United States Court of Appeals
For the First Circuit
No. 03-1982
UNITED STATES OF AMERICA,
Appellee,
v.
CESAR MORENO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, Chief U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Van L. Hayhow for appellant.
Donald C. Lockhart, Assistant United States Attorney with whom
Craig N. Moore, Acting United States Attorney and Andrew J. Reich,
Assistant United States Attorney were on brief, for appellee.
April 29, 2004
HOWARD, Circuit Judge. In this appeal, we decide
whether the district court permissibly applied an upward departure
in sentencing Cesar Moreno for bail jumping to avoid prosecution on
several civil rights charges. We vacate the sentence and remand
for resentencing.
I.
On October 6, 1998, Moreno and three others were indicted
by a federal grand jury on eight civil rights offenses.1 See 18
U.S.C. §§ 241, 242. The next day Moreno was arraigned, at which
time the district court released him on bond and advised him of his
obligation to appear at all subsequent court proceedings. The
court also limited Moreno's travel to Massachusetts and Rhode
Island and ordered him to surrender his Colombian passport. Moreno
falsely told the court that he had lost his passport.
Approximately three months later, he flew to Colombia.
While Moreno remained in Colombia, the government
proceeded with the prosecution of Moreno's co-defendants. In May
1999, the other defendants were acquitted of all charges.
Approximately four years after his disappearance, Moreno was
arrested in New York on the still-pending civil rights indictment.
As part of a plea agreement, Moreno pleaded guilty to a one-count
information of knowingly and willfully failing to appear for a
1
The underlying indictment derived from Moreno's role as an
informant for the Rhode Island Attorney General's drug strike
force.
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court proceeding, see 18 U.S.C. § 3146(a)(1) (the "bail jumping
statute"), and the government moved to dismiss the underlying civil
rights indictment.
Applying U.S.S.G. § 2J1.6, Moreno's probation officer
submitted a presentence investigation report ("PSR") recommending
an offense level of 10, which yielded a sentencing range of 6 to 12
months of imprisonment. The PSR did not recommend any departures,
and neither side objected to the PSR's contents.
At Moreno's sentencing hearing, the district court
notified the parties that, despite the PSR recommendation, it was
considering sentencing Moreno above the guideline range. After
allowing an opportunity for briefing, the court reconvened the
sentencing hearing and departed upward from offense level 10 to
level 13, which resulted in Moreno receiving an 18 month term of
incarceration. The district court premised the departure on the
effect that Moreno's decision to flee had on the operation of the
judicial system.2
II.
Moreno challenges the upward departure because, in his
view, the departure rationale offered by the district court does
not remove this case from the "heartland" established by U.S.S.G.
2
The district court also stated that it was unfair that
Moreno's sentence for bail jumping would be substantially less than
the statutory maximum he would have faced for the underlying civil
rights offenses. On appeal, the government has conceded that this
additional ground is not a valid basis for departure.
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§ 2J1.6. We review Moreno's challenge under the recently enacted
Prosecutorial Remedies and Other Tools to End the Exploitation of
Children Today Act of 2003 ("PROTECT Act"). See 18 U.S.C. §
3742(e); United States v. Thurston, 358 F.3d 51, 71-72 (1st Cir.
2004); United States v. Frazier, 340 F.3d 5, 14 (1st Cir. 2003)
(holding that the PROTECT Act applies to appellate review of upward
departures).
In reviewing a departure under the PROTECT Act, we first
determine de novo whether the basis for departing is either
inconsistent with the objectives of federal sentencing as
articulated in 18 U.S.C. § 3553(a)(2) or not authorized by 18
U.S.C. § 3553(b). See 18 U.S.C. § 3742(e)(3)(B)(i-ii); Thurston,
358 F.3d at 70. If we deem the departing rationale appropriate, we
then determine de novo if the facts of the instant case justify
departing from the guideline range.3 See 18 U.S.C. §
3742(e)(3)(B)(iii); Thurston, 358 F.3d at 70.
Consistent with Thurston, we first ask whether the
district court correctly identified as a departing rationale "an
aggravating or mitigating circumstance of a kind or to a degree,
not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines." 18 U.S.C. § 3553(b);
U.S.S.G. § 5K2.0. Because criminal sentencing "encompasses the
3
Prior to the enactment of the PROTECT Act, this second
question was reviewed only for clear error. See United States v.
Chapman, 241 F.3d 57, 63 (1st Cir. 2001).
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vast range of human conduct," the Commission did not place many
limitations on the factors that a court could consider in departing
from the guideline range. U.S.S.G. ch. 1 pt. A 4(b). But while
the universe of possible departure factors is broad, there are
boundaries. Certain factors are off limits because the Commission
has determined that they never could justify a departure. See
United States v. Perez, 160 F.3d 87, 89 (1st Cir. 1998) (listing
forbidden departure factors). Other factors are impermissible
because the Commission adequately considered them in establishing
the guidelines or because they are inconsistent with the structure
and theory of the guidelines. See United States v. Martin, 221
F.3d 52, 57 (1st Cir. 2000).
The district court's basis for departing upward in
sentencing Moreno was the effect that Moreno's conduct had on the
efficient operation of the judicial system. In articulating this
rationale, the district court noted "several components" that could
lead to a sufficiently large disruption to warrant a departure: (1)
the nature of the proceeding at which the defendant failed to
appear (trial or pretrial); (2) the nature of the underlying case
against the defendant (single or multi defendant); and (3) the
length of the defendant's absence.
Under the guidelines, substantially disrupting a
governmental function is a favored ground for departing. See
U.S.S.G. § 5K2.7; United States v. Anderson, 353 F.3d 490, 510 (6th
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Cir. 2003) ("conduct that significantly disrupted . . . judicial
function" is ground for upward departure under U.S.S.G. § 5K2.7).
But a departure on this basis is only appropriate if the
interference with "governmental function is [not] inherent in the
offense." U.S.S.G. § 5K2.7; see United States v. Sarault, 975 F.2d
17, 19-20 (1st Cir. 1992).
One of the factors that the district court identified as
favoring a departure is the additional burden placed on the justice
system by a defendant who is absent for his trial. As the court
explained, a defendant who fails to appear for only a pretrial
proceeding "does not have the same impact on the judicial
proceeding [as a defendant who] fail[s] to appear at the time of
trial."
From our vantage point, the difficulty with this
rationale, at least as an independent basis for departing, is that
a defendant failing to appear for trial is a factor that was
already considered by the Commission in establishing the sentencing
exposure for bail jumping. The legislative history of the bail
jumping statute demonstrates that Congress enacted the law with an
eye toward punishing defendants who abscond with such an intent.
The Senate Report states that one of the purposes of the statute is
"to deter those who would obstruct law enforcement by failing
knowingly to appear for trial . . . ." See S. Rep. No. 98-225,
reprinted in 1984 U.S.S.C.A.N. 3182, 3213 (emphasis supplied). It
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is hard to imagine that the Commission failed to consider a
defendant who fails to appear for trial in developing the
"heartland" for this offense. See Koon v. United States, 518 U.S.
81, 94 (1996) (stating that each guideline is intended to apply to
a "heartland of typical cases"); United States v. Sarna, 28 F.3d
657, 660 (7th Cir. 1994) (stating that a factor common to many bail
jumping cases cannot be a proper basis for departure).
This is not to say, however, that the defendant's failure
to appear for trial will never have an atypically disruptive effect
on the judicial process. The government may not try a defendant if
he is not present on the date that his trial commences. See Crosby
v. United States, 506 U.S. 255, 259-60 (1993) (stating that Fed. R.
Crim. P. 43 prevents trial in absentia if the defendant is not
present at the beginning of trial). The government's inability to
proceed against an absent defendant could cause a substantial
disruption in the administration of justice if the government is
materially prejudiced in its ability to prosecute the underlying
offense after the defendant is found: witnesses could disappear
and evidence could become so stale that it would be more difficult
for the government to prosecute at a later date.
Moreover, the burdens caused by a defendant failing to
appear for his trial could be even more pronounced in a multi-
defendant prosecution. In addition to the possible disappearance
of witnesses and the loss of evidence, the defendant may obtain a
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distinct advantage over the government by absconding in a multi-
defendant case. If the government proceeds against the co-
defendants before the defendant is found, the defendant can assess
the strengths and weaknesses of the government's case before
returning for his own trial. Moreover, the defendant could create
additional impediments to the government's ability to prosecute the
co-defendants. The co-defendants could attempt to shift the blame
from themselves to the absent defendant. Further, the defendant
may place additional burdens on the court because, in many cases,
the court will either have to conduct multiple trials
unnecessarily, cf. United States v. Flinn, 987 F.2d 1497, 1505
(10th Cir. 1993) (holding that unnecessary deployment of government
resource is basis for upward departure), or wait an indeterminate
length for the capture of the defendant to conduct a single trial,
see United States v. Hastings, 847 F.2d 920, 923 (1st Cir. 1988)
(observing that "justice delayed is justice denied").
The district court also emphasized the length of the
defendant's absence. For many of the reasons just articulated, the
length of the absence can be relevant to determining the extent to
which the defendant's conduct disrupted the judicial process. The
longer the absence, the more likely it is that the government will
have difficulty prosecuting the defendant on his return. In
addition by absenting himself, the defendant (if convicted) delays
the day on which he will ultimately face punishment. Thus, a long
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absence would permit a guilty defendant to live for a substantial
period in freedom. See United States v. Cherry, 10 F.3d 1003,
1009-10 (3d Cir. 1993) (affirming imposition of upward departure
where, inter alia, defendant was absent for 20 years).
In this case, Moreno absented himself for four years, and
undoubtedly would have continued that state of affairs had he not
been arrested in New York. Conceivably, the length of his absence
had an unusually negative impact on the functioning of the
judicial process, but there have been no findings to this effect.
See 18 U.S.C. § 3553(c) (under PROTECT Act district court required
to provide written statement of findings justifying the
departure). While a 20 year absence would surely be atypical, we
are not prepared to say, based on the slender record before us,
that the four-year absence here is outside of the heartland. It
does not seem obviously unusual that a defendant who absconds
shortly after arraignment, with the intention of avoiding trial,
might well remain a fugitive for a few years. We are left to
speculate whether the duration of Moreno's absence had an unusual
impact, (beyond that already accounted for) contributing to the
disruption of the judicial process. More than speculation is
required.
In sum, we conclude that one of the component factors,
creating a need for multiple trials –- relied on by the district
court in its disruption analysis, supports the departure ordered
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in this case. Two other factors mentioned by the court should not
have been relied on, except insofar as they support the multiple
trial analysis: that a defendant might miss trial rather than a
pre-trial hearing has been adequately considered by the
Commission, and the record before us does not sufficiently explain
how Moreno's four-year absence takes this case outside of the
heartland. As we are unsure what sentence the district court
would have imposed had it the benefit of our opinion, we vacate
the sentence and remand to allow the court to reimpose sentence,
certain that the court will act promptly. See Williams v. United
States, 503 U.S. 193, 203 (1992). The district court may, of
course, reaffirm its prior sentence or impose another lawful
sentence.
So ordered.
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