United States Court of Appeals
For the First Circuit
No. 07-1063
UNITED STATES OF AMERICA,
Appellee,
v.
BILLY ROY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch, Circuit Judge,
and Schwarzer,* Senior District Judge.
Robert C. Andrews for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
October 23, 2007
*
Of the Northern District of California, sitting by
designation.
BOUDIN, Chief Judge. On April 9, 2001, after pleading
guilty to possession of child pornography, 18 U.S.C. §
2252A(a)(5)(B) (2000), Billy Roy was sentenced to 24 months in
prison and three years of supervised release. Among the conditions
of Roy's supervised release were that he participate in a mental
health program and avoid contact with children under age 18 without
the approval of his supervisor.1
Since his release from prison on the pornography
conviction, Roy's supervised release has been revoked on three
occasions for, among other things, having contact with the two
young children of his girlfriend, Jennifer Woodward. On the first
occasion, Roy was sentenced in 2004 to four months in prison and 32
months of supervised release; one of the conditions of supervised
release required Roy to spend three months in community confinement
after release from prison.
Roy's supervised release was revoked a second time in
July 2005, for his failure to comply with the terms of his mental
health treatment program by continuing to have contact with his
girlfriend and her children. This time he was sentenced to eight
months in prison and an additional term of 24 months of supervised
release. United States v. Roy, 438 F.3d 140, 142 (1st Cir.), cert.
denied, 126 S. Ct. 2945 (2006). Shortly after his release, Roy was
1
The condition is readily explained: Roy was also convicted in
1998 of unlawful sexual conduct. The victim was a 14-year-old girl
who had been babysitting for Roy's nephews.
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once again arrested for violating the terms of supervision by again
having contact with Woodward's young children; he was sentenced to
12 months in prison.
Roy now appeals the third revocation sentence. His main
argument is that he was protected by a 24-month aggregate limit on
prison time for violations of supervised release; that his three
months of community confinement imposed as part of the first
revocation sentence should count toward that aggregate cap; and
therefore that--counting the first as seven months and second as
eight--his sentence on the third revocation could be no more than
nine months (24-(7+8)=9).
Roy did not raise this objection in the district court.
The probation report on the third revocation assumed that the
maximum sentence was 12 months, as did the sentencing judge and the
parties. The government now says that the applicable aggregate
maximum was 36 months; Roy says it was 24 but that community
confinement counts. We do not need to resolve either contention
because Roy's claim of error does not meet the requirements for
plain error review.
Under United States v. Olano, 507 U.S. 725, 732 (1993),
the formal requirements for recognizing plain error are that the
claimant satisfy each of four different tests by showing: "(1) that
an error occurred (2) which was clear or obvious and which not only
(3) affected the defendant's substantial rights, but also (4)
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seriously impaired the fairness, integrity, or public reputation of
judicial proceedings." United States v. Duarte, 246 F.3d 56, 60
(1st Cir. 2001).
Combined, these requirements set a very high threshold
and deliberately so. The job of the lawyer is to tell the judge
when a mistake is being made while it can readily be corrected; the
cost of undoing a mistake raised for the first time on appeal can
be very high. Even in criminal cases, mistakes by counsel not
meeting plain error standards are tolerated--unless counsel is
deficient to the point of incompetence prejudicing the defendant.
United States v. Torres-Rosario, 447 F.3d 61, 64 (1st Cir. 2006)
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
That the error be "plain" is a central part of the Olano
requirements but its rationale may be less evident than the other
three requirements. Probably one reason for requiring "plainness"
is the notion that a judge even without objection should respond to
obvious errors; but a more prudential reason is that "close cases"
involve issues that could be decided either way, while blatant
errors, when left uncorrected, are more disturbing to public
confidence in the trial process.
The last of these reasons may explain why, contrary to
one's first instinct, the Supreme Court has ruled that an error not
"plain" or previously settled at the time the district court ruled
can become "plain" where, prior to appellate review, intervening
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law has resolved the issue clearly. Johnson v. United States, 520
U.S. 461, 468 (1997). But the requirement of "plain" error would
be abolished if the issue is still debatable before the appeals
court hears the case and becomes plain only because the court then
resolves it. An error is normally plain after the court has ruled.
Here, it was not "plain" when the district court acted,
and is not now "plain" on appeal, whether the time spent in
community confinement as a part of supervised release following an
earlier revocation should or should not count toward an aggregate
limit on the maximum period of imprisonment for a series of
revocations. Neither statutory text, substantial precedent or
policy considerations clearly answer the question in Roy's favor.
Arguably, there was no error; if error existed, it was not plain.
Under the statute, the district court is permitted for
violation of conditions to "revoke a term of supervised release,
and require the defendant to serve in prison all or part of the
term of supervised release authorized by statute," 18 U.S.C. §
3583(e)(3), subject to a statutory cap,2 which we read as applied
to the aggregate of all time served for such violations. United
2
Section 3583(e)(3) says in relevant part that "a defendant
whose term is revoked under this paragraph may not be required to
serve . . . more than 3 years in prison if [the underlying] offense
is a class B felony, more than 2 years in prison if such offense is
a class C or D felony, or more than one year in any other case."
We do not reach the question, which is in dispute, of whether Roy's
case is affected by the PROTECT Act of 2003's modification of this
section. PROTECT ACT, Pub. L. No. 108-21, tit. I, § 101, 117 Stat.
650, 651 (2003).
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States v. Tapia-Escalera, 356 F.3d 181, 187-88 (1st Cir. 2004).
Whether time in community confinement counts as time "in prison" is
not answered by text or further definition.
Neither do policy considerations settle the issue: prison
might be conceived of as the most restrictive form of punishment;
where community confinement or home detention fall on a spectrum
between incarceration and complete freedom of movement is a
question with no precise answer; neither is the relative
relationship between the former two. And, both community and home
confinement can be more or less restrictive depending on the
facilities themselves or the type of monitoring required by the
district court.
Roy cites to no authority supporting his contention that
time spent in community confinement must be credited toward the
statutory maximum; indeed, precedent seems to weigh in favor of the
government. See United States v. Horek, 137 F.3d 1226, 1229 (10th
Cir.), cert. denied, 525 U.S. 88 (1998) (holding that community
confinement need not be deducted from maximum term of imprisonment
when sentencing a defendant whose probation has been revoked); cf.
United States v. Adler, 52 F.3d 20, 21 (2d Cir. 1995) (recognizing
that community confinement does not qualify as imprisonment
counting toward minimum term).
Our view would not change were we to accept Roy's
argument that community confinement should be treated no
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differently from home detention. Though some circuits have held
that credit for home detention is required toward the statutory
cap,3 other courts have come out the other way, see United States
v. Hager, 288 F.3d 136, 138 (4th Cir.), cert. denied, 537 U.S. 962
(2002), and we have yet to resolve the issue, cf. United States v.
Martin, 363 F.3d 25, 37-39 (1st Cir. 2004) (holding that, for
purposes of double jeopardy, defendant must receive credit--though
not day-to-day credit--for time spent in community confinement or
home detention). Anyway, the equation of home detention and
community confinement is itself an open question.
In short, we think the 12-month term was not plain error
and turn to Roy's remaining argument, which was preserved. Roy
argued in the district court, and again on appeal, that he should
have been sentenced to a halfway house because his medical
condition (high cholesterol) could not be well treated in prison.
The district court's decision turns on factual and discretionary
judgments where the standard of review is weighted against Roy.
3
United States v. Ferguson, 369 F.3d 847, 851 (5th Cir. 2004);
see also United States v. Kravchuk, 335 F.3d 1147, 1159 (10th
Cir.), cert. denied, 540 U.S. 941 (2003) (finding that sentence of
27 months imprisonment plus three months of home detention required
as part of supervised release constituted an upward departure where
the guidelines permitted a maximum sentence of 27 months); United
States v. Leaphart, 98 F.3d 41, 43 (2d Cir. 1996) (precluding
imposition of the maximum term of incarceration under section
3583(e)(3) in addition to a period of home detention under
subsection (e)(4)).
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Roy offers a colorable argument that community
confinement may be imposed under section 3583 despite the statute's
failure to so explicitly provide, but the question is not whether
the court could have sentenced Roy to a halfway house but instead
whether its failure to do so was an abuse of discretion. See
United States v. Ramirez-Rivera, 241 F.3d 37, 40-41 (1st Cir.
2001). Indeed, Roy argues only that "direct placement in Pharos
House may be imposed in this case" and supports this claim by
reference to 18 U.S.C. § 3563(b), which sets forth "[d]iscretionary
conditions" of probation.
The district judge balanced the extremely serious nature
of Roy's conduct against the medical concerns and the prospect that
better treatment might be available in a halfway house environment.
Weighing these factors, the court concluded that the proper balance
was a 12-month sentence accompanied by a recommendation that Roy
receive proper medical treatment in the prison setting. This was
not an abuse of discretion.
Affirmed.
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