United States v. Castellon

92 F.4th 540

UNITED STATES of America, Plaintiff - Appellee, v. Heverth Ulises CASTELLON, a/k/a Misterio, a/k/a Sailor, Defendant - Appellant.

No. 23-4055

United States Court of Appeals, Fourth Circuit

Argued: September 20, 2023

Decided: February 14, 2024

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:08-cr-00134-RJC-DSC-3)

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.

Before DIAZ, Chief Judge, WYNN, Circuit Judge, and KEENAN, Senior Circuit Judge.

Dismissed by published opinion. Chief Judge Diaz wrote the majority opinion, in which Judge Keenan joined. Judge Wynn wrote an opinion concurring in the judgment.

DIAZ, Chief Judge:

In this interlocutory appeal, Heverth Castellon asks 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. See United States v. Lawrence, 248 F.3d 300, 304-05 (4th Cir. 2001). The district court, however, held that the Rule allows a defendant to exercise this right only by "abscond[ing] or disrupt[ing] the [sentencing] proceedings." J.A. 197.

While we doubt that the district court's ruling is correct, we lack jurisdiction over Castellon's appeal. Therefore, we must dismiss it.

I.

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." United States v. Castellon, No. 20-6377, 2022 WL 4119668, at *1 (4th Cir. July 25, 2022); see United States v. Taylor, 596 U.S. 845, 858-60, 142 S. Ct. 2015, 2025, 213 L.Ed.2d 349 (2022). 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." J.A. 183-84. They also agreed that "a resentencing hearing [was] not required" if the court accepted their joint sentencing recommendation. J.A. 184.

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." J.A. 186 n.1 (citing United States v. Tolson, 129 F.3d 1261, 1261 (4th Cir. 1997) (unpublished table decision)).

Castellon moved to continue the hearing, arguing that Federal Rule of Criminal Procedure 43(c)(1)(B) allows a defendant to waive his appearance at resentencing. That rule provides that in general, a defendant must be present at sentencing. Fed. R. Crim. P. 43(a)(3). But it also provides that a defendant who "pleaded guilty . . . waives the right to be present . . . in a noncapital case, when the defendant is voluntarily absent during sentencing." Id. at 43(c)(1)(B).

The court granted Castellon's motion to continue and delayed the hearing, but reiterated its view that a defendant couldn't waive his appearance. Citing a Seventh Circuit opinion, the court found that the phrase "voluntarily absent" was "limited to a defendant's flight or adamant refusal to be transported to the hearing peacefully and does not permit waiver of a defendant's physical presence at sentencing." J.A. 191 (citing United States v. Howell, 24 F.4th 1138, 1143 (7th Cir. 2022)).

Castellon then moved for resentencing in absentia. He attached to the motion a signed document purporting to waive his personal appearance at resentencing.

The district court denied the motion, finding that while Castellon had asserted " 'valid reasons' for resentencing in absentia," he hadn't provided the court "authority to do so." J.A. 262. Castellon moved for reconsideration, arguing that we had suggested a defendant could knowingly waive his right to be present in United States v. Lawrence, 248 F.3d 300 (4th Cir. 2001). The district court denied the reconsideration motion, explaining that Lawrence "did not involve a defendant's agreement to waive his physical presence." United States v. Castellon, No. 3:08-cr-00134-RJC-DSC, 2023 WL 1116532, at *1 (W.D.N.C. Jan. 30, 2023). The court interpreted Rule 43(b) to permit a defendant's absence only where he had "absconded [ ]or disrupted the present proceedings," reiterating its earlier reasoning. Id.

This appeal followed.

II.

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 text of Rule 43(c)(1)(B) states that a defendant waives the right to be present when he is "voluntarily absent during sentencing." Fed. R. Crim. P. 43(c)(1)(B). As we explained in Lawrence, the plain meaning of "voluntarily," as it has been "repeatedly used by the Supreme Court," is "knowing and understanding the waiver." 248 F.3d at 304.

We also recognized that the advisory notes to the Rule supply an additional interpretation of the voluntary waiver exception—for situations "where a defendant impliedly waives his right to be present by absconding before sentencing." Id. at 305. Our decision in Lawrence and the text of the Rule itself therefore suggest that a noncapital defendant can, in addition to impliedly waiving his presence, voluntarily waive his right to be present at sentencing.

The district court acknowledged that a noncapital defendant could waive his presence under Rule 43 by being "voluntarily absent" during sentencing. J.A. 197. 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. Id. Though we doubt that this conclusion is right, we lack jurisdiction over Castellon's interlocutory appeal and so must dismiss it.

III.

A.

Ordinarily, our appellate jurisdiction is limited to reviewing final orders of the district court. See 28 U.S.C. § 1291. "In the criminal context, this means that this Court generally does not have appellate jurisdiction until after the imposition of a sentence." United States v. Sueiro, 946 F.3d 637, 639 (4th Cir. 2020). But an exception exists for a "small class" of orders that "finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

Castellon doesn't dispute that the district court's orders aren't final orders. Rather, he argues that they are immediately appealable under the so-called "collateral order" doctrine. We disagree.

The collateral order doctrine is a "narrow exception" to the final judgment rule, and we apply it with the "utmost strictness in criminal cases." Sueiro, 946 F.3d at 639-40 (cleaned up). "Under this exception, a collateral order is immediately appealable if it (1) 'conclusively determine[s] the disputed question,' (2) 'resolve[s] an important issue completely separate from the merits,' and (3) is 'effectively unreviewable on appeal from a final judgment.' " Id. at 639 (quoting Flanagan v. United States, 465 U.S. 259, 265, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984)). Collateral orders in criminal cases are only "effectively unreviewable" under the third and final prong if "an important right would be lost irreparably if review awaited final judgment." Id. (emphasis added) (cleaned up). "This is not a balancing test; to fall within the collateral order doctrine, a trial court order must satisfy each condition." Id. at 640.

In assessing whether we have jurisdiction under the collateral order doctrine, we examine "the entire category of orders" the appeal implicates—not "the particular order at issue." Cobra Nat. Res., LLC v. Fed. Mine Safety & Health Rev. Comm'n, 742 F.3d 82, 87 (4th Cir. 2014) (cleaned up). So "the chance that . . . a particular injustice [might be] averted by an immediate appeal does not provide a basis for jurisdiction." Id. at 87-88.

Castellon fails to satisfy the third prong of the collateral order doctrine analysis—that is, he hasn't identified an "important right" implicated by the orders denying him the opportunity to be resentenced in absentia. Sueiro, 946 F.3d at 639 (cleaned up); see also Digit. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 878, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (noting that courts have considered "importance" in the second and third prongs of the collateral order test).

As for this third prong, Castellon maintains 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 can't agree.

B.

We begin our analysis in the same way the Supreme Court has: "by first combing [ ] precedent to identify recurring characteristics that merit collateral order appealability, and then comparing those characteristics to the proceeding at hand." Cobra Nat. Res., 742 F.3d at 91 (cleaned up). As we explained in Sueiro,

Given the narrowness of the collateral order doctrine in criminal cases, the Supreme Court has only held that four types of orders are

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