
USCA1 Opinion

	




        June 8, 1992            [NOT FOR PUBLICATION]                                 ____________________        No. 92-1058                                     UNITED STATES,                                      Appellee,                                          v.                               JOSEPH M. SABATINO, JR.,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                                Selya, Circuit Judge.                                       _____________                                 ____________________            Joseph M. Sabatino, Jr. on brief pro se.            _______________________                                 ____________________                                 ____________________                      Per Curiam.   This court's August  15, 1991 mandate                      __________            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                                         -2-            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.                                           ___   ____   _____________            Moree, 928 F.2d 654  (5th Cir. 1991).  But it did not.  Under            _____            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                                                                _________            of  sentence under Rule 35."   (Emphasis added).  Defendant's                                         -3-            sentence  was  corrected pursuant  to  Rule  35(a), which  is            entitled  "Correction of  a Sentence  on Remand."   (Emphasis                       __________            added).  Rule  35(b), in contrast, is  labelled "Reduction of                                                             _________            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.                                                        ______________            Jackson,  923  F.2d  1494,  1496-97  (11th  Cir.  1991)  ("In            _______            constitutional terms, a remedial  sentence reduction is not a                                         -4-            critical  stage  of  the  proceedings;  so,  the  defendant's            presence is not required.").                      Affirmed.                      ________                                         -5-
