Second Circuit discusses right to be physically present at sentencing

The Second Circuit issued a notable opinion today in US v. Salim, No. 10-3648 (2d Cir. Aug. 24, 2012) (available here), discussing the right to be present at sentencing. Here is how the opinion begins:

Defendant-Appellant Mamdouh Mahmud Salim appeals from a judgment of the United States District Court for the Southern District of New York (Deborah A. Batts, Judge) resentencing him for attacking a correctional officer while an inmate at the Metropolitan Correctional Center (the “MCC”).  On appeal, Salim argues primarily that his resentencing by videoconference constituted a violation of his right to be physically present.  We agree with Salim that the government has not satisfied its burden of proving that he waived his right to be present and that the district court erred in finding a valid waiver.  But this error is subject to plain error review and, in these circumstances, Salim was not prejudiced.  We also reject Salim’s arguments that his resentence was unreasonable.  We therefore AFFIRM the judgment of the district court.