USA v. Francilio Febe

[DO NOT PUBLISH]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
____________________
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2 Opinion of the Court 22-13112
Before WILSON, L UCK , and B RASHER , 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
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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.
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