It is true that a few courts have held that there is a good cause or extraordinary circumstances exception to the sentencing presence requirement. See United States v. Brown, 456 F.2d 1112, 1114 (5th Cir. 1972) ("Only in the most extraordinary circumstances, and where it would otherwise work an injustice, should a court sentence the defendant in absentia.") (citing United States v. Boykin, 222 F. Supp. 398, 399 (D.Md. 1963)); United States v. Wright, 342 F. Supp. 2d 1068, 1070 (M.D.Ala. 2004) ("[G]ood cause must be shown when a defendant seeks to waive her presence at sentencing."). Because neither the Tenth Circuit nor the Supreme Court has recognized a good cause/extraordinary circumstances exception to the sentencing presence requirement, and rule 43 does not provide an exception in this case, the Court is reluctant to create one in dicta. Accordingly, video conferencing is not a lesser included means of waiver because waiver does appear to be available here.
The Court explained, "while danger to one's medical health would clearly constitute 'good cause' justifying a defendant's absence from sentencing, [Defendant Khariton] failed to provide any evidence that the conditions surrounding her sentencing would endanger her medical health." Id. at 13-14 (quoting United States v. Wright, 342 F.Supp.2d 1068, 1070 (M.D. Ala. 2004)).
The Court explained, while “danger to one's medical health would clearly constitute ‘good cause' justifying a defendant's absence from sentencing,” “Defendant Clark . . . ‘failed to provide any evidence that the conditions surrounding his sentencing would endanger his medical health.” Dkt. No. 499 at 2-3 (alterations accepted) (quoting United States v. Wright, 342 F.Supp.2d 1068, 1070 (M.D. Ala. 2004)).
); United States v. Wright, 342 F.Supp.2d 1068, 1069 (M.D. Ala. 2004) (“Several appellate courts have held that the term ‘present' means physical presence in the same location as the judge (that is, a defendant must be physically in the courtroom).”)
In their Response (Doc. 103) Defense Counsel also directed the Court to the case of United States v. Wright, 342 F.Supp.2d 1068 (M.D. AL 2004). Wright is a factually similar case, in which the defendant moved to have her sentencing conducted via video-teleconference due to medical conditions - diabetes, congenital heart failure and asthma - that made appearing in person uncomfortable, but possible Id., at 1070.