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Fifth Circuit: “Fugitive from Justice” Enhancement Requires Intent to Avoid Prosecution

by Dale Chappell

The government must show that a defendant had the “express intent” in fleeing to avoid prosecution to prove he was a “prohibited person” under the “fugitive from justice” definition with respect to owning a semiautomatic firearm capable of accepting high capacity magazines, the United States Court of Appeals for the Fifth Circuit ruled on October 31, 2017.

Darrin Soza was found guilty of possessing an AK-47 with an obliterated serial number. At sentencing, the government argued that Soza was a “prohibited person” under U.S.S.G. § 2K2.1(a)(4)(B), which applies a base offense level of 20. Under the sentencing guidelines, there are two relevant definitions of prohibited person: (1) a person who has been convicted in any court of a crime punishable by imprisonment and (2) as per 18 U.S.C. § 922(g), a person “who is a fugitive from justice.”  

The government argued that Soza was a fugitive from justice because he had an outstanding warrant for a violation of his probation from a prior driving while intoxicated conviction. The government attached a copy of the arrest warrant to the presentence report as evidence, which Soza contested was insufficient to show he was a fugitive from justice. The sentencing court overruled his objection, and without citing which definition it relied upon, applied the higher base offense level under the guidelines for a prohibited person, sentencing him to the statutory maximum five years in prison.

On appeal, one of the arguments Soza raised was that the government’s evidence did not prove he was a fugitive from justice and therefore was not a prohibited person to allow the higher guidelines offense level. The government conceded that only the fugitive from justice definition could apply to Soza.

The Court of Appeals explained that “The term ‘fugitive from justice’ means any person who has fled from any State to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding.” Soza argued that intent is a necessary element of being a fugitive from justice. The government disagreed.

The Court noted that the issue of whether a fugitive from justice must have intent to either avoid prosecution or at least knowledge that charges were pending against him to qualify as a fugitive from justice is an issue of first impression in the Fifth Circuit. It observed that the circuits are split on the issue, with Ninth and Eleventh Circuits holding that intent to avoid prosecution is necessary and Fourth and Seventh Circuits holding that knowledge of pending charges is required.

The Fifth Circuit joined the Ninth and Eleventh Circuits in concluding that fleeing with the intent to avoid prosecution or giving testimony is required. It explained that § 921 defines a fugitive from justice as “any person who has fled from any State to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding.” A literal reading of the definition establishes that express intent to avoid prosecution or testimony is necessary.

Applying the newly announced rule of law to the facts in this case, the Court concluded that the government failed to prove the necessary intent for classifying Soza as a fugitive from justice. While the warrant called for Soza’s arrest, “the bare fact that a warrant had been issued does not itself explain why [Soza] fled,” the Court reasoned. “It cannot be inferred that he left—fled—for the purpose of avoiding prosecution.”

Accordingly, the Fifth Circuit vacated Soza’s sentence and remanded the case for resentencing.

See: United States v. Soza, 874 F.3d 884 (5th Cir. 2017). 

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