                   FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                   No. 14-50533
             Plaintiff-Appellee,
                                              D.C. No.
                 v.                     3:13-cr-03313-JAH-3

 ISRAEL ORNELAS,
          Defendant-Appellant.                 OPINION


        Appeal from the United States District Court
           for the Southern District of California
         John A. Houston, District Judge, Presiding

                   Argued and Submitted
            April 6, 2016—Pasadena, California

                      Filed May 4, 2016

      Before: Jerome Farris, Timothy M. Tymkovich*,
         and Milan D. Smith, Jr., Circuit Judges.

                Opinion by Judge Tymkovich




  *
    The Honorable Timothy M. Tymkovich, Chief Judge for the Tenth
Circuit Court of Appeals, sitting by designation.
2                  UNITED STATES V. ORNELAS

                           SUMMARY**


                           Criminal Law

    The panel dismissed an appeal from a sentence imposed
in absentia in a case in which the defendant disappeared and
lost contact with his lawyer after he signed a plea agreement
and entered a guilty plea to conspiracy to distribute
methamphetamine.

    The panel observed that under Fed. R. Crim. P. 43, the
defendant’s right to be present at sentencing can be waived,
and that so long as the defendant’s absence is voluntary, the
district court may proceed in absentia. Seeing no reason for
departing from the standard in cases concerning trials
conducted in absentia, the panel reviewed the district court’s
sentencing decision for abuse of discretion, and reviewed the
district court’s factual determination that the defendant was
“voluntarily absent” from the proceedings for clear error.

    The panel held that the facts in the record support both
the district court’s determination that the defendant was
voluntarily absent from the hearing and its decision to
proceed with sentencing, and that because the defendant
concedes that due process provides only the protections of
Rule 43 and no more, the district court’s actions did not
violate the defendant’s constitutional rights. The panel held
that the defendant’s waiver of his right to be present at
sentencing likewise waived his right under Fed. R. Crim. P.
32 to review the presentence report.

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                UNITED STATES V. ORNELAS                     3

    The panel therefore concluded that the sentence imposed
by the district court was not unlawful, and, accordingly,
applied the valid appeal waiver contained in the defendant’s
plea agreement.


                         COUNSEL

David A. Schlesinger (argued), Jacobs & Schlesinger LLP,
San Diego, California, for Defendant-Appellant.

Janet A. Cabral (argued), Assistant United States Attorney;
Peter Ko, Chief, Appellate Section, Criminal Division; Laura
E. Duffy, United States Attorney; United States Attorney’s
Office, San Diego, California; for Plaintiff-Appellee.


                         OPINION

TYMKOVICH, Chief Judge:

    Federal law gives defendants the right to be present at
their trials and sentencings unless they voluntarily waive this
right. In this case, after signing a plea agreement admitting
to drug distribution, but before sentencing, Israel Ornelas
disappeared and lost contact with his lawyer. The district
court proceeded with sentencing in absentia and imposed a
prison term of 120 months—the mandatory minimum for the
charged crimes.

    Ornelas was subsequently arrested and now claims the
district court’s sentencing without his presence violated both
the Federal Rules of Criminal Procedure and the Due Process
Clause to the Constitution. Because we find the district court
4               UNITED STATES V. ORNELAS

did not abuse its discretion or violate Ornelas’s constitutional
rights by sentencing him in absentia, we enforce the appeal
waiver and DISMISS this appeal.

                      BACKGROUND

    Ornelas was arrested in 2013 by federal law enforcement
after DEA agents observed Ornelas’s involvement in the
purchase of methamphetamine in the parking lot of a store.
At the time, Ornelas and four co-defendants had already been
indicted for conspiracy to distribute methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1) and 846. After his arrest,
Ornelas appeared before a magistrate judge for arraignment
and posted a $25,000 bond. During his release and after
several more proceedings before the magistrate judge, the
government and Ornelas agreed that he would undergo drug
testing and mental health counseling.

     Prior to trial, the government informed Ornelas that it
would seek to double the five-year mandatory minimum for
his offenses because of his 1994 drug conviction in
California. Rather than proceed to trial, Ornelas agreed to
plead guilty to one of the counts and conceded his 1994
conviction was a “qualifying prior conviction within the
meaning of 21 U.S.C. § 851.” The plea agreement also stated
that the government would seek a “safety-valve reduction”
under U.S. Sentencing Guidelines §§ 2D1.1(b)(11) and 5C1.2
if it deemed such a reduction appropriate, and that Ornelas
could qualify for an acceptance of responsibility reduction.
But the government was not required to seek this last
reduction if Ornelas materially breached the agreement by,
among other things, failing to appear in court. Finally,
Ornelas agreed to waive his right to appeal unless the district
court imposed a sentence above the high end of the
                UNITED STATES V. ORNELAS                    5

recommended Guidelines range. Ornelas appeared before a
magistrate judge on August 21, 2014, to change his plea to
guilty and agreed to appear at a sentencing hearing three
months later.

    After his plea but before the sentencing hearing, DEA
agents served a search warrant at Ornelas’s residence and
found eight grams of methamphetamine in his living room.
Ornelas then failed to report telephonically with pretrial
services—as required—and stopped living at his surety’s
home. As a result, the government filed a petition alleging
Ornelas had violated several of the supervisory conditions
associated with his bond and requested a warrant for his
arrest. A magistrate judge issued the warrant and ordered
Ornelas to appear at a bond revocation hearing. Ornelas did
not appear at the hearing.

    The district court proceeded to the previously set
sentencing hearing on November 24, 2014. Ornelas’s
attorney attended, but Ornelas did not appear. His attorney
objected to the proceeding, arguing that sentencing Ornelas
in absentia would violate his due process rights and his right
to confer with counsel under the Federal Rules of Criminal
Procedure—especially since counsel and Ornelas did not
have the opportunity to discuss the presentence report. The
district court overruled the objections and sentenced Ornelas
in absentia to the ten-year mandatory minimum. The district
court also stated on the record that it would have sentenced
Ornelas to 120 months even without the mandatory minimum
because he presented false information to the Probation
Office and failed to appear at the hearing.
6               UNITED STATES V. ORNELAS

                        DISCUSSION

    Ornelas acknowledges that his appeal waiver explicitly
covers the circumstances here because his sentence was not
above the high end of the guideline range recommended by
the government. He also concedes that his plea was entered
into voluntarily and knowingly.

    Under such circumstances, we would generally apply the
appeal waiver and dismiss this appeal. See United States v.
Bibler, 495 F.3d 621, 624 (9th Cir. 2007). But we have
recognized some exceptions to this general rule. The
exception relevant here is for unlawful sentences, which we
have defined as those that “exceed[] the permissible statutory
penalty for the crime or violate[] the Constitution.” Id.
While the bulk of Ornelas’s claims and briefing address his
claim that the sentencing court violated Rule 43 of the
Federal Rules of Criminal Procedure, he also claims his
constitutional due process rights were violated when he was
sentenced in absentia. We address whether the sentence was
lawful, and apply the appeal waiver if it was.

    As an initial matter, Ornelas argues that the protections of
the Due Process Clause are coextensive with Rule 43’s
protections. The United States Constitution protects the right
to be present at one’s trial and sentencing. See U.S. Const.
amends. V, VI, XIV; Illinois v. Allen, 397 U.S. 337, 338
(1970) (“One of the most basic of the rights guaranteed by the
Confrontation Clause is the accused’s right to be present in
the courtroom at every stage of his trial.”). And Rule 43
requires that “the defendant must be present at . . . every trial
stage,” including “sentencing.” Fed. R. Crim. P. 43(a)(2)–(3).
In fact, Rule 43 was intended to protect a swath of rights
broader than those protected by the Constitution alone. As
                UNITED STATES V. ORNELAS                     7

the Third Circuit explained, “Rule 43 embodies the right to be
present derived from the Sixth Amendment Confrontation
Clause, the Due Process Clause of the Fifth and Fourteenth
Amendments, and the common law privilege of presence. . . .
[T]he scope of Rule 43 was intended to be broader than the
constitutional right.” United States v. Alessandrello, 637 F.2d
131, 138 (3d Cir. 1980) (citation omitted); see also United
States v. Gordon, 829 F.2d 119, 123 (D.C. Cir. 1987) (“Rule
43 embodies the protections afforded by the sixth amendment
confrontation clause, the due process guarantee of the fifth
and fourteenth amendments, and the common law right of
presence.”).

    But this right, like most rights, can be waived. Rule 43(c)
provides that a “defendant who was initially present at trial,
or who had pleaded guilty or nolo contendere, waives the
right to be present . . . in a noncapital case, when the
defendant is voluntarily absent during sentencing.” Thus,
under Rule 43, so long as the defendant’s absence is
“voluntary,” the district court may proceed with trial and
sentencing in absentia. See Fed. R. Crim. P. 43(c)(1)(B); see
also Crosby v. United States, 506 U.S. 255, 258 (1993).

    We have never addressed the standard of review in an
appeal challenging a sentencing in absentia. But we see no
reason—and Ornelas has presented none—for departing from
the standard established in cases concerning trials conducted
in absentia. In the trial context, we review district court
decisions for abuse of discretion. See United States v.
Marotta, 518 F.2d 681, 684 (9th Cir. 1975) (reviewing a trial
conducted in absentia for abuse of discretion); see also
United States v. Wallingford, 82 F.3d 278, 280 (8th Cir.
1996) (same); United States v. Guyon, 27 F.3d 723, 727 (1st
Cir. 1994) (same); United States v. Camacho, 955 F.2d 950,
8                UNITED STATES V. ORNELAS

953 (4th Cir. 1992) (same); United States v. Sanchez,
790 F.2d 245, 250 (2d Cir. 1986) (same). Accordingly, we
review the district court’s sentencing decision here under the
same abuse of discretion standard. In addition, the district
court’s factual determination that the defendant was
“voluntarily absent” from the proceedings is reviewed for
clear error. See United States v. Houtchens, 926 F.2d 824,
827 (9th Cir. 1991).

    Applying this rule, we assume for purposes of this
opinion that due process and Rule 43 are coextensive, and
analyze whether the district court abused its discretion—and
thus violated Rule 43—when it sentenced Ornelas in absentia.
It did not. The court made a fact finding that Ornelas had
“absented himself” from the proceedings, which is a finding
of voluntary absence required by Rule 43. That finding is
supported by the record. As explained above, Ornelas had
appeared at multiple hearings (at least four) prior to the
sentencing and acknowledged that his presence was required
at the sentencing hearing. In addition, he had ample motive
to flee once drugs were found in his home because he likely
knew his bail would be revoked. By contrast, Ornelas’s
counsel put forward no evidence or explanation for his
absence. On appeal, counsel argues that the absence might be
explained by Ornelas’s history of substance abuse or mental
illness,1 but that was never mentioned to the court at
sentencing. Taken together, the facts in the record support
both the district court’s determination that Ornelas was
voluntarily absent from the hearing and its decision to
proceed with sentencing. And because Ornelas concedes that
due process provides only the protections of Rule 43 and no

  1
    Ornelas was a heavy user of methamphetamine, and was attending
mental health classes as a result of the death of his mother.
                UNITED STATES V. ORNELAS                     9

more, the district court’s actions likewise did not violate
Ornelas’s constitutional rights.

    Ornelas urges we adopt a stricter standard, pointing to the
Seventh Circuit’s decision in United States v. Achbani, 507
F.3d 598, 601 (7th Cir. 2007). In that case, the court agreed
that Rule 43 permits the court to proceed in the defendant’s
absence if he is “voluntarily absent” after the proceedings
have commenced. But the court further observed that district
courts “must explore on the record any ‘serious questions’
raised about whether the defendant’s absence was knowing
and voluntary.” 507 F.3d at 601–02 (quoting United States v.
Watkins, 983 F.2d 1413, 1419 (7th Cir. 1993)). It also
explained that this duty “varies to the extent that defense
counsel suggests circumstances that raise a plausible doubt
that the defendant’s absence was voluntary.” Id. at 602.
Relying on this language, Ornelas claims his history of drug
abuse and ADHD in the record make it “plausible” his
absence was involuntary, triggering a requirement for the
district court—sua sponte—to explore and confirm the
reasons for his absence. But none of these explanations were
pointed out by defense counsel, and in light of Ornelas’s
attendance at other court proceedings, the sentencing court
had no reason to inquire further. So even under the Achbani
standard, the district court did not err.

    Second, to the extent the Seventh Circuit’s standard
places the onus on the government or the district court to
present evidence of voluntariness, this reverses the
appropriate burden of proof. Under Rule 43, Ornelas,
through counsel, was required to provide some evidence that
his absence was involuntary. Only then could the district
court be expected to explore whether that evidence supported
postponing sentencing. Because Ornelas presented no
10                 UNITED STATES V. ORNELAS

evidence, the district court did not abuse its discretion by
sentencing him in absentia.

    Finally, Ornelas contends the district court’s sentencing
decision violated Federal Rule of Criminal Procedure 32,
which requires the district court to “verify that the defendant
and the defendant’s attorney have read and discussed the
presentence report and any addendum to the report.” Fed. R.
Crim. P. 32(i)(1)(A). By sentencing him before this
discussion could take place, Ornelas argues, the district court
acted unlawfully.2 But Rule 43’s provisions regarding
sentencing in absentia would have almost no effect if Rule
32’s requirements did not yield in appropriate circumstances.
As the court put it in United States v. Jordan, 216 F.3d 1248,
1250 (11th Cir. 2000), “[w]hen a district court makes a
finding that a defendant has not only fled but is also
voluntarily absent from sentencing and has thus waived his
right to be present at sentencing, the defendant has also
waived his right [under Rule 32 to review the presentence
report]. Otherwise, Rule 43 would be largely useless.”
Indeed, a defendant could “delay his sentencing indefinitely
by his own misconduct.” Id. at 1251.

     The district court did not err in this case.




 2
  It is not clear whether Ornelas alleges this violation—like the supposed
violation of Rule 43—deprived him of his due process rights under the
Constitution. Without some constitutional claim, the exception to the
general rule applying appeal waivers would not apply. Nonetheless, for
completeness we consider the argument.
              UNITED STATES V. ORNELAS              11

                   CONCLUSION

    The sentence imposed by the district court was not
unlawful. We apply the valid appeal waiver contained in
Ornelas’s plea agreement and DISMISS this appeal.
