United States Court of Appeals
For the First Circuit
No. 03-1028
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ D. TAPIA-ESCALERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Boudin, Chief Judge,
Lourie* and Lynch, Circuit Judges.
Gabriel Hernández-Rivera, by appointment of the court, for
appellant.
Germán A. Rieckehoff, Assistant United States Attorney, with
whom H.S. García, United States Attorney, and Sonia I. Torres-
Pabón, Assistant United States Attorney, Chief, Criminal Division,
were on brief for appellee.
January 28, 2004
*
Of the Federal Circuit, sitting by designation.
BOUDIN, Chief Judge. In 1995, José Tapia-Escalera pled
guilty to possessing a kilogram of cocaine with intent to
distribute. 21 U.S.C. § 841 (2000). He was sentenced to five
years of imprisonment followed by five years of supervised release.
Tapia was released after his term of imprisonment but in January
2000, he violated the terms of his supervised release and, after a
revocation hearing, was sentenced to ten months in prison for the
violation and four years of supervised release following this new
term.
In October 2002, the Probation Office notified the court
by motion that Tapia had again violated the conditions of his
supervised release by failing to report to the probation officer
and failing to notify the office of his change of address. In
December 2002, the district court conducted a revocation hearing.
As soon as the district judge stated the charges, Tapia's counsel
said:
First, the Court should know that Mr.
Tapia is not going to contest the allegations,
the violation of failing to report to the
probation officers as directed and failing to
notify a change of address within 72 hours.
That is accepted.
I've also asked him if it's, in fact,
true that he admitted to the probation office
that he was using heroin, which he has
accepted, and we will not then contest that
either.
Defense counsel then proposed a period of five to eleven
months of home detention with electronic monitoring. After finding
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that the violations had occurred, the district judge rejected this
suggestion, saying that this was the second time Tapia had violated
release conditions. The judge imposed a new term of 30 months'
imprisonment (but no further term of supervised release following
this imprisonment). This sentence exceeded the period--apparently
five to eleven months--recommended by the Sentencing Commission's
table, U.S.S.G. § 7B1.4 (2002); but this table is an "advisory"
policy statement rather than a formal guideline. U.S.S.G. ch. 7,
pt. A introductory cmt. 3(a) (2002); United States v.
Ramirez-Rivera, 241 F.3d 37, 40 (1st Cir. 2001).
On this appeal, Tapia does not challenge the district
judge's deviation from the guidelines' suggested range. Instead,
Tapia first argues that the finding of liability cannot stand
because there was no admission by Tapia personally, no independent
evidence of his violations, and no proper waiver of his right to a
hearing to contest the charges. Tapia then claims that the 30-
month term of imprisonment violated a statutory cap governing
maximum penalties for violating conditions of release, 18 U.S.C. §
3583(e)(3) (2000).
None of these claims were raised in the district court.
Accordingly, one might expect the government to argue that the
plain error standard had to be met on appeal, but it has not done
so. Anyway, the attacks on liability fail whether reviewed under
the plain error standard or ordinary standards of review. As for
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the statutory cap issue, we think there is an error which might or
might not be treated as plain under United States v. Olano, 507
U.S. 725, 732-36 (1993); but since the plain error issue is itself
complicated and the government has not argued for applying the
Olano test, we consider the statutory cap issue on the merits.
We start with the challenge to the district court's
finding that Tapia violated conditions of his release. After
Tapia's arrest, he was brought before a magistrate judge on
November 20, 2002, for a preliminary hearing to establish probable
cause.1 The government relied on the Probation Office's report,
and Tapia's counsel reserved his defense. The magistrate judge
then advised Tapia and his counsel that Tapia would be held for the
revocation hearing, adding:
[Tapia] is entitled to bring his own
witnesses and to challenge any evidence the
Government presents as well as to cross
examine any Government witness or bring his
own evidence to show that the violation[s]
were not committed.
My instruction to the Probation Office
is that the Defendant is to be provided with
the discovery available to sustain the
allegation or the representations made in the
motion for revocation of condition of release.
1
At the time of the arrest and preliminary hearing, the rules
governing such proceedings were set forth in an earlier version of
Fed. R. Crim. P. 32.1; one day before the December 2, 2002, hearing
on the merits, a recodified version of the rules took effect but
the changes do not affect our decision.
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At the revocation hearing held on December 2, 2002,
Tapia's counsel intervened as soon as the judge explained that
Tapia had been ordered arrested because of his violation of
conditions of release and had allegedly admitted that he was using
heroin. Counsel then made the statement quoted earlier explaining
that Tapia was not going to contest the failure to report and
notify allegations and that Tapia had also "accepted" the truth of
the charge that he had been using heroin. Counsel then launched
immediately into his proposal for home detention.
Thereafter, in the arguments about the proper penalty,
Tapia's violations were taken for granted and the district judge
did no more than make a formal finding to that effect when he
announced the penalty. At no point did the judge ask Tapia
personally whether he committed the violations or whether he waived
his right to have evidence presented on this subject; and the
government neither presented nor described any independent evidence
of the violations. All this, says Tapia, rendered the finding of
violations improper.
This would certainly be so if the proceeding were one
under Rule 11 for the taking of a plea of guilty,2 but the
2
Among other detailed prescriptions for guilty pleas, the
"court must address the defendant personally in open court" to
ensure that the plea is voluntary, Fed. R. Crim. P. 11(b)(2); must
advise the defendant of a whole litany of rights, Fed. R. Crim. P.
11(b)(1)(A)-(N); and in addition "the court must determine that
there is a factual basis for the plea," Fed. R. Crim. P. 11(b)(3).
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revocation proceeding is of a more informal character. The
principal requirements laid down by Rule 32.1 for the merits
hearing are notice of the alleged violation, right to counsel, an
opportunity to appear and present evidence and a (qualified) right
on request to question adverse witnesses. Fed. R. Crim. P.
32.1(b)(2)(A)-(D). Tapia was advised of these rights at his
preliminary hearing, he had counsel, and he makes no claim that the
charges were unknown to him.
Nevertheless, this court has insisted that before the
defendant forgoes the opportunity in a revocation case to contest
the charges, the defendant must understand his procedural rights
and choose not to exercise them. United States v. Correa-Torres,
326 F.3d 18, 22-23 (1st Cir. 2003). Correa-Torres stressed that
there is no talismanic formula; the judgment depends both on what
the defendant was told and upon "the totality of the attendant
circumstances." Id. at 23. The court there was especially
concerned because the defendant himself expressed some disagreement
with the truth of the charges, yet no evidence was taken or formal
waiver secured. Id. at 24.
It would have simplified matters if the district court
had addressed Tapia, asked him whether he understood and admitted
to the charges, and obtained his personal acquiescence. But,
taking account of "the attendant circumstances," we are satisfied
for the reasons discussed below that Tapia did understand the
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charges, knew he could contest them, and chose not to do so. In
addition, it appears that there was ample evidence of the
violations, which needed only be shown by a preponderance of the
evidence, 18 U.S.C. § 3583(e)(3) (2000).
The motion by the Probation Office that started the
proceeding was precise as to dates and details. It said that Tapia
had failed to report as required, or to call to excuse his absence,
on two specific dates: June 25 and August 7, 2002. It also said
that during a home visit on August 15, 2002, family members had
admitted that Tapia had not returned home since August 7, 2002, and
that he "has been using controlled substances."
Thus, the detailed charges were known, Tapia was told of
his procedural rights at the preliminary hearing, defense counsel
made clear in Tapia's presence that Tapia did not contest the
charges and had admitted drug use, and Tapia made no protest that
any of this was unclear or inaccurate. Further, Tapia was not a
novice. In addition to his prior criminal history, he had been
through a guilty plea proceeding in this very case and had even
been through a revocation proceeding for his first violation of
release conditions.
Even now, nothing affirmatively suggests that Tapia
misunderstood his options or that he had any defense to the charges
against him. He did not move in the district court after
sentencing to challenge the finding of violations, just the length
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of the sentence. Nor has he identified on appeal anything that he
misunderstood or might reasonably have misunderstood. And he has
never suggested that he had a defense to any of the charges. Under
these circumstances we decline to disturb the finding of liability.
Turning now to the sentence, Tapia contests the term of
imprisonment--30 months--on two related grounds: first, that the
proper statutory cap on his sentence was 24 months and, second,
that the statute imposing the cap requires that the 10 months Tapia
previously served for the violations in 2000 be subtracted from the
maximum (which, depending on how we resolve the first issue, is
either 24 or 36 months). The first claim is wrong--Tapia's counsel
appeared to retreat from it at oral argument--but the second we
accept by a very close margin.
Starting as always with the statutory language,
Spookyworld, Inc. v. Town of Berlin (In re Spookyworld, Inc.), 346
F.3d 1, 7 (1st Cir. 2003), the main provision at issue is 18 U.S.C.
§ 3583(e)(3) (2000), which authorizes re-imprisonment for
violations of supervised release conditions and fixes caps on the
possible new terms of imprisonment. It was originally enacted in
1987 but was modestly modified and reenacted in full as part of a
set of amendments in 1994. Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 103-322, Sec. 110505, §
3583(e)(3), 108 Stat. 1796, 2016-17 (1994). At the time of Tapia's
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crime and later violations, this section said in pertinent part
that if a defendant violates conditions of release, the court may
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 for the offense that
resulted in such term of supervised release
without credit for time previously served on
postrelease supervision . . . except that a
defendant whose terms is revoked under this
paragraph may not be required to serve more
than 5 years in prison if the offense that
resulted in the term of supervised release is
a class A felony, more than 3 years in prison
if such offense is a class B felony, more than
2 years in prison if such offense is a class C
or D felony . . . .
18 U.S.C. § 3583(e)(3) (2000).
Since Tapia's original drug offense carried a forty-year
maximum it is a class B felony, see 18 U.S.C. § 3559(a)(2) (2000),
and so the three-year cap for revocation applies to Tapia. Tapia's
counsel argued in his brief that the cap should be the two-year cap
for a class C felony because the district judge found that Tapia's
violation was only a grade C offense; but the district judge was
there referring to the Commission's classification scheme used to
fix a recommended sentence range for the violation of conditions,
U.S.S.G. § 7B1.4 (2002); this is a different scheme used for a
different purpose.3
3
The Commission's scheme grades supervised release violations
from A through C based on criteria set forth in U.S.S.G. § 7B1.1.
This scheme has no direct connection to the felony classification
scheme invoked by subsection (e)(3), which is based on criteria set
forth in 18 U.S.C. § 3559(a).
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By contrast the cap for maximum reimprisonment is a
binding cap fixed by the statute and is keyed not to the violation
of conditions but to "the term of supervised release authorized by
statute for the offense that resulted in such term of supervised
release." 18 U.S.C. § 3583(e)(3). Although slightly confusing
where a second violation of conditions occurs, this language
necessarily refers back to the original offense of conviction,
which is the place where there is a "term of supervised release
authorized by statute" for a particular offense, e.g., 21 U.S.C.
§ 841 (2000) (fixing a four-year minimum for Tapia's original
offense).
The question how to apply the cap is much more difficult.
The government says that the three-year cap applies afresh to the
30-month sentence imposed on Tapia in 2002, so that sentence was
within the 36-month maximum. Tapia argues that the cap applies to
the aggregate of all time imposed for violating supervised release
conditions growing out of the original criminal conviction; if so,
then Tapia--having served 10 months for supervised release
violations in 2000--could now be sentenced to only 26 months (36
months minus 10 months) for the latest violations.
If one looks only to the bare language of subsection
(e)(3) quoted above, the most straightforward reading favors the
government's position. The three-year cap is described as applying
wherever the defendant is found to have violated conditions of
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supervised release. 18 U.S.C. § 3583(e)(3). Nothing in the
statute's language says explicitly that in calculating the cap for
the second term, the first term is to be subtracted from the three-
year maximum.
The language of the second sentence of subsection (h)
bolsters the government's reading of subsection (e)(3). Subsection
(h) imposes a cap of its own on the supervised release term that
can be imposed after a defendant is incarcerated for violating
release conditions.4 And this cap explicitly incorporates a
"subtraction" principle: the "less any term" language means that
whatever new term of supervised release could otherwise be imposed
must be reduced by the term or terms of imprisonment previously
served for violating supervised release. Still, the inference in
the government's favor is somewhat tempered because (h) was not
drafted until well after the original (e)(3).
Nor does the government's reading create a cruel or
senseless result. True, a defendant might serve successive
substantial terms for supervised release violations for the same
4
"When a term of supervised release is revoked and the
defendant is required to serve a term of imprisonment that is less
than the maximum term of imprisonment authorized under subsection
(e)(3), the court may include a requirement that the defendant be
placed on a term of supervised release after imprisonment. The
length of such a term of supervised release shall not exceed the
term of supervised release authorized by statute for the offense
that resulted in the original term of supervised release, less any
term of imprisonment that was imposed upon revocation of supervised
release." 18 U.S.C. § 3583(h) (2000).
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original crime; but each one would be for a new supervised release
violation. Further, if prior terms had to be aggregated, then when
the maximum cap figure had been served the defendant could violate
minor conditions with impunity. By contrast, subsection (h)'s own
aggregation requirement usually prevents indefinite re-imprisonment
because eventually no new term of supervised release can be
imposed.5
So far the case for the government looks strong. But
note that reading the statute Tapia's way is not flatly contrary to
subsection (e)(3)'s language, as it might be if that subsection
affirmatively said that the three-year cap should be applied
without subtraction of any term of imprisonment served for a prior
violation of release conditions. Indeed, subsection (e)(3) does
provide that the amount of imprisonment is to be calculated
"without credit for time previously served on post-release
supervision" but it makes no mention of denying credit for time
already served on post-release imprisonment. 18 U.S.C. §
3583(e)(3) (2000).
Even so it is surprising that the best legislative
history available as to subsection (e)(3) squarely supports Tapia's
reading of the statute. The 1991 Senate Report discussing
5
The exception may be cases where the supervised release
authorized by statute is life--as, apparently, is the case for the
statute under which Tapia was convicted. 21 U.S.C. § 841 (2000);
see United States v. Cortes-Claudio, 312 F.3d 17, 22-23 (1st Cir.
2002).
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virtually the same language adopted in 1994 makes clear that the
cap is to apply to the aggregate term of all imprisonments for
release condition violations.6 The report contains a precise
example to this effect:
For example, in the case of a Class C felony
for which the maximum supervised release term
is three years, a defendant who is revoked and
re-imprisoned for 18 months could be ordered
to serve as much as 18 additional months on
supervised release (36-month maximum term of
supervised release - 18 months imprisonment =
18 months possible re-release supervision).
If the same defendant was again revoked, he
could be re-imprisoned for not exceeding six
months (24-month cap - 18 months
previously-served imprisonment = 6 months
allowable imprisonment) and if so imprisoned,
could not thereafter be placed on supervision
(because the two-year imprisonment cap would
have been reached). Thus, under [the
amendments], a defendant would always be
credited for incarceration time against both
the cap on re-imprisonment and the maximum
authorized period of supervised release.
137 Cong. Rec. S7772 (daily ed. June 13, 1991) (emphasis added).
Just as the "plain meaning" of statutes is a matter of
degree, so legislative history is not all of a piece. Here, the
Senate Report is no chance remark in a hearing or on the floor but
is a full-scale explanation of the bill in detail, and it is
clarity itself on the point at issue. Arguably, the author of the
report misread subsection (e)(3), a technical provision that was
6
The amendments were not actually passed until three years
later as part of the omnibus Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796
(1994), but the differences are only minor.
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not the main focus of legislative attention in 1994; but
nevertheless this was the gloss Congress had before it when it
reenacted the subsection.
In all events, perhaps prompted by the legislative
history, the government conceded in several prior circuit cases
that the imprisonment cap should be reduced by revocation terms
already served. Five circuits have now adopted Tapia's reading of
the statute, although all were in dicta, after government
concessions, or both.7 Among them, only the Fifth Circuit followed
this course "dubitante," pointing out (as we have done above) that
the statutory language taken alone favors the government. United
States v. Jackson, 329 F.3d 406, 408 n.7 (5th Cir. 2003).
In our own case, the U.S. Attorney's office, reading the
statute afresh, urges us to follow the language and disregard the
legislative history. Although this is a very close call, we
decline to do so. As already noted, the statute's language does
not strictly forbid the interpolated limitation sought by Tapia;
this result is endorsed by unusually explicit legislative history;
7
United States v. Jackson, 329 F.3d 406, 407-08 & n.7 (5th
Cir. 2003) (accepting government concession but expressing doubt as
to its soundness); United States v. Swenson, 289 F.3d 676, 677
(10th Cir. 2002) (government conceded point); United States v.
Merced, 263 F.3d 34, 37-38 (2d Cir. 2001) (government conceded
point); United States v. Brings Plenty, 188 F.3d 1051, 1054 (8th
Cir.1999) (in dictum accepting government concession); United
States v. Beals, 87 F.3d 854, 857-58 (7th Cir. 1996) (in dictum),
overruled on other grounds by United States v. Withers, 128 F.3d
1167, 1172 (7th Cir. 1997).
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it has been several times conceded by the government; and five
circuits have now followed the government's original concessions.
To the extent that we are left with any uncertainty after these
considerations, the rule of lenity applies to tip the balance in
the defendant's favor. See, e.g., United States v. Luna-Diaz, 222
F.3d 1, 3 n.2 (1st Cir. 2000).
The outcome does not threaten much harm. A three-year
cap even in the aggregate would normally suffice to punish even a
succession of petty supervised release violations like failing to
report. Where the violation is more serious (such as drugs), it is
independently a crime and can be independently prosecuted in a
criminal case. And, if a new Congress disliked the result spelled
out in the 1991 legislative history, it could easily amend
subsection (e)(3).
It turns out, although neither side mentioned the point,
that Congress has altered the statute to adopt the government's
position for the future. The 2003 PROTECT Act adds to subsection
(e)(3) the phrase "on any such revocation" so that the statute now
reads "a defendant whose term is revoked under this paragraph may
not be required to serve on any such revocation more than 5 years
if . . . ." PROTECT Act, Pub. L. No. 108-21, tit. I, § 101(1), 117
Stat. 650, 651 (2003). The intent of the 2003 Congress cannot
alter the law as enacted in 1994, but reading the 1994 statute in
Tapia's favor has only limited consequences.
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The 2003 amendment does not apply in this case, Tapia
having committed the original offense (as well as the new
violations) before the latest amendment. Cf. Johnson v. United
States, 529 U.S. 694, 701-02 (2000). Nothing in the new statute as
it concerns § 3583(e)(3) suggests an effort to apply this amendment
retroactively and, of course, the government has not relied upon
the new amendment at all. Under the circumstances, the 1994
language as we have construed it governs the remand.
The judgment adjudicating violation of conditions of
release is affirmed but the term of imprisonment must be reduced
from 30 to 26 months and the matter is remanded for this purpose.
It is so ordered.
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