United States v. Navarrete

88 F.4th 672

UNITED STATES of America, Plaintiff-Appellee, v. Miguel NAVARRETE, Jr., Defendant-Appellant.

No. 21-3230

United States Court of Appeals, Seventh Circuit

Argued September 12, 2022

Decided December 13, 2023

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 21-CR-73-JPS — J.P. Stadtmueller, Judge.

Jonathan H. Koenig, Rebecca Taibleson, Attorneys, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, Colleen McNichols Ramais, Attorney, Office of the Federal Public Defender, Urbana, IL, for Defendant-Appellant.

Before Easterbrook, Kirsch, and Jackson-Akiwumi, Circuit Judges.

Easterbrook, Circuit Judge.

Miguel Navarrete was charged with possessing a firearm, which as a felon he could not lawfully do. 18 U.S.C. §§ 922(g)(1), 924(a)(2). Both Navarrete and the prosecutor proceeded by video under the CARES Act, which during the COVID pandemic permitted arraignments and sentencings by video when four criteria are satisfied. See Pub. L. 116-136, § 15002(b)(2) (Mar. 27, 2020). Navarrete was arraigned and pleaded not guilty, by video, on May 7, 2021. He gave consent on the record, and all necessary findings were made. On August 26 he pleaded guilty, again by video, and again consented on the record. Again all necessary findings were made. He was sentenced on November 19 to 58 months' imprisonment, a term below the bottom of the range (77 to 96 months) calculated under the Sentencing Guidelines. That proceeding, too, occurred by video.

Instead of calling himself fortunate, Navarrete appealed. He contends that he is entitled to be resentenced because he did not appear personally in court. But for the CARES Act, inperson sentencing would have been required. Fed. R. Crim. P. 43(a). And Navarrete maintains that the CARES Act did not authorize the use of video at his sentencing, because the judge neglected to put his consent on the record. Perhaps everyone in the room assumed that, having consented twice already (for the arraignment and the change of plea), Navarrete was happy with appearance by video. The judge asked his lawyer whether "you or your client have any reason to advance this morning as to why the Court ought not proceed today with the imposition of sentence in this case?" Defense counsel replied, "No, Your Honor." Still, failing to protest an appearance by video differs from consent. It is unfortunate that the judge, prosecutor, and defense counsel all missed the need for Navarrete's formal consent on the record.

Navarrete's current lawyer recognizes that his predecessor neglected to raise the issue in the district court but insists that lack of oral consent leads to automatic reversal. Counsel uses the rubric of "plain error," but even the plainest of errors does not generate automatic reversal. See, e.g., United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Greer v. United States, — U.S. —, 141 S. Ct. 2090, 210 L.Ed.2d 121 (2021). The Court explained in Olano that the plain-error standard leads to reversal only if the error is clear ("plain"), affects substantial rights, and seriously affects the fairness, integrity, or public reputation of judicial proceedings. 507 U.S. at 735-37, 113 S.Ct. 1770. We held in United States v. Hernandez, 37 F.4th 1316, 1318-19 (7th Cir. 2022), that failure to obtain consent on the record to appearance by video does not satisfy the plain-error standard.

Today's appeal shows why that makes sense. A defendant appearing by video is not being sentenced in absentia (a possibility that Rule 43(a) is designed to block). Defendant, counsel, and judge see one another and can converse (and did). Navarrete could make allocution, and his counsel could present arguments in mitigation—which he did, with notable success. Navarrete thus enjoyed the "substantial" part of the entitlement secured by Rule 43(a), and the absence of a formal consent on the record to a video appearance that was evidently voluntary on the defendant's part doesn't call the justice system into disrepute. Navarrete does not contend that, if asked for consent on the record, he would have refused, nor does he even try to show how an inperson procedure would have differed from his actual sentencing. The requirements of plain-error review have not been satisfied.

To obtain the benefit of automatic reversal, it is not enough to argue plain error. Instead a defendant must establish structural error—and we read Navarrete's brief as making such an argument, despite its use of plain-error language. The brief calls it "per se error," which seems to be his paraphrase of structural error. Before the CARES Act was adopted, we too used the language of "per se error" when a judge sentenced a defendant over a video link. United States v. Bethea, 888 F.3d 864, 867 (7th Cir. 2018). The problem at the time of Bethea was the absence of any authority for a defendant to appear by video. The CARES Act provided that authority. A judge's neglect to ensure that all statutory conditions have been satisfied differs in substance from conducting a proceeding in an utterly unauthorized way.

As for structural error:

Only in a "very limited class of cases" has the Court concluded that an error is structural, and "thus subject to automatic reversal" on appeal. Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).

Structural errors are errors that affect the "entire conduct of the [proceeding] from beginning to end." [Arizona v.] Fulminante, 499 U.S. [279,] 309 [111 S.Ct. 1246, 113 L.Ed.2d 302] [(1991)]. The "highly exceptional" category of structural errors includes, for example, the "denial of counsel of choice, denial of self-representation, denial of a public trial, and failure to convey to a jury that guilt must be proved beyond a reasonable doubt." United States v. Davila, 569 U.S. 597, 611 [133 S.Ct. 2139, 186 L.Ed.2d 139] (2013).

By contrast, discrete defects in the criminal process—such as the omission of a single element from jury instructions or the omission of a required warning from a Rule 11 plea colloquy—are not structural because they do not "necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence." Neder, 527 U.S. at 9, 119 S.Ct. 1827 (omission of element from jury instructions); see also [United States v.] Dominguez Benitez, 542 U.S. [74,] 81 n.6, 124 S.Ct. 2333, 159 L.Ed.2d 157 [(2004)] (omission of Rule 11 warning from plea colloquy).

Greer, 141 S. Ct. at 2099-2100 (cleaned up). The absence of consent on the record to appearance by video during sentencing did not affect the "entire conduct" of the proceedings and did not "necessarily" render the outcome unreliable. It is at worst a "discrete defect" outside the domain of structural error.

As far as we can tell, none of the courts of appeals has held that failure to obtain on-the-record consent to video sentencing is a structural error—or for that matter a plain error. See, e.g., United States v. Rodriguez-Monserrate, 22 F.4th 35, 45 (1st Cir. 2021) (rejecting use of structural error approach and finding any error not plain); United States v. Leroux, 36 F.4th 115, 121-22 (2d Cir. 2022) (plain error standard not met); United States v. Rodriguez-Rios, 856 Fed.Appx. 72 (9th Cir. 2021) (plain-error standard not met even when defendant did not knowingly consent to video appearance). We are not willing to overrule Hernandez and are even less inclined to create a novel category of structural error that does not satisfy the criteria in Greer.

AFFIRMED

Jackson-Akiwumi, Circuit Judge, dissenting.

The issue in this case is whether a district court errs when it conducts a sentencing hearing via videoconference without obtaining the defendant's consent. I believe our circuit's CARES Act case law is inconsistent on that question, and the majority opinion further muddies the waters. Although the CARES Act itself may now be obsolete, the contradictions in our case law could create confusion about the general requirements of Federal Rule of Criminal Procedure 43, the rule governing a defendant's presence in the courtroom. I am therefore compelled to dissent.

In United States v. Bethea, 888 F.3d 864, 867 (7th Cir. 2018), we held that a judge violates Rule 43's in-person requirement and commits per se error by conducting a felony plea via videoconference. The majority opinion observes that Bethea's holding was a result of "the absence of any authority for a defendant to appear by video" at the time, ante, at 674, and concludes that the CARES Act provides the necessary authority that was lacking back in 2018 when Bethea was decided. So, because the CARES Act permits the use of videoconference for felony pleas and sentencings under certain circumstances, the majority opinion appears to view the Act as functionally overruling Bethea. But that conclusion is not supported by the weight of our precedent.

Just last year, we decided United States v. Howell and endorsed the continued applicability of Bethea even after the passage of the CARES Act. 24 F.4th 1138, 1143 (7th Cir. 2022) ("Consistent with Bethea, we find that Rule 43(c)(1)(B)'s limited exception did not create a general waiver system permitting sentencing by video teleconference whenever a defendant consents."). Howell concluded that "a felony defendant cannot agree to be sentenced by video teleconference unless [the CARES Act] is satisfied," id. at 1141 (emphasis added), indicating that the CARES Act did not supersede Bethea but instead created an exception to Bethea's holding. In other words, if the four prerequisites¹ of the CARES Act are not satisfied, then Bethea still governs. And if Bethea still governs, a videoconference felony sentencing violates Rule 43 and constitutes a "per se error" that warrants reversal. Bethea, 888 F.3d at 867.

Navarrete's argument is rooted in our decision in Howell. He...