United States v. Francisco Moreno

Case: 18-11139 Document: 00515300419 Page: 1 Date Filed: 02/06/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 6, 2020
No. 18-11139
Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANCISCO MORENO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CR-468-10
Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:*
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(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.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-11139 Document: 00515300419 Page: 2 Date Filed: 02/06/2020
No. 18-11139
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
(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; see Bagwell, 376 F.3d at 410-13.
Accordingly, the appeal is DISMISSED, and counsel’s motion to
withdraw is DENIED as moot.
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