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
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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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
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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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.
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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§ 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
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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 multidefendant 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 multidefendant case. If the government proceeds against the codefendants 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.