Wednesday, May 04, 2016

US v. Ornelas, No. 14-50533 (5-4-16)(Tymkovich with Farris and M. Smith). Here today, gone tomorrow, but the sentencing still took place.  The 9th (via a visiting judge) affirms sentencing in absentia.  The defendant entered into a plea (with some helpful provisions related to safety valve and dropping of charges) but then did not appear for sentencing.  The court imposed a mandatory 120 months (the minimum).  Once caught, the defendant argued that Fed R Crim P 43 and "due process" required his presence.

The 9th first looked at the plea waiver.  If the sentence was illegal, then there is an exception.  It would be considered illegal in this instance if the defendant had a constitutional right to be present for sentencing.
Turning to Rule 43 and assuming that it was coextensive with constitutional due process, the 9th held that if the defendant waives his presence and voluntarily absents himself from sentencing, as with trial, then sentencing can proceed without his presence.

Here, the 9th found no abuse of discretion with the court proceeding.  The defendant had appeared before in court (4 times) and had entered into a plea agreement.  He thus waived his presence.  The defendant pointed to the 7th Circuit standard, which requires the court to explore any "serious questions."  The defendant argued that he suffered from an attention deficit disorder and that the burden should be on the government or court to show his absence was voluntarily and waived.  The 9th rejected this reading, noting that the defendant had appeared at previous hearings, and that the burden of proof should not be shifted.
Finally, the 9th held that voluntarily absence also waives the presentence report under Fed R Crim P 32.

The decision is here:


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