and Submitted April 6, 2016 Pasadena, California
Amended July 14, 2016
from the United States District Court No. 3:13-cr-03313-JAH-3
for the Southern District of California John A. Houston,
District Judge, Presiding.
A. Schlesinger (argued), Jacobs & Schlesinger LLP, San
Diego, California, for Defendant-Appellant.
A. Cabral (argued), Assistant United States Attorney; Peter
Ko, Chief, Appellate Section, Criminal Division; Laura E.
Duffy, United States Attorney; United States Attorney's
Office, San Diego, California; for Plaintiff-Appellee.
Before: Jerome Farris, Timothy M. Tymkovich [*] , and Milan D.
Smith, Jr., Circuit Judges.
panel amended an opinion filed May 4, 2016, denied a petition
for panel rehearing, and denied on behalf of the court a
petition for rehearing en banc, in a case in which the panel
dismissed an appeal from a sentence imposed in absentia upon
a defendant who disappeared and lost contact with his lawyer
after he signed a plea agreement and entered a guilty plea.
panel observed that under Fed. R. Crim. P. 43, the
defendant's right to be present at sentencing can be
waived, and that so long as the defendant's absence is
voluntary, the district court may proceed in absentia. Seeing
no reason for departing from the standard in cases concerning
trials conducted in absentia, the panel reviewed the district
court's sentencing decision for abuse of discretion, and
reviewed the district court's factual determination that
the defendant was "voluntarily absent" from the
proceedings for clear error.
panel held that the facts in the record support both the
district court's determination that the defendant was
voluntarily absent from the hearing and its decision to
proceed with sentencing. The panel held that because the
defendant concedes that due process provides only the
protections of Rule 43 and no more, the district court's
actions did not violate the defendant's constitutional
rights. The panel wrote that even under a Seventh Circuit
standard that requires district courts to explore on the
record any serious questions raised about whether the
defendant's absence was knowing and voluntary, the
district court did not err. The panel wrote that to the
extent the Seventh Circuit's standard places the onus on
the government to present evidence of voluntariness, this
overstates the appropriate burden. Because the defendant
presented no evidence alerting the court that his absence was
involuntary, the district court did not abuse its discretion
in making its involuntariness finding and by sentencing him
panel held that the defendant's waiver of his right to be
present at sentencing likewise waived his right under Fed. R.
Crim. P. 32 to review the presentence report.
panel therefore concluded that the sentence imposed by the
district court was not unlawful, and, accordingly, applied
the valid appeal waiver contained in the defendant's plea
court's opinion filed May 4, 2016, and appearing at 820
F.3d 1100 (9th Cir. 2016), is hereby amended. An amended