UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 96-4568

TERRY W. TOLSON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-95-580)

Submitted: September 30, 1997

Decided: November 17, 1997

Before HALL and MURNAGHAN, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Timothy Clay Kulp, RIESEN LAW OFFICE, North Charleston,
South Carolina, for Appellant. J. Rene Josey, United States Attorney,
Matthew R. Hubbell, Assistant United States Attorney, Charleston,
South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Terry W. Tolson pled guilty to being a felon in possession of a fire-
arm, 18 U.S.C.A. § 922(g)(1) (West Supp. 1997), and stipulated that
he was responsible for twenty-one firearms and 9000 rounds of
ammunition. Tolson received a sentence of thirty-three months
imprisonment. He appeals his sentence, contending that the district
court clearly erred in finding that he did not possess the firearms and
ammunition solely for sporting purposes. See U.S. Sentencing Guide-
lines Manual, § 2K2.1(b)(2) (1995). The district court waited until
two weeks after the sentencing hearing to determine, by order, that
the reduction did not apply. Because we find that Tolson was errone-
ously sentenced in absentia, we vacate the sentence and remand for
resentencing.

The district court decided, without objection from the parties, to
deal with the issue in the same manner used at his brother's sentencing.1
The court determined that the guideline range would be 1-7 months
with the reduction under subsection (b)(2) and 30-37 months without
the reduction. After hearing evidence on the issue, the court
announced that, if the reduction applied, it would impose a sentence
of seven months and, if the reduction did not apply, it would impose
a sentence of thirty-three months. The court then adjourned the sen-
tencing, indicating that it was willing to receive submissions from the
parties on the unresolved issue. Two weeks later, by order, the district
court denied the reduction.

Tolson did not object to the manner of sentencing in the district
court or on appeal. Therefore, our review is for plain error under Fed.
R. Crim. P. 52(b). See United States v. Olano , 507 U.S. 725, 732
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1 Tolson's brother, a co-defendant in the three-count indictment, was
sentenced just before Tolson by the same judge.

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(1993) (error must be plain under current law, affect substantial
rights, and seriously affect fairness, integrity, or public reputation of
judicial proceedings). Federal Rule of Criminal Procedure 43(a) states
that "[t]he defendant shall be present . . . at the imposition of sen-
tence." The Supreme Court interpreted this language strictly in United
States v. Behrens, 375 U.S. 162, 164-66 (1963), holding that it was
error to reduce the orally imposed sentence outside the presence of
the defendant, and affirming the appeals court's vacation of the sen-
tence in that case. See also Hazelwood v. Arnold , 539 F.2d 1031,
1033 (4th Cir. 1976) (vacating sentence on collateral challenge where
district court corrected orally imposed sentence by adding omitted
special parole term outside defendant's presence).

In a case much like Tolson's, the District of Columbia Circuit
found reversible error when the district court deferred ruling on
whether the sentence should be concurrent or consecutive to the
defendant's undischarged sentence and simply signed the judgment
and commitment order imposing a consecutive sentence. See United
States v. Lastra, 973 F.2d 952, 955-56 (D.C. Cir. 1992); see also
United States v. Rodriguez, 23 F.3d 919, 920-21 (5th Cir. 1994)
(vacating sentence imposed upon revocation of supervised release
without a hearing on defendant's objections to magistrate's report and
recommendation). Moreover, this court recently held that a sentence
is "imposed" for purposes of Rule 35(c)2 when it is orally pronounced
during the sentencing hearing. See United States v. Layman, 116 F.3d
105, 108-09 (4th Cir. 1997). But see United States v. Agard, 77 F.3d
22, 24-25 (2d Cir. 1996) (finding that reduction of sentence one day
after sentencing was error but did not require resentencing because
defendant was neither disadvantaged nor prejudiced). In this case, the
district court never orally imposed a sentence, and Tolson was not
present when the district court made its final decision as to his sen-
tence.
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2 Fed. R. Crim. P. 35(c). The Rule permits a sentencing court to modify
a sentence on remand from the court of appeals, or on motion by the gov-
ernment within one year of the imposition of sentence, or to correct arith-
metical, technical, or other clear error within 7 days of the imposition of
sentence.

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Ordinarily, a defendant being sentenced for a felony may not waive
his right to be present at sentencing. See United States v. Curtis, 523
F.2d 1134, 1135-36 (D.C. Cir. 1975) (distinguishing Behrens, uphold-
ing sentence on waiver of right to be present at second phase of sen-
tencing because imposition of mandatory sentence was purely
ministerial act). In Tolson's case, defense counsel did not object to
the court's proposal to determine two potential guideline ranges and
decide the sentence later. However, Tolson was neither advised that
he had a right to be present when the actual sentence was determined
nor asked whether he wished to waive that right.

In addition, Fed. R. Crim. P. 32(c) requires that the district court
resolve any contested issues at the sentencing hearing and afford the
defendant an opportunity to speak before imposing sentence. In Tol-
son's case, the court resolved the contested issue after the hearing.
Tolson was given an opportunity to allocute, but at a time when he
did not know what guideline range would be used in sentencing him.
He chose to say nothing. It is possible that Tolson would not have
kept silent had the contested issue already been decided against him.
Being deprived of that opportunity prejudiced him.

We therefore vacate the sentence and remand for resentencing. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

VACATED AND REMANDED

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