United States Court of Appeals For the First Circuit

No. 21-1597

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ ANTONIO RIVERA-NAZARIO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Gelpí, Howard, and Thompson, Circuit Judges.

Jackson Whetsel, with whom Eric Alexander Vos, Federal Public Defender, Franco L. Pérez-Redondo, Assistant Federal Public Defender, and Héctor L. Ramos-Vega, First Assistant Federal Defender, were on brief, for appellant. Francisco A. Besosa-Martínez, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, and Gregory B. Conner, Assistant United States Attorney, were on brief, for appellee.

May 8, 2023 GELPÍ, Circuit Judge. While this court has often

recognized the importance of a defendant's right to be present in

court, this right is not absolute. Appellant Rivera-Nazario

challenges his thirty-month sentence after the district court

sentenced him in absentia (i.e., without him present). He contends

that the district court erred in finding him voluntarily absent

and in applying an obstruction of justice sentencing enhancement.

Given his numerous violations of release conditions and

abscondence, we affirm the district court's decision.

I. Facts

We first rehearse the facts of the case, which we draw

from the unchallenged portions of the Presentence Investigation

Report ("PSR") and the sentencing hearing since this "sentencing

appeal follows a guilty plea." United States v. Valle-Colón,

(1st Cir. 2021) (quoting United States v. Miranda-

Díaz,

(1st Cir. 2019)).

On October 1, 2019, Appellant José Antonio Rivera-

Nazario was observed sitting in the staircase of a public housing

facility in Bayamón, Puerto Rico, with a shoebox on his lap. Upon

seeing a plain clothes agent (a Puerto Rico police officer assigned

to the U.S. Marshals Service) approach, he dropped the box and

ran, but was subsequently apprehended. From the items that fell

out of the shoebox, the agent recovered 124 plastic items of

marijuana; 47 plastic baggies of cocaine; 50 plastic vials of

- 2 - cocaine; 49 foiled decks of heroin; $142.40 in U.S. currency; and

a cell phone. He was arrested and detained following an initial

appearance before a magistrate judge. On October 7, 2019, he was

released on a $10,000 unsecured bond, with pretrial supervision,

and ordered to work, reside with his consensual partner, who was

designated as his third-party custodian, and comply with standard

conditions of release, including that he not use or unlawfully

possess a narcotic drug or other controlled substances.

Rivera-Nazario was subsequently indicted by a grand

jury, which charged him with the following four counts: knowingly

and intentionally possessing with the intent to distribute a

mixture or substance containing heroin (Count I), cocaine (Count

II), cocaine base (Count III), and marihuana (Count IV), all in

violation of

(a)(1) and 860(a). He initially

pleaded not guilty; but, on March 4, 2020, he appeared before a

magistrate judge who conducted Rule 11 proceedings and took his

straight guilty plea which was later accepted by the district

judge. From then on, Rivera-Nazario, who remained under conditions

of release, engaged in an escalating series of violations of his

release conditions.

As outlined, Rivera-Nazario was required to abstain from

using controlled substances and also to respond to home visits,

answer randomly-placed phone calls, and attend in person

appointments, all with the United States Office of Probation and

- 3 - Pretrial Services. However, on April 22, 2020, the probation

officer assigned to him reported to the district court that Rivera-

Nazario had violated his release conditions by testing positive

for marijuana, after denying use of controlled substances.

Moreover, he failed to be present when the probation officer

conducted a home visit, failed to report to the probation office

for appointments, and repeatedly skirted supervision phone calls,

excusing his inability to pick up with pretexts such as that he

was "in the bathroom," the call was placed at an "unacceptable

time," "he did not have signal," and he "had left his charger"

behind. Consequently, the probation officer requested that the

district court modify Rivera-Nazario's release conditions to home

detention and location monitoring via an electronic monitoring

device, which permitted him to leave home only upon approval by

the probation officers and only for certain reasons (e.g.,

employment, education, and medical). The district court granted

the modification.

On August 12, 2020, the probation officer again reported

numerous violations of the modified release conditions, including

that Rivera-Nazario admitted illegal use of controlled substances,

repeatedly left his residence without authorization throughout

mid-July to early-August, and, on July 17, 2020, admitted that he

went to a friend's house to play video games without prior

approval, and failed to return home. After "verbally

- 4 - reprimand[ing]" Rivera-Nazario, the probation officer requested

yet another modification to his release conditions; this time,

home incarceration. The district court again granted this request.

On August 27, 2020, following the death of his mother

the month prior, Rivera-Nazario requested a thirty-day

modification to his release conditions to an open schedule on

weekdays from 8:00 A.M. to 4:00 P.M. to tie up his mother's affairs

at various government agencies. He volunteered to surrender

following the thirty-day period. But, the next day, before the

district court could issue a decision, the probation officer filed

yet another request for a modification. The probation officer

noted that Rivera-Nazario repeatedly left his residence without

authorization -- on August 15, 16, 17, 19, 20, 21, 22, 23, 25, and

27 -- and refused to respond to phone calls, video calls, and/or

text messages. The probation officer then requested a warrant for

his arrest.

Before an arrest warrant was issued, however, on

September 2, 2020, the probation officer informed the district

court that Rivera-Nazario had left his residence without

authorization on August 29, 30, and 31, and that on September 1,

2020, Rivera-Nazario collected his belongings from his third-party

custodian's residence (his partner) and absconded (i.e., left the

residence where he was required to be). The probation officer

- 5 - again requested an arrest warrant, which the district court granted

while denying Rivera-Nazario's August 27, 2020, request.

Approximately ten months later, on July 14, 2021, while

Rivera-Nazario was still at-large,1 the district court judge,

citing Federal Rule of Criminal Procedure 43, issued a scheduling

order setting Rivera-Nazario's sentencing hearing to be held in

absentia one week later, on July 21, 2021. By then, the probation

officer had prepared a PSR and calculated Rivera-Nazario's federal

sentencing guidelines range, which concluded that the base offense

level was 18 and factored in a 3-level decrease since Rivera-

Nazario accepted responsibility, amounting to a total offense

level of 15. Combined with a criminal history Category of I, his

guideline sentencing range was 18-24 months.

Rivera-Nazario did not appear at his sentencing hearing.

His new counsel2 informed the district court that he had been

unable to reach him and, that even though he thought the court

"would ultimately be allowed to proceed because . . . the finding

of voluntariness [is] perhaps justified in this case," out of an

1 We note that the record is unclear as to what exactly happened with the electronic monitoring device the district court ordered on April 23, 2020 to track Rivera-Nazario's location. 2 In June 2021, a month before Rivera-Nazario's sentencing hearing would take place, he was assigned new counsel from the Federal Public Defender's office as his original attorney, who handled the Rule 11 proceedings, left the Defender's office, necessitating the substitute.

- 6 - "abundance of caution," requested the hearing be postponed for

thirty days to determine whether Rivera-Nazario "really is

voluntarily absent." By then, the arrest warrant had been

outstanding for ten months. The district court judge then

requested, during the hearing, an update from the U.S. Marshal's

Office on efforts to locate Rivera-Nazario, and, in an email to

the courtroom deputy, the Marshal's relayed that Rivera-Nazario

continued to visit his partner, and the Marshals expected to detain

him upon further surveillance. The judge provided that update to

counsel in a sealed sidebar conference.3

The district court proceeded to hear from both parties

on the issue of voluntary absence and ultimately held that,

pursuant to Rule 43(c)(1)(B), the sentencing hearing would be held

that day in absentia. The government relayed that Rivera-Nazario

had not complied with release conditions beginning in April 2020,

that the probation officer tried to help him comply by moving for

more restrictive conditions and reminding him about his

obligations (when he did respond), but that he continued to ignore

phone calls and was "nowhere to be found" in August 2020. Citing

the government's "detailed summary," the motions filed by the

probation officer, and the "fact that [Rivera-Nazario],

This part of the district court record was sealed because 3

at the time of the hearing, the U.S. Marshals had not yet apprehended Rivera-Nazario and the judge did not want to thwart efforts to locate him.

- 7 - throughout" was "advised and re[-]admonished by probation as to

the importance of compliance and letting his whereabouts be known,

was assisted by counsel," knew that "sentencing proceedings

remained pending," and "chooses where he goes and what he does,

and of course [] has not chosen to contact counsel or Pretrial

Services and present himself to the Court or surrender," the

district court found that Rivera-Nazario was voluntarily absent.

The district court proceeded to sentencing. It

calculated an initial adjusted base offense level of 18, reduced

it by 3 since he accepted responsibility, and added 2 additional

points for obstruction of justice citing U.S.S.G. §3C1.1 because

"[Rivera-Nazario] attempted to flee, and . . . he has voluntarily

absconded while . . . pending sentenc[ing], and has remained

absconded during the past ten months." Based on a total offense

level of 17 and a criminal history Category of I, the guideline

imprisonment range was 24 to 30 months, a fine range of $10,000 to

$95,000, and supervised release of at least six years for Count I,

II, and III and four years for Count IV -- a higher sentencing

range than the 18 to 24 months proposed by the PSR, which did not

consider the obstruction of justice adjustment. After discussing

the

(a) sentencing factors -- including Rivera-

Nazario's upbringing, education level, physical and mental health,

history of drug use, and the nature of the offense (namely, that

the facts indicated that he was on a drug selling shift when he

- 8 - was apprehended) -- the district court imposed a 30-month sentence

for Count I, II, III, and IV, to run concurrently.

Defense counsel objected to holding the hearing in

absentia, the finding of voluntary absence, and the imposition of

the obstruction of justice enhancement based on an objection to

the willfulness finding. This timely appeal followed.

II. Discussion

On appeal, Rivera-Nazario contends that the district

court erred in (1) finding that he was voluntarily absent from his

sentencing hearing and (2) in applying an obstruction of justice

enhancement. We discern no error in either determination and

affirm.

A. In Absentia

We begin with Rivera-Nazario's voluntary absence

argument. He argues that the district court clearly erred in

finding that he was voluntarily absent from his sentencing hearing

because, before making such a finding, it should have granted a

continuance and required additional information. That clearly

erroneous fact-finding, he contends, amounted to an abuse of

discretion. We conclude that the district court was aware of

sufficient facts to draw a reasonable inference that Rivera-

Nazario was voluntarily absent.

Our circuit has not yet addressed the standard of review

in an appeal challenging a sentencing in absentia, but we see no

- 9 - reason why we might depart from the abuse of discretion standard

established in cases of sentencing error, see United States v.

Ríos-Rivera,

(1st Cir. 2019), and regarding trials

conducted in absentia, see United States v. Guyon,

(1st Cir. 1994) (reviewing a district court's decision to

proceed with trial after it had commenced for abuse of discretion).

Accordingly, we apply the abuse of discretion standard and

"evaluate [the district court's] fact-finding for clear error."

Ríos-Rivera,

; see also United States v. Ornelas,

(9th Cir. 2016). "Clear-error review is

demanding: this standard will be satisfied only if, upon whole-

record-review, an inquiring court forms a strong, unyielding

belief that a mistake has been made." United States v. Nuñez,

(1st Cir. 2017) (cleaned up). As long as the district

court's decision is based on reasonable inferences drawn from

adequately supported facts, we will not find clear error. United

States v. Brown,

(1st Cir. 2022).

Rule 43 of the Federal Rules of Criminal Procedure

requires that a defendant be present at every stage of trial.

However, this right can be waived. Section (c) of the same permits

a court to sentence a defendant in absentia "in a noncapital case,

when the defendant is voluntarily absent during sentencing."

Fed. R. Crim. P. 43(c)(1)(B); see also Crosby v. United States,

- 10 -

(1993).4 As already outlined, the district court

found Rivera-Nazario voluntarily absent given his numerous

violations of release conditions, the fact that he was informed of

the importance of compliance with these conditions, and the fact

that he knew that sentencing proceedings remained pending.

The record supports the district court's finding since

it reveals a growing number of pretrial violations in the lead up

to Rivera-Nazario's sentencing hearing, which in this context

support a reasonable inference of voluntary absence. See United

States v. Watkins,

(6th Cir. 2004) (holding

that district court did not clearly err in finding voluntary

absence from sentencing where the record supported a "pattern of

evasion from legal supervision and [the defendant's] decision to

remain at-large on an outstanding arrest warrant for [several]

months"). According to the terms of his release conditions,

Rivera-Nazario was required to report to the probation officer

regularly, submit to random drug testing, reside with his third-

party custodian, and refrain from using controlled substances.

Yet he failed to comply with each of these conditions, and instead,

as evident by the facts we have already outlined and need not

rehash, developed a pattern of evading legal supervision, and

4 Rivera-Nazario makes no argument that his sentencing in absentia was unconstitutional, so we need not address that argument or the constitutional dimension of his presence at sentencing.

- 11 - eventually arrest. Significantly, he failed to report to the

probation officer not once, not twice, but on dozens of occasions

throughout the spring and summer of 2020.

As evidenced by the record, the probation officer tried

to help him comply by requesting an escalating set of

modifications -- from location monitoring to the eventual arrest

warrant -- with the district court, but this did not produce

results. For months, Rivera-Nazario continued to evade the

probation officer's phone calls and, in July and August, was

essentially nowhere to be found until he eventually collected his

belongings from his third-party custodian's home and absconded,

knowing full well the conditions of his release, the importance of

reporting to the probation officer (given that the officer made

this known to him), and that a sentencing hearing was on the

horizon. He remained at-large not only for the ten months that

transpired from the date of the arrest warrant to his sentencing

hearing, but well after the sentencing hearing, until he was

finally apprehended. Thus, given the numerous violations of

supervision and release conditions leading up to the sentencing

hearing, and despite repeat admonishment from the probation

office, it was not clearly erroneous for the district court to

draw the reasonable inference that he was voluntarily absent when

he failed to appear at sentencing. Indeed, Rivera-Nazario had

- 12 - collected his belongings from his partner's home and had not

reported to the Probation Office in nearly one year.

Rivera-Nazario makes several unpersuasive arguments. He

suggests that certain circumstances -- such as his appearance at

all scheduled proceedings with the district court prior to his

sentencing hearing, his request for a modification to his release

conditions in exchange for his voluntary surrender, and his facing

a relatively lenient sentence since he was a "first-time offender

with no history of violence" -- might counsel against a finding of

voluntary absence. But when we take these circumstances together

with his long record of violations, the argument is futile.

Rivera-Nazario had a choice as to whether to comply with his

release conditions and he again and again voluntarily chose not

to. A district court thus could infer that the next choice (not

appearing at sentencing) in a series of repeat violations was a

voluntary one. See Ornelas,

(reasoning that

voluntary absence finding was supported by the record where the

defendant "had appeared at multiple hearings (at least four) prior

to the sentencing and acknowledged that his presence was required

at the sentencing hearing," but then failed to appear).

We re-emphasize that "[c]lear-error review is

demanding," Nuñez,

, and when these facts are taken

together with Rivera-Nazario's undisputed track record of ignoring

court-imposed release conditions (in particular his leaving his

- 13 - third-party custodian's home), while being advised by counsel, we

cannot say that the district court committed clear error. Indeed,

his failure to provide an explanation, even on appeal, as to his

absence at sentencing is concerning. Thus, based on our review of

the entire record, we simply are not left with "a strong,

unyielding belief that a mistake has been made."

(quoting

United States v. Cintrón–Echautegui,

(1st Cir.

2010)).

Rivera-Nazario suggests that the district court should

have conducted a more searching inquiry into his absence. More

specifically, he contends that we should adopt the approach taken

by the Seventh Circuit in United States v. Achbani, where the court

advised that "the district court must explore on the record any

'serious questions' raised about whether the defendant's absence

was knowing and voluntary."

(7th Cir. 2007).

Further investigation was necessary, he argues, given that he was

"struggling with unemployment," a "substance-use disorder[,] and

the death of his mother," all during the COVID-19 pandemic. But

even if we followed the Seventh Circuit's approach in Achbani,

Rivera-Nazario would still come up short. There, the court made

clear that "the district court's duty to explore" any "serious

questions raised about whether the defendant's absence was knowing

and voluntary" depends upon whether "defense counsel suggests

circumstances that raise a plausible doubt that the defendant's

- 14 - absence was voluntary."

(cleaned up and collecting cases

assessing a defendant's voluntary absence from trial). Here,

however, defense counsel did not raise any explanation whatsoever

as to Rivera-Nazario's absence. To the contrary, counsel conceded

that he thought the court "would ultimately be allowed to proceed,

because [he thought] the finding of voluntariness [is] perhaps

justified in this case," and then asked for a continuance to assess

what efforts, if any, had been taken to locate him and if "he

really is voluntarily absent." Thus, the district court did not

clearly err when it found Rivera-Nazario voluntarily absent

without inquiring further into the reasons behind his absence.

See Ornelas,

(finding no error where defense

counsel failed to raise below any of the explanations pressed on

appeal for defendant's absence, so "the sentencing court had no

reason to inquire further").

Accordingly, we affirm the district court's finding of

voluntary absence, as there was no clear error. Because Rivera-

Nazario offers no other basis to challenge his sentencing, we also

conclude that the district court did not abuse its discretion in

holding his sentencing hearing in absentia.

B. Obstruction of Justice Enhancement

We next turn to the district court's imposition of a

two-level sentencing enhancement for obstruction of justice.

Rivera-Nazario argues that the district court erred in applying

- 15 - the enhancement under U.S.S.G. §3C1.1 because the district court

failed to give counsel advance notice of its intent to apply it as

required by Rule 32 of the Federal Rules of Criminal Procedure and

because the government failed to meet its burden of proving that

Rivera-Nazario 1) acted "willfully" in not appearing at the

hearing and 2) had the specific intent to obstruct justice.

Fed. R. Crim. P. 32.

We review for clear error any of the district court's

fact-finding that Rivera-Nazario willfully obstructed justice with

respect to his sentencing and review de novo its interpretation

and application of the obstruction of justice enhancement. See

United States v. Nygren,

(1st Cir. 2019).

We first dispose of the advance notice argument. We

have held that advance notice is not required where "a court

decides that an upward adjustment is warranted based on offense or

offender characteristics delineated within the Sentencing

Guidelines themselves, at least where the facts relevant to the

adjustment are already known to defendant" since "the [G]uidelines

themselves provide notice to the defendant of the issues about

which he may be called upon to comment." United States v. Canada,

(1st Cir. 1992) (emphasis omitted); see also

United States v. Plasencia,

(11th Cir. 2018)

("[W]hen, as here, the circumstances afford a defendant notice

that he engaged in conduct that may result in the application of

- 16 - a Guidelines enhancement, the court need not provide additional

notice of its intention to apply the enhancement sua sponte -- the

Guidelines themselves provide adequate notice."). While the

district court's intent to impose the enhancement was not expressly

communicated to Rivera-Nazario, the underlying facts relevant to

obstruction of justice were well-known to him given that he was

aware of his numerous violations of release conditions, had been

counseled on these violations, and was warned about them by the

probation officer. In fact, counsel had advance warning that the

district court would sentence Rivera-Nazario in absentia should he

fail to appear because the scheduling order setting the sentencing

date indicated as much. Thus, because Rivera-Nazario was aware of

the factual predicate underlying the enhancement, the district

court did not err in not providing advance notice.

Rivera-Nazario also argues that without notice of the

enhancement or a continuance, he suffered prejudice because his

counsel lacked the opportunity to conduct research on the

enhancement and to argue that there was insufficient evidence to

find willful obstruction of justice -- an opportunity that was

required under Rule 32(i)(1)(c), which provides that courts "must

allow the parties' attorneys to comment on the probation officer's

determinations and other matters relating to an appropriate

sentence." Fed. R. Crim. P. 32(i)(1)(c). But we see no prejudice

since, as discussed, his attorney knew of the possibility of

- 17 - sentencing in absentia, given the language in the district court's

scheduling order, and Rivera-Nazario was aware of the facts

underlying the enhancement.

Having determined that advance notice was not required,

we turn to the substance of Rivera-Nazario's claim. He argues

that the district court erred in applying the two-level enhancement

because the government failed to show that he acted "willfully" in

failing to appear.

Section 3C1.1 of the Sentencing Guidelines mandates a

two-level enhancement "if (1) the defendant willfully obstructed

or impeded, or attempted to obstruct or impede, the administration

of justice with respect to the investigation, prosecution, or

sentencing of the instant offense of conviction." U.S.S.G. §3C1.1.

According to Application Note 4(E) of §3C1.1, one such way a

defendant can obstruct justice is by "willfully failing to appear,

as ordered, for a judicial proceeding."

Without more, Rivera-Nazario argues that because the

government has failed to establish voluntary absence, it a fortiori

failed to demonstrate willful conduct. But, for the same reasons

the record supports the district court's finding of voluntary

absence, the record also supports the two-level enhancement.5 See

5 We are careful to note that, although a finding of willfulness is appropriate here, a finding of voluntary absence does not automatically trigger a finding of willfulness when considering an obstruction of justice enhancement.

- 18 - Watkins,

(holding that for the same reasons a

finding of voluntary absence was not clearly erroneous, a finding

of willfulness was not either). Rivera-Nazario violated dozens of

release conditions, failed to appear at his sentencing hearing,

left his third-party custodian's home without the permission of

pretrial services, and remained at-large for over ten months.

Everything about these circumstances suggests willfulness. "A

criminal defendant who evades authorities and fails to appear for

a sentencing hearing has obstructed justice; and '[t]o hold

otherwise would condone direct disobedience of a court's

conditional release order.'" Fuller v. United States,

(7th Cir. 2005) (quoting United States v. Williams,

(10th Cir. 2004)). Thus, the district court did not

err in applying the enhancement.

Finally, Rivera-Nazario re-invites us to address whether

district courts must make a particularized finding that a defendant

had a specific intent to obstruct justice to impose a §3C1.1

enhancement. We decline to address this question as the record,

as elucidated above, supports the enhancement. See United States

v. Hall,

(1st Cir. 2006) (declining to address

whether particularized finding of specific intent to obstruct

justice is required where "evidence clearly supports the district

court's ultimate" obstruction of justice finding).

For the foregoing reasons, the sentence is affirmed.

- 19 -