United States v. Francilio Febe

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 31, 2023
• Docket: 22-13112
• Status: Unpublished

Opinion

USCA11 Case: 22-13112 Document: 39-1 Date Filed: 08/31/2023 Page: 1 of 3

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-13112 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FRANCILIO FEBE,

Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:19-cr-00120-PGB-LHP-1 ____________________ USCA11 Case: 22-13112 Document: 39-1 Date Filed: 08/31/2023 Page: 2 of 3

2 Opinion of the Court 22-13112

Before WILSON, LUCK, and BRASHER, Circuit Judges. PER CURIAM: Andrew C. Searle, appointed counsel for Francisco Febe in this direct criminal appeal, has filed a motion to withdraw on ap- peal, supported by a brief prepared under Anders v. California, 386 U.S. 738 (1967). However, Febe is a fugitive who failed to ap- pear at his sentencing hearing and has remained out of custody dur- ing his appeal. Under the fugitive disentitlement doctrine, an appellate court has discretion to dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal. Ortega-Ro- driguez v. United States, 507 U.S. 234, 239 (1993). A “fugitive from justice” is a person who flees or conceals himself within the juris- diction after having committed a crime therein. United States v. Bar- nette, 129 F.3d 1179, 1183 (11th Cir. 1997). Further, “intent to flee from prosecution or arrest may be inferred from a person’s failure to surrender to authorities.” Id. at 1184 (quotation marks and alter- ation omitted). A defendant’s fugitive status must have some con- nection “to the appellate process he seeks to utilize,” such as when the defendant’s fugitive status and appellate proceedings overlap. Id.; Ortega-Rodriguez, 507 U.S. at 249 (stating that such a connection exists “when a defendant is at large during ‘the ongoing appellate process’”). The rationale underlying the fugitive disentitlement doctrine is that a defendant who escapes from the restraints placed upon him pursuant to a criminal conviction has waived or USCA11 Case: 22-13112 Document: 39-1 Date Filed: 08/31/2023 Page: 3 of 3

22-13112 Opinion of the Court 3

abandoned his right to call upon the resources of the court. See Mo- linaro v. New Jersey, 396 U.S. 365, 366 (1970); Ortega-Rodriguez, 507 U.S. at 240. Here, Febe’s appeal is subject to dismissal under the fugitive disentitlement doctrine because he failed to appear at his sentenc- ing hearing, and he has remained out of custody and has not ap- peared during the pendency of this appeal. Accordingly, we dismiss this appeal under the fugitive disentitlement doctrine and deny Searle’s motion to withdraw as moot. DISMISSED; MOTION DENIED AS MOOT.