Monday, May 30, 2016

Case ' The Week: Client, Disappearing, Gets Ten at Hearing - Ornelas and Sentencing in Absentia

The Tenth's C.J., writing for the Ninth, gives ten reasons not to miss a sentencing hearing.  
  United States v. Ornelas, 2016 WL 2342363 (9th Cir. May 4, 2016), decision available here.

Hon. C.J. Tymkovich (Tenth Circuit Court of Appeals)
Players:  Decision by visiting 10th Circuit Chief Judge Timothy Tymkovich, joined by Judges Farris and M. Smith.

Facts: Ornelas had been indicted for conspiracy to distribute meth. Id. at *1. While on release, agents saw him involved in the purchase of meth. Id. He was released again, and agreed to drug testing and mental health counseling. Id. He plead to 10-years, under a plea agreement with an appellate waiver clause. Id. When agents searched his home and found meth, the MJ issued a warrant. Id. At sentencing, defense counsel appeared: Ornelas, however, did not. Id. at *2. Over defense counsel objection, the court imposed the ten year custodial term. Id.

Issue(s): “Ornelas acknowledges that his appeal waiver explicitly covers the circumstances here because his sentence was not above the high end of the guideline range recommended by the government. He also concedes that his plea was entered into voluntarily and knowingly. Under such circumstances, we would generally apply the appeal waiver and dismiss this appeal. See United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007). But we have recognized some exceptions to this general rule. The exception relevant here is for unlawful sentences, which we have defined as those that ‘exceed[ ] the permissible statutory penalty for the crime or violate[ ] the Constitution.’ . . . We address whether the sentence was lawful, and apply the appeal waiver if it was.” Id. at *2.

Held:Applying this rule, we assume for purposes of this opinion that due process and [Federal Rule of Criminal Procedure] Rule 43 are coextensive, and analyze whether the district court abused its discretion—and thus violated Rule 43—when it sentenced Ornelas in absentia. It did not. The court made a fact finding that Ornelas had ‘absented himself’ from the proceedings, which is a finding of voluntary absence required by Rule 43. That finding is supported by the record.” Id. at *3.

Of Note: For the legions of good folks slugging away on Johnson § 2255 motions this Spring, Ornelas is an interesting decision on appeal waivers. As noted above, Ornelas’s plea agreement had a very explicit appellate waiver. How does the Ninth get as far as the merits? Because plea agreement waivers do not insulate unlawful sentences – those that “exceed [ ] the permissible statutory penalty for the crime or [ ] violate the Constitution.” Id. at *2. 

In Ornelas, it was the client’s constitutional due process rights that were at issue: had they been violated, the waiver would not have applied. In Johnson § 2255 motions, it is our client’s due process right not to be subject to a sentence defined by an unconstitutionally vague term: “crime of violence.” Cite Ornelas (and the seminal case, Bibler), when AUSAs waive waivers during this summer’s Johnson litigation.

How to Use: There’s a better Seventh decision that requires a court to explore any “serious questions raised about whether the defendant’s absence was knowing and voluntary.” Id. at *4, citing United States v. Achbani, 507 F.3d 598, 601 (7th Cir. 2007). The Ninth in Ornelas doesn’t reject Achbani altogether, but notes that in this case, the defense presented no evidence in the district court that explained Ornelas’ absence (drug use and ADHD were excuses presented on appeal). Id. at *4. Explore Achbani when standing alone at sentencing – and make sure to make the record for the troubled client in the district court.
For Further Reading: A public defender argues for her client at sentencing,
Las Vegas Justice of the Peace Conrad Hafen
protesting “there has to be some leniency in this department.” Las Vegas Justice of the Peace Conrad Hafen instructs her to, “be quiet.” 

When she responds, “Judge, you’re –“ the Judge orders her handcuffed, puts her in the jury box with inmates, then sentences her client to six months. 

  For accounts of the episode, see here; and here.

 For a compelling editorial on the practice of cuffing PD’s, see here

Image of the Hon. Chief Judge Timothy Tymkovich (10th Circuit Court of Appeals) from

Image of the Hon. Justice of the Peace Conrad Hafren from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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