United States v. Maria Guadalupe Devalle

Summary

The Fifth Circuit held that a defendant's voluntary fugitive status, even if she is recaptured before the dismissal motion is filed, permits the appellate court to dismiss the appeal from the conviction. However, sentencing in absentia for a felony violates Fed. R. Crim. P. 43, and the sentences must be vacated and remanded for resentencing in the defendant's presence. The court also ruled that charges of transporting and harboring the same alien under 8 U.S.C. § 1324(a)(1)(B) and (C) are not multiplicious when based on distinct conduct at separate times and places.

Holdings

1. The court has authority to dismiss the appeal as to the convictions but not as to the sentences. The court exercises its discretion to dismiss the conviction appeal but not the sentence appeal.
2. The district court erred in sentencing DeValle in absentia. The sentencing is vacated and the case is remanded for resentencing in her presence.
3. The counts are not multiplicious because they involve separate and distinct conduct: transporting from Brownsville to Houston and harboring in a Houston apartment. They are separate offenses under different subsections of 8 U.S.C. § 1324(a)(1).

Questions Presented

1. Whether the appellate court has authority to dismiss the appeal because the defendant became a fugitive from justice after conviction but before appeal.
2. Whether the district court erred in sentencing the defendant in absentia in violation of Rule 43.
3. Whether the substantive counts of transporting and harboring an alien are multiplicious and cannot support separate sentences.

Disposition

vacated