this is where Burke concentrates his argument on appeal, and because it is under this rule that most cases involving video-conferencing have arisen. At the time of Burke’s hearing, Rule 43(a) provided that “[t]he defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.” Burke’s argument fails because the rule does not extend to pre-trial motions. Four Courts of Appeals have held that video-conferencing in the context of a proceeding that is covered by Rule 43 does not satisfy the rule’s requirement that the defendant be “present.” See United States v. Torres-Palma, 290 F.3d 1244, 1248 (10th Cir.2002) (<HOLDING>); United States v. Lawrence, 248 F.3d 300,
recognizing that sentencing facts are based on the evidence and testimony presented at sentencing under a preponderance of the evidence standard holding that the right applies at capital sentencing in particular holding that at resentencing the state must present evidence on an enhanced sentencing factor despite having done so at the prior sentencing hearing holding that videoconferencing at sentencing violated rule 43 holding that constitution protected right to counsel at sentencing even where it was waived at trial