21-118 United States v. Sealed Defendant One
United States Court of Appeals for the Second Circuit
August Term 2021
Submitted: May 11, 2022 Decided: September 21, 2022
No. 21-118
UNITED STATES OF AMERICA,
Appellee,
v.
SEALED DEFENDANT ONE,
Defendant-Appellant. *
Appeal from the United States District Court for the Southern District of New York No. 20-cr-441, Cathy Seibel, Judge.
Before: NEWMAN, CHIN, and SULLIVAN, Circuit Judges.
Sealed Defendant One (the “Sealed Defendant”) appeals from a judgment of conviction following his guilty plea to one count of transmitting a threat in interstate commerce, one count of threatening to assault a federal law officer, and
* The Clerk of Court is respectfully directed to amend the caption as reflected above. one count of obstruction of justice, in violation of 18 U.S.C. §§ 875(c), 115(a)(1)(B), and 1505, respectively. At a sentencing proceeding conducted by videoconference and under seal, the district court (Seibel, J.) sentenced Sealed Defendant principally to eighty-four months’ imprisonment. On appeal, Sealed Defendant argues that (1) the government breached the plea agreement, (2) his sentence was procedurally unreasonable, and (3) the district court erred in conducting his sentencing by videoconference.
We conclude that (1) the plea agreement expressly provided for the government to take the very actions Sealed Defendant now characterizes as breaches of that agreement, (2) the district court provided adequate notice and factual support for the sentencing variances and enhancements it applied, and (3) Sealed Defendant knowingly and voluntarily waived his right to be physically present at sentencing. With respect to point (3), we also hold – as a matter of first impression – that sealed sentencings conducted by videoconference do not implicate Federal Rule of Criminal Procedure 53’s prohibition on “the broadcasting of judicial proceedings from the courtroom” or the procedural requirements associated with the CARES Act’s exception to Rule 53. Accordingly, we AFFIRM the judgment of the district court.
AFFIRMED.
Jeffrey Chabrowe, New York, NY, for Defendant-Appellant Sealed Defendant One.
Andrew DeFilippis (Sam Adelsberg, Karl Metzner, on the brief), Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Appellee United States of America.
RICHARD J. SULLIVAN, Circuit Judge:
Sealed Defendant One (the “Sealed Defendant”) appeals from the judgment
of conviction entered by the district court (Seibel, J.) following his guilty plea to
2 one count of transmitting a threat in interstate commerce in violation of 18 U.S.C.
§ 875(c), one count of threatening to assault a federal law enforcement officer in
violation of 18 U.S.C. § 115(a)(1)(B), and one count of obstruction of justice in
violation of 18 U.S.C. § 1505. 1 At a sentencing proceeding conducted by
videoconference and under seal, the district court sentenced Sealed Defendant
principally to eighty-four months’ imprisonment. On appeal, Sealed Defendant
argues that (1) the government breached the plea agreement, (2) his sentence was
procedurally unreasonable, and (3) the district court erred in conducting his
sentencing by videoconference.
For the reasons explained below, we conclude that (1) the plea agreement
expressly provided for the government to take the very actions Sealed Defendant
now characterizes as breaches of that agreement, (2) the district court gave
adequate notice and identified adequate factual support for the sentencing
variances and enhancements it applied, and (3) Sealed Defendant knowingly and
voluntarily waived his right to be physically present at sentencing. With respect
1Decision of this case was delayed by the panel’s need to await its turn in a queue of cases pending in this Circuit resolving questions on “what findings a district court must make . . . before it proceeds to sentence a defendant by videoconference rather than in person,” United States v. Leroux, 36 F.4th 115, 117 (2d Cir. 2022), following Congress’s enactment of the Coronavirus Aid, Relief, and Economic Security Act of 2020 (the “CARES Act”), Pub. L. No. 116-136, 134 Stat. 281. 3 to point (3), we also hold – as a matter of first impression – that sealed sentencings
conducted by videoconference do not implicate Federal Rule of Criminal
Procedure 53’s prohibition on “the broadcasting of judicial proceedings from the
courtroom” or the procedural requirements associated with the CARES Act’s
exception to Rule 53. Accordingly, we affirm the judgment of the district court. 2
I. BACKGROUND
For over two decades, Sealed Defendant served the Federal Bureau of
Investigation (the “FBI” or the “Bureau”) as a paid confidential source on sensitive
criminal and counterterrorism investigations. Toward the end of that tenure,
however, Sealed Defendant’s behavior led the FBI to doubt his discretion and
2Although we allowed the parties to submit their briefs and appendix under seal in this appeal, we deem it appropriate to issue this Opinion on the public docket and for publication in the Federal Reporter. There is a “strong presumption . . . under both the common law and the First Amendment” that judicial documents – and especially judicial decisions, which “are used to determine litigants’ substantive legal rights” – “should . . . be subject to public scrutiny.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 121 (2d Cir. 2006) (citation omitted); see also United States v. Amodeo, 71 F.3d 1044, 1048–50 (2d Cir. 1995); United States v. Amodeo, 44 F.3d 141, 145–46 (2d Cir. 1995); United States v. Myers (In re Nat'l Broadcasting Co.), 635 F.2d 945, 949–54 (2d Cir. 1980); Joy v. North, 692 F.2d 880, 893–94 (2d Cir. 1982); United States v. Biaggi (In re N.Y. Times Co.), 828 F.2d 110, 116 (2d Cir. 1987). That presumption, of course, “does not end the inquiry,” Lugosch, 435 F.3d at 120, and judicial decisions “may be sealed if . . . ‘[sealing] is essential to preserve higher values and is narrowly tailored to serve that interest,’” In re N.Y. Times Co., 828 F.2d at 116 (quoting Press-Enter. Co. v. Superior Ct., 478 U.S. 1, 9 (1986)). Here, however, we have taken care to omit from our Opinion any details that would compromise sensitive counterterrorism or law- enforcement operations, endanger Sealed Defendant’s personal safety while incarcerated, or otherwise personally identify him. Accordingly, we find that sealing this Opinion is not “essential to preserve higher values,” and we decline to do so. Press-Enter. Co., 478 U.S. at 9. 4 trustworthiness. As a result, the FBI withdrew Sealed Defendant’s authorization
to conduct operational investigative activities for the Bureau and informed him
that he would no longer be tasked on FBI investigations. Sealed Defendant reacted
poorly to this news, sending a series of text messages to three FBI Agents and
Officers with whom he had previously worked, threatening to kill them. Based on
this conduct, the government charged Sealed Defendant with making threats in
interstate communications and threatening to assault a federal law enforcement
officer, in violation of 18 U.S.C. §§ 875(c) and 115(a)(1)(B), and a magistrate judge
issued a warrant for his arrest. After being taken into custody, Sealed Defendant
directed his wife to alert several suspected terrorists that they were subjects of
ongoing FBI counterterrorism investigations, to offer them Sealed Defendant’s
assistance in evading capture, and then to destroy the evidence of such
communications. Based on this conduct, the government additionally charged
Sealed Defendant with obstruction of justice, in violation of 18 U.S.C. § 1505.
In late 2020, Sealed Defendant entered into an agreement with the
government to plead guilty to all three charges. The plea agreement provided for
a Sentencing Guidelines range of forty-six to fifty-seven months’ imprisonment
(the “Stipulated Guidelines Range”). It also provided that either party could seek
5 a sentence outside of the Stipulated Guidelines Range, and “make all appropriate
arguments” in the event that the Probation Office were to calculate a Guidelines
range “different from [the range] stipulated to.” App’x at 9–10. Pursuant to the
plea agreement, Sealed Defendant pleaded guilty to all three charges in a
September 2020 plea hearing conducted – with Sealed Defendant’s explicit
consent – by videoconference. Due to the sensitivity of the national-security issues
implicated in this case, and to protect Sealed Defendant from retaliation for his
previous role as a law-enforcement cooperator, the district judge held the initial
plea hearing under seal and subsequently ordered that the entire case be kept
under seal.
Following Sealed Defendant’s guilty plea, the Probation Office prepared a
Presentence Investigation Report (the “PSR”) that calculated a Guidelines range of
fifty-one to sixty-three months’ imprisonment. In its sentencing memorandum,
the government stated that it did “not dispute the calculation of the . . . Guidelines
range set forth in the PSR,” id. at 54, and argued that an above-Guidelines sentence
was necessary to adequately punish Sealed Defendant for his betrayal of the FBI
and his willingness to aid those who seek to kill innocent Americans, to deter
others from similar activity, and to protect the public from further crimes that
6 Sealed Defendant might otherwise commit. In his sentencing memorandum,
Sealed Defendant sought a below-Guidelines, time-served sentence of twenty-six
months’ imprisonment, arguing that such a sentence would be appropriate in light
of his twenty years of fruitful cooperation with the FBI and various personal
mitigating factors.
After consulting with the parties, the district court scheduled Sealed
Defendant’s sentencing for December 2020. Due to the ongoing COVID-19
pandemic, however, this sentencing proceeding was conducted via Skype
videoconference. See Standing Order, In re Coronavirus/COVID-19 Pandemic,
No. 20-mc-176 (CM) (S.D.N.Y. Mar. 30, 2020), ECF No. 1 (finding that felony pleas
and felony sentencings under Federal Rules of Criminal Procedure 11 and 32,
respectively, could not be conducted in person without seriously jeopardizing
public health and safety). At the beginning of the proceeding, after the district
judge explained to Sealed Defendant that he had the right to an in-person
sentencing – and the option to postpone the proceeding until it could be safely
held in person – he and his counsel both affirmatively stated that they preferred
to proceed by videoconference. The district judge then confirmed that, consistent
with her order sealing the entire case, the only participants in the Skype
7 videoconference were the parties, their counsel, members of Sealed Defendant’s
immediate family, and the judge herself. After hearing extensive argument from
the parties and providing lengthy discussion of the sentencing factors set forth in
18 U.S.C. § 3553(a), the district court sentenced Sealed Defendant to eighty-four
months’ imprisonment, to be followed by a three-year term of supervised release.
This appeal followed.
II. DISCUSSION
A. The Plea Agreement
Sealed Defendant contends that the government breached the plea
agreement by (1) advocating a sentence above the Stipulated Guidelines Range,
and (2) acquiescing in Probation’s calculation of a higher Guidelines range.
Neither contention is meritorious, however, because the plea agreement
contemplates the government might take those actions.
We review a plea agreement “in accordance with principles of contract law”
and look “to what the parties reasonably understood to be the terms of the
agreement” to determine whether a breach has occurred. United States v. Taylor,
961 F.3d 68, 81 (2d Cir. 2020) (citation omitted). Where, as here, a defendant did
8 not raise any argument that the government breached the plea agreement before
the district court, we review such claims for plain error. Id.
There was no error, much less plain error, in allowing the government to
advocate a sentence above the Stipulated Guidelines Range. The government and
Sealed Defendant expressly agreed that either party could “seek a sentence outside
of the Stipulated Guidelines Range based upon the factors” delineated in 18 U.S.C.
§ 3553(a). App’x at 9. Indeed, the government and Sealed Defendant both availed
themselves of this provision in arguing, respectively, for sentences above and
below the Stipulated Guidelines Range. Sealed Defendant offers no persuasive
explanation of how the plea agreement could be breached by conduct it expressly
permitted.
Likewise, the government’s failure to challenge Probation’s calculation of a
higher Guidelines range was not a violation of the plea agreement, which
permitted the parties “to make all appropriate arguments” in the event that
Probation calculated a Guidelines range “different from [the range] stipulated to.”
Id. at 9–10. The discrepancy between the Stipulated Guidelines Range and the
range in the PSR arose from an apparent error in the plea agreement, which
applied a three-level enhancement instead of a six-level enhancement in
9 connection with Sealed Defendant’s threats to federal law enforcement agents. See
U.S.S.G. § 3A1.2(a), (b). But section 3A1.2(b) clearly applies where the conditions
of section 3A1.2(a) are met “and the applicable Chapter Two guideline is from
Chapter Two, Part A.” Id. § 3A1.2(b). Since the parties stipulated that the section
3A1.2(a) enhancement applied and that the Guideline applicable to these offenses
was found in section 2A6.1 (i.e., Chapter Two, Part A), Probation correctly applied
the six-level enhancement for Sealed Defendant’s threats to law enforcement
officers. Accordingly, the government’s acquiescence to the PSR’s corrected
Guidelines calculation neither strayed from “what the parties reasonably
understood to be the terms of the agreement” nor “produce[d] serious unfairness”
for Sealed Defendant, and thus did not constitute a breach of the plea agreement
or plain error attributable to the district court. Taylor, 961 F.3d at 81–82 (citations
omitted).
B. Procedural Reasonableness
Sealed Defendant raises several challenges to the procedural reasonableness
of his sentence, arguing that: (1) the district court’s imposition of an above-
Guidelines sentence was a departure, not a variance, such that the district court
procedurally erred in failing to provide notice of its putative departure; (2) this
10 putative departure lacked sufficient factual support; and (3) the section 3A1.2(a)
enhancement lacked sufficient factual support.
We “review the procedural . . . reasonableness of a sentence under a
deferential abuse-of-discretion standard.” United States v. Richardson, 958 F.3d 151,
153 (2d Cir. 2020) (internal quotation marks omitted). As relevant to Sealed
Defendant’s challenge here, “[a] district court commits procedural error where it”
either (1) “makes a mistake in its Guidelines calculation,” (2) “rests its sentence on
a clearly erroneous finding of fact,” or (3) “fails adequately to explain its chosen
sentence.” United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). To
adequately explain its chosen sentence, a district court “must include an
explanation for any deviation from the Guidelines range.” Id. (internal quotation
marks omitted).
Contrary to Sealed Defendant’s assertion, his sentence is properly analyzed
as a variance from, not a departure under, the Guidelines. For starters, that is how
the district court characterized its own sentence, stating on the record at
sentencing that it was “going to vary upward.” App’x at 211 (emphasis added).
That characterization was undoubtedly correct as a matter of law. We have
explained that a “departure . . . refers only to non-Guidelines sentences imposed”
11 on the basis of factors within “the framework set out in the Guidelines,” whereas a
“variance is a modification of the applicable Guidelines sentence ‘that a District
Court may find justified under . . . sentencing factors’” extrinsic to the Guidelines –
namely, those “set forth in 18 U.S.C. § 3553(a).” United States v. Stewart, 590 F.3d
93, 137 n.32 (2d Cir. 2009) (quoting Irizarry v. United States, 553 U.S. 708, 714–15
(2008)) (alterations omitted). Here, the record makes clear that the district court
relied on the section 3553(a) factors in imposing an above-Guidelines sentence.
After discussing such factors at length, the district court reasoned that “the
Guidelines . . . understate[d] the severity of the obstruction,” App’x at 209, thus
complying with section 3553(a)’s requirements to consider “the nature and
circumstance of the offense” and “for the sentence imposed to reflect the
seriousness of the offense,” 18 U.S.C § 3553(a)(1), (2)(A). The upshot is that the
district court had no duty to give advance notice of this variance. While district
courts must “give the parties reasonable notice that it is contemplating . . . a
departure,” Fed. R. Crim. P. 32(h) (emphasis added), this requirement does not
extend to variances, see Irizarry, 553 U.S. at 716; United States v. Gilmore, 599 F.3d
160, 167 (2d Cir. 2010).
12 Furthermore, the district court provided an adequate explanation of its
rationale for the upward variance in its analysis of the severity of Sealed
Defendant’s obstruction of justice. Sealed Defendant maintains that, because he
received a twelve-level enhancement for his obstruction-of-justice conviction’s
nexus to international or domestic terrorism, see U.S.S.G. § 2J1.2(b)(1)(C), and there
was no evidence that his obstruction caused actual harm, the district court
improperly determined that the obstruction Guideline was too lenient. The
Guidelines Manual provides that “[n]umerous offenses of varying seriousness
may constitute obstruction of justice” and “may, therefore, range from a mere
threat to an act of extreme violence.” Id. § 2J1.2, Background. The twelve-level
enhancement under section 2J1.2(b)(1)(C) that applied to Sealed Defendant simply
reflected the fact that the obstruction occurred in a matter related to international
or domestic terrorism; this enhancement, while significant, bears on the context in
which the obstruction occurred, not on the relative severity of Sealed Defendant’s
conduct or its actual consequences. The district court determined that Sealed
Defendant “was not just obstructing the [g]overnment’s investigation of his own
misconduct, he was affirmatively . . . assisting enemies of the United States,” and
that this conduct went beyond “garden variety obstruction, like taking the SIM
13 card out of your phone.” App’x at 203–04. We see no reason to disturb the district
court’s finding that Sealed Defendant’s obstruction of justice, which involved
providing confidential information to suspected terrorists, justified varying
upward to reflect the seriousness of this offense.
We also reject Sealed Defendant’s contention that the facts before the district
court were insufficient to support the section 3A1.2 “Official Victim”
enhancement. Given the evidence that Sealed Defendant knew the victims of his
threats were government officers and that he threatened them because he was
removed from the government payroll, it was not clear error for the district court
to determine that he was motivated by actions his victims took in their official
capacity as federal agents. See United States v. Salim, 549 F.3d 67, 76 (2d Cir. 2008). 3
3 We also note that the parties stipulated to the Official Victim enhancement and the factual underpinnings of that enhancement. Where “the record clearly demonstrates that the stipulation was knowing . . . and voluntary,” as here, “a factual stipulation in a plea agreement is a valid basis for a factual finding relevant to sentencing.” United States v. Granik, 386 F.3d 404, 413 (2d Cir. 2004) (citations and internal quotation marks omitted). Because Sealed Defendant knowingly entered the plea agreement and confirmed that he understood the government would have to prove his guilt beyond a reasonable doubt at trial, the district court was justified in considering his stipulated plea agreement as additional evidence to support the Official Victim enhancement. See id. (permitting a factual finding based on a stipulation where “the plea agreement makes a stipulation clearly and explicitly” and “the defendant signs the agreement and allocutes to understanding the consequent loss of the right to put the government to its proof”). 14 C. Sentencing by Videoconference
Finally, Sealed Defendant argues that the district court erred by sentencing
him via videoconference – variously characterizing this putative error as a
“CARES Act [v]iolation,” a “due process” violation under the “[F]ifth
[A]mendment,” and/or a violation of “Federal Rule of Criminal Procedure 43.”
Sealed Defendant Br. at 54–56 [hereinafter Sealed Defendant Br.]. In particular,
Sealed Defendant argues that the district court (1) “fail[ed] to lay [adequate]
factual foundation for its conclusion that [his] sentencing could not be further
delayed without doing serious harm to the interests of justice,” thereby
“violat[ing] the CARES Act requisites for remote sentencing,” and (2) “fail[ed] to
ensure that [his] waiver of his right to be present at sentencing was knowing and
voluntary.” Id. at 54 (capitalization standardized). But as discussed below, the
former of these requirements is inapplicable in this case, and the latter was indeed
satisfied here.
We recently held that, in order to invoke the CARES Act’s exception to
Federal Rules of Criminal Procedure 43 (which provides “a criminal defendant . . .
the right to be present during sentencing”) and 53 (which imposes a “general ban
on videoconferencing of criminal proceedings”), a district court must not only
15 secure the defendant’s knowing and voluntary waiver of his right to appear, but
must also provide an on-the-record explanation of its “specific reasons” for
“find[ing] . . . that the sentencing cannot be further delayed without serious harm
to the interests of justice.” Leroux, 36 F.4th at 120–21 (quoting United States v. Coffin,
23 F.4th 778, 779 (7th Cir. 2022) (quoting CARES Act, § 15002(b)(2)(A), 134 Stat.
at 529)) (alterations omitted). But since the sentencing-by-videoconference here
was conducted under seal, the district court did not need to abide by the CARES
Act’s full suite of procedural safeguards.
That is because the CARES Act is not a freestanding source of affirmative
rights for defendants or affirmative procedural obligations for sentencing courts.
Rather, it is a “statutory exception” that allows district courts to conduct
sentencings-by-videoconference in circumstances where they would otherwise be
forbidden under “Rule 43 and Rule 53[].” Id. at 120 (emphasis added). As we
explained in Leroux, Rule 53 “prohibits public videoconferencing of criminal
proceedings.” Id. (emphasis added). We now clarify that it applies only to public
videoconferencing – and not to videoconferencing of proceedings conducted
under seal. Rule 53, on its face, bars “the broadcasting of judicial proceedings,” Fed.
R. Crim. P. 53 (emphasis added), which clearly entails “public” distribution to
16 make something “widely known,” Broadcast, Merriam-Webster,
https://www.merriam-webster.com/dictionary/broadcast (last visited August 31,
2022) (emphasis added). 4
Here, the sentencing proceeding was neither “broadcast,” Fed. R. Crim.
P. 53, nor conducted by “public videoconferencing,” Leroux, 36 F.4th at 120. On
the contrary, the district court took care to confirm before going forward with the
proceeding that “[t]his whole case is sealed,” and that “there is nobody on this
[Skype] call who shouldn’t be” – i.e., no one other than Sealed Defendant, his wife,
and his defense counsel; the government’s lawyers; and the judge herself. App’x
at 122. Therefore, the sealed sentencing here fell outside of the prima facie scope
4 In so holding, we are mindful of our Court’s previous statement – in the dicta of a decision concerning “whether we should create an exception to the common law right to inspect and copy judicial records for videotaped depositions” – that Rule 53 “forbid[s] all filming in courtrooms whether intended for private or for public use and whatever the subject.” United States v. Salerno (In re CBS, Inc.), 828 F.2d 958, 959–60 (2d Cir. 1987) (emphasis added; other emphasis omitted). “But dicta are not and cannot be binding.” Jimenez v. Walker, 458 F.3d 130, 142 (2d Cir. 2006) (internal quotation marks and alteration omitted). Rather, only “[h]oldings – what is necessary to a decision – are binding.” Id. (citation omitted). It is plain that CBS’s passing statement about Rule 53 was not “necessary” to its bottom-line “decision,” id., that there is no “generalized right of privacy enjoyed by participants in judicial proceedings” and therefore no “exception to the common[-]law right to inspect and copy judicial records for videotaped depositions,” 828 F.2d at 959–60. Even if it were binding on us, the logic of CBS’s dicta would be readily distinguishable from that of our holding here, insofar as it addressed a hypothetical involving after-the-fact “private use” of a videotaped courtroom proceeding for purposes of using it as evidence in a different proceeding. See id. at 959. In other words, the “private use” at issue in the CBS panel’s hypothetical would still entail dissemination of a video recording to individuals and entities other than the parties to the judicial proceeding being captured on video. Where, as here, a sealed sentencing proceeding is conducted by videoconference, no such dissemination occurs. 17 of Rule 53, and the district court had no need to invoke the CARES Act’s exception
to Rule 53’s ban on public broadcasting of courtroom proceedings. Thus, even if
Sealed Defendant could establish that the district court failed to state adequately
“specific reasons” for “find[ing] . . . that [his] sentencing [could] []not be further
delayed without serious harm to the interests of justice,” Leroux, 36 F.4th at 120–
21, that would not avail him.
With Rule 53 off the table, the only live issue is Sealed Defendant’s
invocation of his right “[u]nder both the Constitution and . . . Rule 43(a)(3) . . . to
be present during sentencing.” Id. at 120. But even “[p]rior to the enactment of
the CARES Act,” we “recognized” that a defendant’s right to be physically present
at sentencing is waivable “as long as [his] waiver is knowing and voluntary.”
Leroux, 36 F.4th at 120 (citations omitted); see also United States v. Salim, 690 F.3d
115, 122 (2d Cir. 2012) (explaining that while “a criminal defendant has the right
to be present during sentencing” under “both the Constitution[’s] [Fifth
Amendment Due Process Clause] and Federal Rule of Criminal
Procedure 43(a)(3),” he “may waive [that] right” in “a non-capital case, . . . as long
as [such] waiver is knowing and voluntary”), superseded by statute on other grounds
as stated in Leroux, 36 F.4th at 120; Fed. R. Crim. P. 43(c)(1)(B) (“A defendant
18 who . . . pleaded guilty . . . waives the right to be present . . . in a noncapital case,
when the defendant is voluntarily absent during sentencing.”).
Here, it is readily apparent that Sealed Defendant did validly waive his right
to an in-person sentencing. While the government must prove “by a
preponderance of the evidence that a defendant waived his constitutional rights,”
Salim, 690 F.3d at 122 (citation omitted), that burden is easily met here. The district
court confirmed with both Sealed Defendant and his attorney that he understood
he had the right to be sentenced in person, that his sentencing could be delayed
until it could be conducted in person, and that he was waiving his right to
challenge his remote sentencing. Sealed Defendant also attested on the record that
no one had threatened or coerced him into proceeding via videoconference. These
facts confirm that Sealed Defendant intentionally relinquished his right to be
sentenced in person. See United States v. Olano, 507 U.S. 725, 733 (1993). And Sealed
Defendant offers no evidence that his waiver was either unknowing or
involuntary. Thus, a preponderance of the evidence shows that he waived his
right to an in-person sentencing.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.