United States v. Weir ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4893
CHARLES WESLEY WEIR,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-95-56)
Submitted: June 27, 2000
Decided: September 14, 2000
Before NIEMEYER and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
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COUNSEL
Frederick T. Heblich, Jr., Charlottesville, Virginia, for Appellant.
Robert P. Crouch, Jr., United States Attorney, Julie C. Dudley, Assis-
tant United States Attorney, Roanoke, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Charles W. Weir appeals the district court's order revoking his
supervised release and imposing a twelve month sentence. On appeal
Weir contends that the district court erred when it revoked his super-
vised release, sentenced him in absentia, and failed to state reasons
for sentencing him to the statutory maximum. After carefully review-
ing the record, we affirm the district court's decision to revoke Weir's
supervised release, but vacate his sentence and remand so that Weir
may be sentenced in open court.
On appeal, Weir contends there was no credible evidence support-
ing the district court's findings that he violated the conditions of
supervised release. We review for an abuse of discretion the district
court's decision to revoke a defendant's supervised release. See
United States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992). Under the
abuse of discretion standard, we consider whether, upon consideration
of the facts and law, the district court's determination was arbitrary
or capricious. See United States v. Mason, 52 F.3d 1286, 1289 (4th
Cir. 1995). The district court need only find a violation of a condition
of supervised release by a preponderance of the evidence. See 18
U.S.C.A. § 3583(e)(3) (West Supp. 2000).
We find that because the probation officer specifically instructed
Weir to report any change in his financial situation, Weir violated a
special condition of his supervised release requiring him to provide
all requested financial information when he failed to tell his probation
officer: (1) of the progress he made on his website, including the fact
that it had blossomed into an incorporated business; (2) of the steps
he took to obtain a secure server to acquire credit information from
customers, which itself would violate the conditions of his release,
and which was made possible by a third party's monetary investment,
and (3) of the commissions he accrued from the website. Moreover,
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the evidence also demonstrated that Weir neither reported money he
made by catering a University of Virginia alumni event nor ade-
quately explained "business" losses reflected on his tax return.
We further find that Weir's failure to notify a university student
and real estate broker about his prior conviction until after both had
already invested significant time or money into developing the web-
site or acquiring a secure server, as well as Weir's failure to tell the
probation officer about the real estate broker's involvement, amply
demonstrate that Weir violated standard condition #13 of his release,
requiring him to notify third parties about the risks of dealing with
one convicted of mail fraud. While Weir argues that he did not violate
this condition because the probation officer never specifically directed
him to notify these two individuals about his prior conviction, this is
so only because Weir hid their identities from the probation officer by
failing to be forthcoming about his financial activities. Under Weir's
logic so long as he effectively hid the existence of business associates
from the probation officer, he could never violate this condition of
supervised release because the probation officer would never be
aware of the need to direct Weir to notify those associates that he had
a criminal record. We decline to accept this position, as it is clearly
contrary to the mandate of the condition. Accordingly, because suffi-
cient evidence supports the district court's findings, we conclude that
the district court did not abuse its discretion by revoking Weir's
supervised release.
We agree with Weir, however, that the district court's imposition
of a sentence in absentia violated Rule 43 of the Federal Rules of
Criminal Procedure. Rule 43 explicitly affords a defendant the right
to be present "at every stage of the trial" including the imposition of
sentence. See Fed. R. Crim. Pro. 43(a); United States v. Camacho,
955 F.2d 950, 953 (4th Cir. 1992). Rule 43 also applies when the dis-
trict court imposes a sentence after revoking supervised release. See
United States v. Waters, 158 F.3d 933, 942-43 (6th Cir. 1998). More-
over, the courts have found that remand is required when a defendant
is sentenced in absentia. See United States v. Faulks, 201 F.3d 208,
210-13 (3rd Cir. 2000); accord United States v. Cook, 890 F.2d 672,
675 (4th Cir. 1989); Hazelwood v. Arnold, 539 F.2d 1031, 1033-34
(4th Cir. 1976). We therefore vacate Weir's sentence, and remand so
that the district court can impose its sentence in open court. Finally,
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because Weir's sentence requires vacatur, we find that Weir's remain-
ing argument challenging the length of the court's sentence is moot.*
Accordingly, we affirm the district court's decision to revoke
supervised release, but vacate Weir's sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
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*Although this issue is now moot, nothing in this opinion should be
construed as a comment on the propriety of the district court's decision
to sentence Weir at the statutory maximum.
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