United States Court of Appeals For the First Circuit

No. 19-1087

UNITED STATES OF AMERICA,

Appellee,

v.

ANTONIO TORRES-SANTANA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Barron, Lipez, and Dyk, Circuit Judges.

Franco L. Pérez-Redondo, Federal Public Defender, with whom Eric A. Vos, Federal Public Defender, and Vivianne Marrero-Torres, Assistant Federal Public Defender, were on brief, for appellant. 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, for appellee.

March 12, 2021

*Of the Federal Circuit, sitting by designation. LIPEZ, Circuit Judge. Appellant Antonio Torres-Santana

was ordered to serve an eighteen-month sentence for violating the

conditions of his supervised release by committing a new crime.

He claims that his supervised release revocation hearing was

unreasonably delayed, thereby violating his rights under Rule 32.1

of the Federal Rules of Criminal Procedure and the Due Process

Clause of the United States Constitution. Torres asks that we

vacate his sentence and dismiss the supervised release violation

charge. Without deciding whether the delay at issue in this case

was unreasonable, we deny Torres's appeal because he has not shown

that he suffered any prejudice from the delay.

I.

A. Factual Background

On June 25, 2012, Torres pled guilty to possession of a

firearm by a prohibited person. See

(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,

- 2 - 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

- 3 - 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,

(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

A writ of habeas corpus ad prosequendum is an order used to 1

secure the presence in federal court of a state prisoner. See United States v. Mauro,

(1978).

- 4 - 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."

- 5 - 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.

- 6 - 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 twenty-

four 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.

- 7 - 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,

(1st Cir. 2017) (citing United States v. Piper,

(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.

- 8 - 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

- 9 - 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

- 10 - 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,

(1st Cir. 2010) (citing United States v. Santana,

(9th Cir. 2008); United States v. Ramos,

, 115

- 11 - (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

(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

(e)(3).

Federal Rule of Criminal Procedure 32.1 requires that

"[a] person held in custody for violating probation or supervised

- 12 - 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,

n.1. We

recognize that "[s]ome courts have analyzed failures to hold timely

revocation hearings in terms of a constitutional benchmark."

(citing Santana,

). 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."

Both parties analyze Torres's unreasonable delay claim

using the framework articulated in Barker v. Wingo,

(1972). Barker instructs that to evaluate whether a defendant has

been deprived of his right to a speedy trial, courts are to use a

- 13 - 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.

.

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,

. 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

("Although unreasonable delay in

5 See Santana,

("[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,

(7th Cir. 1989); United States v. Companion,

(2nd Cir. 1976). 7 Four other circuit courts follow this more traditional Due Process approach. United States v. Islam,

(D.C. Cir. 2019); Santana,

; United States v. Throneburg,

(6th Cir. 1996); United States v. Tippens,

(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."

.

- 14 - 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,

(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

- 15 - charges might have on [a defendant's] prospects for parole and

meaningful rehabilitation." Moore v. Arizona,

(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

- 16 - 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,

(1st Cir. 2005). In this context, "strong evidence of

reliability can counterbalance a weak reason for not producing the

declarant." United States v. Fontanez,

(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

- 17 - 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,

(1st Cir. 2003); United

States v. Aymelek,

(1st Cir. 1991) (noting "well-

established 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,

(10th Cir. 2013). Thus, in the Tenth Circuit, hearsay

evidence used in revocation sentencing is not "subject to a

- 18 - different, or higher, level of admissibility than it would be at

other types of sentencing procedures.

. 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,

, 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

- 19 - 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.

III.

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

- 20 - of Criminal Procedure or the Due Process Clause of the Constitution

that justifies relief. The judgment of the district court is

affirmed.

So ordered.

- 21 -