In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-4190

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LAHBIB ACHBANI,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 CR 363—Robert W. Gettleman, Judge.

____________

ARGUED OCTOBER 3, 2007—DECIDED NOVEMBER 8, 2007

____________

Before COFFEY, RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge. In December 2005, Lahbib Achbani

pleaded guilty to making and uttering a counterfeit

check in violation of 18 U.S.C. § 513(a). Mr. Achbani

disappeared shortly before his scheduled sentencing

hearing. The district court postponed the hearing several

times while the Government searched for Mr. Achbani.

Ultimately the court found that Mr. Achbani had absconded and sentenced him in absentia to 33 months’

imprisonment. Although Mr. Achbani remains missing,

his counsel appeals the decision to proceed in Mr.

Achbani’s absence.
2 No. 06-4190

We affirm Mr. Achbani’s sentence. The district court

took all the necessary steps to ensure that Mr. Achbani’s

absence was voluntary, and the evidence overwhelmingly suggested that he had fled the jurisdiction to avoid

imprisonment.

I

BACKGROUND

In late 2004, Mr. Achbani manufactured a $100,000

counterfeit check, deposited it and withdrew part of the

funds to pay off various debts. Between the time of his

indictment in May 2005 and his guilty plea that December,

Mr. Achbani assisted in a government investigation that

led to the recovery of nearly $2 million in stolen goods

and the filing of charges against others. Although the

parties did not enter into a written plea agreement, the

Government anticipated moving for a prison sentence

below the guidelines range because of Mr. Achbani’s

“substantial assistance.” See U.S.S.G. § 5K1.1.

In February 2006, however, the Government informed

the probation officer and defense counsel of its recent

discovery that, after his indictment, Mr. Achbani had

passed additional counterfeit checks and had been

charged with criminal trespass to a vehicle. These discoveries led the Government to propose a higher intended-loss

amount than the parties originally had anticipated and to

suggest that Mr. Achbani was not entitled to a reduction

for acceptance of responsibility. On April 26, 2006, the

probation office issued a pre-sentence report (“PSR”)

recommending that the district court adopt these positions.

Mr. Achbani failed to appear for his sentencing that

May, and defense counsel informed the court that he did
No. 06-4190 3

not know of Mr. Achbani’s whereabouts. The court therefore asked counsel whether it was appropriate to sentence Mr. Achbani in absentia under Federal Rule of

Criminal Procedure 43(c)(1)(B), which provides that a

defendant waives his right to be present at sentencing if

he is voluntarily absent. The Government proposed, and

the district court readily agreed, that Mr. Achbani’s

sentencing should be postponed so the Government could

investigate whether he was, indeed, voluntarily absent.

Mr. Achbani’s counsel then submitted a memorandum

urging the court to refrain from sentencing him in absentia

because, in counsel’s view, there was insufficient evidence

for the court to conclude that Mr. Achbani was voluntarily absent. Counsel suggested, for instance, that

Mr. Achbani might have been taken into immigration

custody because he was in the United States illegally. The

court again postponed his sentence, set a second status

hearing for July, and ordered the Government to present

the results of its investigation at that time.

At the July hearing, the Government informed the court

that it had learned from Immigration and Customs Enforcement that a person with Mr. Achbani’s name and date

of birth had traveled to Austria in mid-April 2006, using

a Moroccan passport. The Government noted that it

possessed the Moroccan passport issued to Mr. Achbani

before his arrest but surmised that he had obtained a

new one. Mr. Achbani’s counsel was unable to offer

another theory. He responded, however, that the case

should be placed on the fugitive calendar and sentencing

deferred. Even if the court now found Mr. Achbani voluntarily absent, he contended, the public’s interest in proceeding was minimal compared to Mr. Achbani’s interest

in reviewing the PSR. The court found Mr. Achbani
4 No. 06-4190

voluntarily absent and concluded that justice would be

best served by proceeding. It scheduled a sentencing

hearing for August.

A few days prior to the hearing, the Government presented additional information to Mr. Achbani’s counsel

and the court. A woman, who identified herself as

Mr. Achbani’s former girlfriend and was living at an address that he had given to the probation office, informed

a Deputy United States Marshal that, in April of 2006,

Mr. Achbani had disappeared with a car that she had

leased for him. Later that month, he also had called to

tell her that he was visiting family in France. A deputy

marshal confirmed that the woman had reported to the

police that the vehicle had been stolen. The Government

further confirmed that Mr. Achbani was not in immigration custody and that it knew of no record indicating that

he was in the custody of any other law-enforcement

agency.

At the sentencing hearing, Mr. Achbani’s counsel again

maintained that Mr. Achbani’s voluntary absence had

not been established. Defense counsel reiterated his

contention that such a finding was inappropriate because, in his view, the evidence still did not demonstrate

concretely that Mr. Achbani had fled. The district court

rejected that argument, but, at defense counsel’s urging,

it declined to consider as relevant conduct Mr. Achbani’s

newly discovered criminal behavior. Instead, it adopted

the original, lower intended-loss figure that Mr. Achbani

had anticipated. The court further concluded that his

absence meant that he would receive no reduction for

acceptance of responsibility; indeed, Mr. Achbani’s counsel did not suggest otherwise. The court ultimately sentenced Mr. Achbani at the low end of the advisory guide-
No. 06-4190 5

lines range, principally because of the significant assistance

to the Government that he had provided before absconding. Counsel filed an appeal on Mr. Achbani’s behalf.

II

DISCUSSION

Mr. Achbani’s counsel contends that the district court

should not have sentenced him in absentia. Counsel submits

that the Government failed to demonstrate that Mr.

Achbani’s absence was “voluntary,” as Rule 43 requires,

because the Government did not search for him in hospitals or morgues or check with other law-enforcement

agencies. Counsel points out that Mr. Achbani had made

himself a likely target for attack when he cooperated in

a government investigation and noted that he already

had been arrested once since his guilty plea.

Rule 43 guarantees a defendant the right to be present

at both trial and sentencing. See Fed. R. Crim. P. 43(a);

United States v. Agostino, 132 F.3d 1183, 1200 (7th Cir. 1997);

United States v. Watkins, 983 F.2d 1413, 1418 (7th Cir. 1993).

Prior to 1995, the rule provided that, under certain circumstances, a defendant could waive his right to be

present at trial; the rule was silent, however, as to whether

the right to be present at sentencing similarly could be

waived. See C. Wright, Federal Practice and Procedure

(Criminal) § 723, at 25-26 (2d ed. 1982). This disparity in

the language of the rule caused some courts to conclude

that the right to be present at sentencing never could be
6 No. 06-4190

1 See United States v. DeValle, 894 F.2d 133, 137 (5th Cir. 1990);

United States v. Songer, 842 F.2d 240, 242 (10th Cir. 1988); United

States v. Curtis, 523 F.2d 1134, 1135 (D.C. Cir. 1975).

waived, even when the defendant had fled.1 Apparently

in response to these decisions, Rule 43 was amended in

1995 to provide explicitly that a defendant in a noncapital

case waives the right to be present at his sentencing if he

is “voluntarily absent.” See Fed. R. Crim. P. 43(c)(1)(B);

C. Wright, Federal Practice and Procedure (Criminal) § 723,

at 38-39 (3d ed. 2004). The drafters explained that this

amendment was intended to “make clear that a

defendant . . . who has entered a plea of guilty or nolo

contendere, but who voluntarily flees before sentencing,

may nonetheless be sentenced in absentia.” Fed. R. Crim. P.

43, advisory committee notes.

This circuit has not yet addressed the question of when

a defendant is “voluntarily absent” from his sentencing.

Only two circuits have addressed this issue, and the

facts of those cases are very different from those before us.

The defendants in those cases were voluntarily absent

because they had escaped forcibly from presentence

custody and thus clearly had absconded. See United States

v. Robinson, 390 F.3d 853, 856 (6th Cir. 2004); United States

v. Jordan, 216 F.3d 1248, 1248-50 (11th Cir. 2000).

Recognizing these distinctions, both defense counsel

and the Government rely on case law that interprets

Rule 43(c)(1)(A), the waiver provision that pertains to

trials. Like the sentencing provision, the trial provision of

Rule 43 permits the court to proceed in the defendant’s

absence if he is “voluntarily absent” after the proceedings

have commenced. Fed. R. Crim. P. 43(c)(1)(A). We believe
No. 06-4190 7

that this case law is an appropriate source of guidance for

two reasons. First, under general principles of statutory

interpretation, we assume that the same words have

the same meaning throughout a given provision. See Perry

v. First Nat’l Bank, 459 F.3d 816, 820-21 (7th Cir. 2006).

Second, as discussed above, it appears that the 1995

amendment sought to eradicate the disparity in the courts’

treatment of defendants’ absences from trial and from

sentencing. Consequently, we employ the same standard

in determining whether the district court proceeded appropriately in this case.

We review for clear error a district court’s finding

of voluntary absence. See Watkins, 983 F.2d at 1419. In the

trial context, we have explained that the district court

should indulge every reasonable inference against a

finding of voluntary absence. See id. Before proceeding, the

district court must explore on the record any “serious

questions” raised about whether the defendant’s absence

was knowing and voluntary. See id. at 1419; United States v.

St. James, 415 F.3d 800, 804 (8th Cir. 2005); United States v.

Davis, 61 F.3d 291, 302 (5th Cir. 1995). For example, a

defendant taken into legal custody is not voluntarily

absent, see Larson v. Tansy, 911 F.2d 392, 397 (10th Cir.

1990); nor is a defendant who has been hospitalized due

to illness, see United States v. Novaton, 271 F.3d 968, 996-

97 (11th Cir. 2001).

As the case law makes clear, however, the district court’s

duty to explore such possibilities varies to the extent that

defense counsel suggests circumstances that raise a plausible doubt that the defendant’s absence was voluntary.

Compare Davis, 61 F.3d at 302-03 (holding that the court

did not err in finding the defendant voluntarily absent,

despite counsel’s claim that the defendant was mentally
8 No. 06-4190

ill, when the district court conducted an exhaustive review of his medical and hospital records); St. James,

415 F.3d at 804-05 (same) with United States v. Edmonson,

962 F.2d 1535, 1544 (10th Cir. 1992) (holding that the

court did not err in finding a defendant voluntarily absent

when he failed to appear on the morning of trial and the

court gave his counsel until the afternoon to contact the

defendant and directed marshals to search the courthouse).

Here, the district court’s finding that Mr. Achbani was

voluntarily absent was not clear error. The district court

postponed Mr. Achbani’s sentencing two times over

three months; it drew every possible reasonable inference

in his favor; and it required that, before sentencing

would proceed, the Government had to conduct an investigation into the alternative possibilities that counsel identified, especially Mr. Achbani’s immigration status. The

evidence that the Government ultimately collected—

particularly evidence that a person with Mr. Achbani’s

name and birthday had flown to Austria shortly after he

had disappeared—ruled out a “serious” possibility, see

Watkins, 983 F.2d at 1419, that Mr. Achbani was dead,

hospitalized or in legal custody. Counsel proffered no

additional evidence to demonstrate that Mr. Achbani’s

absence was involuntary. Moreover, Mr. Achbani had

learned of the Government’s discovery of his ongoing

criminal activity, which certainly gave him ample incentive to flee.

Counsel next argues that, even if Mr. Achbani did flee,

the district court should have continued postponing his

sentencing because his interest in being present outweighed the public’s interest in proceeding. Counsel again

looks to the trial context, where the case law provides

that the trial of even a voluntarily absent defendant
No. 06-4190 9

should be stayed unless the public interest in proceeding

clearly outweighs the defendant’s interest in being present.

See Watkins, 983 F.2d at 1419; Davis, 61 F.3d at 302; United

States v. Bradford, 237 F.3d 1306, 1312-13 (11th Cir. 2001).

Even if, as defense counsel submits, the “public interest

test” applies equally to sentencing proceedings, we

cannot accept this argument. Counsel contends that

Mr. Achbani’s interests outweighed the public’s interest

because Mr. Achbani could not review with counsel the

recommendations in the PSR stemming from his newly

discovered criminal activity. As one circuit has held,

however, when a district court finds that a defendant

voluntarily absents himself from sentencing, he must also

be deemed to have waived his right to review the PSR,

see 18 U.S.C. § 3552(d); otherwise, Rule 43 would be

“largely useless.” Jordan, 216 F.3d at 1250. In any event,

as the Government emphasizes, the district court explicitly disregarded the additional crimes when it calculated Mr. Achbani’s sentence. Defense counsel offers no

other interests of Mr. Achbani that outweighed the

public’s interest in bringing finality to these criminal

proceedings.

Conclusion

For the foregoing reasons, we affirm Mr. Achbani’s

sentence.

AFFIRMED
10 No. 06-4190

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-8-07