
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 95-1824                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                             RIGOBERTO LANTIGUA-BONILLA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________               Peter John Porrata for appellant.               __________________               Epifanio  Morales-Cruz,  Assistant  United States  Attorney,               ______________________          with whom  Guillermo Gil,  United  States Attorney,  and Jose  A.                     _____________                                 ________          Quiles  Espinosa, Senior  Litigation Counsel,  were on  brief for          ________________          appellee.                                 ____________________                                     May 20, 1996                                 ___________________               Per Curiam.  Defendant-appellant  Rigoberto Lantigua-Bonilla               __________          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,                    ___ ________________    _____________          1203  (1993); Molinaro v. New Jersey, 396 U.S. 365, 365-66 (1970)                        ________    __________          (per  curiam); United States v. Puzzanghera, 820 F.2d 25, 26 (1st           ___  ______   _____________    ___________          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.                                         -2-               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-                                                                ___ _______          Rodriguez, 113 S.  Ct. at 1209  (appellate sanction of  dismissal          _________          justified only if  there is a "connection between  fugitivity and          the  appellate process"); United States v. Anagnos, 853 F.2d 1, 2                                    _____________    _______          (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),          ___________                           ________          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                                 ___          avoid further custody.               Accordingly, this appeal is dismissed.                                           _________                                         -3-
