United States v. Mulero-Diaz

United States Court of Appeals
For the First Circuit

No. 14-2207

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS MULERO-DÍAZ,

Defendant, Appellant.

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

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

Before

Thompson, Lipez, and Barron,
Circuit Judges.

Juan J. Hernández López de Victoria for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
for appellee.

January 29, 2016
 BARRON, Circuit Judge. Carlos J. Mulero-Díaz appeals

the District Court's revocation of his term of supervised release

and imposition of a three-year term of imprisonment for violations

of the conditions of that supervised release. We affirm.

I.

On December 3, 2009, Mulero pleaded guilty to one count

of conspiracy to possess with intent to distribute narcotics in

violation of 21 U.S.C. §§ 841, 846, and 860. He was sentenced to

seventy months' imprisonment and eight years' supervised release.

The conditions of supervised release required Mulero to, among

other things, (1) "not commit another federal, state or local

crime," (2) "not possess a firearm [or] ammunition," and (3)

"notify the probation officer within seventy-two hours of being

arrested or questioned by a law enforcement officer."

After Mulero was released from his term of imprisonment

and while he was on supervised release, the United States Probation

Office requested that the District Court issue an arrest warrant

and conduct a show-cause hearing as to why Mulero's supervised

release should not be revoked as a result of his violations of his

conditions of supervised release. The District Court granted the

Probation Office's requests.

At the show-cause hearing, Mulero conceded that he had

violated the terms of his supervised release. He admitted that he

had been arrested on two occasions -- once for driving while

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intoxicated, and a second time for driving without a driver's

license and without a vehicle registration sticker. He also

admitted that he had failed to report the arrests to his probation

officer and that he had, in fact, driven while intoxicated and

without proper license or registration.

Mulero contended that this conduct warranted a finding

that he had committed a "Grade C" violation of his conditions of

supervised release -- the least serious type of supervised release

violation, and one that permits but does not require revocation.

See U.S.S.G. §§ 7B1.1, 7B1.3. But the government argued that

Mulero had also engaged in more serious offenses: domestic violence

and possessing a weapon. The government argued that, due to those

offenses, Mulero should be found to have committed a "Grade A"

violation -- a violation that would result in mandatory revocation

of his supervised release and a greater guidelines sentencing range

than would a Grade C violation. See id.

To make that case, the government at the show-cause

hearing introduced the testimony of Puerto Rico police officer

Juan La Santa Soto, as well as the testimony of Miriam Morales

Martinez, Mulero's probation officer. La Santa testified that, on

a morning in April 2014, the Puerto Rico Police Department received

an anonymous call concerning a domestic violence incident in

Reparto Flamingo, in Bayamon, Puerto Rico. La Santa testified

that upon arriving at the scene to investigate, he found two

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couples arguing on the street. One of those couples, La Santa

recounted, was Mulero and a woman named "Jamie." Jamie was later

identified at the hearing as Jamie Figueroa.

La Santa testified that he told Mulero that he was

investigating a domestic violence incident, and that Mulero told

him, among other things, that he should "go to hell" and that

Mulero wanted to "hit [La Santa] in the face." La Santa said that

he then called his supervisor, and that when his supervisor came,

Mulero challenged the supervisor to a fight. La Santa further

stated that Mulero then left, at which point Figueroa told La Santa

that Mulero owned a firearm, and that the firearm was in the

apartment where they were both living.

La Santa recounted Figueroa's retrieving the firearm and

turning it over to La Santa. According to La Santa, the firearm

was a .40 caliber pistol, and it was loaded. La Santa testified

that he then arrested Mulero after Mulero had returned, and found

one .40 caliber bullet in Mulero's pocket.

Mulero's probation officer, Morales, testified regarding

a second incident. She stated that in May 2014 she received a

call reporting domestic violence between Mulero and Figueroa.

Morales testified that she interviewed Figueroa, who -- according

to Morales -- complained that Mulero had appeared at her house on

May 21 with Wilfredo Sandoval Ayala. According to Morales,

Figueroa said that Mulero had been aggressive and had broken a

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window, and so Figueroa had fled her home. Morales said that

Figueroa told Morales that Figueroa had gone to a neighbor for

help, and that when the neighbor opened the door for her, Mulero

had spilled gasoline on Figueroa. And, Morales testified, Figueroa

had requested a restraining order after this incident and her

request had been granted.

In addition, Morales testified that she had spoken with

Figueroa's neighbor, who had corroborated Figueroa's story.

According to Morales, the neighbor reported that Figueroa had asked

him to let her into his house because "Mulero was being aggressive

against her." Morales said the neighbor also told her that Mulero

had been "bothering the neighbors" by "yelling, threatening,

[firing] shots in the air, and . . . fighting [with Figueroa]."

The District Court credited the testimony of La Santa

and Morales. The District Court found that there was "no doubt

about the domestic violence incidents," and "no doubt" about

Mulero's "possessing that weapon" and possessing ammunition. The

District Court thus concluded that there was "sufficient evidence

to find a [G]rade A violation."

Despite so concluding, the District Court classified

Mulero's conduct as a Grade C violation. Because Mulero had a

criminal history category of I, the resulting guidelines sentence

was three- to nine-months' imprisonment. See U.S.S.G. § 7B1.4.

But the District Court did not sentence Mulero to a term of

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imprisonment within the three- to nine-months range. Instead, the

District Court concluded that the "guidelines do not provide the

punishment [that is] necessary for deterrence." Characterizing

Mulero's violations as "blatant, clear, in clear disregard for the

law . . . [and the] conditions of supervised release, constituting

a threat to the life of individuals, [and] constituting a threat

to the neighborhood in which you live," the District Court imposed

a sentence of three years' imprisonment. See 18 U.S.C. 3583(e).

Mulero appeals.

II.

Mulero first argues that the District Court erred in

admitting hearsay evidence at the show-cause hearing "without

balancing [Mulero's] right to confront witnesses with the

government's cause for denying confrontation pursuant to [Federal

Rule of Criminal Procedure] 32.1(b)(2)(C)." Specifically, Mulero

argues that the District Court should have asked the government

for some "explanation" for why Figueroa, the unnamed neighbor who

observed the alleged gasoline incident, and Sandoval (the man who

went to Figueroa's home with Mulero just before the gasoline

incident), "were not called to testify."

Mulero is correct that a defendant who faces revocation

of his term of supervised release does have a "limited

confrontation right" under Federal Rule of Criminal Procedure

32.1(b)(2)(C). And, under that Rule, Mulero was entitled to "an

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opportunity to . . . 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). We have said,

moreover, that "[i]n conducting this analysis, a court should

consider the reliability of the hearsay testimony and the

government's reason for declining to produce the declarant."

United States v. Rondeau, 430 F.3d 44, 48 (1st Cir. 2005).

The record does not reveal that the District Court

expressly engaged in such a weighing. But Mulero at no point

invoked Rule 32 at the show-cause hearing. As a result, the

government contends that Mulero has waived any argument premised

on the Rule or, at the least, forfeited it, such that we may review

his challenge only under the demanding plain error standard.

Mulero argues that he did generally contest the reliability of the

testimony that the government offered at the show-cause hearing.

He also notes that he objected that one witness testifying for the

government -- Officer La Santa -- lacked personal knowledge of

some of the facts to which he testified.

But when the District Court overruled the objection by

Mulero on the ground that the Federal Rules of Evidence did not

govern the show-cause hearing, Mulero did not then assert that he

had an independent right under Rule 32 to have the court balance

the reliability of the testimony against the government's interest

in not having the declarant appear before admitting the hearsay

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testimony. Nor did Mulero renew his objection when La Santa

testified -- at the District Court's direction -- regarding the

basis of his knowledge of the facts to which Mulero had objected.

And at no point in the hearing did Mulero object to Probation

Officer Morales's testimony, on any basis. For these reasons,

Mulero's Rule 32 challenge is at least forfeited, and we review

for plain error. See, e.g., United States v. Shoup, 476 F.3d 38,

42 (1st Cir. 2007) (reviewing an unpreserved hearsay claim under

the plain error standard).

To show plain error, Mulero "must show that (1) an error

occurred; (2) the error was plain; (3) the error affected the

defendant's substantial rights; and (4) the error 'seriously

affect[ed] the fairness, integrity or public reputation of

judicial proceedings.'" United States v. Ortiz-García, 665 F.3d

279, 285 (1st Cir. 2011) (alteration in original) (quoting United

States v. Rivera-Maldonado, 560 F.3d 16, 19 (1st Cir. 2009)).

Mulero's argument fails at the third prong, even assuming his

argument does not also flunk the first two. Under that third

prong, Mulero must establish that there is "a reasonable

probability that, but for [the error claimed], the result of the

proceeding would have been different." United States v. Dominguez

Benitez, 542 U.S. 74, 81-82 (2004) (alteration in original)

(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). But

Mulero makes no developed argument to this effect.

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 Mulero does not explain why it is probable that the

District Court, had it engaged in the balancing that Mulero

contends Rule 32 requires, would have demanded the in-court

testimony of Figueroa, given that she claimed to be the victim of

domestic violence and given that her out-of-court statements were

corroborated by her neighbor and by La Santa's observations. Cf.

Rondeau, 430 F.3d at 48-49 (stating that, "[b]ecause the safety

concern was supported by record evidence, it was within the

district court's discretion to conclude that there was good reason

for the declarants not to testify," and finding out-of-court

accounts reliable where they "were offered to the police

separately, but were materially identical"). Nor does Mulero

explain why it is probable that the District Court, had it engaged

in such a balancing analysis, would have found unreliable the out-

of-court statements of the neighbor, given that those statements

were corroborated, in turn, by Figueroa.1 See id. In fact, Mulero

makes no argument at all that the District Court would have reached

a different conclusion in this case had it not committed the error

he alleges. Mulero has thus failed to meet his burden of showing

plain error.

1 As for Mulero's challenge regarding Sandoval's out-of-court
statements, we see no such statements in the record, and Mulero
points us to none.

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 III.

Mulero next argues that the District Court erred in

revoking his term of supervised release. Mulero's briefing is

hardly clear on this point, but, as far as we can tell, his only

argument to this effect is that the District Court based its

decision to revoke supervised release on conduct that the District

Court did not, in fact, find. We review a decision to revoke

supervised release for abuse of discretion, United States v.

Whalen, 82 F.3d 528, 532 (1st Cir. 1996), and we conclude that

there was no abuse here.

The District Court explained that it had "no doubt" that

Mulero had possessed a firearm and committed domestic violence.

The District Court therefore concluded that there was "sufficient

evidence to find a [G]rade A violation," which would trigger

mandatory revocation. The District Court did state that it was

concerned that finding a Grade A violation would "just generate an

appeal as to whether the legal standard of preponderance was met

or not," and thus the District Court decided to classify Mulero's

conduct as constituting a Grade C violation, which entitles a

district court to exercise its discretion to revoke supervised

release. See U.S.S.G. § 7B1.3(a)(2) ("Upon a finding of a Grade

C violation, the court may (A) revoke probation or supervised

release; or (B) extend the term of . . . supervised release and/or

modify the conditions of supervision."). But, in classifying

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Mulero's conduct as a Grade C violation, the District Court did

not suggest in any respect that it was not satisfied that the

conduct had occurred. And the testimony at the hearing adequately

supports that finding by a preponderance of the evidence. Thus,

Mulero's only argument as to why the District Court abused its

discretion -- that the District Court relied on conduct it never

supportably found had occurred -- fails.

IV.

Mulero argues finally that his three-year sentence is

unreasonable, both procedurally and substantively. But neither

contention holds up.

Mulero first contends that the sentence is unreasonable

because it is "based on hearsay evidence admitted in violation of

[Rule] 32.1(b)(2)(C)." To the extent Mulero is merely restating

his first argument -- that the District Court erred in admitting

hearsay statements without first conducting the balancing required

by Rule 32.1(b)(2)(C) -- that argument lacks merit for the reason

that we have already stated. And to the extent Mulero is arguing

that the District Court erred because this hearsay evidence simply

could not be admitted under the standard provided by Rule 32, the

argument is insufficiently developed to warrant review. See United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (holding that

"issues adverted to in a perfunctory manner, unaccompanied by some

effort at developed argumentation, are deemed waived").

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 That leaves only Mulero's contention that his sentence

is substantively unreasonable because it is "three times the

applicable sentence should [the court] have declared that [Mulero]

committed a Grade A violation." In fact, the sentence is only two

times higher than the high end of the guideline range, 18 months,

for a Grade A violation for someone with Mulero's criminal history.

See U.S.S.G. § 7B1.4. And, in any event, the District Court found

that Mulero had violated the terms of his supervised release by,

among other things, committing domestic violence and possessing a

weapon. We cannot say that, in light of those findings, Mulero's

three-year sentence is unreasonable, notwithstanding that it

varies from the guidelines range. See United States v. Battle,

637 F.3d 44, 51 (1st Cir. 2011) ("A sentence will stand so long as

there is 'a plausible sentencing rationale and a defensible

result.'" (quoting United States v. Martin, 520 F.3d 87, 96 (1st

Cir. 2008))); Gall v. United States, 552 U.S. 38, 49-50 (2007)

(stating that a district court may impose an upward variance after

"an individualized assessment based on the facts presented" and an

"adequate[] expla[nation of] the chosen sentence").

V.

For the foregoing reasons, the decision of the District

Court is affirmed.

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