United States Court of Appeals
For the First Circuit
No. 18-1747
UNITED STATES OF AMERICA,
Appellee,
v.
ERICK JOEL REYES-BARRETO,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Barron, Circuit Judges.
Luis A. Guzmán Dupont for appellant.
Mariana E. Bauzá-Almonte, Assistant United States Attorney,
Chief, Appellate Division, with whom Rosa Emilia Rodríguez-Vélez,
United States Attorney, and Antonio L. Perez-Alonso, Assistant
United States Attorney, were on brief, for appellee.
January 27, 2022
HOWARD, Chief Judge. Erick Joel Reyes-Barreto contests
the reasonableness of a twelve-month prison sentence that was
imposed after he committed and admitted to a series of supervised
release violations. The government argues that Reyes-Barreto's
appeal is moot because he was released from incarceration in April
2019, even though he is still serving his term of supervised
release. For the reasons set forth below, we conclude that Reyes-
Barreto's appeal has not become moot as result of his release from
incarceration. We nonetheless affirm the sentence as being
procedurally and substantively reasonable.
I. Background
In April 2013, Reyes-Barreto pled guilty to a single
count of conspiracy with intent to distribute heroin, and he was
sentenced to a five-year prison sentence by the United States
District Court for the Western District of New York. Reyes-Barreto
also received four years of supervised release, which began on
October 7, 2016. The District of Puerto Rico assumed the
management of Reyes-Barreto's supervised release in June 2017. In
early February 2018, Reyes-Barreto's probation officer notified
the court that he had violated various terms of his supervised
release. The violations included failing to follow his probation
officer's instructions, lying to and moving without notifying the
officer, and committing an offense by driving without a license.
Reyes-Barreto admitted to all of these violations.
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On February 26, 2018, Reyes-Barreto's probation officer
notified the court that he had tested positive for marijuana,
another violation. Reyes-Barreto denied using the drug, but a
positive test result suggested otherwise, and the court approved
the probation officer's request for modified conditions, including
electronic monitoring and home detention. In mid-April 2018, the
probation officer returned to the court to report further
transgressions, including: being away from home too late; twice
leaving home without permission; and –- although he was not charged
-- being arrested with two others who possessed illegal drugs, a
gun, and a stolen vehicle. Reyes-Barreto did not contest these
violations.
The court held a revocation of supervised release
hearing on July 17, 2018, and noted that Reyes-Barreto's Grade C
violation, per U.S.S.G. § 7B1.1(a)(3), along with his Criminal
History Category of I, resulted in an advisory guidelines range of
three to nine months' incarceration. See U.S.S.G. § 7B1.4(a).
The court also observed that the statutory maximum was three years'
incarceration. Reyes-Barreto's counsel asked for a sentence of
four months' incarceration and six additional months of supervised
release. The court revoked Reyes-Barreto's previous supervised
release term, noted its consideration of the factors enumerated in
18 U.S.C. § 3553(a), and imposed a sentence of twelve months'
incarceration and three years of supervised release. Before us,
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Reyes-Barreto challenges only the reasonableness of his
incarcerative sentence.
II. Mootness
Reyes-Barreto was released from incarceration roughly a
month after he filed his opening brief in this appeal. There, he
did not address whether his release would moot the appeal, and he
did not file a reply brief. The government moved for summary
dismissal based on mootness; that motion was denied without
prejudice, and the government again pressed the argument in its
principal brief.
In its argument for mootness, the government relies
primarily on our decision in United States v. Suarez-Reyes
("Suarez"), 910 F.3d 604 (1st Cir. 2018). The facts at issue in
Suarez map closely, but not perfectly, onto Reyes-Barreto's
circumstances. Suarez was a citizen of the Dominican Republic; he
was caught in January 2017 on board a vessel heading to the United
States, and his entry was not authorized. Suarez, 910 F.3d at
605. Suarez had previously served a year-and-a-half in a United
States prison for using a telephone to facilitate a drug-
trafficking offense, and he was deported after that sentence was
complete. Id. A grand jury indicted him for unlawfully attempting
to enter the United States after removal following an aggravated
felony conviction. Id. Suarez pled guilty and was sentenced to
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twenty-one months in prison plus three years of supervised release.
Id.
Suarez appealed his custodial sentence, and his appeal
was pending when he was released in late-July 2018. Id. Like
Reyes-Barreto, Suarez had filed his opening brief before his
release, and he did not address his appeal's looming potential
mootness. The government filed its brief the day after Suarez's
incarceration ended and argued that his release mooted the appeal.
Id. Also like Reyes-Barreto, Suarez filed no reply.
The unanimous panel observed that, "[w]e have noted
before that, in some circumstances, silence speaks volumes. So it
is here: there appears to be no satisfactory answer to the mootness
argument." Id. at 606 (citation and internal quotation marks
omitted). The heart of the opinion is this:
Here, however, the defendant does not profess
to have suffered any collateral consequences
attributable to the alleged sentencing errors.
Vacating the defendant's custodial sentence
would, therefore, be an empty exercise. That
sentence has been fully served and there is no
way to turn back the clock. Of course, the
defendant remains on supervised release, and
a determination that a defendant served too
long a period of imprisonment might warrant an
equitable reduction in the length of his
supervised release. But (perhaps because he
is now in custody awaiting deportation), the
defendant makes no argument to this effect.
It follows inexorably—as night follows day—
that the defendant no longer has a legally
cognizable interest in the outcome of his
appeal. Consequently, his appeal is moot.
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Id. (emphasis added) (internal citations omitted).
Suarez is distinguishable from this case in a crucial
respect: this defendant is at no conceivable –- let alone immediate
–- risk of deportation; he has served his incarcerative term, and
he is presently serving his term of supervised release. In Suarez,
the defendant was facing imminent deportation and therefore had no
stake in any theoretical future reduction of his supervised
release. See also United States v. DeLeon, 444 F.3d 41, 55 (1st
Cir. 2006) (finding the supervised release issue moot in part
because the defendant "who [wa]s in immigration custody and facing
imminent deportation from the United States, w[ould] never be
subject to the supervised release portion of his sentence"). But
the government asks us to take the view that, in Suarez, the
defendant's immigration status was inconsequential, and that his
failure to argue that his appeal was not moot necessarily meant
that he lacked any interest in its disposition.
Previous decisions in this context dictate otherwise.
As we noted in our order denying the government's motion for
summary dismissal, although he has been released and contests only
his incarcerative sentence, Reyes-Barreto absolutely has a stake
in the outcome of this appeal. If we were to determine that his
incarcerative sentence was unreasonable, he could seek equitable
relief by way of a motion to modify the terms of his supervised
release. 18 U.S.C. § 3583(e)(2). Or, Reyes-Barreto might file a
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motion to terminate his supervised release early.
18 U.S.C. § 3583(e)(1); see, e.g., United States v. Johnson, 529
U.S. 53, 60 (2000); United States v. Carter, 860 F.3d 39, 43
(1st Cir. 2017); United States v. Prochner, 417 F.3d 54, 59 n.4
(1st Cir. 2005); United States v. Molak, 276 F.3d 45, 48 (1st Cir.
2002). Our decision in Suarez itself acknowledges that "a
determination that a defendant served too long a period of
imprisonment might warrant an equitable reduction in the length of
his supervised release." 910 F.3d at 606.
The government contends that Suarez nonetheless binds us
to deem this case moot, and that in Carter, Prochner, and Molak,
the defendants each "either . . . advanced an argument as to his
supervised release term or there was another aspect of the sentence
that the defendant was challenging." Specifically, the government
submits that the Carter defendant "argued in his brief that the
district court may impose a shorter period of supervised release
. . . should he prevail in his guidelines misapplication claim,"
the Prochner defendant "challenged his supervised release
conditions and the restitution order against him," and the Molak
defendant "contested the amount of the restitution order against
him." But in Johnson, the Supreme Court said this:
There can be no doubt that equitable
considerations of great weight exist when an
individual is incarcerated beyond the proper
expiration of his prison term. The statutory
structure provides a means to address these
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concerns in large part. The trial court, as
it sees fit, may modify an individual's
conditions of supervised release.
§ 3583(e)(2). Furthermore, the court may
terminate an individual's supervised release
obligations "at any time after the expiration
of one year . . . if it is satisfied that such
action is warranted by the conduct of the
defendant released and the interest of
justice." § 3583(e)(1). Respondent may
invoke § 3583(e)(2) in pursuit of relief;
and, having completed one year of supervised
release, he may also seek relief
under § 3583(e)(1).
529 U.S. at 60. The government offers no compelling
reason for us to conclude that Reyes-Barreto's failure to file a
reply and argue in favor of our subject-matter jurisdiction sets
aside his right to seek relief pursuant to either of the above
subsections of 18 U.S.C. § 3583(e). Accordingly, in line with our
precedent, we find that this case is not mooted by Reyes-Barreto's
release. See, e.g., Carter, 860 F.3d at 43.
III. Reasonableness
Although the appeal is not moot, we are at ease
concluding that Reyes-Barreto's sentence was both procedurally and
substantively reasonable. "Our review of a sentencing appeal is
bifurcated. '[W]e first determine whether the sentence imposed is
procedurally reasonable and then determine whether it is
substantively reasonable.'" United States v. Arce-Calderon, 954
F.3d 379, 381 (1st Cir. 2020) (quoting United States v. Abreu-
García, 933 F.3d 1, 4 (1st Cir. 2019)). We review the district
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court's sentence upon revocation of supervised release for abuse
of discretion.1 See United States v. Wright, 812 F.3d 27, 30 (1st
Cir. 2016).
Regarding procedural reasonableness, the district court
properly calculated Reyes-Barreto's guidelines range, considered
the 18 U.S.C. § 3553 factors and the parties' recommended
sentences, and imposed a sentence with a reasoned explanation and
an emphasis on deterrence of future violations. In so doing, the
district court fulfilled its procedural obligations. See United
States v. Laureano-Perez, 797 F.3d 45, 80 (1st Cir. 2015)
(describing the procedural "roadmap" that sentencing judges must
follow). Reyes-Barreto contends that the district court
improperly sought to punish him for new criminal conduct, but he
does not explain how it did so, there is no evidence of
impermissibly punitive motive in the record, and we can discern no
other procedural error.
As for substantive reasonableness, when the sentencing
court provides a plausible sentencing rationale and the overall
The government argues that we should subject the sentence's
1
procedural reasonableness to only plain error review on the theory
that the issue was not preserved below. After the district court
announced its sentence, Reyes-Barreto's counsel said, "I need to
preserve an objection to the substantive and unreasonableness
(sic) of the sentence[.]" Perhaps counsel intended to say
"substantive and procedural unreasonableness." Whatever happened,
we need not fret over the proper lens; in this case, the sentence
was procedurally reasonable even when examined for abuse of
discretion. See Arce-Calderon, 954 F.3d at 382 n.4.
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result is defensible, we uphold the sentence. Arce-Calderon, 954
F.3d at 383; see also United States v. Vixamar, 679 F.3d 22, 31-
32 (1st Cir. 2012). The district court sentenced Reyes-Barreto to
a period of incarceration that was three months longer than the
high end of his guidelines range, to which the court was not bound.
See United States v. Tanco-Pizarro, 892 F.3d 472, 482 (1st Cir.
2018). Given Reyes-Barreto's serial violations, the fact that the
court imposed a sentence that was far shorter than the statutory
maximum, and that the court explained its reasoning in detail, we
conclude that the sentence was perfectly defensible, and that its
duration was no abuse of discretion. See Vixamar, 679 F.3d at 35.
IV. Conclusion
For the reasons set forth above, we hold that Reyes-
Barreto's sentence was both procedurally and substantively
reasonable. Affirmed.
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