United States v. Peguero

• Decision Date: 13 May 2022
• Docket Number: 20-3798,August Term 2021
• Parties: UNITED STATES of America, Appellee, v. Carlos PEGUERO, aka Jay, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

34 F.4th 143

UNITED STATES of America, Appellee,

v.Carlos PEGUERO, aka Jay, Defendant-Appellant.^*

No. 20-3798

August Term 2021

United States Court of Appeals, Second Circuit.

Argued: December 7, 2021

Decided: May 13, 2022

Shiva H. Logarajah, Assistant United States Attorney (Hagan Scotten, Assistant United States Attorney, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.

Joseph A. Vita, Joseph A. Vita Law Office, Port Chester, NY.

Before: Sack, Bianco, Circuit Judges, and Underhill, Chief District Judge.^**

Judge Underhill dissents in a separate opinion.

Joseph F. Bianco, Circuit Judge:

Defendant-Appellant Carlos Peguero appeals from a November 4, 2020 judgment of the United States District Court for the Southern District of New York (Román, J. ) revoking his term of supervised release and sentencing him to a total term of 28 months' imprisonment for violations of multiple conditions of his supervised release.

On appeal, Peguero challenges his revocation on Specification Four, which alleged that, on May 12, 2019, Peguero committed the state crime of second-degree assault in violation of New York Penal Law § 120.05(2) by striking his ex-girlfriend ("J.D.") with a deadly weapon or dangerous instrument—namely, a glass bottle. First, Peguero argues that the district court abused its discretion by finding that he committed the second-degree assault even though there was no finding or evidence in the record that he had caused the injury to J.D. by using the glass bottle, rather than his hand. Second, Peguero contends that the district court abused its discretion in finding "good cause" under Rule 32.1(b)(2)(c) of the Federal Rules of Criminal Procedure for the admission of J.D.'s sworn, out-of-court statement into evidence without requiring her to testify in person at the revocation hearing and, in doing so, violated his due process and confrontation rights. Finally, Peguero challenges the judgment as to Specification Nine because, as the government concedes, the written judgment incorrectly indicates that he committed Specification Nine, which the district court orally pronounced was unproven.

We hold that the district court did not abuse its discretion in finding that Peguero committed Specification Four by a preponderance of the evidence or by finding good cause to admit the out-of-court statement under Rule 32.1(b)(2)(c). In addition, although not argued by Peguero, the dissent concludes that, because the charged supervised release violations subjected Peguero to imprisonment for more than one year based on new conduct for which he was never federally indicted, the violation proceedings constitute a new prosecution that violated Peguero's Fifth and Sixth Amendment rights. We respectfully disagree.

As a threshold matter, the dissent's proposed holding is inconsistent with well-established precedent in this Circuit, which we are duty-bound to follow. Moreover, that binding precedent rests on sound constitutional footing because of the following indisputable facts regarding supervised release: (1) a supervised release term is a component of the initial sentence for the underlying crime that can only be imposed after the defendant received the full constitutional protections afforded in a criminal prosecution and was adjudicated to be guilty; (2) as a result of the initial sentence, the maximum term of imprisonment that the defendant can face is his initial custodial sentence plus additional imprisonment for violations of supervised release up to the maximum term of supervised release authorized by statute for the underlying offense (subject to the exceptions in 18 U.S.C. § 3583(e)(3) ); and thus, (3) at the time of the initial sentence, the defendant's continued liberty after serving the imposed term of imprisonment on the underlying crime is conditioned upon complying with all of the terms of supervised release (including not committing new criminal conduct) during the period of such release. Thus, there is no basis, either factually or legally, to classify a revocation of supervised release as a new "criminal prosecution" that triggers all the constitutional protections afforded to such a prosecution. Instead, it is simply a revocation of the conditional liberty that was imposed by the judge as a component of the initial sentence, and thus, like a revocation of parole or probation, it need only comply with basic due process.

In reaching a contrary conclusion, the dissent suggests that the full constitutional protections for a criminal prosecution should exist for supervised release violations only involving new conduct punishable by more than one year in prison, and not at all for violations of parole or probation. The grounds for such distinctions, however, are difficult to discern as a legal matter even under the dissent's own analysis.

Finally, as to Specification Nine, we agree with the parties that the written judgment conflicted with the district court's oral ruling that the alleged violation had been proven, and that the oral ruling controls.

Accordingly, we AFFIRM the judgment of the district court except as to Specification Nine and VACATE in part and REMAND for amendment of the judgment as to Specification Nine only.

BACKGROUND

I. Initial Offense and Prior Supervised Release Violations

In 2006, Peguero was charged in a three-count indictment in connection with his participation in a 2004 armed bank robbery in Ardsley, New York, namely: (1) conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371 ; (2) bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d) and 2; and (3) using a firearm during the bank robbery, in violation of 18 U.S.C. § 924(c). On May 7, 2007, Peguero pled guilty to the first two counts pursuant to a plea agreement with the government and, that September, was sentenced principally to 100 months' imprisonment, to be followed by a five-year term of supervised release.¹ As a component of the standard conditions of his supervised release, Peguero was required to not commit a new federal, state, or local offense. See 18 U.S.C. § 3583(d).

Following the completion of the term of imprisonment on the underlying conviction, Peguero violated the terms of his supervised release. In particular, on April 1, 2015, Peguero pled guilty to the state crime of criminal contempt, as well as the use of cocaine. For those violations, the district court revoked Peguero's supervised release and sentenced him to 8 months' imprisonment, to be followed by a new 24-month term of supervised release. After completing his new term of imprisonment, and during his second period of supervised release, Peguero again pled guilty to violating the conditions of release by engaging in new criminal conduct—namely, endangering the welfare of a child.² Based upon that violation, the district court revoked Peguero's supervised release and imposed a new 24-month term of supervised release. Peguero began that term of supervised release on June 7, 2018.

II. Instant Supervised Release Violations

During his third term of supervised release, Peguero was arrested multiple times for various alleged criminal activities, including, as relevant to this appeal, two arrests for domestic violence.

The first alleged domestic violence incident occurred on May 12, 2019, near Fishkill, New York (the "Fishkill Incident"). According to the Dutchess County Criminal Complaint, Peguero physically assaulted and injured his ex-girlfriend, J.D., and ripped her television off the wall and threw it on the ground, breaking it. The day after the alleged assault, J.D. gave a sworn, signed statement to a detective with the Town of Fishkill Police Department (the "Fishkill Statement") describing how, after she had confronted Peguero with evidence of his infidelity she had discovered on his phone, Peguero punched, kicked, and choked her, telling her, "I hate you and want you dead[.]" Joint App'x at 146. In the statement, J.D. also declared that, "at one point [Peguero] picked up a glass ‘make up’ bottle[,] held it in his left hand[,] and hit me on top of my head with it causing pain, blood and feel dizzy [sic ] to the point I thought I was going to pass out." Joint App'x at 147.

The second alleged incident occurred on September 3, 2019, in Yonkers, New York (the "Yonkers Incident"). According to the Yonkers Police Department ("YPD") incident report, a YPD officer responded to a reported violation of an order of protection at Peguero's parents' apartment, where J.D. was visiting at the time. When Peguero arrived at the apartment, he allegedly became angry with J.D. and proceeded to punch and choke her before fleeing the scene. The YPD report noted that J.D. had visible injuries, including bruising and swelling on her neck, which were also observed by medical professionals at the hospital where J.D. was taken after the alleged assault.

On October 28, 2019, J.D. wrote to both the Dutchess County and Westchester County prosecutors, stating that she wanted to "drop all domestic violence charges against Carlos Peguero" and that she was "not being forced or harassed" in making that decision. Joint App'x at 167. Both counties subsequently dismissed all charges.

On September 15, 2020, in an amended violation petition, the United States Probation Department alleged that Peguero had committed twenty-two violations of his conditions of supervised release in connection with his alleged state criminal conduct. The government did not pursue nine of the specifications (Specifications Six and 15 through 22). Peguero contested six of the remaining 13 alleged violations³ —namely, Specifications Four, Five, and Seven through Ten.

Specifications Four and Five arose from the Fishkill Incident and alleged, respectively, that Peguero: (1) committed assault in the second degree, in violation of New York Penal Law § 120.05(2), by striking J.D. on the head with a glass bottle, resulting in a head laceration; and (2) committed...