United States v. Colón-Maldonado

• Decision Date: 06 March 2020
• Docket Number: No. 18-1388,18-1388
• Citation: 953 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Anthony J. COLÓN-MALDONADO, a/k/a/ Guelo, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

953 F.3d 1

UNITED STATES of America, Appellee,

v.Anthony J. COLÓN-MALDONADO, a/k/a/ Guelo, Defendant, Appellant.

No. 18-1388

United States Court of Appeals, First Circuit.

March 6, 2020

Andrew S. McCutcheon, Assistant Federal Public Defender, with whom Eric A. Vos, Federal Public Defender, San Juan, PR, Vivianne M. Marrero-Torres, Assistant Federal Public Defender, Supervisor, Appeals Section, and Franco L. Pérez-Redondo, San Juan, PR, Research & Writing Specialist, were on brief, for appellant.

Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before Torruella, Thompson, Kayatta, Circuit Judges.

THOMPSON, Circuit Judge.

In early 2017, Anthony Colón-Maldonado completed his sentence for federal drug crimes and began his six-year term of supervised release. Just six months later, a police complaint charged him on "information and belief" with committing aggravated domestic abuse under Puerto Rico law. It did not indicate how police got that information, or why they believed Colón committed the offense; after all, in Puerto Rico (like many states), a complaint is just an accusation that starts off a criminal case. See P.R. Laws Ann. tit. 34, Ap. II, §§ 5, 34. Colón pled down to a lesser offense. Nonetheless, based on the complaint, a U.S. district court found that Colón committed the more serious crime — violently so — and sentenced him to thirty months in federal prison for violating the terms of his release. This was error. Accordingly, we vacate and remand for resentencing.

Revocation Primer

Before we dive into the facts, some background. When imposing a prison sentence, a federal court may impose a term of supervised release — a "form of postconfinement monitoring" during which the defendant must follow a series of conditions designed to help him or her "transition to community life" and to thwart reoffending. Mont v. United States, ––– U.S. ––––, 139 S. Ct. 1826, 1833, 204 L.Ed.2d 94 (2019) (quoting Johnson v. United States, 529 U.S. 694, 697, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000) ); see also United States v. Joseph, 109 F.3d 34, 38–39 (1st Cir. 1997). As one condition, the court must always order "that the defendant not commit another Federal, State, or local crime during the term of supervision." 18 U.S.C. § 3583(d). If the supervisee breaks this or another condition, the court may (after a hearing) "revoke a term of supervised release[ ] and require the defendant to serve in prison all or part of the term of supervised release authorized by statute" for the crime of conviction. 18 U.S.C. § 3583(e)(3).

The revocation hearing has two stages. See United States v. Morin, 889 F.2d 328, 332 (1st Cir. 1989). First, the government must prove by a preponderance of the evidence (i.e., that it is more likely than not) that the defendant violated the release condition. See United States v. Tanco-Pizarro, 892 F.3d 472, 475 (1st Cir. 2018) (citing 18 U.S.C. § 3583(e)(3) ). Then, if the court finds a violation, it must decide whether to modify the defendant's supervised release (for example, it could set harsher conditions) or revoke it and impose more prison time. United States v. Whalen, 82 F.3d 528, 532 (1st Cir. 1996). To guide the sentencing decision, the United States Sentencing Guidelines set three grades of supervised release violations — with the highest, Grade A, reserved for "conduct constituting" a "crime of violence," a "controlled substance offense," or two other types of serious crimes. See U.S.S.G. § 7B1.1(a). The guidelines say that when the defendant commits such a crime, courts should revoke release and impose a sentence within the highest range listed for the defendant's criminal history category.¹ Id. §§ 7B1.3, 7B1.4.

To decide if the defendant breached his conditions and (if so) what sentence to impose, the court may "consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial." Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ; see also United States v. Rondón-García, 886 F.3d 14, 21 (1st Cir. 2018) ("During a sentencing hearing, neither the Federal Rules of Evidence nor the Sixth Amendment's confrontation clause applies."). To influence those decisions, however, the evidence must (at minimum) be "reliable." United States v. Portalla, 985 F.2d 621, 622 (1st Cir. 1993) ; see also United States v. Mills, 710 F.3d 5, 15 (1st Cir. 2013) (explaining that at sentencing, "the court can consider all kinds of relevant information regardless of admissibility at trial (including hearsay that has never been tested by cross-examination)," but only if "it has ‘sufficient indicia of reliability to support its probable accuracy’ " (quoting U.S.S.G. § 6A1.3 )).

As with other judgment calls, we review the ultimate revocation decision and sentence for "abuse of discretion." United States v. Wright, 812 F.3d 27, 30 (1st Cir. 2016). Along the way, we draw our own legal conclusions (interpreting the Guidelines de novo) and test the court's material factfinding for "clear error." Id.; see also United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015). If the district court "select[ed] a sentence based on clearly erroneous facts" or "improperly calculat[ed] the Guidelines range," that's a "significant procedural error," United States v. Sayer, 916 F.3d 32, 37 (1st Cir. 2019) (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ) — and we reverse unless the government shows the mistake did not affect the sentence, see United States v. Romero-Galindez, 782 F.3d 63, 70 (1st Cir. 2015).

On to this case.

How We Got Here

In 2014, Colón was sentenced to seventy months in federal prison and six years of supervised release for his part in a conspiracy to deal drugs near a protected location. See 21 U.S.C. § 841(a)(1). After six months on supervised release, he was arrested again — this time by Puerto Rico police. In a pair of criminal complaints filed in Puerto Rico court, Officer Edmee Malavé wrote that Colón had assaulted and threatened his then-girlfriend, Jessica Alomar. As a result, he was charged with two domestic violence crimes under Puerto Rico law: aggravated abuse and abuse by threat. See Articles 3.2 and 3.3 of Puerto Rico Domestic Violence Law 54, P.R. Laws Ann. tit. 8, §§ 632, 633.² Before long, Colón's probation officer (Nelson Mendoza) had reported the charges to the United States District Court for the District of Puerto Rico and petitioned the court to revoke Colón's supervised release based on the new alleged crimes.

So Colón was brought back to federal court. There, a U.S. magistrate judge held a preliminary revocation hearing — designed to determine whether there's "probable cause to believe that a violation occurred." Fed. R. Crim. P. 32.1(b). Mendoza took the stand as the only witness. He hadn't seen what happened between Colón and Alomar, but (he testified) he had done a "preliminary investigation," meaning he spoke to Alomar and Malavé over the phone. According to Mendoza, Alomar (who was pregnant with Colón's baby) said that Colón had followed her to a hospital in Guayama or Salinas (Mendoza wasn't sure which, or why Alomar was going there). When they got to the hospital, they argued and Colón "grabbed her by the hair" and "slammed [her] to the ground." On the way down, her head hit the wall.

When Mendoza spoke to Malavé, Malavé had said that Alomar had given him the same basic story. Malavé had rehashed Alomar's account in the criminal complaints, which the government entered in evidence at the preliminary hearing. The first, which charged Colón with aggravated abuse under Article 3.2, read:

[On or about August 13, 2017 in Salinas, Puerto Rico, Colón] illegally, voluntarily, maliciously, knowingly and with criminal intention, used physical force against Mrs. Jessica Alomar Rodríguez, with whom he lived together five months ago, consisting in [sic] the fact that he grabbed her strongly with his hands by her abdomen to take away her cellular phone; grabbed her strongly by her hair, shook her and she hit the wall and fell to the ground. The victim is pregnant.

The second, charging abuse by threat (Article 3.3), said:

[On or about August 13, 2017 in Salinas, Puerto Rico, Colón] illegally, voluntarily, maliciously, knowingly and with criminal intention, threatened with bodily injury Mrs. Jessica Alomar Rodríguez, with whom he lived together for five months and did not have any children, but who is pregnant, consisting in [sic] the following: "I'll blow you up, you make me feel like hitting you, you miserable bitch," feeling [sic] the victim afraid and threatened that defendant may fulfill his threat.

The back of the complaints reflected that after hearing testimony from Malavé and Alomar, a Puerto Rico magistrate judge had found probable cause for the Article 3.2 (aggravated abuse) charge, but not for the Article 3.3 (abuse-by-threat) charge.

Alomar herself gave a sworn written statement to Commonwealth prosecutors, but (said Mendoza) the prosecutors were "not going to relinquish that sworn statement [while] the [Puerto Rico] case [was] ongoing," for some reason. So the federal magistrate judge relied on Mendoza's testimony, along with the two complaints, to find probable cause that Colón committed a new crime and violated his conditions of release. He ordered Colón detained until the final revocation hearing — when a U.S. district judge would decide whether he'd in fact committed the violations and whether to revoke his release and send him back to prison. See Fed. R. Crim. P. 32.1(b).

In the meantime, Colón — facing the aggravated abuse and abuse-by-threat charges in Puerto Rico court — pled guilty to a lesser offense: attempted abuse under Article 3.1. See P.R. Laws Ann....