Judge Vince Chhabria, U.S. District Court for the Northern District of California

Judges currently face no shortage of novel and difficult questions about how to keep the public and court staff themselves safe during the current global pandemic.

But in the case of Danillo Bustillo-Sevilla, a drug offender currently awaiting sentencing in Santa Rita jail, a judge in San Francisco has fashioned a creative way to address this question: What do you do if a defendant facing jail time so short he could potentially be freed from a crowded prison can't safely get to court for sentencing?

U.S. District Judge Vince Chhabria on Monday plans to move ahead with Bustillo-Sevilla's sentencing by telephone without an appearance by the defendant. In an order issued March 15 before "shelter in place" orders in the Bay Area and across the state, Chhabria found that a defendant can waive the right to be present at sentencing under a provision in Rule 43(c)(1)(B) of the Federal Rules of Criminal Procedure.

"If a defendant asks for a sentence of time served and voluntarily waives his appearance in a situation where the hearing would otherwise be delayed because of a public health crisis, the interests of justice, fairness, and efficiency are promoted by finding that the waiver provision applies," Chhabria wrote.

Bustillo-Sevilla's lawyer, San Francisco Federal Public Defender Steven Kalar, said in court papers filed Friday that Chhabria's order was immediately shared with his colleagues in public defender offices around the country.

"On today's date, March 20—five days after the Court's order issued—undersigned counsel is informed and believes that it has quickly become a model adopted by other district judges in the Northern District, and by many district courts across the country, as the criminal justice system reacts to the reality of the COVID-19 pandemic," Kalar wrote.

In the underlying case, Bustillo-Sevilla was arrested in December 2019 after making a $20 crack cocaine sale to an undercover officer in San Francisco's Tenderloin neighborhood, an area where the U.S. Attorney has launched an initiative aimed at cutting down drug trafficking and other crime. Federal prosecutors in a sentencing memo filed Thursday indicated that they intend to seek a sentence of three months in prison plus three months of community confinement in a facility such as a halfway house. Prosecutors have also asked Chhabria to impose a special condition at sentencing ordering Bustillo-Sevilla to stay out of the Tenderloin.

"The amount of narcotics at issue in this case may not be high compared to other cases that come before this Court," wrote Assistant U.S. Attorney Barbara Valliere. "Nonetheless, drug dealing in the Tenderloin cases harm and danger to some of the most vulnerable persons in the community. The growing number of drug overdose deaths in the city have been concentrated in the Tenderloin neighborhood and immediately surrounding area," she wrote.

Kalar in his own sentencing memo noted his client had sought to enter a guilty plea just a week after his initial appearance in the case, but was prevented from coming to court by a prior outbreak of seasonal influenza at the jail. Kalar wrote that his client is an ethnic minority in his native Honduras who faces persecution in his home country and is likely to be deported since his conviction is considered an "aggravated felony" by U.S. Immigration and Customs Enforcement. Still, Kalar wrote, his client wants to waive his right to appear in court and move forward with sentencing.

"He now finds himself on the horns of a dilemma," wrote Kalar. "Prolong his ICE custody while seeking asylum, and risk death by COVID-19 in a remote immigration detention facility? Or return to his home country immediately, and face death from non-indigenous Hondurans?"