(notwithstanding the absence of any time limitation in that
Rule). But under the circumstances of Smith's pro se status,
this Court is loath to treat his mistaken (because belated)
attempt to invoke Section 2255 as depriving him of what a number
of Courts of Appeals have labeled such a fundamental right .?
Accordingly, unless the government is able to provide a
better (and ultimately more persuasive) presentation than it has
up to now in opposition to Smith's current motion by a filing in
this Court's chambers on or before January 6, 2003,? this Court
is prepared to issue an order vacating Smith's sentence and
requiring his transfer from his present place of confinement to
this judicial district for the fresh imposition of sentence.

This Court awaits the government's response (which may of course

2? To this Court's knowledge, our own Court of Appeals has

not spoken to the issue.

* To this point, for example, the government has not
adduced persuasive authority holding that Smith's flight before
the date that Judge Bua had set for his sentencing forfeited (not
waived, of course) his right to challenge the imposition of
sentence in absentia. In that respect, Smith has filed an
affidavit asserting that he fled because both the leader of the
drug conspiracy in which he was involved and one of the
codefendants in his case (a since-deceased “enforcer” for the
conspiracy's leader) had made several threats during his trial to
harm or kill him (“you had better get out of Chicago and stay out
and if you come back, I'll break every bone in your body and
throw you in a sewer”) and to harm his family.

4



32(a)(1)(C). This right to be present and speak is
constitutionally based.

Hence the Memorandum's original acceptance of the
distinction advanced by the government to the contrary cannot be
sustained. Instead this Court accepts Smith's position that
former Rule 35(a) would have been available to require a
resentencing in his presence. But that does not necessarily
entitle Smith to relief here for a different reason. As Taylor,
11 F.3d at 151 (footnote omitted) has said, a criminal defendant
seeking such relief has two paths open to that
destination--either Rule 35(a) or Section 2255:

Though Taylor brought his challenge under §2255, it

could have been treated as a motion to correct an

illegal sentence under Rule 35 of the Federal Rules of

Criminal Procedure. Hill v. United States, 368 U.S.

424, 430, 82 S.Ct. 468, 472, 7 L.Ed.2d 417 (1962)

(section 2255 motion to vacate sentence could be

considered Rule 35 motion to correct an illegal

sentence); United States v. Cevallos, 538 F.2d 1122,
1127 (5th Cir. 1976).

In this instance Smith initially chose to file a Section
2255 motion to obtain a resentencing on the same ground that he
currently advances. And as Memorandum at 1 reflects, this Court
properly dismissed that motion on March 8, 2001 “as long since
outlawed by the statutory time limit enacted in 1996.”

If Smith were represented by counsel, this Court would have
no hesitation in holding that earlier choice by Smith to travel
the Section 2255 route to have been an election that resulted in

a forfeiture of his ability to call upon a Rule 35(a) remedy now


take the form of acceding to that procedure) .

CK) Sinclar

Milton I. Shadur
Senior United States District Judge

Date: December 19, 2002


Minute (ger Form (06157)

“ United States District Court, Northern District of Illinois
Name of Assigned Judg i Sitting Judge if Oth
vor Magistrate Judge Milton L Shadur than Assigned Judge
CASE NUMBER 01 C 1540 DATE 12/19/2002
CASE USA vs. Donald Smith
TITLE
[ln the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented,
DOCKET ENTRY:
qa) Oo Filed motion of [ use listing in “Motion” box above.]
Q) o Brief in support of motion due
(3) Oo Answer brief to motion due. . Reply to answer brief due .
(4) im Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) Oo Pretrial conference[held/continued to} [set for/re-set for] on set for at :
7) oO Trial{set for/re-set for] on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) a} This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) O Local Rule 41.1 OFRCP41(a)(1) [1 FRCP41(a)(2).
(10) MH — [Other docket entry] Enter Memorandum Opinion and Order. Accordingly, unless the government
is able to provide a better presentation than it has up to now in opposition to Smith’s current motion by
a filing in this Court’s chambers on or before January 6, 2003, this Court is prepared to issue an order
vacating Smith’s sentence and requiring his transfer from his present place of confinement to this judicial
district for the fresh imposition of sentence.
(11) @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
‘No notices required. umber of notices
a | Notices mailed by judge’s staff.
Notified counsel by telephone. DEG, 2.0. fn?
Docketing to mail notices.
Mail AO 450 form. 14N09 Loy g' ee An
Copy to judge/magistrate judge. VuQ 11SI0 sn ;
id 12/19/2002
courtroom SO:S Wd 6193020 sented eaten
SN deputy’s sw
ina Ohdeaa
central Clerk’s Office mailing depy intila



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION DOCKETED

UNITED STATES OF AMERICA, } DEC 2 0 2002

Plaintiff, )
)

v. ) No. 01 C 1540

) (87 CR 17)
DONALD SMITH, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

As reflected in its three-page November 26, 2002 memorandum
(“Memorandum”), this Court has inherited via random assignment
the successive efforts by Donald Smith (“Smith”) to overturn the
40-year custodial sentence that was imposed on him back in
September 1987 by this Court's late colleague, Honorable Nicholas
Bua. Near the conclusion of the Memorandum, this Court advised
Smith of his available alternatives “either (1) to withdraw his
current motion because it may be deemed a Section 2255 motion or
(2) to adhere to his present Rule 35 label.”’ And the Memorandum
then concluded by stating that in the absence of an affirmative
choice as between those alternatives on Smith's part, “this Court
will take him at his present word and will deal with the motion
as having been brought under Rule 35.”

Just before the specified December 16 due date for Smith's

submission, he filed his Reply to Government's Response that

1 Like the Memorandum, this opinion will refer to 28 U.S.C.
§2255 as “Section 2255” and to any provision of the Federal Rules
of Criminal Procedure as “Rule --.”



indeed approaches the issue from the perspective of former Rule
35(a), which in its incarnation at the time of Smith's sentencing
imposed no temporal limit as to when a court was authorized to
“correct an illegal sentence.” And Smith has done his homework
well, for he adduces substantial caselaw to support the
proposition that a sentencing in absentia is in fact an illegal
sentence (to choose only a few of those cases, see, e.g., United
States v. Faulks, 201 F.3d 208 (3d Cir. 2000) and United States
v. Taylor, 11 F.3d 149 (11 Cir. 1994) (per curiam)).

As Faulks, 201 F.3d at 209, 211 has said:

In our view, the notion that the sentencing court must

“eyeball” the defendant at the instant it exercises its

most important judicial responsibility, whose daunting

character has not been eliminated by the Sentencing

Reform Act and the Sentencing Guidelines, is far froma

formality. Rather, it is the embodiment of a value

deeply embedded in our polity (and our jurisprudence) .

* * *

Thus, Rule 43's requirement that the defendant be
present at the imposition of sentence is not a
meaningless formality. Rather, as we have observed
supra at page 3, it is a fundamental procedural
guarantee that places the defendant before the judge at
a culminating moment of the criminal judicial process.

And Taylor, 11 F.3d at 151 has been even more specific in
embedding the Rule 43(a) and Rule 32(a) requirements in
constitutional soil:
A defendant has the right to be present “at the
imposition of sentence,” Fed. R. Crim. P. 43(a), and
before imposing sentence the court must “address the

defendant personally and determine if the defendant
wishes to make a statement....” Fed. R. Crim. P.