United States v. Fontanez

United States Court of Appeals
For the First Circuit

No. 15-1360

UNITED STATES OF AMERICA,

Appellee,

v.

RAFAEL FONTANEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark G. Mastroianni, U.S. District Judge]

Before

Lynch, Selya and Lipez,
Circuit Judges.

Robert Herrick and Nicholson Herrick LLP on brief for
appellant.
Carmen M. Ortiz, United States Attorney, and Kelly Begg
Lawrence, Assistant United States Attorney, on brief for appellee.

January 9, 2017
 SELYA, Circuit Judge. Defendant-appellant Rafael

Fontanez challenges evidentiary rulings made in the course of the

revocation of his supervised release and the ensuing revocation

sentence. After careful consideration, we reject his

asseverational array and affirm the judgment below.

I. BACKGROUND

We start with an overview of the relevant facts and the

travel of the case. On October 15, 1998, the appellant was charged

with one count of conspiracy to possess with intent to distribute

cocaine base (crack cocaine) and three specific-offense counts of

distribution of that controlled substance. See 21 U.S.C.

§§ 841(a)(1), 846. The indictment alleged the applicability of 21

U.S.C. § 841(b)(1)(A)(iii), which provides for a sentence up to

life imprisonment.1

The appellant maintained his innocence and went to

trial. The jury found him guilty on all counts. The appellant

had stipulated to the quantity of drugs for which he should be

held accountable — a series of transactions involving specified

amounts, totaling more than one kilogram — and the jury was not

asked to make (and did not make) a separate drug-quantity

determination.

1
At the time, section 841(b)(1)(A)(iii) applied to offenses
involving more than fifty grams of cocaine base. The triggering
amount has since been increased to 280 grams. See Fair Sentencing
Act of 2010, Pub. L. No. 111-220, § 2(a)(1), 124 Stat. 2372, 2372.

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 At the disposition hearing, the sentencing court noted

that the jury "had to have found [the appellant] guilty of more

than 50 grams." This drug quantity exposed the appellant to a

maximum penalty of life imprisonment instead of the default maximum

penalty of twenty years in prison. Compare 21 U.S.C.

§ 841(b)(1)(A)(iii) with id. § 841(b)(1)(C). The court proceeded

to sentence the appellant to an eighteen-year term of immurement,

to be followed by a five-year term of supervised release.2

The appellant served his incarcerative term and, on June

11, 2014, began serving his supervised release term. On November

29, 2014, a man was stabbed at a bar in Springfield, Massachusetts.

An anonymous telephone call named the appellant as the perpetrator.

Three days later, a Springfield police officer, Eric Podgurski,

interviewed the victim in the hospital. He showed the victim an

eight-person photo array, which included a picture of the

appellant. The victim identified the appellant as the malefactor

2 The appellant insists that this judgment does not
"establish[] a conviction for a violation of 21 U.S.C.
§ 841(b)(1)(A)(iii)" because the written judgment states only that
the appellant was found guilty of violating 21 U.S.C. §§ 841(a)(1)
and 846. By its terms, though, that written judgment "adopts the
factual findings and guideline application in the presentence
report" — a report that stated unambiguously that "21 U.S.C.
§ 841(b)(1)(A)(iii) applies" to the appellant's sentence. In all
events, the court made it luminously clear at the sentencing
hearing that the sentence was premised on section
841(b)(1)(A)(iii). If there were a material conflict between the
written judgment and the oral sentence (and we see none), the
latter would control. See United States v. Riccio, 567 F.3d 39,
40 (1st Cir. 2009).

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and wrote on his picture: "I am 100 percent this is the guy that

stabbed me."

In due course, the appellant was charged in a

Massachusetts state court with attempted murder and assault with

a dangerous weapon. He was later brought before the federal

district court in a revocation proceeding aimed at determining

whether he had violated the conditions of his supervised release

(which included a condition forbidding him from committing

"another federal, state, or local crime" during the currency of

his supervised release).

The revocation hearing was continued at the appellant's

request. When the rescheduled date arrived, the government

explained that the victim was out of state due to a pre-planned

vacation. In lieu of the victim's testimony, it sought to

introduce, through Podgurski, hearsay evidence anent both the

photo array identification and the anonymous telephone call. The

district court allowed this evidence over the appellant's

objection. The government also introduced other evidence,

including the bar's video surveillance footage capturing the

commission of the crime.

The district court found, by a preponderance of the

evidence, that the appellant had committed the stabbing and, thus,

had violated the conditions of his supervised release. The court

based this determination primarily on the surveillance video, the

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victim's identification of the appellant in the photo array, and

evidence of the victim's wounds. The court then determined that

the offense undergirding the appellant's supervised release term

was an offense that fell within the purview of 21 U.S.C.

§ 841(b)(1)(A)(iii) and, accordingly, was a Class A felony. See

18 U.S.C. § 3559(a)(1). Having made this determination, the court

sentenced the appellant to a four-year incarcerative term for

violating the conditions of his supervised release. This timely

appeal followed.

II. ANALYSIS

The appellant challenges both the finding that he

violated the conditions of his supervised release and the sentence

imposed. We discuss these challenges sequentially.

A. The Supervised Release Violation.

The appellant's merits challenge is premised on his view

that the court improperly allowed the admission of hearsay

evidence. He submits that the district court should not have

permitted Podgurski to testify either to the victim's

identification of the appellant in the photo array or to the

anonymous telephone call. Inasmuch as these objections were

preserved below, we review the court's decision to admit the

challenged evidence for abuse of discretion. See United States v.

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

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 In revocation proceedings, a releasee does not have a

Sixth Amendment right to confront adverse witnesses. See id. He

has only a more circumscribed right, delineated in the Federal

Rules of Criminal Procedure. Hearsay evidence is allowable but,

under Rule 32.1(b)(2)(C), a releasee is entitled to "question any

adverse witness unless the court determines that the interest of

justice does not require the witness to appear." In making such

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

confront the witnesses against him with what good cause may exist

for denying confrontation in a particular instance. See Rondeau,

430 F.3d at 48. In practice, this need for balancing requires the

court to weigh both the apparent reliability of the hearsay

evidence and the government's proffered reason for not producing

the declarant. See id.

Here, the district court concluded that the interests of

justice did not require the victim's live testimony. In assailing

this conclusion, the appellant trains his fire principally on the

district court's decision to admit Podgurski's testimony regarding

the photo array. He argues that, as a practical matter, the court

failed to carry out the balancing test at all because it admitted

the testimony despite finding that the government's reason for not

producing the victim was "very weak." He further argues that the

district court's crediting of that "very weak" reason and its

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admission of the hearsay evidence was an abuse of discretion. We

do not agree.

To begin, Podgurski's photo array testimony was

characterized by several indicia of reliability. As an initial

matter, the government introduced a surveillance video of the

stabbing, which corroborated the victim's account of the incident

(as related to Podgurski). So, too, it confirmed the victim's

identification of the appellant. Objective evidence that

corroborates a witness's testimony may provide persuasive proof of

that testimony's reliability. See id.

Here, moreover, the officer's interaction with the

victim bolstered the testimony's reliability. Cf. United States

v. Taveras, 380 F.3d 532, 538 (1st Cir. 2004) (finding hearsay

testimony unreliable where probation officer had only spoken to

victim briefly). Podgurski met with the victim face-to-face in

the hospital and interviewed him at length. The victim was

cooperative, and his account of the stabbing was both internally

consistent and consistent with the video. The consistency of a

declarant's account of events may lend support to a finding of

reliability. See United States v. Marino, 833 F.3d 1, 6 (1st Cir.

2016); Rondeau, 430 F.3d at 48. And according to the district

court (which had the advantage of observing Podgurski's demeanor

at first hand), Podgurski "testified in a way that [indicated]

that he was getting reliable information from the victim."

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 Relatedly, the victim identified the appellant

confidently. He expressed no doubt, and memorialized the

identification in writing on the photograph that he selected (a

photograph that was, in fact, a photograph of the appellant). The

victim's confidence in his account was a factor to which the court

could give weight in gauging the reliability of that account. See

United States v. DeCologero, 530 F.3d 36, 62 (1st Cir. 2008).

Last — but far from least — the manner in which Podgurski

handled the photo array bolstered the finding of reliability. The

array was presented to the victim while the central events were

fresh in his mind (his identification was made a scant three days

after the stabbing). Furthermore, Podgurski took care in composing

and presenting the photo array: before showing it to the victim,

he read aloud a comprehensive explanation of the photo array

process. Among other things, this explanation warned the victim

that the perpetrator might or might not be included in the array.

Importantly, the photographs used in the array were of men whose

looks were generally similar to the appellant's. And, all of the

photographs had the same background (thus mitigating the risk of

drawing attention to a particular photograph).

The short of it is that the photo array testimony bore

the hallmarks of reliability. The close proximity between the

crime and the identification, the time that Podgurski spent with

the victim, the victim's level of certainty, and the lack of any

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suggestiveness in the photo array all support the identification's

reliability, see id., and thus support a finding that the Podgurski

testimony should be regarded as reliable. The fact that the victim

memorialized the identification in writing (on the back of a

correctly selected photograph of the appellant) also signals the

testimony's trustworthiness. See Rondeau, 430 F.3d at 48 (finding

hearsay testimony reliable where declarants "reduced their verbal

statements to writing").

In the Rule 32.1(b)(2)(C) context, strong evidence of

reliability can counterbalance a weak reason for not producing the

declarant. See, e.g., Marino, 833 F.3d at 6-7; United States v.

Boyd, 792 F.3d 916, 920 (8th Cir. 2015). Given this principle, we

think that the government in this case furnished "a sufficient

reason" for not producing the victim. Rondeau, 430 F.3d at 49.

The revocation hearing was not held when originally scheduled and,

on the continued date, it is undisputed that the victim was out of

state for a legitimate reason (totally unrelated to the case).

The district court found that to be an adequate reason for not

producing him as a witness. On the facts of this case, that

finding was plausible.

In an effort to blunt the force of this reasoning, the

appellant suggests that the government never intended to call the

victim as a witness. Therefore, he says, the court's assumption

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that only "a scheduling issue" prevented the government from

calling the victim was clearly erroneous.3

This is magical thinking. The record reflects that the

government had planned to have the victim in attendance; but after

the hearing was continued at the appellant's request, the victim

left on vacation. On the new hearing date, the prosecutor

expressly stated that he had been expecting the victim to be

present.

To be sure, the prosecutor did tell the court that he

"was going to attempt to try the case without putting [the victim]

on the stand and further victimize the victim who has to testify

in state court. He already testified in the grand jury and has to

testify at trial there." But these remarks indicate, at most, a

vague, noncommittal desire to avoid putting the victim on the

stand, not a decision to refrain from doing so.4

We add, moreover, that although the government's reason

for not producing the victim may have been weak, the appellant

3
In this regard, the court stated: "I think the government
offered evidence [that] it really was just a scheduling issue. It
was a vacation-type issue and trying to serve a subpoena on this
particular witness" would have been futile.

4
We add that, in appropriate circumstances, the desire not
to further victimize the victim may provide an additional reason
for not requiring a victim to testify. Cf. Rondeau, 430 F.3d at
49 (permitting hearsay testimony rather than forcing declarants to
testify in front of releasee who caused them to fear for their
safety). We have no occasion to explore this point today.

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contributed to the victim's absence. After all, it was the

appellant who requested and received the original continuance,

thus creating the conflict between the new hearing date and the

victim's planned vacation. In striking the requisite balance, the

district court was entitled to take into account the fact that the

appellant contributed to the government's inability to produce the

witness. See United States v. Williams, 443 F.3d 35, 45 (2d Cir.

2006) (holding that releasee's "interest in confronting the

declarant is entitled to little, if any, weight" when releasee's

actions caused declarant's absence).

By the same token, the appellant — after being advised

of the victim's unavailability — neither suggested nor expressed

a willingness to agree to a further continuance. This fact, too,

was pertinent to the striking of the balance. See generally United

States v. Sepulveda, 15 F.3d 1161, 1178 (1st Cir. 1993) (discussing

general rule that "a defendant who does not request a continuance

will not be heard to complain on appeal that he suffered prejudice

as a result").

In constructing the balance between the reliability of

proffered hearsay evidence and the need for confrontation, the

district court's discretion is broad. See Marino, 833 F.3d at 5-

7; Rondeau, 430 F.3d at 48-49. In this instance, the district

court did not abuse its broad discretion in admitting the photo

array testimony.

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 We need not tarry over the anonymous telephone call.

The district court took pains to note that it gave Podgurski's

testimony about the anonymous call only the weight that it "might

deserve," which the court described as "not considerable but some

weight." Given the substantial other evidence of the appellant's

involvement in the stabbing (including Podgurski's photo array

testimony) and the infinitesimal role that the call played in the

court's analysis, any error in admitting Podgurski's testimony

about the anonymous call was manifestly harmless. See United

States v. Mosley, 759 F.3d 664, 669 (7th Cir. 2014) (holding that

erroneous admission of hearsay evidence in revocation proceeding

was harmless error when "the result would have been the same

without admitting the hearsay").

B. The Sentence.

The maximum sentence for a person who violates the

conditions of his supervised release varies based on the severity

of "the offense that resulted in the term of supervised release."

18 U.S.C. § 3583(e)(3). For that purpose, offenses are grouped in

various categories. Those groupings have real-world consequences:

a Class C or D felony bears a maximum sentence upon revocation of

supervised release of two years; a Class B felony bears a maximum

sentence upon revocation of supervised release of three years; a

Class A felony bears a maximum sentence upon revocation of

supervised release of five years; and all other offenses bear a

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maximum sentence upon revocation of supervised release of one year.

See id. These categories correspond to the maximum penalties that

can be imposed for the underlying offenses: a Class D felony is an

offense that carries a term of imprisonment of at least five but

less than ten years; a Class C felony is an offense that carries

a term of imprisonment of at least ten but less than twenty-five

years; a Class B felony is an offense that carries a term of

imprisonment of at least twenty-five years but less than life

imprisonment; and a Class A felony is an offense that carries a

maximum penalty of either death or life imprisonment. See id.

§ 3559(a).

The appellant argues that the district court lacked the

authority to sentence him to more than two years of imprisonment

for violating his supervised release. In support, he argues that

the court misclassified his underlying offense as a Class A felony

when it should have been considered a Class C felony. The

appellant preserved this argument at the revocation hearing, and

we review his classification challenge de novo. See United States

v. Eirby, 515 F.3d 31, 35 (1st Cir. 2008).

The basic facts are clear. The jury convicted the

appellant of violating sections 841(a)(1) and 846. Neither of

these offenses requires a specific drug quantity in order to

convict, and the jury made no explicit drug-quantity

determination. Without such a determination, the "default"

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statutory maximum of twenty years ordinarily would apply. See 21

U.S.C. § 841(b)(1)(C); United States v. Portes, 505 F.3d 21, 25

(1st Cir. 2007).

Here, however, the sentencing court found the appellant

responsible for over a kilogram of cocaine base and sentenced him

under 21 U.S.C. § 841(b)(1)(A)(iii). At the time, that statute

required a drug quantity of more than fifty grams of cocaine base

and carried a maximum sentence of up to life imprisonment. The

appellant, in effect, is seeking to challenge, albeit quite

belatedly, the sentencing court's resort to section

841(b)(1)(A)(iii).

In Apprendi v. New Jersey, the Supreme Court held that

"any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt." 530 U.S. 466, 490 (2000). The

appellant argues that the district court's classification of his

earlier conviction as a Class A felony rested upon a fact not found

by the jury (drug quantity) and, thus, offended Apprendi.

The government counters that the appellant cannot

collaterally attack his sentence in this proceeding. It adds that,

in any event, the indictment in the original case charged a drug

quantity sufficient for a Class A felony, the appellant stipulated

to such a quantity, and the district court appropriately sentenced

him based on that quantity.

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 It is entirely likely that the appellant's challenge to

his sentence is not properly before us. See Eirby, 515 F.3d at 36

(describing appellant's Apprendi claim in similar circumstances as

an impermissible "collateral attack"); see also Trenkler v. United

States, 536 F.3d 85, 96 (1st Cir. 2008) (describing 28 U.S.C.

§ 2255 as the "exclusive means of challenging the validity of [a

federal prisoner's] conviction or sentence," with limited

exceptions). But because his challenge fails on the merits

regardless, we bypass the "collateral attack" issue.

To be blunt, the appellant's argument collides head-on

with binding precedent. At trial, the appellant stipulated to a

drug quantity that was well in excess of the threshold needed for

a Class A felony. At sentencing for the underlying offense, the

sentencing court's drug-quantity determination was based on the

stipulation. We have stated in no uncertain terms that

"[f]actfinding premised on a defendant's admissions is not a

practice invalidated by Apprendi." Eirby, 515 F.3d at 36. In

this case, the stipulation obviated the need for a jury

determination of drug quantity because the appellant "had agreed

to the drug quantities, thereby leaving nothing for the jury to do

on that issue." United States v. Etienne, 772 F.3d 907, 923 n.9

(1st Cir. 2014). And in the absence of any Apprendi error at the

original sentencing, the court below cannot plausibly be said to

have committed an Apprendi error at the revocation hearing by

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treating the appellant's prior conviction as a Class A felony.

See id. at 923; Eirby, 515 F.3d at 36.

It is true, as the appellant suggests, that the Eirby

defendant — unlike the appellant — had entered a guilty plea. See

515 F.3d at 32. For present purposes, though, this is a

distinction without a difference: what matters is that here, as in

Eirby, the sentencing court's drug-quantity determination was

based on the defendant's stipulation.

It is also true, as the appellant suggests, that the

stipulation in Etienne was relevant to an element of the offense,

see 772 F.3d at 923, and not — as here — merely to a sentencing

factor, see United States v. Delgado-Marrero, 744 F.3d 167, 185

(1st Cir. 2014) ("Prior to [Apprendi], . . . 'drug quantity' was

considered . . . a 'sentencing factor' that the sentencing judge

could determine by a preponderance of the evidence."). Once again,

the distinction that the appellant draws has no significance: in

both Etienne and this case, the defendant stipulated to a fact,

not a fact only to be used for a certain purpose. See United

States v. Teeter, 257 F.3d 14, 28 (1st Cir. 2001) ("Should the

court decide to accept and act upon factual stipulations for

sentencing purposes, the parties usually will be firmly bound.").

That ends this aspect of the matter. The appellant's

original supervised release term was imposed as part of his

sentence for a crime to which the penalty provisions of 21 U.S.C.

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§ 841(b)(1)(A)(iii) applied (by virtue of his drug-quantity

stipulation). See Etienne, 772 F.3d at 923; Eirby, 515 F.3d at

36; cf. United States v. McIvery, 806 F.3d 645, 651 (1st Cir. 2015)

(holding that any error in imposition of mandatory minimum sentence

based on drug quantity neither charged in indictment nor proven to

a jury was harmless because evidence of quantity was

"uncontested"). Consequently, that underlying offense was a Class

A felony, see 18 U.S.C. § 3559(a)(1), and the court below was

authorized to sentence him to a term of imprisonment of up to five

years for violating his supervised release conditions, see id.

§ 3583(e)(3). It follows inexorably that the appellant's claim of

sentencing error is baseless.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

the judgment is

Affirmed.

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