United States Court of Appeals
For the First Circuit
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No. 99-2168
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
PEDRO LUIS RAMIREZ-RIVERA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, Senior Judge)
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Before
Lynch and Lipez, Circuit Judges,
Garcia-Gregory,* District Judge.
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Epifanio Morales-Cruz, Assistant Federal Public Defender, with
whom Joseph C. Laws, Jr., Federal Public Defender, District of Puerto
Rico, was on brief, for appellant.
Nelson Perez-Sosa, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco,
Assistant United States Attorney, Chief, Criminal Division, were on
brief, for appellee.
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* Of the District of Puerto Rico, sitting by designation.
February 23, 2001
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GARCIA-GREGORY, District Judge. Pedro Luis Ramirez-Rivera
("Ramirez-Rivera") appeals from a sentence imposed following the
revocation of a 4-year term of supervised release. Ramirez-Rivera
contends that the district court erred by taking into account his need
for intensive substance abuse and psychological treatment in a
structured environment when it sentenced him, after that revocation, to
a prison term of 24 months. Although he did not present the argument
to the district court, he argues on appeal that this sentence must be
vacated because, under 18 U.S.C. § 3582(a) and 28 U.S.C. § 994(k),
federal courts are precluded from sentencing such defendants to terms
of imprisonment for purposes of rehabilitation or medical care. We
find the argument has been waived and affirm the judgment of the
district court.
I. BACKGROUND
A jury convicted Ramirez-Rivera of conspiracy to possess and
possession of cocaine with intent to distribute in violation of 21
U.S.C. §§ 846 and 841(a)(1) and of the use of a firearm in a drug
related offense in violation of 18 U.S.C. § 924(c)(1). On June 4,
1992, the district court sentenced Ramirez-Rivera to a prison term of
130 months,1 as well as a 4-year period of supervised release. On
1 On a motion to vacate sentence under 28 U.S.C. § 2255, the
district court vacated his sentence for the firearm conviction under §
924(c)(1), reducing his prison sentence to 70 months. This did not
affect the term of supervised release.
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November 14, 1996, Ramirez-Rivera was released from prison. On August
18, 1999, the district court revoked Ramirez-Rivera’s supervised
release and committed him to the custody of the U.S. Bureau of Prisons
for a term of 24 months, pursuant to 18 U.S.C. §§ 3553(a)(2)(D) and
3583(e)(3).
The facts leading to the revocation of the term of supervised
release can be summarized as follows. After his release, in December
1997 Ramirez-Rivera successfully completed an ambulatory drug program
required by the probation office. On March 8, 1999, however, he
refused to provide a urine specimen to his probation officer. When
interviewed by his probation officer, Ramirez-Rivera admitted that he
had used illegal narcotics. As a result of this admission, the U.S.
Probation Office referred Ramirez-Rivera to the Hogar CREA Residential
Detoxification Program, located in Rio Piedras, Puerto Rico. Hogar
CREA admitted Ramirez-Rivera on March 9, 1999, but, due to his hostile
attitude towards Hogar CREA’s staff, the probation office removed and
referred him to Hogar CREA La Quinta in Trujillo Alto, Puerto Rico.
Following a series of incidents involving Ramirez-Rivera’s
inability to adjust to his new environment, coupled with his generally
negative attitude towards rehabilitation, the district court issued an
order requiring Ramirez-Rivera to show cause why his supervision term
should not be revoked. On April 20, 1999, the district court held,
over the government’s objection, that it would modify Ramirez-Rivera’s
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conditions of supervised release. The district court ordered Ramirez-
Rivera to be placed in a community corrections center (CCC) for a
period of 6 months and to pay the cost of his confinement as required
by the U.S. Bureau of Prisons. Furthermore, the district court ordered
Ramirez-Rivera to remain detained at Hogar CREA La Quinta until the
Bureau of Prisons referred him to the CCC.
On July 15, 1999, Ramirez-Rivera again failed to comply with
the terms of his modified supervised release. He admitted that he had
been removed from the CCC because he had not complied with CCC
regulations. Moreover, Ramirez-Rivera admitted that he had failed to
report, as instructed by his probation officer, on July 8 , July 15, and
July 19, 1999.
As a result of these violations, on August 18, 1999, the
district court revoked the terms and conditions of supervised release
originally imposed on June 4, 1992. The district court ruled that
Ramirez-Rivera’s transgressions constituted a Grade C violation under
the provisions of § 7B1.1(a)(3) of the United States Sentencing
Commission's policy statements. The district court further held that,
given Ramirez-Rivera’s prior criminal history, § 7B1.4 of the
Sentencing Commission's policy statements called for a prison term
ranging from 3 to 9 months. Nonetheless, the district court determined
that Ramirez-Rivera’s need for an intensive substance abuse and
psychological treatment in a structured environment justified a
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sentence above the sentence range recommended by the Sentencing
Commission's policy statement. The district court then sentenced
Ramirez-Rivera to a prison term of 24 months, pursuant to 18 U.S.C. §
3553(a)(2)(D) and 18 U.S.C. § 3583(e)(3).
II. DISCUSSION
The issues on appeal are whether Ramirez-Rivera has waived
the statutory argument, and if so, whether the district court abused
its discretion when it considered Ramirez-Rivera’s drug rehabilitation
needs, pursuant to 18 U.S.C. § 3553(a)(2)(D) and 18 U.S.C. §
3583(e)(3), in imposing a sentence beyond the recommended range.
If defendant’s argument properly presented a question of
statutory interpretation, that would be reviewed de novo. See, e.g.,
United States v. Koon, 518 U.S. 81, 100 (1996); United States v.
O'Neil, 11 F.3d 292, 294 (1st Cir. 1993). The government contends that
Ramirez-Rivera waived any issue of statutory interpretation2 when he
2 The question is whether the prohibition contained in 18
U.S.C. § 3582(a) and 28 U.S.C. § 994(k) -- namely, that imprisonment is
inappropriate for the purpose of rehabilitating or promoting a
defendant’s medical needs -- bars district courts from considering a
defendant’s rehabilitation or medical needs when imposing a prison term
upon the revocation of supervised release. There is a division of
opinion on this issue. See United States v. Anderson, 15 F.3d 278, 282
(2d Cir. 1994) ("a court may consider an offender’s medical and
correctional needs when requiring that offender to serve time in prison
upon the revocation of supervised release"); United States v. Brown,
224 F.3d 1237, 1240 (11th Cir. 2000) (same); United States v. Giddings,
37 F.3d 1091, 1096-97 (5th Cir. 1994) (district court may consider
defendant’s need for rehabilitation when imposing a mandatory term of
imprisonment following the revocation of supervised release); United
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acknowledged, during the revocation hearing, that the district court
was acting within the scope of its sentencing discretion.3 We agree.
In United States v. Falú-González, 205 F.3d. 436 (1st Cir. 2000), we
applied the "raise or waive" rule in a sentencing context:
'Issues not squarely raised in the district court
will not be entertained on appeal . . .. Judges
are not expected to be mindreaders. Consequently,
a litigant has an obligation to spell out his
arguments squarely and distinctly, or else
forever hold his peace.'
Id. at 440, quoting United States v. Barnett, 989 F.2d 546, 554 (1st
Cir. 1993) (citing cases).
In Falú-González, we made it clear that "[t]he 'raise or
waive rule' is only relaxed in exceptional cases involving a gross
miscarriage of justice where the belated claim is 'so compelling as
virtually to insure appellant’s success.'" Id., quoting Barnett, 989
F.2d at 554 n.8 (citing cases). This is not an exceptional case.
Here, Ramirez-Rivera’s counsel expressly recognized the district
court’s sentencing discretion and merely asked for a reconsideration of
the incarceration period without advancing the reasons he now presses
States v. Jackson, 70 F.3d 874, 880 (6th Cir. 1995) (same); but see
Anderson, 15 F.3d at 284-86 (Kearse, J., dissenting). We do not reach
the issue.
3 At the revocation hearing, Ramirez-Rivera’s counsel stated:
"I understand that the Court has, the power to do that [impose the 24-
month sentence] under the circumstances, but I would request that the
Court reconsider the sentence of 24 months." (Appendix at 30).
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before this court. Ramirez-Rivera's revocation sentence does not rise
to the level of a gross miscarriage of justice. We see no reason,
therefore, to relax the "raise or waive" rule in this case.
Because questions of statutory interpretation have been
waived and we cannot say there was plain error, the only remaining
issue is review of the sentence set by the district judge, which was in
excess of that recommended by Chapter 7 of the Guidelines. In O’Neil,
we joined six other circuits in recognizing that Chapter 7 policy
statements are advisory rather than mandatory. 11 F.3d at 302 n.11;
see United States Sentencing Commission, Federal Sentencing Guidelines
Manual, Ch. 7 Pt. A (Nov. 2000). Where, following revocation of
supervised release, the district court sets a sentence that exceeds
that recommended in the Chapter 7 policy statements, the parties agree
that this court reviews for abuse of discretion. So we shall use that
standard here.4
4 The courts of appeal have not characterized the scope of
review on revocation sentences in an entirely consistent fashion,
though all agree upon a deferential standard of appellate review.
Several circuits have expressly employed an "abuse of discretion"
analysis where district courts have imposed revocation sentences in
excess of the range recommended by Chapter 7. See, e.g., United States
v. Brown, 224 F.3d 1237, 1239 (11th Cir. 2000); United States v.
George, 184 F.3d 1119, 1120 (9th Cir. 1999); United States v. Grimes,
54 F.3d 489, 492 (8th Cir. 1995). Other circuits have applied a
"plainly unreasonable" standard of review. See, e.g., United States v.
McClanahan, 136 F.3d 1146, 1149 (7th Cir. 1998) ("A defendant's
revocation sentence is subject to review under the 'plainly
unreasonable' standard because 'no guideline establishes a mandatory
range of such a sentence.'") (citation omitted); United States v.
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We see no abuse of discretion. The sentence was within the
statutory range, and Ramirez-Rivera has waived the only argument
evidently available against the new sentence imposed upon revocation of
supervised release.
Affirmed.
Jackson, 70 F.3d 874, 878 & n.3 (6th Cir. 1995); see also United States
v. Pelensky, 129 F.3d 63, 69 (2d Cir. 1997) (A sentence imposed for
violation of supervised release will be affirmed provided that "(1) the
district court considered the applicable policy statements; (2) the
sentence is within the statutory maximum; and (3) the sentence is
reasonable.") (internal quotation marks omitted). The practical import
of this difference in language is not immediately evident. Since the
parties in this case employ the language of "abuse of discretion," and
since it would not appear to make any difference here in any event,
that is the standard we will rely on for this case.
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