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NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES -------- No. 91-7749 -------- JOSE ANTONIO ORTEGA-RODRIGUEZ, PETITIONER v. UNITED STATES ____ ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT [March 8, 1993] JUSTICE STEVENS delivered the opinion of the Court. In United States v. Holmes, 680 F. 2d 1372, 1373 (1982), cert. denied, 460 _____________ ______ U. S. 1015 (1983), the Court of Appeals for the Eleventh Circuit held that "a defendant who flees after conviction, but before sentencing, waives his right to appeal from the conviction unless he can establish that his absence was due to matters completely beyond his control." Relying on that authority, and without further explanation, the court dismissed petitioner's appeal. (Ftnote. 1) Because we have not previously considered whether a (Ftnote. 1) defendant may be deemed to forfeit his right to appeal by fleeing while his case is pending in the district court, though he is recaptured before sentencing and appeal, we granted certiorari. 504 U. S. ___ (1992). I In the early evening of November 7, 1988, a Customs ____________________ 1) The Court of Appeals order merely stated that the Government's "motion 1) to dismiss is GRANTED," without actually citing Holmes. App. 78. Because the ______ Government's motion to dismiss, id., at 68-71, relied entirely on Holmes and on ___ ______ United States v. London, 723 F. 2d 1538 (CA 11), cert. denied, 467 U. S. 1228_____________ ______ (1984), which followed Holmes, we construe the Court of Appeals order as a ______ routine application of the Holmes rule. ______ 91-7749 - OPINION 2 ORTEGA-RODRIGUEZ v. UNITED STATES ____ Service pilot was patrolling the Cay Sal Bank area, located midway between Cuba and the Florida Keys. Approximately 30 miles southwest of Cay Sal, the pilot observed a low-flying aircraft circling over a white boat and dropping bales. The boat, described by the pilot as 40 to 50 feet in length, was circling with the plane and retrieving the bales from the water as they dropped. Because the Customs Service plane was flying at an altitude of 2,500 feet, and visibility was less than optimal, the pilot was unable to identify the name of the boat. United States v. Mieres-Borges, 919 F. 2d 652, 654-655 (CA11 1990), cert._____________ _____________ denied, 499 U. S. ___ (1991); Report and Recommendation in United States v. _____________ Ortega-Rodriguez, No. 88-10035-CR-KING (SD Fla., Feb. 23, 1989).________________ The following morning, another Customs Service pilot found the Wilfred, a boat _______ resembling the one spotted approximately 12 hours earlier. This boat, located just off the beach of Cay Sal, was described as a 30- to 40-foot sport-fishing vessel. Upon making this discovery, the pilot first flew to the drop point identified the night before, 30 miles away, and found no activity. Returning to Cay Sal, he found a number of bales stacked on the beach, and the Wilfred _______ underway and headed toward Cuba. The pilot alerted the captain of a Coast Guard cutter, who intercepted, boarded, and searched the Wilfred. He found no narcotics, weapons, or other incriminating evidence on the boat. Nevertheless, the three members of the crew failed to convince the Coast Guard that they were fishing for dolphin, although a large number of similar vessels frequently do so in the area. Mieres-Borges, _____________ 919 F. 2d, at 655-657, 659-660. Petitioner is one of the three crew members arrested, tried, and convicted of possession with intent to distribute, and conspiring to possess with intent to distribute, over five kilograms of cocaine. After the trial, the District Court set June 15, 1989, as the date for sentencing. Petitioner did not appear and was sentenced in absentia ___________ 91-7749 - OPINION ORTEGA-RODRIGUEZ v. UNITED STATES 3 ____ to a prison term of 19 years and 7 months, to be followed by 5 years of supervised release. (Ftnote. 2) Though petitioner's codefendants appealed their (Ftnote. 2) convictions and sentences, no appeal from the judgment was filed on petitioner's behalf. The District Court issued a warrant for petitioner's arrest, and 11 months later, on May 24, 1990, he was apprehended. Petitioner was indicted and found guilty of contempt of court (Ftnote. 3) and failure to (Ftnote. 3) appear. (Ftnote. 4) Pursuant to (Ftnote. 4) ____________________ 2) No. 88-10035-CR-KING (SD Fla., June 23, 1989). 2) 3) Title 18 U. S. C. S401(3) provides: "A court of the United States shall 3) have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as . . . [d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command." 4) Title 18 U. S. C. S3146 provides, in relevant part: 4) "(a) OFFENSE. - Whoever, having been released under this chapter knowingly - "(1) fails to appear before a court as required by the conditions of release; or "(2) fails to surrender for service of sentence pursuant to a court order; shall be punished as provided in subsection (b) of this section. "(b) Punishment. - (1) The punishment for an offense under this section is - "(A) if the person was released in connection with a charge of, or while awaiting sentence, surrender for service of sentence, or appeal or certiorari after conviction for - "(i) an offense punishable by death, life imprisonment, or imprisonment for a term of 15 years or more, a fine under this title or imprisonment for not more than ten years, or both; "(ii) an offense punishable by imprisonment for a term of five years or more, a fine under this title or imprisonment for not more than five years, or both; "(iii) any other felony, a fine under this title or imprisonment for not more than two years, or both; or "(iv) a misdemeanor, a fine under this chapter or imprisonment for not more than one year, or both; and "(B) if the person was released for appearance as a material witness, a fine under this chapter or imprisonment for not more than one year, or both. "(2) A term of imprisonment imposed under this section shall be consecutive to the sentence of imprisonment for any other offense. "(c) AFFIRMATIVE DEFENSE. - It is an affirmative defense to a prosecution under this section that uncontrollable circumstances prevented the person from appearing or surrendering, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender, and that the person appeared or surrendered as soon as such circumstances ceased to exist." 91-7749 - OPINION 4 ORTEGA-RODRIGUEZ v. UNITED STATES ____ the Sentencing Reform Act of 1984, 18 U. S. C. S3551 et seq., the District Court _______ imposed a prison sentence of 21 months, to be served after the completion of the sentence on the cocaine offenses and to be followed by a 3-year term of supervised release. (Ftnote. 5) (Ftnote. 5) While petitioner was under indictment after his arrest, the Court of Appeals disposed of his two codefendants' appeals. The court affirmed one conviction, but reversed the other because the evidence was insufficient to establish guilt beyond a reasonable doubt. (Ftnote. 6) Also after petitioner was taken into (Ftnote. 6) custody, his attorney filed a "motion to vacate sentence and for resentencing," as well as a motion for judgment of acquittal. The District Court denied the latter but granted the former, vacating the judgment previously entered on the cocaine convictions. (Ftnote. 7) The District Court then resentenced petitioner (Ftnote. 7) to a prison term of 15 years and 8 months, to be followed by a 5-year period of supervised release. (Ftnote. 8) Petitioner filed a timely (Ftnote. 8) ____________________ 5) App. 58-63. 5) 6) United States v. Mieres-Borges, 919 F. 2d 652 (CA 11 1990), cert. 6) _____________ _____________ denied, 499 U. S. ___ (1991). The difference in dispositions is explained by a post-arrest statement admitted against only one defendant, 919 F. 2d., at 660-661, though the dissenting judge viewed the evidence as insufficient as to both appealing defendants, id., at 663-664. Petitioner represents that he is ___ situated identically to the codefendant whose conviction was reversed, with nothing in the record that would support a distinction between their cases. The Government does not take issue with that representation, but maintains that the evidence is sufficient to support all three convictions. Brief for United States 28, n. 7. 7) App. 10. 7) 8) Id., at 51-56. 8) ___ 91-7749 - OPINION ORTEGA-RODRIGUEZ v. UNITED STATES 5 ____ appeal from that final judgment. (Ftnote. 9) (Ftnote. 9) On appeal, petitioner argued that the same insufficiency of the evidence rationale underlying reversal of his codefendant's conviction should apply in his case, because precisely the same evidence was admitted against the two defendants. Without addressing the merits of this contention, the Government moved to dismiss the appeal. The Government's motion was based entirely on the fact that petitioner had become a fugitive after his conviction and before his initial sentencing, so that "[u]nder the holding in Holmes, he cannot now ______ challenge his 1989 conviction for conspiracy and possession with intent to distribute cocaine." (Ftnote. 10) In a per curiam order, the Court of Appeals (Ftnote. 10) __________ granted the motion to dismiss. II It has been settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal. The Supreme Court applied this rule for the first time in Smith v. United States, 94 U. S. 97 (1876), to an escaped defendant who re- _____ _____________ mained at large when his petition arose before the Court. Under these circum- stances, the Court explained, there could be no assurance that any judgment it issued would prove enforceable. The Court concluded that it is "clearly within our discretion ____________________ 9) Id., at 57. This sequence of events makes petitioner's case somewhat 9) ___ unusual. Had the District Court denied petitioner's motion for resentencing, petitioner would have been barred by applicable time limits from appealing his initial sentence and judgment. Petitioner was able to file a timely appeal only because the District Court granted his motion to resentence. Entry of the second sentence and judgment, from which petitioner noticed his appeal, is treated as the relevant "sentencing" for purposes of this opinion. We have no occasion here to comment on the propriety of either the District Court's initial decision to sentence in absentia, or its subsequent decision to resentence. __ ________ 10) Id., at 70-71. 10) __ 91-7749 - OPINION 6 ORTEGA-RODRIGUEZ v. UNITED STATES ____ to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render." Ibid. On two subsequent occasions, we gave the same rationale for dismissals_____ based on the fugitive status of defendants while their cases were pending before our Court. Bohanan v. Nebraska, 125 U. S. 692 (1887); Eisler v. United States, _______ ________ ______ _____________ 338 U. S. 189 (1949). (Ftnote. 11) (Ftnote. 11) Enforceability is not, however, the only explanation we have offered for the fugitive dismissal rule. In Molinaro v. New Jersey, 396 U. S. 365, 366 (1970), ________ __________ we identified an additional justification for dismissal of an escaped prisoner's pending appeal: "No persuasive reason exists why this Court should proceed to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction. While such an escape does not strip the case of its character as an adjudicable case or controversy, we believe it disentitles the defendant to call upon the resources of the Court for determination of his claims." As applied by this Court, then, the rule allowing dismissal of fugitives' appeals has rested in part on enforceability concerns, and in part on a "disentitlement" theory that construes a defendant's flight during the pendency of his appeal as tantamount to waiver or abandonment. ____________________ 11) The dissenting Justices in Eisler, noting that the case was not 11) ______ rendered moot by Eisler's escape, believed that the Court should have exercised its discretion to decide the merits in light of the importance of the issue presented. See 338 U. S., at 194 (Murphy, J., dissenting); id., at 195 ___ (Jackson, J., dissenting). In United States v. Sharpe, 470 U. S. 675 (1985), _____________ ______ despite the respondent's fugitive status, the Court declined to remand the case to the Court of Appeals with directions to dismiss, and proceeded to decide the merits. Id., at 681, n. 2. See also id., at 688 (BLACKMUN, J., concurring); ___ ___ id., at 721-723 (STEVENS, J., dissenting).___ 91-7749 - OPINION ORTEGA-RODRIGUEZ v. UNITED STATES 7 ____ That ensuring enforceability is not the sole rationale for fugitive dismissals is also evident from our review of state provisions regarding escaped prisoners' pending appeals. In Allen v. Georgia, 166 U. S. 138 (1897), we upheld not only _____ _______ a state court's dismissal of a fugitive's appeal, but also its refusal to reinstate the appeal after the defendant's recapture, when enforceability would no longer be at issue. We followed Allen in Estelle v. Dorrough, 420 U. S. 534 _____ _______ ________ (1975), upholding the constitutionality of a Texas statute providing for automatic appellate dismissal when a defendant escapes during the pendency of his appeal, unless the defendant voluntarily returns within 10 days. Although the defendant in Estelle had been recaptured before his appeal was considered _______ and dismissed, resolving any enforceability problems, there were, we held, other reasons for dismissal. Referring to our own dis-missal in Molinaro, supra, we ________ _____ found that the state statute served "similar ends . . . . It discourages the felony of escape and encourages voluntary surrenders. It promotes the efficient, dignified operation of the Texas Court of Criminal Appeals." 420 U. S., at 537 (footnotes omitted). Estelle went on to consider whether the Texas statute was irrational because _______ it applied only to prisoners with appeals pending when they fled custody. Citing the "peculiar problems posed by escape of a prisoner during the ongoing appellate process," id., at 542, n. 11, we concluded that it was not. The ___ distinct concerns implicated by an escape pending appeal justified a special rule for such appeals: "Texas was free to deal more severely with those who simultaneously invoked the appellate process and escaped from its custody than with those who first escaped from its custody, returned, and then invoked the appellate process within the time permitted by law. While each class of prisoners sought to escape, the first did so in the very midst of their invocation of the appellate process, while the latter did so before 91-7749 - OPINION 8 ORTEGA-RODRIGUEZ v. UNITED STATES ____ returning to custody and commencing that process. If Texas is free to adopt a policy which deters escapes by prisoners, as all of our cases make clear that it is, it is likewise free to impose more severe sanctions on those whose escape is reasonably calculated to disrupt the very appellate process which they themselves have set in motion." Id., at 541-542. ___ Thus, our cases consistently and unequivocally approve dismissal as an appropriate sanction when a prisoner is a fugitive during "the ongoing appellate process." Moreover, this rule is amply supported by a number of justifications. In addition to addressing the enforceability concerns identified in Smith v. _____ United States, 94 U. S. 97 (1876), and Bohanan v. Nebraska, 125 U. S. 692_____________ _______ _________ (1887), dismissal by an appellate court after a defendant has fled its jurisdiction serves an important deterrent function and advances an interest in efficient, dignified appellate practice. Estelle, 420 U. S., at 537. What _______ remains for our consideration is whether the same rationales support a rule mandating dismissal of an appeal of a defendant who flees the jurisdiction of a district court, and is recaptured before he invokes the jurisdiction of the appellate tribunal. III In 1982, the Government persuaded the Eleventh Circuit that our reasoning in Molinaro should be extended to the appeal of a "former fugitive," returned to________ custody prior to sentencing and notice of appeal. (Ftnote. 12) The Court of (Ftnote. 12) ____________________ 12) For present purposes, the time of sentencing and the time of appeal may 12) be treated together, as the two dates normally must occur within 10 days of one another. See Fed. Rule App. Proc. 4(b); see also n. 9, supra; Torres v. Oakland _____ ______ _______ Scavenger Co., 487 U. S. 312, 314-315 (1988) (discussing mandatory nature of_____________ Rule 4 time limits). Cases in which a defendant flees during that 10-day interval will be resolved easily: if the defendant fails to file a timely appeal, his case concludes; if the defendant's attorney files an appeal for him in his absence, the appeal will be subject to dismissal under straightforward application of Smith and Molinaro. Should a defendant flee after sentencing but _____ ________ return before appeal - in other words, should his period of fugitivity begin after sentencing and end less than 10 days later - then a timely filed appeal would be subject to the principles we apply today. 91-7749 - OPINION ORTEGA-RODRIGUEZ v. UNITED STATES 9 ____ Appeals recognized in Holmes that all of the cases on which the Government ______ relied were distinguishable, "because each involved a defendant who fled after _____ filing a notice of appeal." 680 F. 2d, at 1373 (emphasis added). The court was satisfied, however, that the disentitlement rationale of Molinaro "is equally ________ forceful whether the defendant flees before or after sentencing." 680 F. 2d, at 1374. The Eleventh Circuit also expressed concern that absent dismissal, the Government might be prejudiced by delays in proceedings resulting from presentencing escapes. (Ftnote. 13) (Ftnote. 13) The rule of Holmes differs from that applied in Molinaro in three key ______ ________ respects. First, of course, the Holmes rule reaches defendants who flee while ______ their cases are before district courts, as well as those who flee while their appeals are pending. Second, the Holmes rule, unlike the rule of Molinaro, will ______ ________ not mandate dismissal of an entire appeal whenever it is invoked. As the Eleventh Circuit explained, because flight cannot fairly be construed as a waiver of appeal from errors occurring after recapture, defendants who flee presentencing retain their right to appeal sentencing errors, though they lose __________ the right to appeal their convictions. 680 F. 2d, at ___________ 1373. (Ftnote. 14) Finally, (Ftnote. 14) ____________________ 13) The court reasoned that the right of appeal, purely a creature of 13) statute, may be waived by failure to file a timely notice of appeal "or by abandonment through flight which may postpone filing the notice of appeal for years after conviction." Holmes, 680 F. 2d, at 1373-1374. The court then ______ explained: "Such untimeliness would make a meaningful appeal impossible in many cases. In case of a reversal, the government would obviously be prejudiced in locating witnesses and retrying the case." Id., at 1374. ___ 14) "We hold that a defendant who flees after conviction, but before 14) sentencing, waives his right to appeal from the conviction unless he can establish that his absence was due to matters completely beyond his control. Such a defendant does not waive his right to appeal from any alleged errors___________________________________________________________________________ connected to his sentencing." Id., at 1373 (emphasis added).___________________________ ___ 91-7749 - OPINION 10 ORTEGA-RODRIGUEZ v. UNITED STATES ____ as announced in Holmes and applied in this case, the Eleventh Circuit rule ______ appears to call for automatic dismissal, rather than an exercise of discretion. See n. 11, supra. _____ In our view, the rationales that supported dismissal in cases like Molinaro ________ and Estelle should not be extended as far as the Eleventh Circuit has taken _______ them. Our review of rules adopted by the courts of appeals in their supervisory capacity is limited in scope, but it does demand that such rules represent reasoned exercises of the courts' authority. See Thomas v. Arn, 474 U. S. 140, ______ ___ 146-148 (1985). Accordingly, the justifications we have advanced for allowing appellate courts to dismiss pending fugitive appeals all assume some connection between a defendant's fugitive status and the appellate process, sufficient to make an appellate sanction a reasonable response. (Ftnote. 15) These justifica- (Ftnote. 15) tions are necessarily attenuated when applied to a case in which both flight and recapture occur while the case is pending before the district court, so that a defendant's fugitive status at no time coincides with his appeal. There is, for instance, no question but that dismissal of a former fugitive's appeal cannot be justified by reference to the enforceability concerns that animated Smith v. United States, 94 U. S. 97 (1876), and the cases that fol- _____ ______________ lowed. A defendant returned to custody before he invokes the appellate process presents no risk of unenforceability; ____________________ 15) The reasonableness standard of Thomas v. Arn, 474 U. S. 140 (1985), is 15) ______ ___ not, however, the only reason we require some connection between the appellate process and an appellate sanction. As the dissent notes, post, at 3, n. 2, ____ Federal Rule of Appellate Procedure 47, which authorizes the promulgation of rules by the courts of appeals, limits that authority to rules "governing [the] practice" before those courts. 91-7749 - OPINION ORTEGA-RODRIGUEZ v. UNITED STATES 11 ____ he is within control of the appellate court throughout the period of appeal and issuance of judgment. Cf. United States v. Gordon, 538 F. 2d 914, 915 (CA1 _____________ ______ 1976) (dismissing pending appeal of fugitive because it is "unlikely that [the] convicted party will respond to an unfavorable decision"). Similarly, in many cases, the "efficient . . . operation" of the appellate process, identified as an independent concern in Estelle, 420 U. S., at 537, _______ will not be advanced by dismissal of appeals filed after former fugitives are recaptured. It is true that an escape may give rise to a "flurry of extraneous matters," requiring that a court divert its attention from the merits of the case before it. United States v. Puzzanghera, 820 F. 2d 25, 26 (CA1), cert. _______________ ___________ denied, 484 U. S. 900 (1987). The court put to this "additional trouble," 820 F. 2d, at 26, however, at least in the usual course of events, will be the court before which the case is pending at the time of escape. When an appeal is filed after recapture, the "flurry," along with any concomitant delay, likely will exhaust itself well before the appellate tribunal enters the picture. (Ftnote. 16) (Ftnote. 16) Nor does dismissal of appeals filed after recapture ____________________ 16) This case well illustrates the way in which preappeal flight may delay 16) district court, but not appellate court, proceedings. Petitioner's sentencing was scheduled for June 1989. Because he fled, however, and because the District Court resentenced him upon his return to custody, his final sentence was not entered until January 1991. Supra, at 3-4. Accordingly, petitioner's 11-month _____ period of fugitivity delayed culmination of the District Court proceedings by as ________ much as 19 months. In the appellate court, on the other hand, the timing of proceedings was unaffected by petitioner's flight. Had petitioner filed his notice of appeal before he fled, of course, then the Court of Appeals might have been required to reschedule an already docketed appeal, causing some delay. But here, petitioner filed his notice of appeal only after he was returned to custody, and the Court of Appeals was therefore free to docket his case pursuant to its regular schedule and at its convenience. In short, a lapse of time that precedes invocation of the appellate process does not translate, by itself, into delay borne by the appellate court. 91-7749 - OPINION 12 ORTEGA-RODRIGUEZ v. UNITED STATES ____ operate to protect the "digni[ty]" of an appellate court. Cf. Estelle, 420 _______ U. S., at 537. It is often said that a fugitive "flouts" the authority of the court by escaping, and that dismissal is an appropriate sanction for this act of disrespect. See, e.g., United States v. DeValle, 894 F. 2d 133, 138 (CA5 ____ _ _____________ _______ 1990); United States v. Persico, 853 F. 2d 134, 137-138 (CA2 1988); Ali v. Sims, _____________ _______ ___ ____ 788 F. 2d 954, 958-959 (CA3 1986); United States v. London, 723 F. 2d 1538, 1539 _____________ ______ (CA11), cert. denied, 467 U. S. 1228 (1984). Indeed, the premise of Molinaro's ________ disentitlement theory is that "the fugitive from justice has demonstrated such disrespect for the legal processes that he has no right to call upon the court to adjudicate his claim." Ali v. Sims, 788 F. 2d, at 959; see Molinaro, 396 ___ ____ ________ U. S., at 366. We have no reason here to question the proposition that an appellate court may employ dismissal as a sanction when a defendant's flight operates as an affront to the dignity of the court's proceedings. The problem in this case, of course, is that petitioner, who fled before sentencing and was recaptured before appeal, flouted the authority of the District Court, not the Court of Appeals. The contemptuous disrespect mani- fested by his flight was directed at the District Court, before which his case was pending during the entirety of his fugitive period. Therefore, under the reasoning of the cases cited above, it is the District Court that has the authority to defend its own dignity, by sanctioning an act of defiance that occurred solely within its domain. See United States v. Anagnos, 853 F. 2d 1, 2 _____________ _______ (CA1 1988) (declining to follow Holmes because former fugitive's "misconduct was ______ in the district court, and should affect consequences in that court, not in ours"). We cannot accept an expansion of this reasoning that would allow an appellate court to sanction by dismissal any conduct that exhibited disrespect for any aspect of the judicial system, even where such conduct has no connection to the course of appellate proceedings. See supra, at _____ 91-7749 - OPINION ORTEGA-RODRIGUEZ v. UNITED STATES 13 ____ 10, and n. 15. Such a rule would sweep far too broadly, permitting, for instance, this Court to dismiss a petition solely because the petitioner absconded for a day during district court proceedings, or even because the petitioner once violated a condition of parole or probation. None of our cases calls for such a result, and we decline today to adopt such an approach. (Ftnote. 17) Accordingly, to the extent that the Holmes rule rests on (Ftnote. 17) ______ the premise that Molinaro's disentitlement theory by itself justifies dismissal ________ of an appeal filed after a former fugitive is returned to custody, see 680 F. 2d, at 1374, it cannot be sustained. Finally, Estelle's deterrence rationale, 420 U. S., at 537, offers little _______ support for the Eleventh Circuit rule. Once jurisdiction has vested in the appellate court, as in Estelle, then any deterrent to escape must flow from _______ appellate consequences, and dismissal may be an appropriate sanction by which to deter. Until that time, however, the district court is quite capable of defending its own jurisdiction. While a case is pending before the district court, flight can be deterred with the threat of a wide range of penalties available to the district court judge. See Katz v. United States, 920 F. 2d ____ _____________ 610, 613 (CA9 1990) (when defendant is before district court, "disentitlement doctrine does not stand alone as a deterrence to escape"). Moreover, should this deterrent prove ineffective, and a defendant flee while his case is before a district court, ____________________ 17) Even the Eleventh Circuit, we note, seems unprepared to take such an 17) extreme position. If appellate dismissal were indeed an appropriate sanction for all acts of judicial defiance, then there would be no reason to exempt sentencing errors from the scope of the Holmes rule. See 680 F. 2d, at 1373; ______ supra, at 9. Whether or not Holmes' distinction between appeals from sentencing_____ _______ errors and appeals from convictions is logically supportable, see United States _____________ v. Anagnos, 853 F. 2d 1, 2 (CA1 1988) (questioning logic of distinction), it _______ reflects an acknowledgement by the Eleventh Circuit that the sanction of appellate dismissal should not be wielded indiscriminately as an all-purpose weapon against defendant misconduct. 91-7749 - OPINION 14 ORTEGA-RODRIGUEZ v. UNITED STATES ____ the district court is well situated to impose an appropriate punishment. While an appellate court has access only to the blunderbuss of dismissal, the district court can tailor a more finely calibrated response. Most obviously, because flight is a separate offense punishable under the Criminal Code, see nn. 3-4, supra, the district court can impose a separate sentence that adequately_____ vindicates the public interest in deterring escape and safeguards the dignity of the court. In this case, for instance, the District Court concluded that a term of imprisonment of 21 months, followed by three years of supervised release, would serve these purposes. (Ftnote. 18) If we assume that there is merit to (Ftnote. 18) petitioner's appeal, then the Eleventh Circuit's dismissal is tantamount to an additional punishment of 15 years for the same offense of flight. Cf. United ______ States v. Snow, 748 F. 2d 928 (CA4 1984). (Ftnote. 19) Our reasoning in (Ftnote. 19)______ ____ Molinaro surely does not compel that result.________ Indeed, as Justice Stewart noted in his dissenting opinion in Estelle v. _______ Dorrough, 420 U. S., at 544-545, punishment by appellate dismissal introduces an________ element of arbitrariness and irrationality into sentencing for escape. (Ftnote. 20) Use of the dismissal sanction as, in practical (Ftnote. 20) ____________________ 18) See supra, at 3-4. 18) _____ 19) "The Court is not condoning [defendant's] flight from justice. 19) However, it presumes his actions constitute an independent crime, i.e., `escape ____ from custody.' We refrain from punishing [defendant] twice by dismissing his appeal." United States v. Snow, 748 F. 2d, at 930, n. 3. _____________ ____ 20) "[T]he statute imposes totally irrational punishments upon those 20) subject to its application. If an escaped felon has been convicted in violation of law, the loss of his right to appeal results in his serving a sentence that under law was erroneously imposed. If, on the other hand, his trial was free of reversible error, the loss of his right to appeal results in no punishment at all. And those whose appeals would have been reversed if their appeals had not been dismissed serve totally disparate sentences, dependent not upon he circumstances of their escape, but upon whatever sentences may have been meted out under their invalid convictions." Estelle, 420 U. S., at 544. _______ 91-7749 - OPINION ORTEGA-RODRIGUEZ v. UNITED STATES 15 ____ effect, a second punishment for a defendant's flight is almost certain to produce the kind of disparity in sentencing that the Sentencing Reform Act of 1984 (Ftnote. 21) and the Sentencing Guidelines were intended to (Ftnote. 21) eliminate. (Ftnote. 22) (Ftnote. 22) Accordingly, we conclude that while dismissal of an appeal pending while the defendant is a fugitive may serve substantial interests, the same interests do not support a rule of dismissal for all appeals filed by former fugitives, returned to custody before invocation of the appellate system. Absent some connection between a defendant's fugitive status and his appeal, as provided when a defendant is at large during "the ongoing appellate process," Estelle, _______ 420 U. S., at 542, n. 11, the justifications advanced for dismissal of fugitives' pending appeals generally will not apply. We do not ignore the possibility that some actions by a defendant, though they occur while his case is before the district court, might have an impact on the appellate process sufficient to warrant an appellate sanction. For that reason, we do not hold that a court of appeals is entirely without authority to dismiss an appeal because of fugitive status predating the appeal. For example, the Eleventh Circuit, in formulating the Holmes rule, expressed concern that a long ______ escape, even if ended before sentencing and appeal, may so delay the onset of appellate proceedings that the Government would be prejudiced in ____________________ 21) 18 U. S. C. S3551, et seq., 28 U. S. C. SS 991-998. 21) _______ 22) See generally Mistretta v. United States, 488 U. S. 361 (1989) 22) _________ _____________ (discussing purpose of Sentencing Reform Act and Sentencing Guidelines). The dissent relies heavily on the legitimate interests in avoiding the "spectre of inconsistent judgments," as well as in preserving "precious appellate resources." Post, at 4. It must be remembered, however, that the ____ reason appellate resources are precious is that they serve the purpose of administering evenhanded justice. In this case, it is the dissent's proposed disposition that would produce inconsistent judgments, as petitioner served a 15-year sentence while his codefendant's conviction was reversed for insufficiency of evidence. 91-7749 - OPINION 16 ORTEGA-RODRIGUEZ v. UNITED STATES ____ locating witnesses and presenting evidence at retrial after a successful appeal. Holmes, 680 F. 2d, at 1374; see also United States v. Persico, 853 F. 2d, at______ _____________ _______ 137. We recognize that this problem might, in some instances, make dismissal an appropriate response. In the class of appeals premised on insufficiency of the evidence, however, in which petitioner's appeal falls, retrial is not permitted in the event of reversal, and this type of prejudice to the Government will not serve as a rationale for dismissal. Similarly, a defendant's misconduct at the district court level might somehow make "meaningful appeal impossible," Holmes, 680 F. 2d, at 1374, or otherwise ______ disrupt the appellate process so that an appellate sanction is reasonably imposed. The appellate courts retain the authority to deal with such cases, or classes of cases, (Ftnote. 23) as necessary. Here, for instance, petitioner's (Ftnote. 23) flight prevented the Court of Appeals from consolidating his appeal with those of his codefendants, which we assume would be its normal practice. See United ______ States v. Mieres-Borges, 919 F. 2d, at 654, n. 1 (noting that petitioner is______ _____________ absent and not party to appeal). If the Eleventh Circuit deems this consequence of petitioner's flight a significant interference with the operation of its appellate process, then, under the ____________________ 23) We cannot agree with petitioner that the courts may only consider 23) whether to dismiss the appeal of a former fugitive on an individual, case- specific basis. Though dismissal of fugitive appeals is always discretionary, in the sense that fugitivity does not "strip the case of its character as an adjudicable case or controversy," Molinaro v. New Jersey, 396 U. S. 365, 366 ________ __________ (1970); see also n. 11, supra, appellate courts may exercise that discretion by _____ developing generally applicable rules to cover specific, recurring situations. Indeed, this Court itself has formulated a general rule allowing for dismissal of petitions that come before it while the petitioner is at large. See Smith v. _____ United States, 94 U. S. 97 (1876). The problem with the Holmes rule is not that_____________ ______ the appeals it reaches are subject to automatic dismissal, but that it reaches too many appeals - including those of defendants whose former fugitive status in no way affects the appellate process. 91-7749 - OPINION ORTEGA-RODRIGUEZ v. UNITED STATES 17 ____ reasoning we employ today, a dismissal rule could properly be applied. As this case reaches us, however, there is no reason to believe that the Eleventh Circuit has made such a judgment. Application of the Holmes rule, as ______ formulated by the Eleventh Circuit thus far, does not require the kind of connection between fugitivity and the appellate process that we hold necessary today; instead, it may rest on nothing more than the faulty premise that any act of judicial defiance, whether or not it affects the appellate process, is punishable by appellate dismissal. See Holmes, 680 F. 2d, at 1374; supra, at ______ _____ 13. Accordingly, that the Eleventh Circuit saw fit to dismiss this case under Holmes does not by itself reflect a determination that dismissal would be______ appropriate under the narrower circumstances we now define. Nor is there any indication in the record below - either in the Government's motion to dismiss, or in the Eleventh Circuit's per curiam order - that __________ petitioner's former fugitivity was deemed to present an obstacle to orderly appellate review. Thus, we have no reason to assume that the Eleventh Circuit would consider the duplication of resources involved in hearing petitioner's appeal separately from those of his codefendants - which can of course be minimized by reliance on the earlier panel decision in United States v. Mieres- _____________ _______ Borges, supra, at 4, and n. 6 - sufficiently disruptive of the appellate process______ _____ that dismissal would be a reasonable response, on the facts of this case and under the standard we announce today. We leave that determination to the Court of Appeals on remand. (Ftnote. 24) (Ftnote. 24) ____________________ 24) Neither the reasonableness standard of Thomas v. Arn, 474 U. S. 140 24) ______ ___ (1985), nor Federal Rule of Appellate Procedure 47, mandates uniformity among the circuits in their approach to fugitive dismissal rules. See Thomas, 474 ______ U. S., at 157 (STEVENS, J., dissenting). In other words, so long as all circuit rules meet the threshold reasonableness requirement, in that they mandate dismissal only when fugitivity has some connection to the appellate process, they may vary considerably in their operation. For this additional reason, we hesitate to decide as a general matter whether and under what circumstances preappeal flight that leads to severance of codefendants' appeals will warrant appellate dismissal, and instead leave that question to the various courts of appeals. 91-7749 - OPINION 18 ORTEGA-RODRIGUEZ v. UNITED STATES ____ In short, when a defendant's flight and recapture occur before appeal, the defendant's former fugitive status may well lack the kind of connection to the appellate process that would justify an appellate sanction of dismissal. In such cases, fugitivity while a case is pending before a district court, like other contempts of court, is best sanctioned by the district court itself. The contempt for the appellate process manifested by flight while a case is pending on appeal remains subject to the rule of Molinaro. ________ The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. So ordered. __________