UNITED STATES v. MORENO (2020)

The attorney appointed to represent Francisco Moreno on appeal has filed a motion to withdraw and a brief citing Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Anders brief is inadequate in several respects, including a failure to discuss the appeal waiver in Moreno’s plea agreement and a failure to utilize this court’s Anders checklist to perform a proper analysis of the plea and sentence. Moreno has not filed a response.

The “fugitive disentitlement doctrine” is an equitable doctrine that “limits a criminal defendant’s access to the judicial system whose authority he evades.” Bagwell v. Dretke, 376 F.3d 408, 410-13 (5th Cir. 2004) (internal citation omitted); see Ortega-Rodriguez v. United States, 507 U.S. 234, 240-42, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993) (noting that Supreme Court “cases consistently and unequivocally approve dismissal as an appropriate sanction when a prisoner is a fugitive”). Moreno was supposed to surrender to the custody of the Bureau of Prisons on September 18, 2018, but he failed to report to begin his sentence. He has not returned to custody since he became a fugitive, and it is unlikely that he will do so, voluntarily or otherwise, in the foreseeable future. Under these circumstances, dismissal of Moreno’s appeal is appropriate. Dismissal of the appeal is further supported by enforceability concerns, serves an important deterrent function, and “advances an interest in efficient, dignified appellate practice.” Ortega-Rodriguez, 507 U.S. at 242, 113 S.Ct. 1199; see Bagwell, 376 F.3d at 410-13.

Accordingly, the appeal is DISMISSED, and counsel’s motion to withdraw is DENIED as moot.

FOOTNOTES

FOOTNOTE.  

PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.