U.S. v. Tapia-Escalera

• Decision Date: 28 January 2004
• Docket Number: No. 03-1028.,03-1028.
• Citation: 356 F.3d 181
• Parties: UNITED STATES of America, Appellee, v. JOSÉ D. TAPIA-ESCALERA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

356 F.3d 181

UNITED STATES of America, Appellee, v. JOSÉ D. TAPIA-ESCALERA, Defendant, Appellant.

No. 03-1028.

United States Court of Appeals, First Circuit.

Heard January 8, 2004.

Decided January 28, 2004.

Appeal from the United States District Court for the District of Puerto Rico, Hector M. Laffitte, J Gabriel Hernández-Rivera, by appointment of the court, for appellant.

Germán A. Rieckehoff, Assistant United States Attorney, with whom H.S. García, United States Attorney, and Sonia I. Torres-Pabón, Assistant United States Attorney, Chief, Criminal Division, were on brief, for appellee.

Before BOUDIN, Chief Judge, LOURIE^* and LYNCH, Circuit Judges.

BOUDIN, Chief Judge.

In 1995, José Tapia-Escalera pled guilty to possessing a kilogram of cocaine with intent to distribute. 21 U.S.C. § 841 (2000). He was sentenced to five years of imprisonment followed by five years of supervised release. Tapia was released after his term of imprisonment but in January 2000, he violated the terms of his supervised release and, after a revocation hearing, was sentenced to ten months in prison for the violation and four years of supervised release following this new term.

In October 2002, the Probation Office notified the court by motion that Tapia had again violated the conditions of his supervised release by failing to report to the probation officer and failing to notify the office of his change of address. In December 2002, the district court conducted a revocation hearing. As soon as the district judge stated the charges, Tapia's counsel said:

First, the Court should know that Mr. Tapia is not going to contest the allegations, the violation of failing to report to the probation officers as directed and failing to notify a change of address within 72 hours. That is accepted.

I've also asked him if it's, in fact, true that he admitted to the probation office that he was using heroin, which he has accepted, and we will not then contest that either.

Defense counsel then proposed a period of five to eleven months of home detention with electronic monitoring. After finding that the violations had occurred, the district judge rejected this suggestion, saying that this was the second time Tapia had violated release conditions. The judge imposed a new term of 30 months' imprisonment (but no further term of supervised release following this imprisonment). This sentence exceeded the period — apparently five to eleven months — recommended by the Sentencing Commission's table, U.S.S.G. § 7B1.4 (2002); but this table is an "advisory" policy statement rather than a formal guideline. U.S.S.G. ch. 7, pt. A introductory cmt. 3(a) (2002); United States v. Ramirez-Rivera, 241 F.3d 37, 40 (1st Cir.2001).

On this appeal, Tapia does not challenge the district judge's deviation from the guidelines' suggested range. Instead, Tapia first argues that the finding of liability cannot stand because there was no admission by Tapia personally, no independent evidence of his violations, and no proper waiver of his right to a hearing to contest the charges. Tapia then claims that the 30-month term of imprisonment violated a statutory cap governing maximum penalties for violating conditions of release, 18 U.S.C. § 3583(e)(3) (2000).

None of these claims were raised in the district court. Accordingly, one might expect the government to argue that the plain error standard had to be met on appeal, but it has not done so. Anyway, the attacks on liability fail whether reviewed under the plain error standard or ordinary standards of review. As for the statutory cap issue, we think there is an error which might or might not be treated as plain under United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); but since the plain error issue is itself complicated and the government has not argued for applying the Olano test, we consider the statutory cap issue on the merits.

We start with the challenge to the district court's finding that Tapia violated conditions of his release. After Tapia's arrest, he was brought before a magistrate judge on November 20, 2002, for a preliminary hearing to establish probable cause.¹ The government relied on the Probation Office's report, and Tapia's counsel reserved his defense. The magistrate judge then advised Tapia and his counsel that Tapia would be held for the revocation hearing, adding:

[Tapia] is entitled to bring his own witnesses and to challenge any evidence the Government presents as well as to cross examine any Government witness or bring his own evidence to show that the violation[s] were not committed.

My instruction to the Probation Office is that the Defendant is to be provided with the discovery available to sustain the allegation or the representations made in the motion for revocation of condition of release.

At the revocation hearing held on December 2, 2002, Tapia's counsel intervened as soon as the judge explained that Tapia had been ordered arrested because of his violation of conditions of release and had allegedly admitted that he was using heroin. Counsel then made the statement quoted earlier explaining that Tapia was not going to contest the failure to report and notify allegations and that Tapia had also "accepted" the truth of the charge that he had been using heroin. Counsel then launched immediately into his proposal for home detention.

Thereafter, in the arguments about the proper penalty, Tapia's violations were taken for granted and the district judge did no more than make a formal finding to that effect when he announced the penalty. At no point did the judge ask Tapia personally whether he committed the violations or whether he waived his right to have evidence presented on this subject; and the government neither presented nor described any independent evidence of the violations. All this, says Tapia, rendered the finding of violations improper.

This would certainly be so if the proceeding were one under Rule 11 for the taking of a plea of guilty,² but the revocation proceeding is of a more informal character. The principal requirements laid down by Rule 32.1 for the merits hearing are notice of the alleged violation, right to counsel, an opportunity to appear and present evidence and a (qualified) right on request to question adverse witnesses. Fed.R.Crim.P. 32.1(b)(2)(A)-(D). Tapia was advised of these rights at his preliminary hearing, he had counsel, and he makes no claim that the charges were unknown to him.

Nevertheless, this court has insisted that before the defendant forgoes the opportunity in a revocation case to contest the charges, the defendant must understand his procedural rights and choose not to exercise them. United States v. Correa-Torres, 326 F.3d 18, 22-23 (1st Cir. 2003). Correa-Torres stressed that there is no talismanic formula; the judgment depends both on what the defendant was told and upon "the totality of the attendant circumstances." Id. at 23. The court there was especially concerned because the defendant himself expressed some disagreement with the truth of the charges, yet no evidence was taken or formal waiver secured. Id. at 24.

It would have simplified matters if the district court had addressed Tapia, asked him whether he understood and admitted to the charges, and obtained his personal acquiescence. But, taking account of "the attendant circumstances," we are satisfied for the reasons discussed below that Tapia did understand the charges, knew he could contest them, and chose not to do so. In addition, it appears that there was ample evidence of the violations, which needed only be shown by a preponderance of the evidence, 18 U.S.C. § 3583(e)(3) (2000).

The motion by the Probation Office that started the proceeding was precise as to dates and details. It said that Tapia had failed to report as required, or to call to excuse his absence, on two specific dates: June 25 and August 7, 2002. It also said that during a home visit on August 15, 2002, family members had admitted that Tapia had not returned home since August 7, 2002, and that he "has been using controlled substances."

Thus, the detailed charges were known, Tapia was told of his procedural rights at the preliminary hearing, defense counsel made clear in Tapia's presence that Tapia did not contest the charges and had admitted drug use, and Tapia made no protest that any of this was unclear or inaccurate. Further, Tapia was not a novice. In addition to his prior criminal history, he had been through a guilty plea proceeding in this very case and had even been through a revocation proceeding for his first violation of release conditions.

Even now, nothing affirmatively suggests that Tapia misunderstood his options or that he had any defense to the charges against him. He did not move in the district court after sentencing to challenge the finding of violations, just the length of the sentence. Nor has he identified on appeal anything that he misunderstood or might reasonably have misunderstood. And he has never suggested that he had a defense to any of the charges. Under these circumstances we decline to disturb the finding of liability.

Turning now to the sentence, Tapia contests the term of imprisonment — 30 months — on two related grounds: first, that the proper statutory cap on his sentence was 24 months and, second, that the statute imposing the cap requires that the 10 months Tapia previously served for the violations in 2000 be subtracted from the maximum (which, depending on how we resolve the first issue, is either 24 or 36 months). The first claim is wrong — Tapia's counsel appeared to retreat from it at oral argument — but the second we accept by a very close margin.

Starting as always with the statutory language, Spookyworld, Inc. v. Town of Berlin (In re Spookyworld, Inc.), 346 F.3d 1, 7 (1st Cir.2003), the main provision at issue is 18 U.S.C. § 3583(e)(3) (2000), which authorizes re-imprisonment for violations of supervised...