- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Criminal Procedure
- Date Filed: 07-18-2013
- Case #: 10-10092
- Judge(s)/Court Below: Opinion by O'Scannlain, Circuit Judge Hurwitz, District Judge Persol
- Full Text Opinion
Defendant is a Mexican citizen and was convicted in 2008 for "attempt to commit smuggling" under Arizona law, and again in 2009 under Federal law for "reentry of a removed alien.” The defendant objected to the presentence report (“PSR”) arguing a four-level enhancement was not valid. The district court entered an "amended" judgment, reduced his sentence, and removed him to Mexico, where he still resides. The government appealed the "amended" judgment arguing that the district court lacked jurisdiction to resentence the defendant. In 2011, the Ninth Circuit vacated the "amended" judgment and reinstated the original one. The defendant filed an appeal, and after a lengthy deliberation the government filed a "Motion to Grant Defendant Sentencing Relief” where it expressly abandoned its original arguments on forfeiture or waiver grounds and conceded the defendant was entitled to sentencing relief. The panel then found that they could not vacate the sentence and remand for resentence to the district court because, in accordance with Rule 43 and United States v. Plancarte-Alvarez, the defendant had since been deported and therefore could not be present for the resentencing. The defendant argued that Plancarte-Alvarez only applies when the government is entitled to resentencing, not when the defendant is entitled to resentencing. The panel disagreed and concluded that, barring circumstances expressly excepted by law (such as waiver of the right to be present), a defendant must be present at a resentencing hearing regardless of whether it is the defendant or the government who is entitled to the resentencing. AFFIRMED.