
    UNITED STATES of America, v. Daniel LUGO, Darryl Tyler, Michael McMillan, and Kenneth A. Watson, Defendants.
    No. 01-CR-922.
    United States District Court, E.D. New York.
    March 24, 2005.
    Kim P. Bonstrom, Bonstrom & Murphy, New York City, Louis M. Freeman, Freeman, Nooter & Ginsberg, Richard Jasper, Esq., Kenneth A. Paul,. Avraham C. Mos-kowitz, Moskowitz & Book, LLP, Elizabeth Macedonio, Attorney at Law, Mitchell Golub, Attorney at Law, Peter J. Fabri-cant, New York, NY, Allan L. Brenner, Long Beach, NY, Jeffrey G. Pittell, Great Neck, NY, Carl J. Herman, Esq., Attorney at Law, Livingston, NJ, Steve Zissou, Kaye & Zissou, Bayside, NY, for Defendants.
    Margo K. Brodie, United States Attorney’s Office Criminal Division, Brooklyn, NY, for Plaintiff.
   MEMORANDUM & ORDER

WEINSTEIN, Senior District Judge.

After a trial for murder and other crimes, the defendants were sentenced as follows: Daniel Lugo — 10 years, Darryl Tyler — life, Michael McMillan — life, and Kenneth A. Watson — life. An order of the Court of Appeals for the Second Circuit of March 14, 2005, affirmed the convictions, but remanded the case for possible resen-tencing following United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Pursuant to the remand each defendant may move for resentence.

The Court of Appeals has advised that: “A remand, on a defendant’s appeal, that authorizes a district judge to consider whether to resentence and that permits resentencing should include an opportunity for a defendant to avoid resentencing by promptly notifying the district court that resentencing will not be sought.” United States v. Crosby, 397 F.3d 103, 118 (2d Cir.2005).

Pursuant to this suggestion, a motion for resentencing shall be made by a defendant within thirty days of this order. Failure to so move will be considered a decision not to seek resentencing, unless just cause for delay is shown.

The motion will be heard with counsel present in court and the incarcerated defendant present by telephone from prison. Rule 43(b)(3) of the Federal Rules of Criminal Procedure provides that a defendant’s presence is not required where the “proceeding involves only a conference or hearing on a question of law.” Routinely producing defendants for such Crosby motions to decide whether resentencing is needed could be dangerous, interfere with prison discipline, and place a strain on marshal personnel.

If a resentence is ordered, the defendant will be produced in person in court. Sentencing without the presence of an available defendant (and, if necessary, witnesses) is not permitted. See Fed. R.Crim.P. 43(a)(3) (“[T]he defendant must be present at sentencing.”); Crosby, 397 F.3d at 118 n. 20 (“Determination and imposition of the new sentence will, of course, have to comply with all applicable sentencing requirements.”) (citation omitted); United States v. Arrous, 320 F.3d 355, 359-60 (2d Cir.2003) (“The law recognizes a distinction between a proceeding by which the district court corrects or changes a pre-existing sentence, and one where the district court re-enters a sentence .... In the former situation, we have held that a defendant need not be present; while in the latter, a defendant has a constitutional right to be present, because technically a new sentence is being imposed .... [W]e have been reluctant in the past to make exceptions to the rule that a defendant has a right to be present at sentencing, and we generally adhere to the fine line between modifying a sentence, and imposing a new sentence, however technical such distinction may be in some cases.... The current rule arises out of respect for a defendant’s right to be present at a sentencing proceeding, to allocute, and to respond to the definitive decision of the sentencing judge.”) (citations omitted).

Counsel for the defendant at the original sentence is appointed under the Criminal Justice Act to represent the defendant at the post-remand hearing, and at the resen-tencing if it should be ordered. If a defendant or counsel is not satisfied with this arrangement, the court shall be promptly notified with an indication of what other arrangement is sought and why. Counsel will be expected to submit briefs on the motion to decide whether a new sentencing is required, and also on the resentencing, should one go forward. Arrangements will be made for private telephone consultations between the incarcerated defendant and counsel at the hearing.

The United States Attorney and the warden of the prison where a defendant is incarcerated are respectfully requested to assist counsel in consulting by telephone with their clients before the hearing and to cooperate in making defendants available by telephone for the hearing when requested to do so.

Motions for resentencing shall be heard as follows:

Daniel Lugo — June 23, 2005 at 10:00 a.m.
Darryl Tyler — June 23, 2005 at 11:00 a.m.
Michael McMillan' — June 23, 2005 at 12:00 p.m.
Kenneth A. Watson — June 23, 2005 at 2:00 p.m.

The parties shall decide on a briefing schedule and inform Case Coordinator Ms. June Lowe.

SO ORDERED.  