United States Court of Appeals For the First Circuit No. 20-1366

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ O. CINTRÓN-ORTIZ, a/k/a Chelo,

Defendant, Appellant.

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

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Barron, Chief Judge, Howard and Thompson, Circuit Judges.

Kevin E. Lerman, Research & Writing Specialist, with whom Eric Alexander Vos, Federal Public Defender, and Franco L. Pérez- Redondo, Assistant Federal Public Defender, Supervisor, Appeals Division, were on brief, for appellant. Natasha K. Harnwell-Davis, Attorney, Criminal Division, United States Department of Justice, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, were on brief, for appellee.

May 16, 2022 BARRON, Chief Judge. José Cintrón-Ortiz ("Cintrón")

challenges the finding by the United States District Court for the

District of Puerto Rico that he violated the conditions of his

supervised release term and the length of his revocation sentence.

We affirm.

I.

Cintrón was charged on December 12, 2005, with

participation in a conspiracy to possess with intent to distribute

cocaine in violation of

and 846. Cintrón pleaded

guilty and, on December 7, 2006, was sentenced to a 120-month term

of imprisonment to be followed by a 60-month term of supervised

release.

The conditions of Cintrón's supervised release required

him to, among other things, "not commit another federal, state or

local crime," and "not possess a firearm, ammunition, destructive

device, or any other dangerous weapon." The United States

Probation Office for the District of Puerto Rico ("Probation") on

November 14, 2019, filed a letter with the District Court that

requested a warrant for Cintrón's arrest because it had "received

credible information that [Cintrón was a] target of an

investigation from Puerto Rico Police involving possession and use

of [a] firearm" in violation of the conditions of his supervised

release.

- 2 - Seven days later, Probation requested that the District

Court conduct a hearing regarding the revocation of Cintrón's

supervised release. The request asserted that Cintrón "was

suspected of having been in possession of a firearm on October 27,

2019 [at El Pajú,] a local business in Salinas, Puerto Rico." It

added that Alexandria Oliveras-Rivera, the Probation Officer

responsible for supervising Cintrón during his supervised release

term, "interviewed the [Puerto Rico] case agent [responsible for

investigating the October 27 incident], observed evidence

(security video), and identified Mr. Ortiz-Cintron [sic] from the

security video. In addition, she observed him assaulting a citizen

and shooting a firearm."

The District Court issued a warrant for Cintrón's

arrest. It then held a preliminary revocation hearing on December

11, 2019, followed by a final revocation hearing on March 13, 2020.

At the final revocation hearing, the government

presented testimony from Carlos León-Vázquez, a Puerto Rico police

detective tasked with investigating the October 27 incident.

Cintrón objected to Detective León's testimony on the ground that

it was based on interviews that Detective León had conducted with

third party witnesses who were not present for the revocation

hearing. Cintrón contended that he had a limited right to confront

those witnesses under the Due Process Clause of the Fifth Amendment

to the U.S. Constitution and Federal Rule of Criminal Procedure

- 3 - 32.1(b)(2)(C) and that it would violate that right to permit

Detective León to testify based on what he had learned from them.

The District Court questioned the government as to why

those witnesses were not present at the hearing. The government

responded that they "ha[d] fled the country out of fear [of] the

Defendant." Without further inquiry of the government, the

District Court permitted Detective León to testify based on what

the witnesses had supposedly related to him on the ground that

"the interest of justice, these victims being outside of the

jurisdiction, d[id] not require them to appear."

Detective León proceeded to testify that, as part of his

investigation, he had interviewed "seven or eight" witnesses,

including four victims of Cintrón's alleged conduct. He also

testified that he had obtained contemporaneous surveillance camera

footage from El Pajú and that he was able to identify Cintrón in

the footage based on his knowledge of Cintrón's appearance from

past interactions with him.

Detective León testified that he could observe Cintrón

in that footage proceed from the bar area of El Pajú and approach

"Morales" (the ex-husband of Cintrón's then-girlfriend), Morales's

daughters, and Morales's girlfriend. According to Detective León,

he could further observe Cintrón in that footage punch Morales.

He also testified that he could see from the footage "Minino," an

alleged accomplice of Cintrón, thereafter "take[] out a firearm,

- 4 - a weapon, and be[gin] shooting," "shoot[ing] without looking,"

towards Morales and Morales's daughters and girlfriend. He further

explained that the footage also showed Cintrón take out a "weapon

. . . from the rear part of his waist," point it towards Morales

and his group, and fire. Detective León also testified that he

had collected two types of shell casings from El Pajú and took

photos of several horses that were injured during the incident.

The government also presented testimony from Oliveras at

the final revocation hearing, including with respect to what she

observed from the footage taken from the video surveillance cameras

at El Pajú on the night in question. Oliveras testified that she

also could identify Cintrón in that footage based on what it

depicted and her previous experience supervising him while he was

on supervised release. Oliveras then proceeded to testify as to

how she tracked Cintrón's movement in that footage from the bar

area of El Pajú to the area where Morales was located, and how she

observed Cintrón discharge a firearm once in that area.

Cintrón again raised in his closing argument at the final

revocation hearing an objection to the portions of Detective León's

testimony that he contended were based on statements from the

witnesses whom Cintrón was not able to confront. He also contended

that the surveillance camera footage did not show by a

preponderance of the evidence that he had discharged (or even

possessed) a firearm during the incident at El Pajú and that "the

- 5 - only thing the Court [had] to corroborate that it was Mr. Cintron"

who discharged a firearm was "testimony from [Detective León],

from conversations he had with other people, who [Cintrón did not]

have the ability to confront."

The District Court found that Cintrón committed a

Grade A violation of his supervised release. See U.S.S.G.

§ 7B1.1(a)(1) (describing a Grade A violation of supervised

release as "conduct constituting . . . a federal, state, or local

offense punishable by a term of imprisonment exceeding one year

that (i) is a crime of violence, (ii) is a controlled substance

offense, or (iii) involves possession of a firearm or destructive

device of a type described in

(a)"). On that

ground, the District Court revoked Cintrón's supervised release.

§ 7B1.3(a)(1) ("Upon a finding of a Grade A . . . violation,

the court shall revoke probation or supervised release." (emphasis

added)). The District Court sentenced Cintrón to a 60-month term

of imprisonment to be followed by a 36-month term of supervised

release. In addition, the District Court determined that for the

first six months of Cintrón's supervised release term, he would be

required to "remain under curfew at his residence of record from

6:00 p.m. to 6:00 a.m. . . . except for employment or other

activities approved of in advance by the probation officer."

Cintrón timely appealed.

- 6 - II.

The defendant in a supervised release revocation hearing

enjoys a limited right to confront adverse witnesses both under

Rule 32.1(b)(2)(C), which provides that a defendant in a revocation

proceeding may "question any adverse witness unless the court

determines that the interest of justice does not require the

witness to appear," and the Due Process Clause of the Fifth

Amendment. See Morrissey v. Brewer,

(1972)

(holding that constitutional due process requires that a defendant

in a parole revocation proceeding have "the right to confront and

cross-examine adverse witnesses (unless the hearing officer

specifically finds good cause for not allowing confrontation)");

United States v. Rondeau,

(1st Cir. 2005)

(acknowledging that a defendant in a supervised release revocation

proceeding has "a limited confrontation right under Fed. R. Crim.

P. 32.1(b)(2)(C)").1 Cintrón contends that the District Court

erred in revoking his supervised release term because its finding

that he had committed a Grade A violation relied in part on

testimony from Detective León that was based on interviews with

1 We have previously explained that the defendant in a supervised release revocation proceeding does not enjoy the right to cross-examine witnesses that is provided in the Confrontation Clause of the Sixth Amendment. See Rondeau,

. - 7 - people who were not present at the revocation hearing and so were

not available for confrontation and cross-examination by him.2

In pressing this challenge under Rule 32.1 and the Due

Process Clause of the Fifth Amendment, Cintrón further contends

that the government's proffered reason for the absence of the

witnesses in question was inadequate to support a finding that the

"interest of justice d[id] not require the witness[es] to appear."

See, e.g., Rondeau,

(noting that, when determining

whether to admit hearsay testimony under Rule 32.1(b)(2)(C), "a

court should consider . . . the government's reason for declining

to produce the declarant"). He also contends that the portions of

Detective León's testimony that relied on the statements from those

witnesses lacked sufficient indicia of reliability, and thus that,

given the absence of the witnesses in question, the District Court

could not rely on that testimony. See, e.g., United States v.

Taveras,

(1st Cir. 2004) (concluding that,

"[g]iven the unreliable nature of [the witness's] hearsay

2 We note that Cintrón does not present the admission of León's hearsay statements as providing a basis for challenging the length of the sentence that he received from the District Court for violating the conditions of his supervised release. Cf. United States v. Torres-Santana,

(1st Cir. 2021) (considering without resolving whether a defendant is entitled to the limited confrontation right set forth in Rule 32.1 with respect to the sentencing phase of a revocation proceeding).

- 8 - testimony . . . the 'interest of justice' did not justify the

district court's admission of hearsay testimony").

The government responds that there was no violation of

either Rule 32.1 or the Fifth Amendment because the District

Court's finding that the government had good cause for introducing

the testimony from Detective León was well supported by the

government's proffer that the witnesses were outside of the

jurisdiction on account of their fear of Cintrón. See, e.g.,

United States v. Bueno-Beltrán,

(1st Cir. 2017)

(per curiam). In addition, the government contends that there was

no Rule 32.1 or Fifth Amendment violation because the record shows

that the testimony at issue had the requisite indicia of

reliability. See, e.g., United States v. Fontanez,

(1st Cir. 2017).

We need not resolve this dispute. Even if we were to

assume that the admission of the testimony violated Cintrón's

limited confrontation right under either Rule 32.1 or the Fifth

Amendment, we agree with the government that any such error was

harmless on this record.

Detective León's challenged testimony aside, the record

includes the surveillance camera footage. When combined with other

evidence in the record that Cintrón does not challenge, it strongly

supports the Grade A-violation finding that the District Court

made.

- 9 - Specifically, the surveillance footage shows several

individuals in the bar area of El Pajú on the relevant night.

Among them is a man who can clearly be seen holding a drink and

dressed in blue short jeans, a black T-shirt, a black cap, and

wearing black tennis shoes. The footage then shows that man

leaving the bar area, at which point footage from another camera

shows a man in the same clothing of a seemingly identical build

walking towards a vehicle, approaching an individual wearing a

white shirt, and engaging that individual in conversation.

The footage from that second camera then goes on to show

that same man and the individual proceeding towards a group that

is congregated near a gate, the individual pulling out what appears

to be a firearm from his person, and discharging it. Finally, the

footage from that camera shows the man accompanying the individual

immediately thereafter holding what appears to be a firearm of his

own and raising that firearm in the air. Smoke and a flash of

some sort then appears to emanate from that firearm.

To be sure, this footage does not itself provide a basis

for concluding that the man in the blue shorts at the bar was

Cintrón. But, in addition to the surveillance footage, the

government introduced testimony from Detective León that he had

prior knowledge of what Cintrón looked like based on earlier

investigations of him and that based on that prior knowledge he

- 10 - was able to identify Cintrón in the footage as the man in the blue

shorts at the bar.

In addition, the government introduced testimony from

Oliveras, who testified that she was responsible for supervising

Cintrón and so interacted with him on numerous occasions. And

she, too, testified that, based on her prior interactions with

Cintrón, she could identify him as the man in the blue shorts who

proceeded from the bar and eventually discharged a firearm right

after the individual who was accompanying him had done so. It is

worth quoting Oliveras's testimony about her own observations of

what the surveillance footage reveals more fully, as those

observations accord with our own assessment of what that video

footage depicts:

Oliveras: Okay. So I initially see [Cintrón] walking from the bar, walking in front the SUV where the man with the white shirt is at. He briefly speaks something, because I see the man in the white shirt walking with him. They walked towards the gate.

I am able to follow [] Cintron [sic] through his clothing. I see him and still [am] able to see him behind the leaves of the trees. I see him walking towards where the horses were at.

I do see the person with the white shirt fire. Regardless of him firing, I am still able to follow [] Cintron [sic] through his black shirt.

I actually see him reach with his left hand towards his waistband, at the back of his -- waistband towards the back, pull something

- 11 - out, and actually transfer something to his right hand, raise his hand and shoot, because I do see a white powder light.

Government: Like a sparkle?

Oliveras: Correct.

Government: And you see that sparkle from this camera angle that I am showing in Government's Exhibit 8E?

Oliveras: Yes.

Government: Okay. And who is the person who is transferring that thing you just said from the left to the right hand?

Oliveras: [] Cintron [sic], my client.

Simply put, this collection of evidence in and of itself

provides overwhelming support for the finding by the District Court

that a preponderance of the evidence showed that Cintrón violated

the conditions of his supervised release term by possessing a

firearm. See United States v. Rodriguez,

(1st Cir. 2019) (determining that although the District Court erred

in admitting hearsay testimony, that testimony did not contribute

significantly to the District Court's finding that the defendant

violated the conditions of his supervised release and that, as a

result, the District Court's error was harmless); Fontanez,

(same); accord United States v. Mosley,

(7th Cir. 2014) ("[E]ven where a proper balancing of the

interests would weigh in favor of excluding hearsay, its erroneous

admission may still be harmless for the alternate reason that the

- 12 - violation of supervised release would have been found without the

hearsay evidence."); United States v. Frazier,

(11th Cir. 1994) ("[W]e find the error to be harmless because the

properly considered evidence overwhelmingly demonstrated that [the

defendant] breached the terms of his supervised release."). Nor

does Cintrón persuasively argue to the contrary.

Cintrón does argue that the video footage just described

was "not [of] identification quality" and only "showed an obscured,

crowded area where individual features could not be

distinguished." But, that characterization of the footage is fair

only so far as it goes. In particular, it does not account for

the fact that the footage plainly shows not only the face of the

man at the bar whom Detective León and Oliveras each identified as

being Cintrón but also identifying features of that same person

that perfectly match those of the person that the footage then

shows to be discharging a firearm.

Cintrón also emphasizes that the testimony from

Detective León that gives rise to the asserted violation of Rule

32.1 and the Due Process Clause of the Fifth Amendment preceded

the government's presentation of the surveillance video footage

and any testimony pertaining to Detective León's or Oliveras's

personal observations of that footage. Cintrón argues that fact

is significant because it supports his assertion that the

objectionable testimony from Detective León had the effect of

- 13 - "fill[ing] in a narrative visible nowhere in the record: that the

person [who was] shot ([Morales]) was in a love triangle with Mr.

Cintrón's girlfriend . . . and [that] Mr. Cintrón was 'at odds'

with [Morales]."

Cintrón does not explain, however, how that "narrative"

pertains to the testimony by Detective León and Oliveras that each

was able to identify Cintrón in the footage from past encounters

with him as the man at the bar and that each was then able to track

that man's movements in the footage and thereby identify him

possessing and discharging a firearm. Thus, Cintrón does not

explain how that "narrative" has any bearing on the narrow issue

that is our concern: whether the introduction of the portions of

Detective León's testimony that Cintrón contends were based on

what he had heard from the witnesses that Cintrón could not

confront was harmless in light of the other evidence in the record

that supported the District Court's finding that Cintrón committed

a Grade A violation of his supervised release by being a felon in

possession of a firearm. Thus, we reject Cintrón's challenges to

the District Court's revocation ruling insofar as those challenges

are based on either Rule 32.1 or the Fifth Amendment.

III.

Cintrón separately contends that his revocation sentence

cannot stand on the ground that it exceeds the maximum imprisonment

term allowed by statute and is therefore unlawful. Cintrón brings

- 14 - this contention for the first time on appeal. Our review,

therefore, is for plain error. See United States v. Márquez-

García,

(1st Cir. 2017).

"To vault the formidable hurdle imposed by plain error

review, an appellant must show '(1) that an error occurred (2)

which was clear or obvious and which not only (3) affected the

[appellant's] substantial rights, but also (4) seriously impaired

the fairness, integrity, or public reputation of judicial

proceedings.'"

(quoting United States v. Duarte,

(1st Cir. 2001)). Cintrón has failed to make that showing

because he has failed to show that the District Court clearly or

obviously erred in imposing the sentence that it did.

After finding that Cintrón had committed a Grade A

violation of supervised release, the District Court sentenced him

to five years in prison and three years of supervised release

pursuant to its authority under

(e) & (h). In

addition, the District Court imposed the following supervised

release condition on Cintrón requiring that he

[R]emain under curfew at his residence of record from 6:00 p.m. to 6:00 a.m. for a period of six months to commence upon his release from imprisonment. During this time, he shall remain in his residence, except for employment or other activities approved in advance by the probation officer. He shall wear an electronic device 24 hours a day and shall observe the rules specified by the probation officer.

- 15 - Cintrón contends (1) that the condition that the

District Court imposed is a requirement that he "remain at his

place of residence during nonworking hours,"

(b)(19); (2) that such a condition "may only be imposed as

an alternative to incarceration,"

(emphasis added); and (3)

that because that condition "may be imposed only as an alternative

to incarceration," it is equivalent to imprisonment, such that the

imposition of that condition in addition to a prison sentence of

five years for his Grade A violation of the conditions of his term

of supervised release resulted in a term of imprisonment for that

violation in excess of five years. Thus, Cintrón contends that

the District Court imposed a revocation sentence that exceeded the

statutory maximum because

(e)(3) makes clear that

no prison sentence of more than five years may be imposed upon

revocation of a supervised release term when the offense that led

to the initial term of supervised release is a Class A felony.

Cintrón's challenge presents two questions of law. The

first is whether the supervised release condition imposed by the

District Court is in fact the condition to which § 3563(b)(19)

refers, i.e., home confinement. See United States v. Lopez-

Pastrana,

(1st Cir. 2018). The second is whether,

even if it is, it is equivalent to imprisonment, such that its

imposition resulted in Cintrón having received a term of

- 16 - imprisonment for violating the conditions of his supervised

release that exceeds five years.

As we will explain, even if we were to assume that the

supervised release condition the District Court did impose is the

supervised release condition set forth in § 3563(b)(19), Cintrón

cannot show that the District Court plainly erred in imposing the

sentence that it did. And that is because it is not "clear or

obvious" that such a condition constitutes "imprisonment" for

purposes of the statutory maximum term of imprisonment set forth

in § 3583(e)(3).

The statutory text does not plainly show that such a

condition constitutes imprisonment. Compare United States v.

Ferguson,

(5th Cir. 2004) (per curiam)

(concluding that home confinement and incarceration are equivalent

because the operative term "alternative" indicates "a proposition

or situation offering a choice between two things wherein if one

thing is chosen the other is rejected" (quoting Webster's Third

New International Dictionary 63 (1961))), with United States v.

Hager,

(4th Cir. 2002) (concluding that home

confinement and incarceration are not equivalent because the use

of the term "alternative" indicates that home confinement and

incarceration are "mutually exclusive" and therefore not the same

(quoting The Random House Dictionary of the English Language 61

(2d ed. 1987))). Nor does either our controlling precedent, cf.

- 17 - United States v. Ríos-Rivera,

(1st Cir. 2019) ("For

an error to be clear and obvious, we require an 'indisputable error

by the judge given controlling precedent.'" (quoting United

States v. Morosco,

(1st Cir. 2016)),3 or precedent

from other circuits. Compare Ferguson,

(holding

that "a court could not impose both a term of incarceration (upon

revocation of supervised release) and subsequent home detention

during a reimposed term of supervised release that, when combined,

exceeds the allowable maximum incarceration term"), with Hager,

(finding that "[h]ome confinement in this case is

more properly viewed as a condition of supervised release" and is

"not the equivalent of incarceration"), and United States v.

Polydore,

(5th Cir. 2012) (per curiam)

(declining to extend its prior decision in Ferguson when addressing

the question of whether a "previously imposed term of home

3We did state in United States v. Marcano,

(1st Cir. 2008) (per curiam), that Congress may have intended in enacting § 3563(b)(19) that a supervised release condition requiring that a defendant "remain at his place of residence during nonworking hours" be understood to be the equivalent of incarceration, see id. at 73-74. But, we did not determine there that Congress did so intend, as we instead concluded only that the defendant's "total period of imprisonment . . . plus the ensuing period of home confinement" did not exceed the relevant statutory maximum in any event. Id. Similarly, in Lopez-Pastrana, we stated that "home confinement is a 'unique' condition of release, permissible only as a stand-in for imprisonment,"

, but only in attempting to discern whether a defendant understood home confinement to be encompassed by the scope of his plea agreement's appellate waiver.

- 18 - detention is a term of imprisonment for purposes of determining

the maximum term of supervised release that may be imposed

following a subsequent revocation"); cf. United States v. Crocco,

(1st Cir. 2021) ("As a general principle, if a

question of law is unsettled in this circuit, and a conflict exists

among other circuits, any error in resolving the question will not

be 'plain or obvious.'"). Accordingly, we agree with the

government that Cintrón has failed to show that the District Court

clearly or obviously erred in imposing the revocation sentence

that it did.

IV.

Affirmed.

- 19 -