United States Court of Appeals
                     For the First Circuit


No. 21-1735

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

  HECTOR E. NAVARRO-SANTISTEBAN, A/K/A PEPITO, A/K/A PEPE JR.,
             A/K/A HECTOR E. NAVARRO-SANTIESTEBAN,

                      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,
              Lipez and Montecalvo, Circuit Judges.


     José David Rodríguez, with whom Franco L. Pérez-Redondo,
Assistant Federal Public Defender, and Eric Alexander Vos, Federal
Public Defender, were on brief, for appellant.

     Gregory B. Conner, Assistant United States Attorney, with
whom Maarja T. Luhtaru, Assistant United States Attorney, W.
Stephen Muldrow, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, were on brief,
for appellee.
September 29, 2023
          MONTECALVO, Circuit Judge.      Héctor Navarro-Santisteban

("Navarro") appeals from a decision of the federal district court

revoking his term of supervised release and ordering him to return

to prison for an additional two years.       The revocation followed

the court's finding that Navarro made unlawful death threats in

violation of a condition of his release barring the commission of

a new crime.   Navarro contends that the court erred by admitting

and considering his probation officer's hearsay testimony over his

limited confrontation right without first weighing whether it was

in the interests of justice to do so.        The government concedes

that the district court erred but claims the error was harmless.

We agree with the government that the error was harmless, and we

therefore affirm the revocation.        However, because we conclude

that the error may have affected the court's decision to impose an

upwardly variant sentence, we vacate Navarro's sentence and remand

to the district court for resentencing on the proper record and

consistent with this opinion.

                          I. Background1

          In 2016, Navarro received a sixty-month prison sentence

and eight years of supervised release for conspiracy to possess

with intent to distribute cocaine within 1000 feet of a protected

location in violation of 

(a)(1), 846, and 860.


     1    We draw our recitation of the facts from the district
court record.


                                - 3 -
             Navarro completed his custodial sentence and was placed

on supervised release in February 2020.           On May 31, 2020, the

United States Probation Office for the District of Puerto Rico

("Probation") learned that Navarro had made death threats to

members of his family and that, following involvement by the Puerto

Rico Police Department, a criminal complaint had been filed in

connection with the incident.      Though Navarro was never arrested

or charged, Probation moved to initiate revocation proceedings

based on the incident.         Probation alleged several violations

including that Navarro had made unlawful threats in violation of

his       supervised-release   condition   that     barred   him     from

"commit[ting] another federal, state[,] or local crime."2          Navarro

admitted to the violations, and on September 2, 2020, the district

court revoked his term of supervision and sentenced him to nine

months' reincarceration to be followed by seven years' supervised

release.

             Navarro was placed back on supervision in March 2021.

On June 11, 2021, after three months in a residential reentry




      2   Probation also alleged that Navarro had violated the
conditions of supervised release requiring him to (1) answer
truthfully to all inquiries by the probation officer and follow
all instructions of the probation officer; (2) notify the probation
officer within seventy-two hours of being arrested or questioned
by a law enforcement officer; and (3) participate in a mental
health treatment program.


                                 - 4 -
center, Navarro moved into his father's home.3   Two days later, on

June 13, 2021, Navarro's father confronted Navarro about suspected

synthetic marijuana use.   A verbal altercation ensued, culminating

in Navarro's father filing for, and obtaining, orders of eviction

and protection the next day.   The mother, who resided nearby, also

obtained an order of protection against Navarro.        No related

charges were filed, and Navarro complied with the three orders

without incident.   One week after the incident, on June 21, 2021,

the father opted not to renew the protective order and did not

pursue the matter further.

          On June 18, 2021, Navarro's probation officer notified

the district court of the altercation and moved to initiate

revocation proceedings based on the circumstances surrounding the

altercation.   The motion alleged that Navarro had violated the

conditions of his release barring: (1) the use and possession of

a controlled substance and (2) the commission of a new crime.

Navarro contested the alleged violations.

                A. Preliminary Revocation Hearing

          At   Navarro's   preliminary   revocation   hearing,   the

magistrate judge found no probable cause to support the alleged




     3    Pursuant to the conditions of his release, Navarro spent
his first three months on supervision residing at a residential
reentry center.


                               - 5 -
drug-related   violations    and   dismissed    them.4        This   left      the

government's    allegation      that      Navarro    had      violated         the

supervised-release   condition     barring    the   commission       of    a   new

crime. The government advanced two theories on which the violation

could be predicated: (1) that, under Puerto Rico law, the threats

Navarro   directed   at   his   parents    qualified     as   a   misdemeanor

"threats" offense and (2) that Navarro violated Puerto Rico law by

vandalizing his mother's home.      Relying on the probation officer's

in-court testimony, the magistrate found the threats-based theory

supported by probable cause and allowed it to proceed.                    Support

for the vandalism-based theory, however, was "second or third[-

]layer hearsay," so the magistrate concluded that "the interest of

justice d[id] not allow [the court] to take [the alleged vandalism]

into consideration as a possible ground for violating the first

condition" and dismissed it.           Because of the magistrate's no

probable cause findings, at the final revocation hearing, the

government was limited to its theory that Navarro violated the

conditions of his release by making unlawful threats.



     4    When a probation officer moves to revoke supervised
release, "a magistrate judge must promptly conduct a hearing to
determine whether there is probable cause to believe that a
violation occurred." Fed. R. Crim. P. 32.1(b)(1)(A). If there is
no probable cause, the proceeding must be dismissed.       

.1(b)(1)(C). If probable cause exists, a district court will
hold a revocation hearing where the government has the burden of
proving the violation by a preponderance of the evidence. Id.;
United States v. Whalen, 

, 531–32 (1st Cir. 1996).


                                   - 6 -
                      B. Final Revocation Hearing

            The court held the final revocation hearing on August

30, 2021.    To prove Navarro violated a condition of his release

barring any new crimes, the government sought to prove that Navarro

violated Puerto Rico's law criminalizing threats resulting in

determined   harm.5     As   support,   the   government   presented   two

witnesses, Navarro's probation officer and Navarro's mother, and

submitted three voicemail recordings.         There is no indication that

the government ever elicited testimony from Navarro's father,

although it did enter his father's account through the probation




     5    Although Probation did not identify a specific offense,
the parties and the court appear to have operated under the shared
understanding that the new crime underpinning the alleged
violation was "threats," a misdemeanor offense under Puerto Rico
law. The statute provides:

            Any person who threatens one or several
            individuals with causing determined harm to
            their person or family, physical integrity,
            rights, honor, or patrimony will incur in a
            misdemeanor.

            The person will have committed a felony and a
            fixed term of imprisonment will be imposed to
            any person who threatens to commit a crime, if
            said threat results in the evacuation of a
            building,   place   of  meeting,   or   public
            transportation facility.

Penal Code of Puerto Rico, Article 177 (certified translation of
Article 177, a criminal statute currently without official
published translation, as recorded in Dora Nevares-Muñiz, Código
Penal de Puerto Rico 280 (4th ed. 2019)).


                                  - 7 -
officer's testimony.6    Navarro objected to his probation officer

testifying to "what . . . [his] father told her" and asserted his

"right to cross-examine [his] father."            Without questioning why

Navarro's father was not present or inquiring into the reliability

of the hearsay testimony, the district court overruled Navarro's

objection,   stating   "[t]he    rules    of   evidence   don't   apply    in

revocation hearings, so denied," and admitted the testimony.

          Navarro's probation officer testified that, on June 13,

2021, Navarro and his father got into a verbal altercation.               She

stated that during the altercation Navarro acted aggressively and

made death threats that put his father "in fear for his life."

She further testified that as a result, Navarro's father "filed a

protection order and eviction order because he didn't feel safe

with Hector Navarro being in his own home."         The probation officer

explained that her testimony was based on telephonic conversations

with the father in the days following the incident.                On cross

examination,   the   probation   officer       conceded   that   the   father

"requested that [the] order [of protection] be withdrawn" one week

later, when it was set to expire, because "he wasn't interested in

pursuing the charges."    The probation officer further added that


     6    The probation officer testified that she interviewed
both of Navarro's parents in the days after Navarro was evicted
from his father's house and that each told her that Navarro had
threatened them. She testified that the death threats occurred
over a two-day period, first directed at the father on June 13,
2021, and then at the mother on June 14, 2021.


                                  - 8 -
Navarro admitted to threatening his parents, but the probation

officer offered no details about the substance of the purported

verbal admission.

            The government also questioned the mother about the

incident between Navarro and his father.            She testified that she

spoke with the father the following day, June 14, 2021, and learned

then that "they had some trouble because of [Navarro's] us[e of]

potpourri and his dad filed an Order of Eviction and also a

protection order" but admitted that she did not know exactly what

happened.   When questioned further about why the father sought the

order of protection, his mother said she "believe[d] it was because

of his use of the potpourri."

            The mother also testified to communications she received

from Navarro after his altercation with his father.          She explained

that "because of what [had] happened with his father, [Navarro]

started calling [her] on the phone and leaving messages" accusing

her of influencing his father's decision to obtain the orders of

protection and eviction.         Although the mother received multiple

calls    from   Navarro,   she    conceded   that    only   one   contained

threatening language.7     In that call, which occurred on June 14,

2021, Navarro asked his mother "[w]hether it was because of [her]



     7    In support, the government submitted several of the
messages Navarro left for his mother, which the court admitted
over Navarro's objection.


                                   - 9 -
that the Order of Protection was filed" by his father and "in a

threatening tone . . . said to tell him because he was gonna get

a knife and he was going to kill his dad, kill [her], and [her]

partner."

            Later that day, the mother obtained her own protective

order against Navarro.         After the order was served on June 15,

2021, Navarro sent a final message to his mother asking "[w]hy

harassment? What harassment is that?" and told his mother that she

does not "know what [she's] doing . . . what [she's] getting into

because the problem he had was not with [her]."

            In   addition      to    presenting     evidence     on   Navarro's

communications    with   his    parents,      the   government   introduced   a

voicemail message that Navarro left for his sister who was living

in the mainland United States.             Over Navarro's objection, the

message was read as a real-time translation into the record.                  It

said: "You're gonna die.            And I'll take pleasure in that that

you're gonna die.    You and [your husband]."

            The mother testified that she received the message from

her daughter and had then forwarded it to Probation.                  She later

admitted that she could not recall when her daughter sent the

voicemail but speculated that it would have been after Navarro had

started calling her over the incident between Navarro and his

father.




                                     - 10 -
             In     closing,    Navarro        argued    that     the    government's

evidence was insufficient to establish a violation of Puerto Rico's

"threats" offense.        Navarro argued that, even if the court were to

credit the hearsay testimony, the threats as described by Probation

were conclusory and lacked the definite qualities required to

convict on a "threats" offense under Puerto Rico law.

             In the event the court revoked his supervised release,

Navarro advocated for a guidelines sentence of three to nine

months.     The government, in turn, requested a twenty-four-month

sentence.         Highlighting     that    it     would    be     Navarro's      second

revocation for making death threats, the government argued that an

above-guidelines sentence was necessary to provide a level of

security to the family beyond what a protective order could offer.

             Following     arguments,      the     court       found    that    Navarro

violated the condition of his release prohibiting the commission

of   another      federal,     state,     or    local     crime    --    a     Grade    C

violation8     --   "by   making   death       threats    to    family    members      as

indicated in the motion filed by the probation officer and the

testimony heard by the [c]ourt today."                   And on that basis, the

court revoked Navarro's supervised release.



     8    Supervised release violations are categorized into three
grades. U.S.S.G. § 7B1.1(a).     Grade C is the least severe and
covers conduct that constitutes crimes punishable by imprisonment
of one year or less and violations of all other conditions of
supervision that are not predicated on criminal conduct. Id.


                                        - 11 -
           In the colloquy that followed, the court explained "why

the   defendant   was   revoked    and   the   factors   [it]    took    into

consideration on why the term of imprisonment was imposed."              These

decisions were based on its findings that "Mr. Navarro made death

threats to his family members -- his mother, his father, his

sister, and his sister's husband;" that "[t]he threats made to his

family members caused his mother to fear for her life, as she

testified today, caused his father to evict him from his house

where he was living, and caused his sister to inform her mother of

the threats made by Mr. Navarro;" that "threats were made to Mr.

Navarro's mother including getting a gun and a knife to kill her,

her partner, [his] father;" and that "Mr. Navarro's father feared

for his life who then evicted [Navarro] from his house . . . [and]

[m]ore threats were made to the father who didn't feel secure."

           Before   ending   its    discussion     on    the    nature    and

circumstances of the violation, the court noted that:

           Mr. Navarro's father's house and his mother's
           house are near each other[,] in the same
           subdivision within five minutes walking
           distance of each other.    [Navarro's mother]
           said that one of the messages that she
           received was received when she was not at
           home; when she returned home the windows and
           the door had been destroyed.

The court then sentenced Navarro to twenty-four months in prison,

fifteen months over the top of the guidelines range, and six years

of supervised release.     The court elaborated:



                                  - 12 -
            The death threats made by Mr. Navarro will not
            be taken lightly by this [c]ourt as the
            conduct poses a significant and imminent risk
            to his family and to public safety.        Mr.
            Navarro's behavior went against the conditions
            of supervised release imposed on him and
            showed no respect towards the [c]ourt which is
            why he is facing a second revocation
            proceeding for the same reasons he was first
            revoked. The [c]ourt will not tolerate this
            type of behavior which is in detriment not
            only to his family but to society as a whole.

            At the end of the hearing, Navarro objected to the

procedural and substantive reasonableness of the sentence.            He

also reiterated his belief that the court erred by considering

inadmissible and unreliable evidence:

            As to the threats to his father, again we
            didn't have an opportunity to cross-examine
            his father here.    We don't have a written
            statement of him. We don't know the specifics
            of these threats and the [c]ourt in its ruling
            listed these threats in its sentence.      So,
            Your Honor, we understand that the [c]ourt
            considered unreliable evidence in this case.

Navarro concluded by noting two final objections: first to the

court's reference to the property damage to the mother's home,

despite "nothing connecting [him] to the[] event," and second to

the court's finding that Navarro made unlawful threats where they

were not "real" and "determined."        This timely appeal followed.

                              II. Discussion

                              A. Revocation

            On appeal, Navarro contends that the district court's

erroneous    admission   of   his    father's   out-of-court   statements


                                    - 13 -
through the probation officer's testimony violated Federal Rule of

Criminal      Procedure     32.1(b)(2)(C)     ("Rule    32.1(b)(2)(C)")     and

deprived him of his limited right to confront witnesses under the

Due Process Clause of the Fifth Amendment.

              Having found Navarro's claim preserved, we review the

court's decision to revoke his supervised release for abuse of

discretion, see Whalen, 

, and its underlying factual

findings, including the "underlying finding of a violation[,]

. . . for clear error," United States v. Wright, 

(1st   Cir.    2016).       "Along   the    way,   we   draw   our   own   legal

conclusions," United States v. Colón-Maldonado, 

(1st Cir. 2020), "mindful, though, that a material error of law

always amounts to an abuse of discretion."                   United States v.

Rodriguez, 

 (1st Cir. 2019).

              It is well established that neither the Federal Rules of

Evidence nor the Confrontation Clause of the Sixth Amendment

circumscribe      the     admissibility       of   hearsay     in    revocation

proceedings.      United States v. Bueno-Beltrán, 

(1st Cir. 2017).        However, the presiding court's discretion over

evidentiary decisions is not without limits.               One such check is

the defendant's "limited right to confront adverse witnesses both

under Rule 32.1(b)(2)(C) . . . and the Due Process Clause of the

Fifth Amendment."         United States v. Cintrón-Ortiz, 

,

124 (1st Cir. 2022).         The bounds of this right are embodied in


                                     - 14 -
Rule 32.1(b)(2)(C), which states 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."     Fed.     R.    Crim.    P.    32.1(b)(2)(C);       see

Colón-Maldonado, 

 ("[Rule 32.1(b)(2)(C)] draws from

the   accused   violator's     due    process       'right      to   confront   and

cross-examine     adverse   witnesses       (unless       the    hearing   officer

specifically finds good cause for not allowing confrontation).'"

(quoting Gagnon v. Scarpelli, 

 (1973))).                  To make

such a determination, a court must balance a releasee's right to

confront the witness with what good cause may exist for denying

confrontation in a particular instance.             Colón-Maldonado, 

.     And "constructing that balance requires weighing the

reliability of the hearsay statement against the reasons proffered

by the government for the witness's absence."                   United States v.

Franklin, 

 (1st Cir. 2022); see also United States

v. Taveras, 

 (1st Cir. 2004) ("The court is to

balance the person's interest in the constitutionally guaranteed

right to confrontation against the government's good cause for

denying it.     An important element of the good cause analysis is

the reliability of the evidence that the Government seeks to

introduce." (internal citation and quotation marks omitted)).

           Navarro    argues    that       the   district       court    committed

reversible error by (1) admitting the probation officer's hearsay


                                     - 15 -
testimony without determining it was in the interests of justice

to do so over his limited confrontation right and (2) relying on

the improperly admitted hearsay testimony to find that Navarro had

violated the terms of his supervised release.              The government, for

its part, concedes that the court erred by admitting the challenged

hearsay    testimony    without    determining       whether   it        was    in   the

interests of justice to do so but urges us to find the error

harmless.     See Rodriguez, 

 (explaining that "a

material error of law always amounts to an abuse of discretion"

warranting reversal unless the error was harmless).

             The    government    argues    that   the     error    was        harmless

because,     even   excluding    the    hearsay    evidence,       the    court      had

"sufficient reasons to revoke Navarro's supervised release."                          To

establish harmlessness, the government must prove, "with a high

degree of confidence," United States v. Teixeira, 

(1st Cir. 2023), that "considering only the non-hearsay evidence

submitted to the district court, the result would have been the

same," United States v. Mosley, 

 (7th Cir. 2014).

When undertaking this analysis, we "consider the evidence in the

light most favorable to the government," while paying attention to

the   requirement     that   factual      findings    be   based     on        reliable

evidence, and "recogniz[ing] the district court's broad legal

power   to   determine    witness      credibility."        United        States      v.




                                       - 16 -
Portalla, 

 (1st Cir. 1993) (internal citations

omitted).

             Navarro     points    to     the      court's   discussion       of     the

violation as evidence that the hearsay influenced the court's

decision to revoke, citing the court's express reliance on the

hearsay in support of its findings and conclusions. The government

does   not    contest     that     the     court     expressly      relied    on     the

inadmissible hearsay to find Navarro made death threats to his

father.    But the government also considers the reliance irrelevant

where the death threats Navarro made to his mother constitute an

independent basis for the revocation.                We agree.

             To     revoke       Navarro's         supervised       release        under

(e)(3),          the     district    court    had   to    find     by    a

preponderance of the evidence that Navarro committed a new federal,

state, or local crime, in this case the Puerto Rico misdemeanor

offense of "threats."            See Teixeira, 

.                   To be

convicted for "threats" under Puerto Rico law, the government must

adduce evidence that the defendant "threaten[ed] one or several

individuals       with   causing   determined        harm    to   their    person       or

family."     See supra note 5.

             No doubt, at the hearing, the government sought to prove,

and the court ultimately found, that Navarro made several unlawful

threats.     But this does not change the fact that committing the

underlying crime requires just one unlawful threat.                      See id.     And


                                         - 17 -
here, after setting aside the threats that substantially relied on

the   hearsay     testimony,     one   sufficiently     supported     threat

remains: the threats to the mother.9         But Navarro challenges the

independence of the court's finding, arguing that the hearsay's

"narrative"     colored   the   court's   view   of   the   phone   call   and

influenced its finding.



      9   Navarro also claims that the threats to his mother lack
the requisite qualities of a prosecutable threat under Puerto Rico
law and therefore cannot be the basis for his violation.
Specifically, he contends that the evidence does not support a
finding that his "ranting soliloquy" contained "real [or true]
threats," as required under Puerto Rico law because it does not
satisfy (1) the "element of immediacy" nor (2) that the "fear
arising from speech directed at [his mother] [was] reasonable under
the circumstances." Given that these claims find no support in
the record, we offer no more than is necessary to dispose of them.
          We begin with the immediacy requirement. In Navarro's
formulation, to be convicted of "threats" under Puerto Rico law,
the state must prove "an unequivocal verbal or written
manifestation of willingness to cause certain harm to a determined
person or their family, and an apparent danger and restlessness to
the recipient of the threat or who hears it."          But, as the
government points out, Navarro's articulation of the elements
lacks any reference to an immediacy requirement. Where Navarro
offers no other support for his claim that under Puerto Rico law
a "threats" offense has an immediacy element, we need go no further
to dispose of Navarro's sufficiency claim.      Nevertheless, even
assuming the government had to prove immediacy, one could
reasonably infer immediacy from the conditional nature of the
threat, Navarro's declaration that he was going to get his weapons,
and Navarro's relative proximity to his mother.
          Navarro's contention that the record cannot support a
finding that his mother's fear was reasonable fares no better. To
the contrary, the record contains ample evidence to support the
reasonableness of her fear. On the call, Navarro blamed his mother
for his situation and declared "in a threatening tone" that he was
going to get a knife and kill her. Simply put, Navarro's claims
of error do not hold up against his mother's direct testimony.


                                   - 18 -
            While we do not dismiss the possibility that erroneously

admitted evidence could have a prejudicial effect on the inferences

a court draws from admissible testimony, that is not what happened

in this case.      Here, the threats to the mother are firmly rooted

in her in-court testimony.          The mother testified that Navarro said

in "a threatening tone" that "he was gonna get a knife and he was

going to kill his dad, kill me, and my partner."              Because this was

an explicit, particularized death threat, we see no merit in

Navarro's claim that the taint of hearsay permeated this finding.

Accordingly, the independent support for the death threats against

the mother gives us a "high degree of confidence," Teixeira,

, that the court's decision to revoke Navarro's

supervised    release     based     on   the   alleged     violation     was   not

influenced by its erroneous admission of the probation officer's

testimony.       Cf. United States v. Serrano-Acevedo, 

 (1st Cir. 2018).       The district court's error in admitting the

hearsay testimony was therefore harmless.             Having found that the

erroneous admission of the hearsay testimony did not affect the

outcome here, we affirm the revocation of Navarro's supervised

release.

                                    B. Sentence

            We    turn   now   to    Navarro's    appeal    from   the    ensuing

sentence.    For committing the Grade C violation of his supervised

release, the district court fixed Navarro's guidelines sentence at


                                      - 19 -
three to nine months based on the nature of the violation and his

criminal history score of I.                    From there, the court sentenced

Navarro    to     twenty-four          months       in    prison    --    a   fifteen-month

departure        from      the         top     of        the     applicable       guidelines

range -- followed by six years of supervised release.                             On appeal,

Navarro    takes     aim     at        the    procedural         reasonableness       of   his

revocation sentence, arguing that the court's decision to vary

upward was based on (1) unreliable, hearsay evidence regarding

Navarro's alleged threats to his father and (2) clearly erroneous

facts regarding his involvement in the purported vandalism.                                See

Gall v. United States, 

 (2007).                                Having found

Navarro's claims of sentencing error preserved below, we review

for abuse of discretion.                 United States v. Soto-Soto, 

 (1st Cir. 2017).                We address his two arguments in turn.

                                       1. Reliability

               First, Navarro claims that his sentence was predicated

on    inadmissible      or   unreliable             testimony.          Navarro   makes    two

separate challenges to the factual underpinnings of his sentence.

The    first     attacks     the       court's       reliance      on    hearsay-dependent

findings and turns on whether the hearsay testimony was properly

considered at sentencing.                    And the second targets the court's

unsubstantiated findings.

               "[S]electing        a    sentence         based    on    clearly     erroneous

facts,      or     failing         to        adequately          explain      the      chosen


                                             - 20 -
sentence -- including an explanation for any deviation from the

Guidelines range," is a "significant procedural error," Gall,

, warranting "revers[al] unless the government shows

the   mistake    did   not    affect      the    sentence,"   Colón-Maldonado,

.

            We begin with the hearsay.           In this circuit, we have yet

to decide whether Rule 32.1's protections against the admission of

hearsay evidence extend to the sentencing phase of a revocation

proceeding or if the sentencing phase is governed by the general

sentencing      procedure    of    Rule    32.       See   United      States   v.

Torres-Santana, 

 (1st Cir. 2021) (recognizing

circuit split on the issue and declining to resolve the legal

question where facts made it unnecessary to do so).                    And we need

not do so today because although "Rule 32 provides no confrontation

right and gives the court 'broad discretion to accept hearsay

evidence,'" the court may only rely on hearsay if "the information

has sufficient indicia of trustworthiness to warrant a finding of

probable   accuracy."       

   (quoting      United   States   v.    Rodriguez,

 (1st Cir. 2003)).                Indeed, a court must always

"take pains to base sentencing judgments upon reliable and accurate

information."     United States v. Tavano, 

 (1st Cir.

1993).     Therefore, regardless of whether Rule 32.1 or Rule 32

applies to sentencing decisions, the court failed to properly

assess the reliability of hearsay evidence in sentencing Navarro.


                                     - 21 -
            When considering the reliability of verbal testimony, we

look to the statement itself for facts that bolster the likelihood

of its truthfulness and to the broader record for corroborating

evidence.     See United States v. Fontanez, 

 (1st

Cir. 2017); see also Colón-Maldonado, 

.                    In both, we

find the government has come up short.

            First, the probation officer's testimony itself lacked

hallmark indicia of reliability.                  "[W]hen a court extends a

defendant's sentence based on hearsay, there must be other signs

(other     'indicia      of    trustworthiness')     to     permit       a    reasoned

conclusion        that        the    statements     are     still            reliable."

Colón-Maldonado, 

 (citation omitted).                          Here, the

probation     officer's         testimony   was     based     on     a       telephone

conversation with the father that occurred two months prior to the

hearing.     The record contains no evidence that the probation

officer ever had the father reduce his statements to writing nor

that the probation officer had contemporaneous notes to refresh

her recollection of it.             See United States v. Rondeau, 

   (1st   Cir.    2005)     (explaining    that   declarants           reducing

statements to writing bolsters reliability); Taveras, 

 (finding probation officer's hearsay statements concerning

the probation officer's account of the violation unreliable where

the probation officer had met with the witness only once, the

testimony was oral, and there was no corroborating written or


                                       - 22 -
physical evidence to support the hearsay). Moreover, the probation

officer offered only vague and conclusory testimony of the father's

account, without providing any details about the circumstances

surrounding the alleged threat, the context in which it arose, or

how the father responded.       See Rondeau, 

; Portalla,

.

            The probation officer here simply repeated that Navarro

"threatened [his father], and was being aggressive towards him,"

without ever stating the content of the actual threat itself.

Accordingly, we find that the probation officer's testimony lacked

indicia of reliability to support its probable accuracy.10

            Moreover, the protection and eviction orders the father

obtained    against   Navarro   do   not   sufficiently    establish   the

reliability of the probation officer's testimony.          See Fontanez,

 ("Objective evidence that corroborates a witness's

testimony    may   provide   persuasive    proof   of   that   testimony's

reliability.").




     10   We are also troubled by the prospect of admitting the
hearsay without giving Navarro an opportunity to probe his father's
account where the record demonstrates that Navarro's father opted
not to renew the protective order after one week and defense
counsel represented that Navarro and his father had since
reconciled.   These facts, at a minimum, cast some doubt on the
probation officer's testimony that the threats to Navarro's father
left the father fearing for his life.       See generally Tavano,

 ("[A] court must take pains to base sentencing
judgments upon reliable and accurate information.").


                                  - 23 -
          Specifically, both the probation officer and the mother

testified to conversations with the father on June 14, 2021, the

day he obtained the orders.   Both were asked why the father decided

to take this step.   But only the probation officer connected the

orders to Navarro's alleged death threats.      The mother, on the

other hand, testified that the father obtained the eviction and

protection orders as a response to Navarro using a prohibited drug

in his father's home.   This discrepancy not only undermines the

corroborating force the protective order may have otherwise had,

but also underscores more generally why the record does not support

a reliability finding here.     See United States v. Flete-Garcia,

 (1st Cir. 2019) ("[D]ue process demands that a

sentencing court 'consider all the available evidence, including

conflicting evidence' to 'assure itself that a piece of proof is

sufficiently reliable.'" (quoting Tavano, 

)).     The

uncorroborated verbal hearsay therefore lacked the basic indica of

reliability necessary to establish its probable accuracy.       And

because unreliable hearsay cannot be considered at sentencing, the

court should not have allowed it during the sentencing phase of

the hearing.11   See Taveras, 

. The court thus


     11   The court also made several factual findings that are
untethered from the record. At least one of those findings refers
to a second incident between Navarro and his father involving
"[m]ore threats." The record, however, contains no evidence of
these threats. In another finding that appears to have no support



                               - 24 -
abused its discretion by considering the unreliable hearsay, and

we must "reverse unless the government shows the mistake did not

affect the sentence."    Colón-Maldonado, 

.

          Where,   as   here,   it   is   impossible   to   extricate   the

influence of the verbal hearsay from the court's broader sentencing

rationale, we cannot find the court's error harmless.

          The court reasoned that the harsh sentence was necessary

because the death threats "pose[] a significant and imminent risk

to [Navarro's] family and to public safety."       We cannot ignore the

likely ways the hearsay influenced this conclusion.

          First, we know from the court's own words that it placed

considerable weight on the nature and frequency of the threats

Navarro purportedly made to his father.         But those threats were

based on the probation officer's hearsay testimony and therefore

cannot justify the variance.     Still, other findings could explain

the variant sentence such as the mother's testimony revealing the

violent nature of Navarro's threats to her, the angry voicemail

Navarro left for his sister, and the proximity of the violation to



in the record, the court purported to cite testimony from Navarro's
mother that the death threats motivated Navarro's father to evict
him. But Navarro's mother did not testify that Navarro was evicted
because he threatened his father. For its part, the government
acknowledges that these findings were erroneous but contends that
they were benign misstatements that the court did not actually
rely on in crafting Navarro's sentence.       Where we vacate the
sentence on other grounds, we need not address these findings
further.



                                 - 25 -
his release.    But even though these findings do not directly rely

on the verbal hearsay, we cannot say with any certainty that the

taint of the court's error did not reach them.12          If anything, the

record suggests the inadmissible hearsay provided critical context

to support several of the court's inferences necessary to make

these findings.

            For one thing, it is clear from the record that the June

13, 2021 incident between Navarro and his father precipitated the

call where Navarro threatened his mother -- the sole basis for the

violation -- and the ominous voicemail Navarro left for his sister.

See supra Section II.A.       It follows that the probation officer's

testimony that Navarro had put his father in fear for his life

likely    influenced   the   seriousness   with   which   the   court   took

Navarro's threats to his mother.      Moreover, the hearsay testimony



     12   In a Federal Rule of Appellate Procedure 28(j) letter
filed with the court following argument on December 13, 2022, the
government argues that a recent decision interpreting Puerto
Rico's "threats" offense establishes that "Navarro's statement to
his mother that he would 'get a knife and . . . kill his dad, kill
me [(the mother)], and [her] partner,' constituted a threat both
to his mother and to his father." It added that "[p]articularly
for the sentencing phase of the hearing, the district court's
conclusion that Navarro had threatened his father is supported by
reliable evidence." Regardless of whether Navarro's statement to
his mother contained one threat or three under Puerto Rico law, we
see nothing in the record to suggest that the court's decision to
vary was based exclusively, or even primarily, on the substance of
that call. And, even accepting that Navarro's call to his mother
contained   threats   directed   at    both   his   parents,   our
conclusion -- that the inadmissible hearsay influenced the
sentencing outcome here -- remains unchanged.


                                  - 26 -
provided support for the court's inference that the voicemail

Navarro left for his sister contained a genuine threat.                    Indeed,

the weight of the probation officer's testimony is compounded by

the    fact   that    she   testified      first.      Therefore,   the    hearsay

testimony regarding Navarro's alleged threats against his father

inevitably dominated the court's assessment of the circumstances

and colored its view of the mother's testimony.

              Also    of    note    is    Navarro's     observation   that     the

revocation judgment issued by the court states that Navarro's term

of supervision was being revoked for a violation -- making death

threats to family members -- that ended on June 13, 2021.                  But the

only record evidence of a threat on or before June 13, 2021 is the

probation officer's testimony that Navarro threatened his father.13

Navarro contends that the court's entry on the judgment underscores

the critical role the threats directed at his father played in the

court's decision to revoke his supervised release.                        We agree

because regardless of whether this date selection was intentional

(i.e., the judge wanted to signal that the revocation was based

entirely on the threats to the father) or a scrivener's error

(i.e., the judge did not mean to exclude the evidence of threats

made    to    other   family       members),      without   considering    conduct



       13 The record shows that the call where Navarro threatened
his mother occurred on June 14, 2021 and the voicemail to Navarro’s
sister was left sometime after that.


                                         - 27 -
postdating June 13, 2021, the record is entirely devoid of evidence

justifying the upward variance imposed.

            Still, the government argues that even if the court

erroneously relied on findings tainted by the verbal hearsay, the

error is of no consequence because the court ultimately rested the

variance on the fact that Navarro was before the court on his

second threats-based violation.            To be sure, Navarro's history of

threatening      family    members      likely   weighed   into   the    court's

sentencing decision, as did the fact that he received a guidelines

sentence for his first violation.                But, nonetheless, we cannot

ignore the considerable weight the court gave to the nature and

frequency   of    the     death   threats.        In   particular,   the   court

considered each threat individually when discussing the relevant

conduct.    The court's focus on cataloguing the individual threats

suggests that the hearsay testimony played into its assessment of

the   sentencing     factors      and     therefore     influenced      Navarro's

sentence.     See United States v. Rodríguez-Meléndez, 

 (1st Cir. 2016) (summarizing that erroneous factual findings

affect the outcome of a proceeding when they weigh on an issue the

court considered "salient" to its sentencing decision, even if the

issue is not "the most important factor in [the court's] sentencing

decision").    Accordingly, because of the outsized role the hearsay

played in the court's factual findings, we cannot extricate its

influence from the court's broader sentencing rationale.                      We


                                     - 28 -
therefore vacate Navarro's revocation sentence and remand for

resentencing on the proper record.

                               2. Vandalism

            We turn next to Navarro's argument that the court relied

on   unsupported   vandalism    allegations   in    selecting   Navarro's

sentence.      The court, just before handing down its sentence,

remarked that:

            Mr. Navarro's father's house and his mother's
            house are near each other[,] in the same
            subdivision within five minutes walking
            distance of each other.     [The mother] said
            that one of the messages that she received was
            received when she was not at home; when she
            returned home the windows and the door had
            been destroyed.

From   this,   Navarro   contends   the   court    implicitly   found   him

responsible for the damage to his mother's home and erroneously

considered it "indicative of [his] dangerousness" in crafting his

sentence.

            The government responds that the summary of the mother's

testimony could not be fairly understood as a culpability finding.

In any case, the government continues, the record shows no signs

that the court considered the vandalism allegation at sentencing.

            The fact that the court raised these allegations just

before imposing its sentence, in our view, lends strong support to

Navarro's contention of reliance.         That said, we stop short of

finding error here where the record is ambiguous and where we have



                                 - 29 -
already determined that Navarro's sentence must be vacated and the

matter remanded for resentencing.              We do clarify, however, that

given the lack of reliable evidence to support the vandalism

allegations,      the   court    is    precluded     from   relying    on    such

allegations at resentencing.

                                III. Conclusion

     For the foregoing reasons, we affirm the district court's

order revoking Navarro's term of supervision, vacate the court's

sentence,   and    remand   for       resentencing    consistent      with   this

opinion.




                                      - 30 -