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[NOT FOR PUBLICATION]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.
__________
affirmed

This court's August

appellant's

conviction,

15, 1991 mandate

affirmed

certain

enhancements to his sentence, vacated two other enhancements,

directed that appellant
BOL

23," and

proceedings

"be sentenced at

"remanded to
consistent

the district

with

this

the higher end

court for

opinion."

of

further

Thereafter,

without holding any further hearing or calling appellant back

to

court,

from 108

the district

court reduced

months (the heaviest

history category I)

defendant's sentence

sentence at BOL

to 57 months

29, criminal

(the heaviest sentence

BOL 23, criminal history category I).

at

Defendant has appealed

(not from
months

the amended judgment

but

from

reducing his sentence

subsequently

entered

order

to 57
denying

defendant's request to be present at resentencing) contending

that

he

was entitled

to be

present

Contrary

defendant's

at resentencing.

We

disagree.

mandate

directed the

sentence,

the

district

sentence

Defendant reads
point

to

at

"higher end"

argument,

court to

the

this

impose a

"higher end"

to mean "higher

of

court's
specific
BOL

23.

half" or

any

above the midline of BOL 23, but this reading makes no

sense.

As

defendant had originally

highest point

in BOL 29,

been sentenced

criminal history category

at the
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,
there would

U.S.S.G.

2G1.1) and that the correct BOL was 23,

have been no reason for this court to direct the

district court to choose some point

23.

Rather, plainly

read,

in the upper half of BOL

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

have

been held so

that he could so

coming from the other

permitted

to move

for an

remand had

for example,
remanded

for

The government,

upward departure.

We

leave for

written differently,

vacated the entire

resentencing.

should be

such issues could have been

our mandate been

had it simply

Moree, 928 F.2d 654

_____

argue.

direction, suggests that it

another day the question whether

raised on

resentencing hearing should

See,
___

e.g.,
____

(5th Cir. 1991).

sentence and

United States
_____________

But it did not.

v.

Under

its terms as written, the district court had no discretion to

impose

any sentence other than

wished to expand the

57 months.

If either party

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).

-3-

Defendant's

sentence

was

entitled

"Correction of
__________

added).
Sentence

corrected pursuant

Rule

to

Rule

a Sentence

35(a), which

on Remand."

35(b), in contrast, is

is

(Emphasis

labelled "Reduction of
_________

for Changed Circumstances" (emphasis added), but is

not applicable as it applies to government requests to reduce

the sentence
the

of a

government.

defendant who has

These labels

-- "correction" in Rule 35(a)

and "reduction" in Rule 35(b)

-- do not necessarily

whether a defendant's presence

is required.

case, the "correction" pursuant

a "reduction."

Because

specific sentence, no
defendant's presence

substantially assisted

In the

control
present

to Rule 35(a) was manifestly

the terms of our mandate

purpose would have been

at correction

directed a

served by the

of sentence.

There was

nothing he or his counsel could have said that could properly

have influenced

the sentencing

sentence

our

mandate

In

these

since

discretion.
"correction" was
Cr. P.

court to impose
left no

for

circumstances,

a "reduction" within

43(c)(4), and

room

a different
sentencing

the

the scope of

defendant's presence was

sentence
Fed. R.

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

constitutional terms, a remedial

(11th

Cir.

1991)

("In

sentence reduction is not a

-4-

critical

stage

of

the

proceedings;

presence is not required.").

Affirmed.
________

so,

the

defendant's

-5-