United States v. Bryant, 2011 U.S. App. LEXIS 10640

Bryant pled guilty to distribution of cocaine base in 2007; issue was whether he qualified as a career offender under U.S.S.G. § 4B1.1 because of prior drug felonies.
The PSR initially omitted Bryant’s 1997 Massachusetts conspiracy to violate state drug laws predicate and listed a 1996 New York attempted sale conviction.
The government argued the Massachusetts predicate and the New York conviction supported career-offender status; Bryant objected to the Massachusetts predicate and the remote New York record.
On remand, the government submitted three New York records (Certificate of Disposition, Sentence and Commitment Form, Certificate of Incarceration) plus an affidavit; the district court allowed them.
Bryant’s sentence was vacated by this court’s 2009 decision and remanded to reexamine the New York record reliability; on remand, Bryant was absent at resentencing because he could not be transported, and the district court reaffirmed career-offender status and reimposed 90-month sentence.
The panel held that Bryant’s absence at resentencing was reversible error and remanded for a new sentencing with presence and opportunity to allocute, considering post-sentencing rehabilitation under Pepper v. United States.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Bryant’s absence at resentencing violated his right to be present.	Bryant argued presence required; absence deprived allocution.	Bryant’s absence harmless or permissible under remand scope.	Remand requires presence and allocution; absence was reversible error.
Scope of remand—could district court consider new evidence to prove the New York predicate?	Remand limited to reliability of New York evidence as per Bryant.	District court could consider new documents to prove predicate; remand not strictly limited.	Remand allowed new evidence; not limited to prior scope.
Whether post-sentencing rehabilitation may be considered at resentencing under Pepper.	Evidence of rehabilitation could affect sentence.	Rehabilitation not necessarily relevant on initial remand scope.	Pepper permits consideration of rehabilitation; remand proceedings must address it.

Ticchiarelli, 171 F.3d 24 (1st Cir.) (remand scope depends on appellate decision; new facts allowed if raised by remand decision)
Pepper v. United States, 131 S. Ct. 1229 (2011) (no bar to considering post-sentencing rehabilitation; limited remands possible)
Gonzalez-Melendez v. United States, 594 F.3d 28 (1st Cir.) (allocution rights at sentencing; presence related to mitigating information)
United States v. Garafano, 61 F.3d 113 (1st Cir.) (remand procedure depends on remand scope; allocution considerations)
United States v. DiPina, 230 F.3d 477 (1st Cir.) (allocution and presence issues in remand context; related to proceedings on remand)