United States Court of Appeals For the First Circuit
No. 21-1597
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ ANTONIO RIVERA-NAZARIO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Gelpí, Howard, and Thompson, Circuit Judges.
Jackson Whetsel, with whom Eric Alexander Vos, Federal Public Defender, Franco L. Pérez-Redondo, Assistant Federal Public Defender, and Héctor L. Ramos-Vega, First Assistant Federal Defender, were on brief, for appellant. Francisco A. Besosa-Martínez, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, and Gregory B. Conner, Assistant United States Attorney, were on brief, for appellee.
May 8, 2023 GELPÍ, Circuit Judge. While this court has often
recognized the importance of a defendant's right to be present in
court, this right is not absolute. Appellant Rivera-Nazario
challenges his thirty-month sentence after the district court
sentenced him in absentia (i.e., without him present). He contends
that the district court erred in finding him voluntarily absent
and in applying an obstruction of justice sentencing enhancement.
Given his numerous violations of release conditions and
abscondence, we affirm the district court's decision.
I. Facts
We first rehearse the facts of the case, which we draw
from the unchallenged portions of the Presentence Investigation
Report ("PSR") and the sentencing hearing since this "sentencing
appeal follows a guilty plea." United States v. Valle-Colón,
21 F.4th 44, 46 (1st Cir. 2021) (quoting United States v. Miranda-
Díaz, 942 F.3d 33, 37 (1st Cir. 2019)).
On October 1, 2019, Appellant José Antonio Rivera-
Nazario was observed sitting in the staircase of a public housing
facility in Bayamón, Puerto Rico, with a shoebox on his lap. Upon
seeing a plain clothes agent (a Puerto Rico police officer assigned
to the U.S. Marshals Service) approach, he dropped the box and
ran, but was subsequently apprehended. From the items that fell
out of the shoebox, the agent recovered 124 plastic items of
marijuana; 47 plastic baggies of cocaine; 50 plastic vials of
- 2 - cocaine; 49 foiled decks of heroin; $142.40 in U.S. currency; and
a cell phone. He was arrested and detained following an initial
appearance before a magistrate judge. On October 7, 2019, he was
released on a $10,000 unsecured bond, with pretrial supervision,
and ordered to work, reside with his consensual partner, who was
designated as his third-party custodian, and comply with standard
conditions of release, including that he not use or unlawfully
possess a narcotic drug or other controlled substances.
Rivera-Nazario was subsequently indicted by a grand
jury, which charged him with the following four counts: knowingly
and intentionally possessing with the intent to distribute a
mixture or substance containing heroin (Count I), cocaine (Count
II), cocaine base (Count III), and marihuana (Count IV), all in
violation of 21 U.S.C. §§ 841(a)(1) and 860(a). He initially
pleaded not guilty; but, on March 4, 2020, he appeared before a
magistrate judge who conducted Rule 11 proceedings and took his
straight guilty plea which was later accepted by the district
judge. From then on, Rivera-Nazario, who remained under conditions
of release, engaged in an escalating series of violations of his
release conditions.
As outlined, Rivera-Nazario was required to abstain from
using controlled substances and also to respond to home visits,
answer randomly-placed phone calls, and attend in person
appointments, all with the United States Office of Probation and
- 3 - Pretrial Services. However, on April 22, 2020, the probation
officer assigned to him reported to the district court that Rivera-
Nazario had violated his release conditions by testing positive
for marijuana, after denying use of controlled substances.
Moreover, he failed to be present when the probation officer
conducted a home visit, failed to report to the probation office
for appointments, and repeatedly skirted supervision phone calls,
excusing his inability to pick up with pretexts such as that he
was "in the bathroom," the call was placed at an "unacceptable
time," "he did not have signal," and he "had left his charger"
behind. Consequently, the probation officer requested that the
district court modify Rivera-Nazario's release conditions to home
detention and location monitoring via an electronic monitoring
device, which permitted him to leave home only upon approval by
the probation officers and only for certain reasons (e.g.,
employment, education, and medical). The district court granted
the modification.
On August 12, 2020, the probation officer again reported
numerous violations of the modified release conditions, including
that Rivera-Nazario admitted illegal use of controlled substances,
repeatedly left his residence without authorization throughout
mid-July to early-August, and, on July 17, 2020, admitted that he
went to a friend's house to play video games without prior
approval, and failed to return home. After "verbally
- 4 - reprimand[ing]" Rivera-Nazario, the probation officer requested
yet another modification to his release conditions; this time,
home incarceration. The district court again granted this request.
On August 27, 2020, following the death of his mother
the month prior, Rivera-Nazario requested a thirty-day
modification to his release conditions to an open schedule on
weekdays from 8:00 A.M. to 4:00 P.M. to tie up his mother's affairs
at various government agencies. He volunteered to surrender
following the thirty-day period. But, the next day, before the
district court could issue a decision, the probation officer filed
yet another request for a modification. The probation officer
noted that Rivera-Nazario repeatedly left his residence without
authorization -- on August 15, 16, 17, 19, 20, 21, 22, 23, 25, and
27 -- and refused to respond to phone calls, video calls, and/or
text messages. The probation officer then requested a warrant for
his arrest.
Before an arrest warrant was issued, however, on
September 2, 2020, the probation officer informed the district
court that Rivera-Nazario had left his residence without
authorization on August 29, 30, and 31, and that on September 1,
2020, Rivera-Nazario collected his belongings from his third-party
custodian's residence (his partner) and absconded (i.e., left the
residence where he was required to be). The probation officer
- 5 - again requested an arrest warrant, which the district court granted
while denying Rivera-Nazario's August 27, 2020, request.
Approximately ten months later, on July 14, 2021, while
Rivera-Nazario was still at-large,1 the district court judge,
citing Federal Rule of Criminal Procedure 43, issued a scheduling
order setting Rivera-Nazario's sentencing hearing to be held in
absentia one week later, on July 21, 2021. By then, the probation
officer had prepared a PSR and calculated Rivera-Nazario's federal
sentencing guidelines range, which concluded that the base offense
level was 18 and factored in a 3-level decrease since Rivera-
Nazario accepted responsibility, amounting to a total offense
level of 15. Combined with a criminal history Category of I, his
guideline sentencing range was 18-24 months.
Rivera-Nazario did not appear at his sentencing hearing.
His new counsel2 informed the district court that he had been
unable to reach him and, that even though he thought the court
"would ultimately be allowed to proceed because . . . the finding
of voluntariness [is] perhaps justified in this case," out of an
1 We note that the record is unclear as to what exactly happened with the electronic monitoring device the district court ordered on April 23, 2020 to track Rivera-Nazario's location. 2 In June 2021, a month before Rivera-Nazario's sentencing hearing would take place, he was assigned new counsel from the Federal Public Defender's office as his original attorney, who handled the Rule 11 proceedings, left the Defender's office, necessitating the substitute.
- 6 - "abundance of caution," requested the hearing be postponed for
thirty days to determine whether Rivera-Nazario "really is
voluntarily absent." By then, the arrest warrant had been
outstanding for ten months. The district court judge then
requested, during the hearing, an update from the U.S. Marshal's
Office on efforts to locate Rivera-Nazario, and, in an email to
the courtroom deputy, the Marshal's relayed that Rivera-Nazario
continued to visit his partner, and the Marshals expected to detain
him upon further surveillance. The judge provided that update to
counsel in a sealed sidebar conference.3
The district court proceeded to hear from both parties
on the issue of voluntary absence and ultimately held that,
pursuant to Rule 43(c)(1)(B), the sentencing hearing would be held
that day in absentia. The government relayed that Rivera-Nazario
had not complied with release conditions beginning in April 2020,
that the probation officer tried to help him comply by moving for
more restrictive conditions and reminding him about his
obligations (when he did respond), but that he continued to ignore
phone calls and was "nowhere to be found" in August 2020. Citing
the government's "detailed summary," the motions filed by the
probation officer, and the "fact that [Rivera-Nazario],
This part of the district court record was sealed because 3
at the time of the hearing, the U.S. Marshals had not yet apprehended Rivera-Nazario and the judge did not want to thwart efforts to locate him.
- 7 - throughout" was "advised and re[-]admonished by probation as to
the importance of compliance and letting his whereabouts be known,
was assisted by counsel," knew that "sentencing proceedings
remained pending," and "chooses where he goes and what he does,
and of course [] has not chosen to contact counsel or Pretrial
Services and present himself to the Court or surrender," the
district court found that Rivera-Nazario was voluntarily absent.
The district court proceeded to sentencing. It
calculated an initial adjusted base offense level of 18, reduced
it by 3 since he accepted responsibility, and added 2 additional
points for obstruction of justice citing U.S.S.G. §3C1.1 because
"[Rivera-Nazario] attempted to flee, and . . . he has voluntarily
absconded while . . . pending sentenc[ing], and has remained
absconded during the past ten months." Based on a total offense
level of 17 and a criminal history Category of I, the guideline
imprisonment range was 24 to 30 months, a fine range of $10,000 to
$95,000, and supervised release of at least six years for Count I,
II, and III and four years for Count IV -- a higher sentencing
range than the 18 to 24 months proposed by the PSR, which did not
consider the obstruction of justice adjustment. After discussing
the 18 U.S.C. § 3553(a) sentencing factors -- including Rivera-
Nazario's upbringing, education level, physical and mental health,
history of drug use, and the nature of the offense (namely, that
the facts indicated that he was on a drug selling shift when he
- 8 - was apprehended) -- the district court imposed a 30-month sentence
for Count I, II, III, and IV, to run concurrently.
Defense counsel objected to holding the hearing in
absentia, the finding of voluntary absence, and the imposition of
the obstruction of justice enhancement based on an objection to
the willfulness finding. This timely appeal followed.
II. Discussion
On appeal, Rivera-Nazario contends that the district
court erred in (1) finding that he was voluntarily absent from his
sentencing hearing and (2) in applying an obstruction of justice
enhancement. We discern no error in either determination and
affirm.
A. In Absentia
We begin with Rivera-Nazario's voluntary absence
argument. He argues that the district court clearly erred in
finding that he was voluntarily absent from his sentencing hearing
because, before making such a finding, it should have granted a
continuance and required additional information. That clearly
erroneous fact-finding, he contends, amounted to an abuse of
discretion. We conclude that the district court was aware of
sufficient facts to draw a reasonable inference that Rivera-
Nazario was voluntarily absent.
Our circuit has not yet addressed the standard of review
in an appeal challenging a sentencing in absentia, but we see no
- 9 - reason why we might depart from the abuse of discretion standard
established in cases of sentencing error, see United States v.
Ríos-Rivera, 913 F.3d 38, 44 (1st Cir. 2019), and regarding trials
conducted in absentia, see United States v. Guyon, 27 F.3d 723,
727 (1st Cir. 1994) (reviewing a district court's decision to
proceed with trial after it had commenced for abuse of discretion).
Accordingly, we apply the abuse of discretion standard and
"evaluate [the district court's] fact-finding for clear error."
Ríos-Rivera, 913 F.3d at 44; see also United States v. Ornelas,
828 F.3d 1018, 1021 (9th Cir. 2016). "Clear-error review is
demanding: this standard will be satisfied only if, upon whole-
record-review, an inquiring court forms a strong, unyielding
belief that a mistake has been made." United States v. Nuñez, 852
F.3d 141, 144 (1st Cir. 2017) (cleaned up). As long as the district
court's decision is based on reasonable inferences drawn from
adequately supported facts, we will not find clear error. United
States v. Brown, 31 F.4th 39, 46 (1st Cir. 2022).
Rule 43 of the Federal Rules of Criminal Procedure
requires that a defendant be present at every stage of trial.
However, this right can be waived. Section (c) of the same permits
a court to sentence a defendant in absentia "in a noncapital case,
when the defendant is voluntarily absent during sentencing."
Fed. R. Crim. P. 43(c)(1)(B); see also Crosby v. United States,
- 10 - 506 U.S. 255, 258 (1993).4 As already outlined, the district court
found Rivera-Nazario voluntarily absent given his numerous
violations of release conditions, the fact that he was informed of
the importance of compliance with these conditions, and the fact
that he knew that sentencing proceedings remained pending.
The record supports the district court's finding since
it reveals a growing number of pretrial violations in the lead up
to Rivera-Nazario's sentencing hearing, which in this context
support a reasonable inference of voluntary absence. See United
States v. Watkins, 86 F. App'x 934, 937 (6th Cir. 2004) (holding
that district court did not clearly err in finding voluntary
absence from sentencing where the record supported a "pattern of
evasion from legal supervision and [the defendant's] decision to
remain at-large on an outstanding arrest warrant for [several]
months"). According to the terms of his release conditions,
Rivera-Nazario was required to report to the probation officer
regularly, submit to random drug testing, reside with his third-
party custodian, and refrain from using controlled substances.
Yet he failed to comply with each of these conditions, and instead,
as evident by the facts we have already outlined and need not
rehash, developed a pattern of evading legal supervision, and
4 Rivera-Nazario makes no argument that his sentencing in absentia was unconstitutional, so we need not address that argument or the constitutional dimension of his presence at sentencing.
- 11 - eventually arrest. Significantly, he failed to report to the
probation officer not once, not twice, but on dozens of occasions
throughout the spring and summer of 2020.
As evidenced by the record, the probation officer tried
to help him comply by requesting an escalating set of
modifications -- from location monitoring to the eventual arrest
warrant -- with the district court, but this did not produce
results. For months, Rivera-Nazario continued to evade the
probation officer's phone calls and, in July and August, was
essentially nowhere to be found until he eventually collected his
belongings from his third-party custodian's home and absconded,
knowing full well the conditions of his release, the importance of
reporting to the probation officer (given that the officer made
this known to him), and that a sentencing hearing was on the
horizon. He remained at-large not only for the ten months that
transpired from the date of the arrest warrant to his sentencing
hearing, but well after the sentencing hearing, until he was
finally apprehended. Thus, given the numerous violations of
supervision and release conditions leading up to the sentencing
hearing, and despite repeat admonishment from the probation
office, it was not clearly erroneous for the district court to
draw the reasonable inference that he was voluntarily absent when
he failed to appear at sentencing. Indeed, Rivera-Nazario had
- 12 - collected his belongings from his partner's home and had not
reported to the Probation Office in nearly one year.
Rivera-Nazario makes several unpersuasive arguments. He
suggests that certain circumstances -- such as his appearance at
all scheduled proceedings with the district court prior to his
sentencing hearing, his request for a modification to his release
conditions in exchange for his voluntary surrender, and his facing
a relatively lenient sentence since he was a "first-time offender
with no history of violence" -- might counsel against a finding of
voluntary absence. But when we take these circumstances together
with his long record of violations, the argument is futile.
Rivera-Nazario had a choice as to whether to comply with his
release conditions and he again and again voluntarily chose not
to. A district court thus could infer that the next choice (not
appearing at sentencing) in a series of repeat violations was a
voluntary one. See Ornelas, 828 F.3d at 1022 (reasoning that
voluntary absence finding was supported by the record where the
defendant "had appeared at multiple hearings (at least four) prior
to the sentencing and acknowledged that his presence was required
at the sentencing hearing," but then failed to appear).
We re-emphasize that "[c]lear-error review is
demanding," Nuñez, 852 F.3d at 144, and when these facts are taken
together with Rivera-Nazario's undisputed track record of ignoring
court-imposed release conditions (in particular his leaving his
- 13 - third-party custodian's home), while being advised by counsel, we
cannot say that the district court committed clear error. Indeed,
his failure to provide an explanation, even on appeal, as to his
absence at sentencing is concerning. Thus, based on our review of
the entire record, we simply are not left with "a strong,
unyielding belief that a mistake has been made." Id. (quoting
United States v. Cintrón–Echautegui, 604 F.3d 1, 6 (1st Cir.
2010)).
Rivera-Nazario suggests that the district court should
have conducted a more searching inquiry into his absence. More
specifically, he contends that we should adopt the approach taken
by the Seventh Circuit in United States v. Achbani, where the court
advised that "the district court must explore on the record any
'serious questions' raised about whether the defendant's absence
was knowing and voluntary." 507 F.3d 598, 601-02 (7th Cir. 2007).
Further investigation was necessary, he argues, given that he was
"struggling with unemployment," a "substance-use disorder[,] and
the death of his mother," all during the COVID-19 pandemic. But
even if we followed the Seventh Circuit's approach in Achbani,
Rivera-Nazario would still come up short. There, the court made
clear that "the district court's duty to explore" any "serious
questions raised about whether the defendant's absence was knowing
and voluntary" depends upon whether "defense counsel suggests
circumstances that raise a plausible doubt that the defendant's
- 14 - absence was voluntary." Id. (cleaned up and collecting cases
assessing a defendant's voluntary absence from trial). Here,
however, defense counsel did not raise any explanation whatsoever
as to Rivera-Nazario's absence. To the contrary, counsel conceded
that he thought the court "would ultimately be allowed to proceed,
because [he thought] the finding of voluntariness [is] perhaps
justified in this case," and then asked for a continuance to assess
what efforts, if any, had been taken to locate him and if "he
really is voluntarily absent." Thus, the district court did not
clearly err when it found Rivera-Nazario voluntarily absent
without inquiring further into the reasons behind his absence.
See Ornelas, 828 F.3d at 1022 (finding no error where defense
counsel failed to raise below any of the explanations pressed on
appeal for defendant's absence, so "the sentencing court had no
reason to inquire further").
Accordingly, we affirm the district court's finding of
voluntary absence, as there was no clear error. Because Rivera-
Nazario offers no other basis to challenge his sentencing, we also
conclude that the district court did not abuse its discretion in
holding his sentencing hearing in absentia.
B. Obstruction of Justice Enhancement
We next turn to the district court's imposition of a
two-level sentencing enhancement for obstruction of justice.
Rivera-Nazario argues that the district court erred in applying
- 15 - the enhancement under U.S.S.G. §3C1.1 because the district court
failed to give counsel advance notice of its intent to apply it as
required by Rule 32 of the Federal Rules of Criminal Procedure and
because the government failed to meet its burden of proving that
Rivera-Nazario 1) acted "willfully" in not appearing at the
hearing and 2) had the specific intent to obstruct justice.
Fed. R. Crim. P. 32.
We review for clear error any of the district court's
fact-finding that Rivera-Nazario willfully obstructed justice with
respect to his sentencing and review de novo its interpretation
and application of the obstruction of justice enhancement. See
United States v. Nygren, 933 F.3d 76, 82 (1st Cir. 2019).
We first dispose of the advance notice argument. We
have held that advance notice is not required where "a court
decides that an upward adjustment is warranted based on offense or
offender characteristics delineated within the Sentencing
Guidelines themselves, at least where the facts relevant to the
adjustment are already known to defendant" since "the [G]uidelines
themselves provide notice to the defendant of the issues about
which he may be called upon to comment." United States v. Canada,
960 F.2d 263, 266-67 (1st Cir. 1992) (emphasis omitted); see also
United States v. Plasencia, 886 F.3d 1336, 1344 (11th Cir. 2018)
("[W]hen, as here, the circumstances afford a defendant notice
that he engaged in conduct that may result in the application of
- 16 - a Guidelines enhancement, the court need not provide additional
notice of its intention to apply the enhancement sua sponte -- the
Guidelines themselves provide adequate notice."). While the
district court's intent to impose the enhancement was not expressly
communicated to Rivera-Nazario, the underlying facts relevant to
obstruction of justice were well-known to him given that he was
aware of his numerous violations of release conditions, had been
counseled on these violations, and was warned about them by the
probation officer. In fact, counsel had advance warning that the
district court would sentence Rivera-Nazario in absentia should he
fail to appear because the scheduling order setting the sentencing
date indicated as much. Thus, because Rivera-Nazario was aware of
the factual predicate underlying the enhancement, the district
court did not err in not providing advance notice.
Rivera-Nazario also argues that without notice of the
enhancement or a continuance, he suffered prejudice because his
counsel lacked the opportunity to conduct research on the
enhancement and to argue that there was insufficient evidence to
find willful obstruction of justice -- an opportunity that was
required under Rule 32(i)(1)(c), which provides that courts "must
allow the parties' attorneys to comment on the probation officer's
determinations and other matters relating to an appropriate
sentence." Fed. R. Crim. P. 32(i)(1)(c). But we see no prejudice
since, as discussed, his attorney knew of the possibility of
- 17 - sentencing in absentia, given the language in the district court's
scheduling order, and Rivera-Nazario was aware of the facts
underlying the enhancement.
Having determined that advance notice was not required,
we turn to the substance of Rivera-Nazario's claim. He argues
that the district court erred in applying the two-level enhancement
because the government failed to show that he acted "willfully" in
failing to appear.
Section 3C1.1 of the Sentencing Guidelines mandates a
two-level enhancement "if (1) the defendant willfully obstructed
or impeded, or attempted to obstruct or impede, the administration
of justice with respect to the investigation, prosecution, or
sentencing of the instant offense of conviction." U.S.S.G. §3C1.1.
According to Application Note 4(E) of §3C1.1, one such way a
defendant can obstruct justice is by "willfully failing to appear,
as ordered, for a judicial proceeding."
Without more, Rivera-Nazario argues that because the
government has failed to establish voluntary absence, it a fortiori
failed to demonstrate willful conduct. But, for the same reasons
the record supports the district court's finding of voluntary
absence, the record also supports the two-level enhancement.5 See
5 We are careful to note that, although a finding of willfulness is appropriate here, a finding of voluntary absence does not automatically trigger a finding of willfulness when considering an obstruction of justice enhancement.
- 18 - Watkins, 86 F. App'x at 937 (holding that for the same reasons a
finding of voluntary absence was not clearly erroneous, a finding
of willfulness was not either). Rivera-Nazario violated dozens of
release conditions, failed to appear at his sentencing hearing,
left his third-party custodian's home without the permission of
pretrial services, and remained at-large for over ten months.
Everything about these circumstances suggests willfulness. "A
criminal defendant who evades authorities and fails to appear for
a sentencing hearing has obstructed justice; and '[t]o hold
otherwise would condone direct disobedience of a court's
conditional release order.'" Fuller v. United States, 398 F.3d
644, 652 (7th Cir. 2005) (quoting United States v. Williams, 374
F.3d 941, 948 (10th Cir. 2004)). Thus, the district court did not
err in applying the enhancement.
Finally, Rivera-Nazario re-invites us to address whether
district courts must make a particularized finding that a defendant
had a specific intent to obstruct justice to impose a §3C1.1
enhancement. We decline to address this question as the record,
as elucidated above, supports the enhancement. See United States
v. Hall, 434 F.3d 42, 61-62 (1st Cir. 2006) (declining to address
whether particularized finding of specific intent to obstruct
justice is required where "evidence clearly supports the district
court's ultimate" obstruction of justice finding).
For the foregoing reasons, the sentence is affirmed.
- 19 -