                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-18-2000

United States v Faulks
Precedential or Non-Precedential:

Docket 98-2061




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Recommended Citation
"United States v Faulks" (2000). 2000 Decisions. Paper 10.
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Filed January 18, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-2061

UNITED STATES OF AMERICA

v.

JUAN FAULKS, Appellant

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. No. 96-cr-00299-1)
District Judge: Honorable Charles R. Weiner

Argued: November 4, 1999

Before: BECKER, Chief Judge, GREENBERG, and
CUDAHY,* Circuit Judges.

(Filed: January 18, 2000)

       PETER GOLDBERGER, ESQUIRE
        (ARGUED)
       Law Office of Peter Goldberger
       50 Rittenhouse Place
       Ardmore, PA 19003-2276

       Counsel for Appellant



_________________________________________________________________

* Honorable Richard D. Cudahy, United States Circuit Judge for the
Seventh Circuit, sitting by designation.
       MICHAEL R. STILES, ESQUIRE
       United States Attorney
       WALTER S. BATTY, JR., ESQUIRE
        (ARGUED)
       Assistant United States Attorney
       Chief of Appeals
       EMILY McKILLIP, ESQUIRE
        (ARGUED)
       Assistant United States Attorney
       PATRICIA A. ROSSI, ESQUIRE
       Assistant United States Attorney
       Office of the United States Attorney
       615 Chestnut Street
       Philadelphia, PA 19106

       Counsel for Appellee

OPINION OF THE COURT

BECKER, Chief Judge.

This is a second sentencing appeal. The panel in thefirst
appeal reversed the initial sentence and remanded for
proceedings on defendant Juan Faulks's application for a
downward departure for extraordinary acceptance of
responsibility. The District Court thereupon held a full
hearing and rejected the request for a downward departure
in a written opinion. This appeal requires us to decide
whether Faulks's sentencing must be returned to the
District Court for a third time because that court, which
imposed the new sentence by a written judgment, did so in
Faulks's absence. We answer the question in the
affirmative, and hold that Faulks must be resentenced in
person, notwithstanding that in an ancillary proceeding
after the new sentence was imposed, the District Court
informed Faulks in open Court of the sentence it already
had imposed.

We also conclude that neither: (1) the delivery of that
information in open court; nor (2) the unlikelihood that
pronouncement of the sentence in open court in the
defendant's presence would have yielded a different

                               2
sentence renders the error of pronouncement of sentence in
absentia harmless. In our view, the notion that the
sentencing court must "eyeball" the defendant at the
instant it exercises its most important judicial
responsibility, whose daunting character has not been
eliminated by the Sentencing Reform Act and the
Sentencing Guidelines, is far from a formality. Rather, it is
the embodiment of a value deeply embedded in our polity
(and our jurisprudence).

Although the District Court appears to have had a settled
view of this case, we are satisfied that it will re-visit the
matter with a completely open mind at the de novo
resentencing that must now take place, perforce with an
updated presentence report. We therefore reject the
defendant's contention that we should remand for
sentencing before a different judge.

I.

Pursuant to a plea agreement, Faulks pled guilty to
cocaine distribution, money laundering, and criminal
forfeiture of real property. The Government agreed to
dismiss remaining counts of criminal forfeiture in exchange
for Faulks's acquiescence in the administrative forfeiture of
personal property described in the indictment. The
prosecution also agreed to move for a downward departure
under U.S.S.G. S 5K1.1 if Faulks provided substantial
assistance in the prosecution of another offender. The
Presentence Investigation Report calculated the sentencing
guideline range for Faulks to be 87 to 108 months
imprisonment. The District Court sentenced him to 95
months. A panel of this Court upheld the District Court's
decision to impose a sentence within the guideline range,
even though the court claimed to have granted the
government's motion to depart below it. This Court
interpreted the District Court's statement on granting the
downward departure as harmless error. See United States v.
Faulks, 143 F.3d 133, 137 (3d Cir. 1998).

Notwithstanding its approval of the District Court's
treatment of the departure request, the panel reversed the
judgment and remanded for consideration of whether

                                3
Faulks, who had already received a three-level decrease
under S 3E1.1 for acceptance of responsibility, deserved a
departure under S 5K2.0 in view of his claim that his
voluntary waiver of meritorious defenses to forfeiture
constituted an "extraordinary" acceptance of responsibility.
The District Court did not permit Faulks to build a record
on this claim because it concluded that Faulks's plea
agreement did not, in fact, foreclose him from contesting
the civil forfeiture. The panel disagreed. Though the panel
expressed doubt that Faulks's waiver merited a departure
for extraordinary acceptance of responsibility, it opined that
Faulks deserved the opportunity to develop a record on the
claim. See id. at 138.

On remand, the District Court considered both Faulks's
request for a departure based on his agreement not to
contest the forfeitures and new claims of post-conviction
rehabilitation. After receiving submissions and conducting
a hearing, the District Court denied the motion. Faulks
spoke at the hearing, was questioned by the Court, and his
counsel later filed a supplemental memorandum. At the
hearing, Faulks's attorney did not complain that Faulks's
ability to speak to the court was inadequate or curtailed in
any manner. As the hearing was ending, defense counsel
noted that Faulks had a right to be present when the
sentencing decision was issued. Despite the District Court's
statement that it would probably announce its decision
orally as well as by written form, it made its ruling via a
memorandum opinion and order in Faulks's absence.

This appeal followed. Though the District Court's order is
styled as a denial of Faulks's motion for a downward
departure, it is plainly the final order of the District Court
in this matter, as the District Court viewed the prior
sentence as remaining in effect. We therefore have appellate
jurisdiction under 28 U.S.C. S 1291 and 18 U.S.C. S 3742.
After the notice of appeal was filed, and jurisdiction over
this case was in this Court, the District Court announced
its ruling in Faulks's presence.

                               4
II.

A.

In remanding the matter to the District Court, the prior
panel "reversed" its judgment of sentence. The parties agree
that the prior panel must be seen as directing a full
resentencing.1 Rule 43(a) of the Federal Rules of Criminal
Procedure states in no uncertain terms that "[t]he
defendant shall be present . . . at the imposition of
sentence . . . ." The rule makes an exception for situations
in which the proceeding involves a reduction or correction
of sentence under Federal Rule of Criminal Procedure 35(b)
or (c) or 18 U.S.C. S 3582(c). These exceptions are not
applicable in this case. It is clear therefore that the District
Court should have given its decision in open court with
Faulks present. The government concedes this point. See
Brief of Appellee at 13. The only question is what the
remedy should be. The government maintains that Faulks
has already received an adequate remedy, and that nothing
more need be done other than the filing of a new judgment.
We disagree.

We begin our analysis by noting that "[o]ne of the most
basic of the rights guaranteed by the Confrontation Clause
is the accused's right to be present in the courtroom at
every stage of his trial." Illinois v. Allen, 397 U.S. 337, 338
(1970) (citing Lewis v. United States, 146 U.S. 370 (1892)).
The oral pronouncement of sentence in the defendant's
_________________________________________________________________

1. The government points out that it could have sought clarification of
the prior panel's mandate in order to explore further whether full
resentencing was indeed required. It concedes, however, that it did not
and that under the circumstances, Faulks's presence was indeed
required when the District Court announced its decision in this case.
See Brief of Appellee at 13 & n.2. We think this concession appropriate
in light of the District Court's error in not allowing Faulks to build a
record on his claimed extraordinary acceptance of responsibility. A result
of the remand, therefore, was the District Court's having additional facts
on which the discretionary aspects of its decision could be based. As
discussed below, evidence of Faulks's acceptance of responsibility could
have affected the District Court's determination of the appropriate
sentence within the guidelines range even if the motion to depart was
not granted.

                               5
presence is therefore of special importance. A long line of
cases provides that when the two sentences are in conflict,
the oral pronouncement prevails over the written judgment.
See, e.g., United States v. Chasmer, 952 F.2d 50, 52 (3d
Cir. 1991); United States v. Daddino, 5 F.3d 262, 266 n.5
(7th Cir. 1993) (collecting cases); United States v. A-Abras,
Inc., 185 F.3d 26, 29 (2d Cir. 1999). Thus, Rule 43's
requirement that the defendant be present at the
imposition of sentence is not a meaningless formality.
Rather, as we have observed supra at page 3, it is a
fundamental procedural guarantee that places the
defendant before the judge at a culminating moment of the
criminal judicial process.

In the past, this Court has ordered resentencing in the
defendant's presence as a remedy for a violation of Rule 43.
See Wilmore v. United States, 565 F.2d 269 (3d Cir. 1977).
Faulks's case, however, involves an otherwise valid
judgment of sentence that was reversed for resentencing on
one specific issue. Nothing in the record suggests that the
first sentencing order did not conform with Rule 43's
requirements. There is therefore a question whether vacatur
and remand is proper under these circumstances.

United States v. Moree, 928 F.2d 654 (5th Cir. 1991),
involves analogous facts. In Moree, the Court of Appeals
vacated a district court's sentence and remanded because
of a misapplication of the Sentencing Guidelines. See id. at
655. On remand, the district court adjusted the sentence
downward, but sentenced the defendant in absentia. See id.
The Court of Appeals for the Fifth Circuit vacated the new
sentence and remanded again. See id. at 656. The court
noted that there is a significant difference between an
appellate court's order to modify an existing sentence and
the imposition of a new sentence after the first has been
vacated. See id. at 655. It conceived the latter circumstance
as presenting the need for the same constitutional and
statutory protections a defendant receives when being
sentenced by a judge exercising discretion. Quoting Justice
Harlan, the court observed:

       [T]he requirements of criminal justice . . . leave no
       doubt of [the defendant's] right to be present when a
       final determination of sentence is made. . . . Even if he

                               6
       has spoken earlier, a defendant has no assurance that
       when the time comes for final sentence the district
       judge will remember the defendant's words in his
       absence and give them due weight. Moreover, only at
       the final sentencing can the defendant respond to a
       definitive decision of the judge.

Id. at 656 (quoting United States v. Behrens, 375 U.S. 162,
167-68 (1963) (Harlan, J., concurring in the result)). We
agree. The defendant's presence at sentencing is a deeply
rooted procedural protection and no mere formality. We see
no reason why that principle should not carry full force at
a resentencing.

We therefore conclude that Moree is both persuasive and
directly applicable. The previous panel "reversed," effectively
vacating the sentence without directing a particular result.
Cf. Moree, 928 F.2d at 656 ("[T]he mandate rendered
[defendant's] previous sentence null and void. While we
might have fashioned the mandate differently, we did not;
the vacatur is the law of the case . . . ."). The District Court
therefore had discretion on remand in imposing a sentence.
This case, therefore, is distinguishable from those in which
courts have ruled that procedural protections are less
important when resentencing decisions on remand are not
discretionary. See United States v. Parker, 101 F.3d 527,
528 (7th Cir. 1996) (holding defendant's presence
unnecessary when resentencing is a nondiscretionary
correction of the original sentence); cf. United States v.
Tamayo, 80 F.3d 1514 (11th Cir. 1996) (declaring district
court's failure to give defendant opportunity to allocute was
not an error when issue on resentencing was limited to a
question of law and defendant did not request allocution
despite presence in court); United States v. Nolley, 27 F.3d
80 (4th Cir. 1994) (holding harmless any error in failing to
have defendant represented by counsel at resentencing
when resentencing was to conform to specific mandate from
appeals court and any sentence other than that imposed
would have constituted reversible error). Faulks should
therefore receive a sentence in conformance with Rule 43,
i.e., one imposed in his presence.2 In opposing Faulks's
_________________________________________________________________

2. Our ruling is consistent with United States v. Ammar, 919 F.2d 13 (3d
Cir. 1990). In Ammar, a defendant received a sentence without a three-

                               7
petition, the government claims that Faulks has already
received an adequate remedy through the District Court's
announcing its decision in Faulks's presence after the filing
of the notice of appeal. This argument hints at harmless
error analysis. Although this Court has previously applied
harmless error analysis to a Rule 43 case in the context of
voir dire of a jury, see United States v. Alessandrello, 637
F.2d 131 (3d Cir. 1980), we do not think it appropriate in
this case.3
_________________________________________________________________

year special parole term that was required by the statute under which he
was convicted. See id. at 14. After the death of the sentencing judge, the
case was transferred to another judge who amended the sentence to
include the mandatory term without the defendant present. See id. The
defendant sought a writ of habeas corpus, claiming that the original
judge did not intend the defendant to have so long a sentence.

This Court concluded that the amended sentence was imposed
improperly. See id. at 15. It went on to state:

         Because the revised sentence was imposed in an illegal manner,
       petitioner should have the opportunity to have the sentence vacated
       and reimposed in his presence. We recognize that in this case,
       because the original sentencing judge is deceased, it will be
difficult
       to argue about the judge's intent, but we will not foreclose
petitioner
       from having that opportunity. Nevertheless, because the sentence is
       legal as it stands, we see no reason to vacate it. We will,
however,
       remand so that the district court can set a date for resentencing
at
       which [defendant] may be present. At that time, the court may
       vacate the original sentence and impose a shorter term if
[defendant]
       shows convincingly that is consistent with the original intent.

Id. at 16. Ammar does not clarify when vacatur based on a violation of
Rule 43 is necessary. Though we did not direct an actual resentencing,
Ammar is distinguishable from the current facts because Ammar's initial
proceeding involved the mandatory amendment of a sentence, not a
vacatur or reversal. Even then, an opportunity for resentencing in
defendant's presence was indicated. In Faulks's case, in contrast, the
proceeding that we review involved the reversal of Faulks's first sentence
by a prior panel, which requires de novo resentencing. Therefore there is
not a simple correction of a sentence, but a new sentence altogether.
Ammar is thus consistent with requiring another remand to the District
Court for resentencing.

3. One other court has applied harmless error analysis in an analogous
case. In United States v. Huntley, 535 F.2d 1400, 1404 (5th Cir. 1976),
8
Because the government does not argue harmless error
despite the availability of Federal Rule of Criminal
Procedure 52(a) ("Any error, defect, irregularity or variance
which does not affect substantial rights shall be
disregarded."), it has not even attempted to meet its burden
of establishing the error's harmlessness. See O'Neal v.
McAninch, 513 U.S. 432, 437-38 (1995). We can employ
harmless error analysis sua sponte. See United States v.
McLaughlin, 126 F.3d 130, 135 (3d Cir. 1997) (discussing
court discretion to raise harmless error of erroneous
admission of evidence). However, this is an inappropriate
case to do so given both that a reversal will not lead to
drawn out proceedings and that, as discussed below, we
cannot know with sufficient certainty that the error was
harmless. See id.

Even if we were to employ harmless error analysis,
resentencing remains appropriate. The Rule 43 error in this
case implicates constitutional concerns, see United States
v. Bertoli, 40 F.3d 1384, 1397 (3d Cir. 1994) ("The due
process clause of the Fifth Amendment grants criminal
defendants the `right to be present at all stages of the trial
where his absence might frustrate the fairness of the
proceedings . . . .' " (quoting Faretta v. California, 422 U.S.
806, 819 n.15 (1975))), making the establishment of
harmlessness more difficult. Given that there are still
significant discretionary elements in the sentencing
decision of the District Court, we cannot be sure that "there
is no reasonable possibility," Alessandrello, 637 F.2d at
139, that the District Judge's failure to impose Faulks's
sentence in his presence had no effect on the duration of
the sentence imposed.

We also cannot say that the District Court's announcing
its decision in Faulks's presence after it lost jurisdiction
over the matter is an adequate remedy. To be sure, it is
_________________________________________________________________

the court found that a judge's rendering a judgment of conviction out of
the defendants' presence to be a harmless error. That court, however,
cautioned that courts should avoid judgments in absentia, see id., and
Moree, which arose later in the same circuit, did not engage in similar
analysis in its mandating a resentencing.

                               9
unlikely that resentencing in Faulks's presence will have an
effect given that remand concerned an issue on which the
District Court decided against the defendant. But the
responsibility confronting a district court judge when he or
she sentences a convicted defendant is an awesome one.
The presence of a defendant may well affect a judge in the
discharge of this most solemn of duties, a duty that still
survives in an age of cabined discretion in the wake of the
Sentencing Guidelines. Even the determination of where to
sentence within the guidelines range can mean the
difference of months of confinement, an important
consideration to a defendant. It is not at all unlikely that a
judge may enter court of one mind about what sentence is
appropriate in the abstract, only to modify the
pronouncement when faced with a live human being in
open court.

Perhaps when the District Court faces Faulks, it will
consider the evidence presented in the S 5K2.0 proceeding
and adjust his sentence within the guidelines range
notwithstanding the fact that the S 5K2.0 motion was
denied. Perhaps not. But the only way to ensure that
Faulks receives the procedural protection of being
"eyeballed" by the sentencing judge is to follow the mandate
of Rule 43 as it is written. We will therefore vacate the
judgment and remand with the direction that the District
Court resentence Faulks in full accordance with the
applicable Federal Rules of Criminal Procedure. This new
sentencing proceeding must, perforce, be de novo.

III.

Faulks also requests that a new judge be assigned his
case on remand. We see no reason to so order. The prior
panel considered, and rejected, a similar request. We do not
see anything in subsequent proceedings to alter this
conclusion. Faulks claims that in its interactions with him,
the District Court demonstrated an unwillingness to give
him a fair hearing. Our review of the record does not
persuade us that this is the case.

We acknowledge the considerable force of the argument
that a new judge should still be assigned as a prophylactic

                               10
against a natural tendency for any judge, having once made
up his or her mind, to have settled views when told to
revisit a sentencing decision for the third time. Given the
facts of this case, we are confident, however, that the
District Judge will have a completely open mind at
resentencing and, after giving Faulks the opportunity for
unimpeded allocution, will pronounce a fair sentence.

The judgment of the sentence will be vacated and the
case remanded to the District Court for resentencing.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               11
