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May 4, 2016

Ninth Circuit explains why disappearing does not get one out of a plea agreement or a mandatory minimum sentence

A little criminal decision handed down by the Ninth Circuit today brought to my mind the Woody Allen quote that half of life is just showing up.  Specifically, US v. Ornelas, No. 14-50533 (9th Cir. May 4, 2016) (available here), reveals that if you do not show up after signing a plea agreement, you still will get sentenced and be stuck with 100% of the terms of agreement. Here is how the opinion for gets started:

Federal law gives defendants the right to be present at their trials and sentencings unless they voluntarily waive this right. In this case, after signing a plea agreement admitting to drug distribution, but before sentencing, Israel Ornelas disappeared and lost contact with his lawyer.  The district court proceeded with sentencing in absentia and imposed a prison term of 120 months — the mandatory minimum for the charged crimes.

Ornelas was subsequently arrested and now claims the district court’s sentencing without his presence violated both the Federal Rules of Criminal Procedure and the Due Process Clause to the Constitution.  Because we find the district court did not abuse its discretion or violate Ornelas’s constitutional rights by sentencing him in absentia, we enforce the appeal waiver and DISMISS this appeal.

May 4, 2016 at 06:38 PM | Permalink


I would like to hear his reasons for the previous no show.

Posted by: BarkinDog | May 4, 2016 6:57:56 PM

He claims the reason he missed the hearing was because he suffered from pharmaceutical profits disorder. In this case, Ritalin. The court is actually quite lucky. He could have claimed it was the vaccinations he received as a child that caused his absence. If that had happened, the appeals court would have likely overturned the ruling.

Posted by: Daniel | May 4, 2016 7:33:12 PM

I'm skeptical that Rule 43 and the Due Process Clause are coterminous, but the defendant proposed that, so he can't get around it. The Constitutional rule is a right to be present at all critical stages of a trial. I am not sure simply being "voluntarily absent" should suffice instead of a knowing, intelligent, and voluntary waiver. The statutory right has a statutory exception. I feel more is required to show an exception to the Constitutional rule.

Posted by: Erik M | May 4, 2016 9:53:56 PM

Thanks very much Eric. It's rare these days that I am forced to look up a word in the dictionary but I don't recall seeing "coterminous" before. Nice word, I'll try and remember it.

Posted by: Daniel | May 5, 2016 10:29:09 AM

It's one of those words I think I got used to using in Law School since you'd see it in opinions (particularly in ones like this where there's a statutory right and a Constitutional right or a State Constitutional right and Federal Constitutional right). I guess I get used to using them and don't realize that they're not common use. Another is "dispositive," which spell check doesn't think is a word, but is quite commonly used in court opinions.

Posted by: Erik M | May 5, 2016 11:54:54 AM

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