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Date: 08-18-2021
Case Style:
United States of America v. ANTONIO TORRES-SANTANA
Case Number: 19-1087
Judge: Kermit V. Lipez
Court: United States Court of Appeals
For the First Circuit
Plaintiff's Attorney: Joshua K. Handell, Assistant United States Attorney, with
whom Mariana E. Bauzá-Almonte, Assistant United States Attorney,
Thomas F. Klumper, Assistant United States Attorney, and W. Stephen
Muldrow, United States Attorney, were on brief.
Defendant's Attorney:
Description:
Boston, MA - Criminal defense lawyer represented defendant with a supervised release revocation hearing for a possession of a firearm by a prohibited person charge.
On June 25, 2012, Torres pled guilty to possession of a
firearm by a prohibited person. See 18 U.S.C. § 922(g)(1). He
was sentenced to thirty months' imprisonment, to be followed by
three years of supervised release. On February 15, 2014, Torres
was released from federal custody and began serving his supervised
release term.
On February 5, 2015, Torres was arrested and
incarcerated by Commonwealth authorities for nonpayment of child
support. The United States Probation Office ("USPO") thereafter
filed a motion alleging that the failure to pay child support
violated a condition of Torres's federal supervision. However,
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the USPO did not request revocation of the supervised release. On
April 30, 2015, Torres was released from Commonwealth custody after
paying $500 in child support.
Eight months later, on December 30, 2015, Torres was
arrested for violating Article 401 of the Puerto Rico Controlled
Substances Act. Article 401 criminalizes, inter alia,
distribution of a controlled substance or possession of controlled
substance with intent to distribute. P.R. Laws Ann. Tit. 24,
§ 2401(a). The arrest records described the sale of controlled
substances to an undercover officer.
Instead of pleading guilty to an Article 401 offense,
Torres pled guilty on May 18, 2016, to violating Article 406 of
the Puerto Rico Controlled Substances Act and was sentenced to six
years' imprisonment. Article 406 criminalizes an attempt or
conspiracy to commit a controlled substance offense. Id. § 2406.
Torres was incarcerated by the Puerto Rico Department of
Corrections at the Las Cucharas Correctional Facility in Ponce.
On June 14, 2016, the USPO submitted a motion notifying
the district court that Torres was sentenced by a local court for
violating Article 406, alleging that Torres had violated the
statutory condition requiring that "[w]hile on supervised release,
the defendant shall not commit another federal, state, or local
crime and shall not illegally possess a controlled substance."
The motion asked the district court to order that the Commonwealth
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produce Torres in federal court to show cause as to why his
supervised released term should not be revoked.
With no action taken on the motion during the following
ten months, Torres remained in Commonwealth custody. Finally, on
April 17, 2017, the district court issued a warrant for Torres's
arrest and a writ of habeas corpus ad prosequendum1 seeking his
release from Commonwealth custody for proceedings on the
supervised release violation. Again, however, there was a long
period of inaction, this time for about a year, and Torres remained
in Commonwealth custody during that time.
Both parties reference a federal detainer, which
presumably was lodged during this period, perhaps on April 17,
2017, at the same time as the writ of habeas corpus ad
prosequendum, though the record does not confirm the existence of
the detainer. A detainer is a "notification filed with the
institution in which a prisoner is serving a sentence, advising
that he is wanted to face pending criminal charges in another
jurisdiction." United States v. Mauro, 436 U.S. 340, 359 (1978)
(quoting 116 Cong. Rec. 38840 (1970)). According to Torres, he
would have been eligible for parole in January of 2018, "but for
the fact that he had [a] federal detainer." However, the record
1 A writ of habeas corpus ad prosequendum is an order used to
secure the presence in federal court of a state prisoner. See
United States v. Mauro, 436 U.S. 340, 344 (1978).
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contains no evidence supporting this assertion about his
eligibility for parole on the Commonwealth conviction.
Torres remained in Commonwealth custody until April 26,
2018, when he was taken from state custody into federal custody
and had his initial appearance before a magistrate judge.2 The
magistrate judge appointed the Federal Public Defender to
represent Torres. On May 2, Torres appeared before the magistrate
judge for a detention hearing and waived his right to a preliminary
revocation hearing. Five months later, the district court
scheduled a final revocation hearing for October 23, 2018. The
government has offered no explanation for this five-month delay.
The court subsequently granted the government's motion for a
continuance, which Torres did not object to, and rescheduled the
hearing to November 8. The purpose of the continuance was to allow
the USPO to obtain English translations of Spanish-language
records regarding the Article 406 conviction. On October 30,
2 The delay from the issuance of the writ of habeas corpus ad
prosequendum on April 17, 2017, to the time Torres was brought
into federal custody on April 26, 2018, resulted, in part, from
Hurricane Irma and Hurricane Maria, which impeded the operations
of the district court. The court was closed entirely from
September 18, 2017 through October 3, 2017. See In Re: Emergency
Measures After the Passage of Hurricane Maria, Standing Order No.
17-509 (ADC) (D.P.R. October 4, 2017). According to the judge
presiding over Torres's revocation hearing, "the Court was not
handling criminal cases from September of 2017 to February 28 of
2018."
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Torres's counsel moved for a further continuance and the hearing
was rescheduled to November 14.
B. The First Revocation Hearing
At the November 14 hearing, Torres conceded that he had
violated the conditions of his supervised release, and the district
court informed him that this concession constituted a reason to
revoke his term of supervised release. The hearing proceeded
directly to a discussion of sentencing factors. Torres disagreed
with the government as to how the violation should be classified
under the Sentencing Guidelines, which provide three
classifications for supervised release violations: Grade A, Grade
B, and Grade C. U.S.S.G. § 7B1.1. It is a Grade A violation if,
inter alia, the defendant committed "conduct constituting (A) a
federal, state, or local offense punishable by a term of
imprisonment exceeding one year that . . . is a controlled
substance offense[.]" Id. § 7B1.1(a)(1). For purposes of
§ 7B1.1(a)(1), a "controlled substance offense" is defined as
an offense under federal or state law,
punishable by imprisonment for a term
exceeding one year, that prohibits the
manufacture, import, export, distribution, or
dispensing of a controlled substance (or a
counterfeit substance) or the possession of a
controlled substance (or a counterfeit
substance) with intent to manufacture, import,
export, distribute, or dispense.
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Id. § 4B1.2(b). A Grade B violation involves "conduct constituting
any other federal, state, or local offense punishable by a term of
imprisonment exceeding one year." Id. § 7B1.1(a)(2). Lesser
offenses are categorized as Grade C. Id.
The grade of the violation is then considered in
conjunction with the defendant's Criminal History Category ("CHC")
to determine the guidelines sentence. Id. § 7B1.4(a). For a Grade
B violation and Torres's CHC level, CHC III,3 the guidelines
sentencing range ("GSR") is eight to fourteen months. See id.
The GSR for a Grade A violation and CHC III is eighteen to twentyfour months, unless the defendant is on probation or supervised
release stemming from a sentence for a Class A felony. Id.
As noted, Torres pled guilty to a conspiracy to commit
a controlled substance offense under Article 406 of the Puerto
Rico Controlled Substances act, instead of the Article 401 charge,
which was based on information that he had sold controlled
substances to an undercover agent. Torres's theory was that,
although the Article 401 drug sale would meet the definition of a
controlled substance offense under the relevant sentencing
3 Initially, defense counsel mistakenly stated that Torres's
CHC was II. Later in the hearing, all parties agreed that the
correct CHC was III.
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guideline for a Grade A violation, the conduct required for the
Article 406 conviction would not.4
Relying on the conduct that led to the arrest and the
Article 401 charge, the government asserted that Torres had
committed a Grade A violation. Torres argued that the court should
find a Grade B classification on the basis of the charge to which
he had pled guilty. In his view, the consideration of the alleged
circumstances underlying the offense was improper because he had
not been afforded an opportunity to confront the undercover officer
to whom he had allegedly sold drugs.
Focusing on the Grade B classification and several
mitigating factors, defense counsel requested a below-guidelines
sentence of four months. The mitigating factors included the
4 The parties did not provide the Commonwealth court documents
explicating the nature of Torres-Santana's plea. Some Article 406
convictions would in fact meet the criteria of a USSG controlled
substance offense because a “controlled substance offense”
“includes the offenses of. . . conspiring[] and attempting to
commit such [an] offense[].” U.S.S.G. § 4B1.2(b). We “treat[]
this particular commentary to § 4B1.2 as authoritative” United
States v. Nieves-Borrero, 856 F.3d 5, 9 (1st Cir. 2017) (citing
United States v. Piper, 35 F.3d 611, 617 (1st Cir. 1994)). If
Torres-Santana pled guilty to a conspiracy to possess with intent
to distribute, that conviction would plainly constitute a USSG
controlled substance offense and would result in the identical
Grade A classification. However, if Torres-Santana pled guilty to
a conspiracy to merely possess without intent to distribute, that
would not qualify as a USSG controlled substance offense. As the
government failed to raise this issue or provide relevant
documentation, we assume, as the parties and the district court
have, that the conspiracy charge Torres-Santana pled to would not
prove a USSG controlled substance offense.
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difficult circumstances that led Torres to commit the crime, his
compliance with other terms of supervision, a significant period
of sobriety, and participation in vocational programs. By
contrast, the government requested a sentence of twenty-four
months' imprisonment -- i.e., a term at the high end of the
eighteen- to-twenty-four-month GSR based on a "Grade A" violation
and CHC III. In advocating for this sentence, the government
emphasized Torres's lengthy criminal history.
The district court observed that it was "clear" that
Torres had sold controlled substances and negotiated a plea to a
lesser conspiracy offense. Thus, it was likely that the violation
was properly categorized as Grade A. Objecting, defense counsel
argued that before the court determined the grade of the violation,
Torres should be afforded the opportunity to confront the
undercover officer. The court granted a continuance for that
purpose.
C. The Second Revocation Hearing
The revocation hearing reconvened in December 2018. The
government explained that the undercover officer was not present
because she was performing undercover duties and her safety could
be compromised if she appeared in court. Instead, the government
presented an affidavit from the undercover agent describing the
drug transaction and a video recording of the incident. In
addition, the government called as a witness a Puerto Rico Police
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Officer, Milton Rivera Negrón ("Rivera"), who had supervised the
undercover officer. Rivera reported that the undercover agent had
informed him of a drug transaction with Torres and provided him
with two plastic baggies containing controlled substances.
Based on this evidence that Torres had engaged in a drug
transaction, the district court concluded that Torres's violation
was properly categorized as Grade A. The court formally revoked
Torres's supervised release and sentenced him to eighteen months'
imprisonment, the low end of the applicable GSR.
Torres's counsel promptly objected to the sentence at
the hearing as procedurally and substantively unreasonable. He
argued that the revocation hearing was unreasonably delayed and
should have been held shortly after the USPO filed the charges
against Torres in May 2016. Among other contentions, counsel noted
that the lapse of time had denied Torres the opportunity to
question the undercover officer, who had been listed as an
available witness in the Commonwealth court case in 2016. At no
time did defense counsel argue that his client had not committed
a violation. The only issue, across both hearings, was the
sentence.
The district court responded to the defense's objection
by noting that it had not been handling criminal cases between
September 2017 and February 28, 2018, because of Hurricane Maria.
The court further observed that defense counsel had not moved to
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schedule the revocation hearing, and it stated that the defendant
had suffered no harm from any delay because he was serving a
Commonwealth sentence. As to the claim that the delay had denied
Torres the opportunity to confront the undercover officer, the
court stated that there was no per se right to confrontation at
the revocation hearing. The court also noted that the video
evidence was more compelling than live testimony from the
undercover agent would have been.
This timely appeal followed.
II.
Torres argues that his revocation hearing was
unreasonably delayed in violation of both Federal Rule of Criminal
Procedure 32.1 and the Due Process Clause of the Fifth Amendment.
The revocation hearing concluded in December 2018, thirty months
after the USPO petitioned the district court to revoke Torres's
supervised release, twenty months after the district court issued
an arrest warrant, and eight months after Torres was taken into
federal custody.
A. Standard of Review
Whether the delay in holding a revocation hearing
violated a defendant's rights is a question of law subject to de
novo review. United States v. Pagán-Rodríguez, 600 F.3d 39, 41
(1st Cir. 2010) (citing United States v. Santana, 526 F.3d 1257,
1260 (9th Cir. 2008); United States v. Ramos, 401 F.3d 111, 115
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(2d Cir. 2005)). The government, however, asserts that Torres
failed to raise this claim in a timely fashion in the district
court and that, accordingly, the claim is waived or at least
forfeited. We disagree.
As we have explained, defense counsel made a clear
objection to the delay at the end of the second revocation hearing.
Although the government argues that this objection did not preserve
the claim for review on appeal because Torres did not move then or
earlier to dismiss the revocation petition, it cites no case law
for this proposition. Thus, we proceed to the merits.
B. Legal Background
A court may revoke a term of supervised release if it
conducts a revocation hearing and finds by a preponderance of the
evidence that the defendant violated a condition of supervised
release. See 18 U.S.C. § 3583(e)(3); Fed. R. Crim. P. 32.1(b)(2).
At the hearing, the defendant is entitled to, inter alia, "an
opportunity to appear, present evidence, and question any adverse
witness unless the court determines that the interest of justice
does not require the witness to appear." Fed. R. Crim. P.
32.1(b)(2)(C). If the supervised release is revoked, the defendant
may be required to serve all or part of the supervised release
term in prison. See 18 U.S.C. § 3583(e)(3).
Federal Rule of Criminal Procedure 32.1 requires that
"[a] person held in custody for violating probation or supervised
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release . . . be taken without unnecessary delay before a
magistrate judge" for an initial appearance. Fed. R. Crim. P.
32.1(a)(1). At the initial appearance, the judge informs the
person of the alleged violation, his right to counsel, and his
right to a preliminary hearing. Fed. R. Crim. P. 32.1(a)(3).
Unless waived by the defendant, the magistrate judge "must promptly
conduct a [preliminary] hearing to determine whether there is
probable cause to believe that a violation occurred." Fed. R.
Crim. P. 32.1(b)(1)(A). The district court is to conduct the final
revocation hearing "within a reasonable time." Fed. R. Crim. P.
32.1(b)(2). The rule does not define what constitutes a
"reasonable time."
The right to a timely supervised release revocation
hearing is "assured" by Rule 32.1, and, "more generally, by the
Due Process Clause." Pagán-Rodríguez, 600 F.3d at 41 n.1. We
recognize that "[s]ome courts have analyzed failures to hold timely
revocation hearings in terms of a constitutional benchmark." Id.
(citing Santana, 526 F.3d at 1259). As in Pagán-Rodríguez,
"[w]hether viewed as a breach of the rule or of the Due Process
Clause, the result in this case would be the same." Id.
Both parties analyze Torres's unreasonable delay claim
using the framework articulated in Barker v. Wingo, 407 U.S. 514
(1972). Barker instructs that to evaluate whether a defendant has
been deprived of his right to a speedy trial, courts are to use a
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four-factor balancing test, considering: (1) the length of the
delay, (2) the reason for the delay, (3) the defendant's
responsibility to assert his right, and (4) prejudice to the
defendant. Id. at 530.
That approach is misguided here.5 We are not dealing
with a Sixth Amendment Speedy Trial claim.6 As we have previously
held, we analyze a claim in this circuit under Rule 32.1(b)(2)
akin to how we evaluate a Due Process claim under the Fifth
Amendment. Pagán-Rodríguez, 600 F.3d at 42-43. To demonstrate a
violation caused by a delayed revocation hearing that justifies
relief, the defendant must show that the delay was unreasonable
and prejudicial. Id.7 Both unreasonableness and prejudice are
necessary conditions.8 See id. ("Although unreasonable delay in
5 See Santana, 526 F.3d at 1261 ("[A] reasonable time for
proceeding to a full-scale criminal trial is not the same as a
reasonable time for revocation proceedings, and therefore Speedy
Trial Clause authority should not be applied in revocation
proceedings as if it were directly controlling.").
6 The parties are correct, however, that some circuit courts
have relied on the Barker factors in the context of a delayed
revocation hearing. United States v. Rasmussen, 881 F.2d 395, 398
(7th Cir. 1989); United States v. Companion, 545 F.2d 308, 311
(2nd Cir. 1976).
7 Four other circuit courts follow this more traditional Due
Process approach. United States v. Islam, 932 F.3d 957, 962 (D.C.
Cir. 2019); Santana, 526 F.3d at 1260; United States v. Throneburg,
87 F.3d 851, 853 (6th Cir. 1996); United States v. Tippens, 39
F.3d 88, 90 (5th Cir. 1994).
8 In the Barker analysis, no one factor is "either a necessary
or sufficient condition to the finding of a deprivation of the
right of speedy trial." 407 U.S. at 533.
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holding a final revocation hearing constitutes a violation of Rule
32.1(b)(2), that violation does not require vacation of the
judgment unless it affected the offender's substantial rights.").
C. Application
As we shall explain, Torres's claim falters on the
prejudice prong. We therefore find it unnecessary to decide
whether the delay at issue in this case was unreasonable. See
Throneburg, 87 F.3d at 853 (rejecting a delayed revocation hearing
Due Process claim based solely on lack of prejudice, without
consideration of the reasonableness of the delay).
Torres argues that he suffered prejudice in two ways:
(1) the delay made him ineligible for state parole, and (2) the
delay resulted in the government's primary witness being
unavailable for cross-examination by Torres at the final
revocation hearing.
1. Parole Eligibility
Torres asserts that his eligibility for parole from
Commonwealth custody in January 2018 was foreclosed by the pending
federal supervised release revocation proceedings. We acknowledge
the possibility that a delay in holding a supervised release
revocation hearing could interfere with a defendant's eligibility
for parole from a state sentence in a way that would be
prejudicial. As the Supreme Court has said in the Speedy Trial
context: "no court should overlook the possible impact pending
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charges might have on [a defendant's] prospects for parole and
meaningful rehabilitation." Moore v. Arizona, 414 U.S. 25, 27
(1973) (per curiam).
However, Torres's argument for such prejudice here is
limited to one sentence in his opening brief: "there is a
reasonable probability that Mr. Torres could have disposed of the
revocation hearing in a way that allowed [Commonwealth]
authorities to contemplate granting him parole" in January 2018.
He offers no proof of this eligibility for parole. He offers no
explanation of the considerations that would go into a Commonwealth
decision on parole. He offers no explanation as to how an earlier
disposition of his supervised release revocation charge would
affect his parole eligibility. There is, in short, no proof of
the prejudice he claims.
As noted earlier, Torres was brought into federal
custody on April 26, 2018, yet Torres has failed to describe the
trajectory of his incarceration after that date. It appears that
when he was taken into federal custody, he still had a significant
amount of time left to serve on his Commonwealth sentence. It is
unclear whether he has remained in federal custody since April
2018, or whether, at some point, he was transferred back to
Commonwealth custody to finish his Commonwealth sentence after
completion of the supervised release revocation proceeding. In
pursuit of his parole eligibility argument, Torres should have
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submitted a complete history of his incarceration on the
Commonwealth and federal offenses, as well as projected dates that
he would complete these sentences.
2. Confrontation
During a revocation hearing, a defendant is entitled to
"an opportunity to appear, present evidence, and question any
adverse witness unless the court determines that the interest of
justice does not require the witness to appear." Fed. R. Crim. P.
32.1(b)(2)(C). To determine whether the interest of justice
requires a witness to appear, a court should "balanc[e] the
releasee's right to confront witnesses with the government's good
cause for denying confrontation." United States v. Rondeau, 430
F.3d 44, 48 (1st Cir. 2005). In this context, "strong evidence of
reliability can counterbalance a weak reason for not producing the
declarant." United States v. Fontanez, 845 F.3d 439, 444 (1st
Cir. 2017). Given its qualified nature, the confrontation right
at issue in a probation revocation hearing is clearly not the Sixth
Amendment right set forth in the Constitution.
The government argues that in the sentencing phase of a
revocation hearing, the defendant is not entitled to even this
limited confrontation right because the general sentencing
procedure of Rule 32, not the specific revocation procedure of
Rule 32.1, governs the sentencing portion of a revocation hearing.
Rule 32 provides no confrontation right and gives the court "broad
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discretion to accept hearsay evidence . . . so long as the court
supportably concludes that the information has sufficient indicia
of trustworthiness to warrant a finding of probable accuracy."
United States v. Rodriguez, 336 F.3d 67, 71 (1st Cir. 2003); United
States v. Aymelek, 926 F.2d 64, 68 (1st Cir. 1991) (noting "wellestablished doctrine that a sentencing court may rest upon hearsay
evidence so long as it appears reliable"); see also U.S.S.G. §
6A1.3(a) ("In resolving any dispute concerning a factor important
to the sentencing determination, the court may consider relevant
information without regard to its admissibility under the rules of
evidence applicable at trial, provided that the information has
sufficient indicia of reliability to support its probable
accuracy.").
We have not yet decided which of these two rules, Rule
32 or Rule 32.1, governs the admissibility of hearsay evidence at
the sentencing portion of a revocation hearing. The Tenth Circuit
applies the Rule 32 trustworthiness standard because of its view
that there is "no meaningful difference between sentencing at a
revocation proceeding and sentencing after a guilty plea or jury
verdict of conviction" and "[t]he task of sentencing is distinct
from the task of adjudicating guilt, and therefore warrants a
different set of rules." United States v. Ruby, 706 F.3d 1221,
1227 (10th Cir. 2013). Thus, in the Tenth Circuit, hearsay
evidence used in revocation sentencing is not "subject to a
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different, or higher, level of admissibility than it would be at
other types of sentencing procedures. Id. at 1228. The Ninth
Circuit, on the other hand, applies Rule 32.1 to revocation
sentencing because the 2005 amendments to Rule 32.1 "explicitly
gave a supervised releasee the right to allocution at the
revocation hearing, which is decidedly part of sentencing." United
States v. Reyes-Solosa, 761 F.3d 972, 975 n. 2 (9th Cir. 2014).
We decline to resolve this legal question in the context of this
case because even if we apply the more exacting confrontation
analysis of Rule 32.1 to the admission of the hearsay evidence
during the sentencing phase of the revocation hearing, there was
no violation of that rule.
Torres claims his limited confrontation right under Rule
32.1 was violated because he did not have the opportunity to
question the undercover agent who accused him of selling drugs.
The agent did not testify at the hearing because she was performing
undercover duties and appearing in court could compromise her
safety. Instead, the government offered the testimony of Officer
Rivera and an affidavit by the undercover agent who engaged in the
drug transaction with Torres under the supervision of Rivera.
Rivera testified that he witnessed the agent entering a bar known
to the police as a site of drug activity. The undercover agent
called him upon leaving the bar and reported that she had collected
evidence. He then met with the agent, who showed him two bags of
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drugs and informed him that she obtained them in a transaction at
the bar. The undercover agent had been wearing video recording
equipment and provided the recording to Rivera. The government
introduced into evidence the video recording, which showed the
agent giving money to Torres and Torres giving the agent two bags
appearing to contain controlled substances. The affidavit of the
agent submitted by the government was consistent with Rivera's
testimony and the video.
The district court's decision to consider the agent's
affidavit, despite the absence of live testimony, was consistent
with Rule 32.1(b)(2)(C). Legitimate concerns about the undercover
agent's safety provided good cause for her failure to testify.
There were strong indicia of reliability supporting the agent's
affidavit. Her account of the events was consistent with both
Officer Rivera's testimony and the video of the incident. Given
the good cause for the agent's absence, and the presence of
significant corroborating evidence, the interests of justice did
not require the undercover agent to appear. Thus, even assuming
that the Rule 32.1 limited confrontation right applies, Torres's
claim of prejudice due to the agent's absence fails.
Outcome: Because there was no prejudice from the delay in the
conduct of his supervised release revocation hearing, Torres has
failed to demonstrate a violation of Rule 32.1 of the Federal Rules
of Criminal Procedure or the Due Process Clause of the Constitution
that justifies relief. The judgment of the district court is
affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: