USA V. THOMAS CORNELIUS, JR., No. 18-35733 (9th Cir. 2020)
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FILED NOT FOR PUBLICATION JAN 2 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 18-35733 D.C. Nos. 3:16-cv-01149-HZ 3:97-cr-00014-HZ-1 v. THOMAS WILLIAM CORNELIUS, Jr., MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the District of Oregon Marco A. Hernandez, District Judge, Presiding Submitted November 6, 2019** Portland, Oregon Before: PAEZ and RAWLINSON, Circuit Judges, and WU,*** District Judge. Thomas Cornelius, Jr. (Cornelius) appeals the district court’s denial of his * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable George H. Wu, United States District Judge for the Central District of California, sitting by designation. request to personally attend a hearing to resolve the motion to vacate his sentence under 28 U.S.C. § 2255 (§ 2255). Section 2255 confers upon district court judges broad and flexible power to determine the scope of § 2255 proceedings. See Troiano v. United States, 918 F.3d 1082, 1086 (9th Cir. 2019). Resolution of a § 2255 motion occurs in two steps. First, the district court determines if the sentence is unlawful, and if so, vacates and sets aside the sentence. See 28 U.S.C. § 2255(b). Second, if the sentence is set aside, the district court fashions the appropriate remedy by: (1) discharging the prisoner; (2) resentencing the prisoner; (3) granting a new trial; or (4) correcting the sentence as appropriate. See United States v. Castro-Verdugo, 750 F.3d 1065, 1070 (9th Cir. 2014) (citing 8 U.S.C. § 2255(b)). The record reflects that the district court opted to correct the sentence through approval of a stipulated amendment to the previously imposed sentence. Nevertheless, the proceeding at which the stipulation was approved was labeled a “Re-Sentencing Hearing.” Cornelius argues that Rule 43 of the Federal Rules of Criminal Procedure mandated his physical presence at the hearing. See Fed. R. 2 Crim. Pro. 43(a)(3) (providing that “the defendant must be present at . . . sentencing”).1 In any event, we conclude that to the extent Rule 43 was violated, “there [was] no reasonable possibility that prejudice resulted from [Cornelius’s] absence.” United States v. Berger, 473 F.3d 1080, 1094 n.2 (9th Cir. 2007) (citation omitted). The parties appeared telephonically, and the district court imposed the agreed-upon sentence. Cornelius was allowed to express his views regarding his absence and regarding the agreed-upon sentence. On this record, we are confident that Cornelius’s presence would not have altered the outcome of the proceeding. See United States v. Arqueta-Ramos, 730 F.3d 1133, 1139 (9th Cir. 2013). AFFIRMED. 1 Although Cornelius makes a passing reference to a constitutional violation, he failed to develop the argument in his Opening Brief. In this circumstance, we decline to address any potential constitutional concerns. See Am. Freedom Def. Initiative v. King Cty., 904 F.3d 1126, 1129 n.2 (9th Cir. 2018). 3
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