Criminal Practice – Resentencing – Collateral Order Doctrine – Important Right – Voluntarily Absent – Lack of Jurisdiction

Defendant failed to establish that orders mandating a defendant’s presence at sentencing categorically implicate an important right.

We dismissed defendant’s appeal for lack of jurisdiction.

In an interlocutory appeal, defendant asked us to vacate the district court’s orders compelling his physical presence at a resentencing hearing. Our precedent suggests that a noncapital criminal defendant can waive his right to be present at sentencing under Federal Rule of Criminal Procedure 43(c)(1)(B) if he does so knowingly and intelligently. The district court, however, held that the Rule allows a defendant to exercise this right only by absconding or disrupting the sentencing proceedings. While we doubted the district court’s ruling was correct, we lack jurisdiction over the appeal. Therefore, we had to dismiss it.

We vacated Castellon’s 18 U.S.C. § 924(c) conviction in 2022 after the Supreme Court held that attempted Hobbs Act robbery doesn’t qualify as a “crime of violence.” On remand, the probation office recalculated Castellon’s advisory guidelines range to be 210 to 262 months in prison, and the parties agreed that a low-end sentence of 210 months was appropriate given Castellon’s offenses, history, and “significant post-offense rehabilitation.” They also agreed that “a resentencing hearing [was] not required” if the court accepted their joint sentencing recommendation. The district court, however, ordered Castellon to appear for a resentencing hearing. It rejected the parties’ claim that Castellon could be resentenced in absentia, explaining that “[o]rdinarily, a defendant being sentenced for a felony may not waive his right to be present at sentencing.”

On appeal, both Castellon and the government maintain that a defendant can waive his presence at resentencing under Rule 43(c)(1)(B). Our precedent appears to support their position. The district court acknowledged that a noncapital defendant could waive his presence under Rule 43 by being “voluntarily absent” during sentencing. But it held that because Castellon had “neither absconded nor disrupted the [sentencing] proceedings,” he couldn’t be considered “voluntarily absent” within the meaning of the Rule. Though we doubted that this conclusion is right, we lack jurisdiction over Castellon’s interlocutory appeal and so had to dismiss it.

Castellon did not dispute that the district court’s orders aren’t final orders. Instead, he argued that they are immediately appealable under the “collateral order” doctrine. We disagreed. Castellon failed to satisfy the third prong of the collateral order doctrine analysis, as he hasn’t identified an “important right” implicated by the orders denying him the opportunity to be resentenced in absentia. As for this third prong, Castellon maintained that a defendant’s right to waive presence is important enough to warrant collateral order review. Based on the rights this court and the Supreme Court have found sufficiently important, we could not agree.

Dismissed.

U.S. v. Castellon (Lawyers’ Weekly No. 001-018-24, 13 pp.) (Albert Diaz, J.) Appealed from U.S. District Court for the Western District of North Carolina at Charlotte (Robert J. Conrad Jr., J.) Argued: Joshua B. Carpenter, Federal Defenders of Western North Carolina, Inc., Asheville, North Carolina, for appellant; Anthony Joseph Enright, Office of the United States Attorney, Charlotte, North Carolina, for appellee; On Brief: John G. Baker, Federal Public Defender, Federal Defenders of Western North Carolina, Inc., Charlotte, North Carolina, for appellant; Dena J. King, United States Attorney, Office of the United States Attorney, Charlotte, North Carolina, for appellee. U.S. Court of Appeals for the Fourth Circuit