United States v. Anthony Howell, 24 F.4th 1138

Howell was convicted on two counts of being a felon in possession of a firearm; this court reversed one conviction and remanded for resentencing on the other.
Congress’s CARES Act §15002(b) authorized felony resentencings by video teleconference when certain findings are made and the defendant "consents … after consultation with counsel."
At a Sept. 3, 2020 video status hearing the district judge said the court needed Howell’s consent to issue a CARES Act order; counsel planned to confer and draft/submit an order.
The court’s docket the next day recorded an order stating "Defendant Anthony Howell moved to proceed with a video-conference resentencing hearing," but there is no separate written motion by Howell on the docket.
At the video resentencing the following week the judge asked defense counsel if she had spoken with Howell (she said yes) and asked Howell if he had reviewed the PSR with counsel (he said yes); neither counsel nor Howell objected to proceeding by videoconference.
Howell appealed, arguing the record lacks his express personal consent and evidence he understood he could refuse; the government relied on Rule 43 and the CARES Act to justify the videoconference sentencing.

Issue	Plaintiff's Argument (Gov't)	Defendant's Argument (Howell)	Held
Whether Rule 43(c)(1)(B) permits sentencing by video teleconference as a form of waiver	Rule 43’s voluntary-absence concept allows proceeding without physical presence	Rule 43 does not permit plea/sentencing by video; presence is required	Rule 43’s limited exception does not, by itself, allow video sentencing; it was not intended to create a general video-waiver route
What §15002(b)(4) requires to establish defendant’s consent to video sentencing	CARES Act consent can be shown by conduct and counsel consultation; no special on-the-record/written form required	Statute requires the defendant’s express, personal on-the-record (or written) consent and proof he knew he could withhold consent	§15002(b)(4) requires a knowing, voluntary consent after consultation with counsel but imposes no specific procedural form; consent may be inferred from actions
Whether the record here shows Howell consented	The record (status hearing, counsel’s consultation, docket entry, conduct at resentencing) evidences implied consent	Lack of an on-the-record personal statement or written motion means no adequate proof of consent	District court reasonably found implicit, knowing, voluntary consent after consultation with counsel; decision affirmed under clear-error review

United States v. Bethea, 888 F.3d 864 (7th Cir.) (Rule 43 prohibits entry of plea by video; underscores importance of physical presence)
United States v. Benabe, 654 F.3d 753 (7th Cir.) (discusses waiver of presence and standards for knowing, voluntary waiver)
United States v. Shanks, 962 F.3d 317 (7th Cir.) (clear-error standard for inferring waiver from conduct)
United States v. Velazquez, 772 F.3d 788 (7th Cir.) (interpreting Rule 43 voluntary absence in custody contexts)
United States v. Achbani, 507 F.3d 598 (7th Cir.) (historical limits on sentencing in defendant’s absence)
Gagnon v. Scarpelli, 470 U.S. 522 (U.S. 1985) (constitutional dimensions of the right to presence/due process)
Green v. United States, 365 U.S. 301 (U.S. 1961) (common-law right of allocution)
Diaz v. United States, 223 U.S. 442 (U.S. 1912) (waiver by flight and historical waiver principles)