USCA1 Opinion
United States Court of Appeals
For the First Circuit
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No. 95-1824
UNITED STATES OF AMERICA,
Appellee,
v.
RIGOBERTO LANTIGUA-BONILLA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Coffin, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Peter John Porrata for appellant.
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Epifanio Morales-Cruz, Assistant United States Attorney,
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with whom Guillermo Gil, United States Attorney, and Jose A.
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Quiles Espinosa, Senior Litigation Counsel, were on brief for
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appellee.
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May 20, 1996
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Per Curiam. Defendant-appellant Rigoberto Lantigua-Bonilla
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seeks return on constitutional grounds of some $80,000 forfeited
to the government as part of his plea agreement. Because
appellant is a fugitive who has failed to comply with the terms
of his sentence, we exercise our discretion to dismiss his
appeal. See Ortega-Rodriguez v. United States, 113 S. Ct. 1199,
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1203 (1993); Molinaro v. New Jersey, 396 U.S. 365, 365-66 (1970)
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(per curiam); United States v. Puzzanghera, 820 F.2d 25, 26 (1st
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Cir. 1987).
The relevant facts are as follows. At our request following
oral argument, the government submitted affidavits detailing the
circumstances of appellant's fugitive status. These statements
reported that the Metropolitan Detention Center (MDC) released
appellant to the custody of the Immigration and Naturalization
Service (INS) on July 25, 1995, upon completion of his term of
confinement in the case now on appeal. MDC officials apparently
had not received notification that sentencing of appellant was
pending -- scheduled for August 31 -- in a separate criminal
case. The INS released him on August 18.
On August 31, 1995, after appellant failed to appear for the
sentencing and his attorney advised the court that he did not
know his client's whereabouts, a warrant was issued for
appellant's arrest. On May 1, 1996, the U.S. Probation Office
notified the district court that appellant was in violation of
his supervised release conditions in this case, and requested
that another warrant be issued for his arrest.
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This case differs somewhat from prior cases in which we have
dismissed an appeal based on an appellant's escape because, at
the time of his erroneous release, appellant already had served
the full term of imprisonment imposed in the case on appeal.
And, his escape before sentencing in the separate criminal case
does not provide a basis for dismissing this appeal. See Ortega-
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Rodriguez, 113 S. Ct. at 1209 (appellate sanction of dismissal
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justified only if there is a "connection between fugitivity and
the appellate process"); United States v. Anagnos, 853 F.2d 1, 2
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(1st Cir. 1988) (absconding before sentencing should affect
consequences in the district court, not the appeals court).
Appellant has not, however, completed his sentence in this
case, which in addition to the prison term, included a two-year
term of supervised release, a fine of $10,000 and a special
monetary assessment of $75. He has paid the $75, but has not
paid the fine and, as noted above, has not complied with the
supervised release terms. Appellant thus has "flouted `the
restraints placed upon him pursuant to the conviction,'"
Puzzanghera, 820 F.2d at 27 (quoting Molinaro, 396 U.S. at 366),
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and is in our view equally "disentitled" to call on the resources
of the appeals court, id. at 26, as a defendant who escapes to
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avoid further custody.
Accordingly, this appeal is dismissed.
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