentenc-
ing is a structural error—or for that matter a plain error. See,
e.g., United States v. Rodriguez-Monserrate, 22 F.4th 35, 45 (1st
Cir. 2021) (rejecting use of structural error approach and find-
ing any error not plain); United States v. Leroux, 36 F.4th 115,
121–22 (2d Cir. 2022) (plain error standard not met); United
States v. Rodriguez-Rios, 2021 U.S. App. LEXIS 24001 (9th Cir.
Aug. 12, 2021) (plain-error standard not met even when de-
fendant did not knowingly consent to video appearance). We
are not willing to overrule Hernandez and are even less in-
clined to create a novel category of structural error that does
not satisfy the criteria in Greer.
AFFIRMED
6 No. 21-3230
JACKSON-AKIWUMI, Circuit Judge, dissenting. The issue in
this case is whether a district court errs when it conducts a
sentencing hearing via videoconference without obtaining the
defendant’s consent. I believe our circuit’s CARES Act case
law is inconsistent on that question, and the majority opinion
further muddies the waters. Although the CARES Act itself
may now be obsolete, the contradictions in our case law could
create confusion about the general requirements of Federal
Rule of Criminal Procedure 43, the rule governing a defend-
ant’s presence in the courtroom. I am therefore compelled to
dissent.
In United States v. Bethea, 888 F.3d 864, 867 (7th Cir. 2018),
we held that a judge violates Rule 43’s in-person requirement
and commits per se error by conducting a felony plea via vid-
eoconference. The majority opinion observes that Bethea’s
holding was a result of “the absence of any authority for a de-
fendant to appear by video” at the time, ante, at 4, and con-
cludes that the CARES Act provides the necessary authority
that was lacking back in 2018 when Bethea was decided. So,
because the CARES Act permits the use of videoconference
for felony pleas and sentencings under certain circumstances,
the majority opinion appears to view the Act as functionally
overruling Bethea. But that conclusion is not supported by the
weight of our precedent.
Just last year, we decided United States v. Howell and en-
dorsed the continued applicability of Bethea even after the
passage of the CARES Act. 24 F.4th 1138, 1143 (7th Cir. 2022)
(“Consistent with Bethea, we find that Rule 43(c)(1)(B)’s lim-
ited exception did not create a general waiver system permit-
ting sentencing by video teleconference whenever a defend-
ant consents.”). Howell concluded that “a felony defendant
No. 21-3230 7
cannot agree to be sentenced by video teleconference unless
[the CARES Act] is satisfied,” id. at 1141 (emphasis added),
indicating that the CARES Act did not supersede Bethea but
instead created an exception to Bethea’s holding. In other
words, if the four prerequisites 1 of the CARES Act are not sat-
isfied, then Bethea still governs. And if Bethea still governs, a
videoconference felony sentencing violates Rule 43 and con-
stitutes a “per se error” that warrants reversal. Bethea, 888 F.3d
at 867.
Navarrete’s argument is rooted in our decision in Howell.
He argues that because the CARES Act prerequisites were not
satisfied during his videoconference sentencing, his sentenc-
ing should have taken place in-person, as required under Rule
43. Because it did not, he urges us to vacate and remand for
resentencing. The government does not contest Navarette’s
claim that the CARES Act prerequisites were not satisfied. To
the contrary, the government concedes that the district court
did not (1) make a case-specific finding that Navarette’s sen-
tencing could not be “further delayed without serious harm
to the interests of justice,” or (2) establish Navarrete’s consent
to proceed by videoconference. Under Bethea and Howell, that
concession should be fatal to the government’s position. In
1 The CARES Act authorizes the use of video and telephone confer-
encing when four conditions are met: (1) the Judicial Conference of the
United States finds that the COVID-19 pandemic will materially affect the
functioning of the federal courts; (2) the chief judge of the district court
finds that felony sentencings cannot be held in person without seriously
jeopardizing public health and safety; (3) the presiding district judge finds
that the sentencing in a particular case “cannot be further delayed without
serious harm to the interests of justice”; and (4) the defendant consents to
proceed by video teleconference after consulting counsel. See Pub. L. No.
116-136, § 15002(b)(2), 134 Stat. 281, 527-30 (2020).
8 No. 21-3230
holding otherwise, the majority effectively abrogates not just
those cases, but also our most recent cases applying their prin-
ciple.
Around the same time that Howell confirmed the contin-
ued applicability of Bethea, we decided two other CARES Act
cases: United States v. Coffin, 23 F.4th 778 (7th Cir. 2022), and
United States v. Davis, 29 F.4th 380 (7th Cir. 2022). Both Coffin
and Davis acknowledged that the CARES Act revised Bethea’s
application but did not alter its central holding. See Coffin, 23
F.4th at 781 (The “CARES Act created an exception to the
rule” and “specifically authorizes plea and sentencing hear-
ings by videoconference if the defendant consents and the
three other statutory prerequisites are met”); Davis, 29 F. 4th
at 385–86 (“The CARES Act created an exception to [Bethea’s]
rule” and “did just what Bethea predicted—amended Rule 43
to allow for video or telephonic conferences in the face of sig-
nificant health concerns”). By describing the CARES Act as
creating an exception to Bethea, these cases indicate that Bethea
remains the default rule. In Coffin and Davis, all four CARES
Act preconditions were satisfied in some capacity, so there
was no question that the Act governed each case. The defend-
ants in those cases challenged the content of specific CARES
Act findings—they did not argue that the district court failed
to make specific CARES Act findings altogether. Challenging
the substance of a district court’s CARES Act finding is “a
claim of CARES Act error—not Rule 43(a) error,” and such
errors are subject to the standard rules of waiver and forfei-
ture. Coffin, 23 F.4th at 781; Davis 29 F.4th at 387.
But Navarrete is not challenging the substance of the dis-
trict court’s CARES Act findings. Rather, he argues, and the
government concedes, that the district court failed to satisfy
No. 21-3230 9
the conditions required for the CARES Act to apply in the first
place. Consequently, he asserts that this failure is not a
CARES Act error, but a Rule 43(a) error. And, as we held in
Bethea, such violations of Rule 43(a) constitute per se error,
warranting reversal.
So why do I anticipate confusion? The majority opinion
does not address the substance or logic of Navarrete’s argu-
ment, and instead relies on Hernandez—another CARES Act
case we decided last year. 37 F.4th 1316 (7th Cir. 2022). Her-
nandez dealt with an argument that is nearly identical to the
one Navarrete makes here. The district court in Hernandez
failed to make one of the required CARES Act findings, so the
defendant argued on appeal that the judge violated Rule 43(a)
and thus committed per se error under Bethea. However, pur-
portedly relying on Coffin, the Henandez panel held that the
defendant had forfeited his challenge to the district court’s
omission of the mandatory CARES Act factor because he did
not raise it before the district court. Hernandez, 37 F.4th at
1319. Even though one of the prerequisites for CARES Act ap-
plication remained unsatisfied, the Hernandez panel treated
the lack of an in-person sentencing as being governed by the
CARES Act. This is where the potential for confusion origi-
nates. In our pre-Hernandez cases, we treated the failure to
make a specific CARES Act finding as per se reversible error.
And without ever overruling any of those cases, Hernandez
decided that it was not. By following Hernandez’s path, to-
day’s majority only adds to the confusion wrought by Hernan-
dez.
The CARES Act carves out a limited exception to Rule 43’s
in-person requirement if the district court makes certain man-
datory findings. If the court does not make those findings,
10 No. 21-3230
then we are working within the general requirements of Rule
43 and Bethea. Hernandez’s conclusion that the CARES Act ap-
plies even when it is not properly invoked presents two seri-
ous problems: first, it sidesteps Rule 43 and treats as optional
the explicit prerequisites Congress established in the CARES
Act. That approach directly contradicts the well-established
principle that where, as here, Congress has promulgated stat-
utory language that is “plain,” our “sole function” is to give
effect to that plain language. See Dodd v. United States, 545 U.S.
353, 359 (2005); see also ANTONIN SCALIA & BRYAN A, GARNER,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS 69 (2012).
But there is yet another problem: Hernandez and today’s ma-
jority opinion are inconsistent with the reasoning in Coffin,
Davis, and Howell. Each of those cases acknowledge that the
CARES Act revised Bethea’s holding in certain circumstances,
but did not eliminate Bethea’s precedential relevance. I cannot
reconcile one thread with the other—the Coffin/Davis/Howell
thread versus Hernandez and today’s decision—and I antici-
pate litigants will encounter the same dissonance.
I express no opinion on whether Bethea should or should
not be overruled in the wake of Greer v. United States, 141 S.
Ct. 2099, 2100 (2021), and its discussion of structural error—
an issue the parties did not address either. But I do not believe
we can say that Bethea is functionally obsolete when we have
three recent cases implying Bethea’s continued applicability.
Our court should address these inconsistencies to avoid any
further confusion about the general requirements of Rule 43.
Lastly, I take issue with the majority opinion’s statement
that a “defendant appearing by video is not being sentenced
in absentia . . . Defendant, counsel, and judge see one another
and can converse (and did).” Ante, at 3. This statement
No. 21-3230 11
suggests there is little benefit to holding in-person sentencing
hearings, and video proceedings have the same effect so long
as the participants can see and speak with everyone. But our
circuit has “recognized the value of the defendant and judge
both being physically present.” Bethea, 888 F.3d at 867. We
have held that the “judge’s absence from the courtroom ma-
terially changes the character of the proceeding” and “the
same is true if the defendant is the person missing.” Id. (citing
United States v. Thompson, 599 F.3d 595, 601 (7th Cir. 2010)).
“The important point is that the form and substantive quality
of the hearing is altered when a key participant is absent from
the hearing room, even if he is participating by virtue of a ca-
ble or satellite link.” Id. (quoting Thompson, 599 F.3d at 600).
And the “defendant’s face-to-face presence helps ensure that
the district judge fully confronts the gravity of the sentence
imposed.” Howell, 24 F.4th at 1142. The majority opinion is in-
consistent with these sound holdings.
For these reasons, I respectfully dissent.