United States v. Erik Islas

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 7, 2019
• Docket: 18-10039
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 7 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10039

Plaintiff-Appellee, D.C. No. 4:16-cr-50120-CKJ-LAB-1 v. MEMORANDUM* ERIK ISLAS,

Defendant-Appellant.

Appeal from the United States District Court For the District of Arizona Cindy K. Jorgenson, District Judge, Presiding

Submitted and Submission Withdrawn February 7, 2019 Resubmitted April 22, 2019 Phoenix, Arizona

Before: HAWKINS, M. SMITH, and HURWITZ, Circuit Judges.**

Erik Islas was sentenced to 11 months in custody, to be followed by 24 months

of supervised release. On appeal, he challenges several conditions of his supervised

release. On January 30, 2019, the government filed a motion to dismiss the appeal,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). alleging that Islas had failed to (1) report to his probation officer for the past two

months; and (2) notify his probation officer of his change in residence. An arrest

warrant has been issued for Islas. At the joint suggestion of the parties, we vacated

oral argument and stayed the appeal for 60 days. We set a briefing schedule on the

government’s motion to dismiss. We have now received Islas’ response to the

motion, and a reply memorandum. We dismiss the appeal.

1. Under the “fugitive disentitlement” doctrine, “an appellate court may

dismiss the appeal of a defendant who is a fugitive from justice during the pendency

of his appeal.” Ortega-Rodriguez v. United States, 507 U.S. 234, 239 (1993). “The

doctrine does not apply to an appellant just because he has not reported as directed

to the probation office, in the absence of a showing that he has fled or hidden himself

from the jurisdiction of the court.” United States v. Gonzalez, 300 F.3d 1048, 1051

(9th Cir. 2002). Here, however, Islas has hidden himself from the jurisdiction of the

court. His current location is unknown. Accordingly, dismissal of the appeal is

warranted. See Williams v. Alameida, 511 F.3d 973, 974 (9th Cir. 2007) (dismissing

an appeal when appellant “failed to report to his parole agent,” and “[a]n arrest

warrant has been issued for [appellant] who remains a parolee at large.”); United

States v. Torres, 221 F. App’x 646, 647 (9th Cir. 2007) (dismissing an appeal when

appellant’s “counsel has informed this court that [appellant] is a fugitive and that

there is an outstanding warrant for his arrest.”).

2 2. We decline Islas’ request for a further 42 day “grace period” in which he

may surrender. This appeal has already been stayed for 60 days, and Islas could

have turned himself in during that period. See Parretti v. United States, 143 F.3d

508, 511 (9th Cir. 1998) (en banc).

DISMISSED. The pending motions to file documents under seal [Dkts. 65,

66, 68, 69] are GRANTED.