United States v. Israel Ornelas, 828 F.3d 1018

Background

Ornelas pled guilty to a methamphetamine-distribution count and admitted a prior conviction under 21 U.S.C. § 851, agreeing to an appeal waiver unless the sentence exceeded the Guidelines high end.
While released on bond and awaiting sentencing, agents found methamphetamine at his residence; he missed required pretrial contacts and stopped living at his surety’s home.
A warrant issued for bond violations; Ornelas did not appear at a scheduled bond-revocation hearing or at the sentencing hearing three months after pleading guilty.
At sentencing, defense counsel objected to proceeding in Ornelas’s absence (citing Rule 43, Rule 32, and due process) and noted counsel had not discussed the presentence report with Ornelas.
The district court found Ornelas had voluntarily absented himself, sentenced him in absentia to the 120-month statutory mandatory minimum, and stated it would have imposed the same term regardless.
On appeal Ornelas challenged the in-absentia sentencing under Rule 43, Rule 32, and the Due Process Clause; the Ninth Circuit reviewed whether the sentence was unlawful and whether the appeal waiver applied.

Issues

Issue	Ornelas’s Argument	Government’s Argument	Held
Whether sentencing in absentia violated Rule 43	Absentia violated Rule 43 because absence prevented counsel’s consultation and presentence-report review	Rule 43 permits sentencing when defendant voluntarily absents himself; court found voluntary absence	Court: No abuse of discretion; defendant voluntarily absent, so Rule 43 not violated
Whether sentencing in absentia violated Due Process	Due process protections are at least coextensive with Rule 43; Ornelas’s substance-use/mental issues made absence plausibly involuntary	Due process offers no greater protection than Rule 43; record shows voluntary absence and no evidence of involuntariness	Court: No constitutional violation; due process coextensive with Rule 43 here
Whether Rule 32 was violated by sentencing before counsel discussed the PSR with defendant	Rule 32(i)(1)(A) requires verification that defendant and counsel have read and discussed PSR; absent discussion made sentencing unlawful	Waiver of presence by voluntary absence includes waiver of Rule 32 procedural benefit when defendant fled or voluntarily absented himself	Court: No error; voluntary absence waives Rule 32 objection in this context
Whether the appeal waiver should be enforced despite these claims	Waiver in plea agreement is valid but exceptions exist for unlawful or unconstitutional sentences	Appeal waiver covers this sentence; if sentence lawful, waiver bars appeal	Court: Sentence lawful; appeal waiver enforced; appeal dismissed

Key Cases Cited

Illinois v. Allen, 397 U.S. 337 (U.S. 1970) (constitutional right to be present at trial stages)
Crosby v. United States, 506 U.S. 255 (U.S. 1993) (Rule 43 permits proceeding if defendant voluntarily absent)
United States v. Bibler, 495 F.3d 621 (9th Cir. 2007) (enforcing appeal waivers barring collateral claims except unlawful sentences)
United States v. Marotta, 518 F.2d 681 (9th Cir. 1975) (trial-in-absentia reviewed for abuse of discretion)
United States v. Houtchens, 926 F.2d 824 (9th Cir. 1991) (factual voluntariness finding reviewed for clear error)
United States v. Achbani, 507 F.3d 598 (7th Cir. 2007) (district court must explore on-record serious questions about voluntariness)
United States v. Jordan, 216 F.3d 1248 (11th Cir. 2000) (voluntary absence waives certain PSR review rights under Rule 32)
United States v. Alessandrello, 637 F.2d 131 (3d Cir. 1980) (Rule 43 broader than constitutional right to presence)
United States v. Gordon, 829 F.2d 119 (D.C. Cir. 1987) (Rule 43 embodies Sixth Amendment, Due Process, and common-law presence rights)