United States v. Bryant

United States Court of Appeals
For the First Circuit

No. 09-2500

UNITED STATES OF AMERICA,

Appellee,

v.

CHRIS BRYANT,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before
Boudin, Circuit Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.

William W. Fick, Federal Public Defender Office, for
appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief for appellee.

May 26, 2011

*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 BOUDIN, Circuit Judge. This case concerning sentencing

is back before this court for the second time; the prior history is

recounted in our decision on defendant Chris Bryant's first appeal,

United States v. Bryant, 571 F.3d 147 (1st Cir. 2009). To

summarize briefly, in 2006, Bryant participated in two sales of

crack cocaine to an undercover officer in Boston, Massachusetts.

He was indicted in February 2007 for the second transaction and

pled guilty in September to one count of distribution of cocaine

base. 21 U.S.C. § 841(a)(1) (2006).

At issue in his sentencing was whether he qualified as a

career offender under the sentencing guidelines, which provide:

A defendant is a career offender if (1) the
defendant was at least eighteen years old at
the time the defendant committed the instant
offense of conviction; (2) the instant offense
of conviction is a felony that is either a
crime of violence or a controlled substance
offense; and (3) the defendant has at least
two prior felony convictions of either a crime
of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a) (2007). Bryant was thirty-five at the time he

committed the instant offense, which was a drug felony; the dispute

at sentencing was whether he had two prior drug felonies that

counted as the requisite career offender predicates.

The draft presentence report ("PSR") did not treat Bryant

as a career offender; as a career offender predicate, it listed

only a 1996 New York conviction for attempted sale of a controlled

substance. Both parties objected: the government said that the PSR

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had omitted a 1997 Massachusetts conviction for conspiracy to

violate state drug laws; Bryant objected both to the listing of the

New York conviction, claiming that the government lacked

documentation required by Shepard v. United States, 544 U.S. 13

(2005), and (on several grounds) to the listing of the

Massachusetts conviction.

The probation officer then revised the PSR, accepting the

government's objection but not Bryant's objections to the

predicates and concluding that Bryant was a career offender. This

designation increased the guidelines sentencing range from 18-24

months to 151-188 months. At the sentencing hearing, Bryant

renewed his objections but the district court sided with the

government. Pointing to mitigating factors, the district court

sentenced Bryant to ninety months' imprisonment.

Bryant appealed, and, in our 2009 decision, this court

held that the Massachusetts conviction did qualify as a predicate

for career offender purposes. Bryant, 571 F.3d at 156, 158-59. As

for the New York conviction, we agreed with the district court that

the New York drug offense if proven would qualify as a career

offender predicate under the guidelines, id. at 156-58; but the

government had been unable to produce a judicial record of the fact

of Bryant's New York conviction, relying instead on other evidence

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that the district court had accepted without determining whether it

was sufficiently reliable, id. at 153-56.1 We ruled:

[The Massachusetts] conviction and the New
York conviction, if proven, qualify as
predicate offenses for career offender
purposes. However, we hold that the district
court committed clear error in finding that
the government met its burden to establish the
existence of the prior New York conviction.
We therefore vacate Bryant's sentence and
remand for further proceedings consistent with
this opinion.

Id. at 161.

As for the remand, we left "it to the district court to

decide how best to determine the reliability of the sources the

government used to prove the fact of the New York conviction."

Bryant, 571 F.3d at 156 n.6. On remand, the government submitted

three new documents to support its claim that Bryant had been

convicted of the New York drug offense in question, specifically:

a Certificate of Disposition Indictment,
prepared by a New York court clerk in 2009
based on a review of the court's electronic
records;

a Sentence and Commitment Form, prepared by
the New York court in 1996 and obtained from
the correctional facility where Bryant was
held; and

1
In this initial go-around, the government, like the PSR,
relied upon the incarceration record from the New York Department
of Correctional Services as well as the criminal history record
maintained by the National Crime Information Center and the New
York State Police Information Network.

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 a Certificate of Incarceration, prepared by
the New York Department of Correctional
Services in 2009.

The government also submitted for the first time an affidavit from

the records coordinator at the correctional facility stating that

the Sentence and Commitment form was received in the regular course

of business and that she had never known the last two documents to

be inaccurate.

The resentencing hearing took place in October 2009. A

few days before the hearing, Bryant's counsel learned that

transportation from prison had not been arranged and that Bryant

would not be able to appear. Bryant's counsel tried to contact

him, but Bryant could not be reached and was not brought to the

hearing. At the hearing, Bryant's counsel stated that he was not

in a position to waive any right Bryant might have involving his

presence at the hearing.

The district court ruled that the defendant was not

required to be present since the court was not considering a higher

sentence than originally imposed.2 Bryant's counsel argued that

the new records were impermissible, that without them there was

2
The district court may have been relying on United States v.
DiPina, 230 F.3d 477, 485 (1st Cir. 2000), which made a general
statement to this effect relating to allocution. While DiPina's
disposition was correct on its facts, the general statement was
overbroad, conflicting with the very precedent that DiPina cited
for it, United States v. Garafano, 61 F.3d 113, 116-17 (1st Cir.
1995). Garafano makes clear that the procedural incidents on a
remand depend primarily on the scope of the remand. Id. at 116.

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insufficient proof, and that in any event a lower sentence should

be imposed based on post-sentencing rehabilitation. Thereafter,

the district court reaffirmed Bryant's career offender status and

reimposed the original ninety-month sentence. Bryant again

appeals.

The target of this appeal is the district court's

conducting of the new sentencing hearing in Bryant's absence. The

government says in a footnote that Bryant has forfeited the

objection even though Bryant's counsel made clear at the hearing

that he was not waiving Bryant's rights; the government's theory is

that after the hearing, when the district court reserved decision,

Bryant should in the interval have made a motion for a new hearing,

at which he could have been present.

The district judge had told Bryant's counsel at the

hearing when the "presence" objection was raised: "I understand.

You're not waiving your client's right." When a party has asserted

a position and the district judge has unambiguously rejected it,

the party is not required to renew the request to preserve the

claim for appeal. United States v. Caro-Muñiz, 406 F.3d 22, 28-29

(1st Cir. 2005). Perhaps one could argue that Bryant's counsel did

not expressly insist on his client's presence; but this is not the

government's argument and to boot is not very persuasive.

On the merits of the right-to-be-present claim, it is

settled that the defendant himself has a right to be present at

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both his trial and his sentencing; there are constitutional bases

for this right, as well as common-law precedent, and it is

reflected in the Federal Rules of Criminal Procedure.3 The

defendant is also entitled to a right "to allocute"--to make a

personal plea and to provide information favorable to his

position4--although under some precedent presence is a right in

some sentencing proceedings where allocution is not required.

A resentencing, assuming that the full range of ordinary

sentencing issues is open, is treated essentially the same as an

initial sentencing for purposes of the presence requirement.

Thompson v. United States, 495 F.2d 1304, 1307 (1st Cir. 1974); see

also Fed. R. Crim. P. 43 advisory committee's note (1998

Amendments). But often a resentencing may be quite a different

animal, depending on the basis for and nature of the resentencing

and (in particular) any limitations that may have been placed on

3
Fed. R. Crim. P. 43(a)(3) ("Unless this rule . . . provides
otherwise, the defendant must be present at . . . sentencing.");
United States v. Sepúlveda-Contreras, 466 F.3d 166, 171-72 (1st
Cir. 2006); United States v. Ferrario-Pozzi, 368 F.3d 5, 8 (1st
Cir.), cert. denied, 543 U.S. 883 (2004); see generally Kentucky v.
Stincer, 482 U.S. 730, 745 (1987); United States v. Gagnon, 470
U.S. 522, 526 (1985) (per curiam); Mempa v. Rhay, 389 U.S. 128, 134
(1967).
4
Fed. R. Crim. P. 32(i)(4)(A)(ii) ("Before imposing sentence,
the court must . . . address the defendant personally in order to
permit the defendant to speak or present any information to
mitigate the sentence . . . ."); United States v. Gonzalez-
Melendez, 594 F.3d 28, 38 (1st Cir. 2010); see generally United
States v. Behrens, 375 U.S. 162, 165-66 (1963); Green v. United
States, 365 U.S. 301, 304 (1961).

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the scope of the resentencing by an appellate court that remanded

the original sentence for further proceedings.

Any alteration of the original judgment imposing the

sentence could be called a "resentencing"--the word has no

definitive meaning--but whether the defendant's presence and an

opportunity to allocute are required has in practice turned on

whether requiring these safeguards made sense in the context of the

proceedings. Even in an initial sentencing, portions of the

proceeding--say, a hearing on a strictly legal issue--may not

require the defendant's presence. Fed. R. Crim. P. 43(b)(3)-(4)

(listing exceptions to the presence requirement).

Resentencings are various in kind and many are very

narrow. At one extreme, the resentencing ordered may be as

unconstrained and open-ended as an initial sentencing; but at the

other extreme, a remand may be so focused and limited that it

involves merely a technical revision of the sentence dictated by

the appeals court and calls for no formal proceeding--say,

modifying the judgment to cut back to its legally permitted length

a supervised release term that exceeded what the statute permits.

Thus, the government has had no difficulty citing to us

a number of our own cases where we have deemed the defendant's

presence at resentencing to be unnecessary,5 and there are other

5
United States v. Santos-Rios, 151 F. App'x 2, 4 (1st Cir.
2005) (per curiam); United States v. Barnes, 244 F.3d 172, 178 (1st
Cir. 2001); United States v. Sabatino, No. 92-1058, 1992 WL 122285,

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such decisions not cited by the government. Most of these can

easily be distinguished from this case, but they underscore the

fact that "resentencing" is not a unitary phenomenon. The federal

criminal rules themselves identify certain classes of resentencing

proceedings that categorically do not require the defendant's

presence. Fed. R. Crim. P. 43(b)(3)-(4).

So, whether a court is considering a defendant's "right

to be present" or a government claim of "harmless error" where such

a right was disallowed, one should start by asking just what was

open to the district court on remand. Here, the government claims

that the only issue open was whether reliable evidence supported a

finding that the defendant had been convicted of the New York drug

offense alleged by the government--at least if the district court

found, as it did, that the documents (here, three new ones) did

support its original conclusion.

That we "vacated" the existing sentence does not preclude

the government's claim; most remands of a sentence vacate the

existing sentence regardless of the further proceedings required.

But while our Bryant decision told the district court to reexamine

the reliability of the evidence offered to establish the New York

conviction, our decision did not say that this was the only thing

the district court could consider or forbid the district court from

at *1 (1st Cir. June 8, 1992) (per curiam); United States v. De Los
Santos-Himitola, 924 F.2d 380, 382-83 (1st Cir. 1991).

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reconsidering the sentence in any other respects. Indeed, the

remand said nothing about new documents to confirm the prior

conviction, but the district court properly allowed them.

The government points to United States v. Ticchiarelli,

171 F.3d 24 (1st Cir.), cert. denied, 528 U.S. 850 (1999), to

support its claim that the remand was limited, but it overreads the

case. Ticchiarelli involved the so-called mandate rule, which

prevents a district court on remand from re-litigating issues

decided by the appellate court on the first go-around, United

States v. Moran, 393 F.3d 1, 7 (1st Cir. 2004), and the court noted

as well that a party ordinarily cannot raise for the first time on

remand issues that it could and should have litigated on the

original appeal, Ticchiarelli, 171 F.3d at 32.6

Ticchiarelli also made clear that what is open on remand

depends upon what the court of appeals determined:

[U]pon a resentencing occasioned by a remand,
unless the court of appeals [has expressly
directed otherwise], the district court may
consider only such new arguments or new facts
as are made newly relevant by the court of
appeals' decision--whether by the reasoning or
by the result.

6
Although the latter limitation is sometimes conflated with
the mandate rule, United States v. Ellis, 619 F.3d 72, 73 (1st Cir.
2010) (per curiam), cert. denied, 131 S. Ct. 1623 (2011), it arises
because "the aggrieved party is deemed to have forfeited any right
to challenge that particular decision at a subsequent date." Id.
(quoting United States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993)).

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171 F.3d at 32 (quoting United States v. Whren, 111 F.3d 956, 960

(D.C. Cir. 1997), cert. denied, 522 U.S. 1119 (1998)). Whatever

this may preclude as to arguments that were made and lost or should

have been made but were not, it can hardly extend to arguments that

a party could not reasonably have been expected to make in the

prior sentencing.

Here, Bryant asked the district court, even if it

continued to find him to be a career offender, to impose a lower

sentence on several grounds, including his claimed rehabilitative

efforts post-dating his original sentence. This last issue could

not have been raised on the appeal from the original sentence, so

Ticchiarelli's rule cannot apply. Cf. Ticchiarelli, 171 F.3d at

32-33. And, in light of Pepper v. United States, 131 S. Ct. 1229

(2011), it is now clear that there is no bar to consideration of

such evidence at a resentencing. Id. at 1239-43.

In permitting such evidence to be considered, the Supreme

Court in Pepper did not "preclude courts of appeals from issuing

limited remand orders, in appropriate cases, that may render

evidence of postsentencing rehabilitation irrelevant in light of

the narrow purposes of the remand proceeding." 131 S. Ct. at 1249

n.17. But while our remand in Bryant could have precluded the

district court from doing anything other than reexamining the

career offender issue, Bryant (as already noted) imposed no such

limitation.

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 If a plausible argument for post-sentencing

rehabilitation could be made, then we think that this entailed

Bryant's presence at the sentencing hearing (and, in this case, a

new opportunity to allocute). Such an argument would be directed

not to a purely legal issue on which Bryant could add nothing but,

at least as to the premise, to a factual one concerning the

defendant's own efforts and attitudes. Ticchiarelli ought not be

read to preclude Bryant from making an argument necessarily

unavailable to him on the original appeal.

The government's strongest argument is that Bryant's

absence, even if error, was harmless. See generally Gonzalez-

Melendez, 594 F.3d at 38 (allocution); United States v. Ortiz-

Torres, 449 F.3d 61, 74 (1st Cir.), cert. denied, 549 U.S. 941

(2006) (presence). In addition to relying upon Ticchiarelli's

principle, the district court went on to say in its resentencing

memorandum that it would impose the same sentence even in light of

evidence of post-sentencing rehabilitation. Such an alternative

statement often does resolve matters, but not always.

The district court originally imposed a below-guidelines

sentence in light of Bryant's pre-sentencing rehabilitation efforts

and his strong parental support for his children, two of whom

suffer from handicaps (his daughter is mute and autistic).

Conceivably the district court was also affected in varying

downward by Bryant's own history--raised by an alcoholic and drug-

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addicted mother and physically abused quite badly in his early

years. And, although Bryant was technically a career offender, the

two predicate offenses were seemingly somewhat modest in scope.

Quite possibly, whatever post-sentencing rehabilitation

occurred would not alter the district court's view that the

variance granted earlier was as far as the court should go. But,

given that any such rehabilitation is a matter on which Bryant

could speak personally, we are loathe to conclude for ourselves

that his presence and statements at the hearing would have been

futile. And we would need to be very confident of futility to find

that denial of presence or allocution was harmless error.

We reject Bryant's suggestion that this court should

order the matter heard on remand by a different district judge. In

declining to consider post-sentencing rehabilitation, the district

judge was striving to conform to our own prior precedents and did

not have the benefit of Pepper. Ordinarily, district judges are

free to keep or to reassign remanded cases in accordance with local

rules and practice; nothing takes this case out of that category.

Bryant's sentence is vacated and the matter is remanded

for resentencing based on a hearing at which Bryant's presence

should be secured unless formally waived, at which he may allocute

if he chooses to do so, and at which the issue of post-sentencing

rehabilitation should be considered in accordance with Pepper.

It is so ordered.

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