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United States v. Ornelas

United States Court of Appeals, Ninth Circuit

July 14, 2016

United States of America, Plaintiff-Appellee,
v.
Israel Ornelas, Defendant-Appellant.

          Argued and Submitted April 6, 2016 Pasadena, California

          Amended July 14, 2016

         Appeal 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.

          David A. Schlesinger (argued), Jacobs & Schlesinger LLP, San Diego, California, for Defendant-Appellant.

          Janet 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.

         SUMMARY[**]

         Criminal Law

         The 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.

         The 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.

         The 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 in absentia.

         The 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.

         The 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 agreement.

         ORDER

         The court's opinion filed May 4, 2016, and appearing at 820 F.3d 1100 (9th Cir. 2016), is hereby amended. An amended ...


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