United States Court of Appeals For the First Circuit
Nos. 24-1665, 24-1666
UNITED STATES OF AMERICA,
Appellee,
v.
KELVIN GARCÍA-OQUENDO, a/k/a Kelo,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Barron, Chief Judge, Thompson and Rikelman, Circuit Judges.
Celso Javier Pérez Carballo, Assistant Federal Public Defender, with whom Franco L. Pérez-Redondo, Assistant Federal Public Defender, Supervisor, Appellate Unit, and Rachel Brill, Federal Public Defender, were on brief, for appellant.
Maarja T. Luhtaru, Assistant United States Attorney, with whom Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and W. Stephen Muldrow, United States Attorney, were on brief, for appellee.
July 14, 2025 BARRON, Chief Judge. In 2024, the United States District
Court for the District of Puerto Rico revoked Kelvin
García-Oquendo's terms of supervised release and imposed a term of
21 months of imprisonment and a term of 18 months of imprisonment,
to be served concurrently with each other. It did so because it
found that he had violated the conditions of his release. García
now appeals from that judgment. He contends that the District
Court reversibly erred because the District Court relied on
testimony that should not have been admitted under Federal Rule of
Criminal Procedure 32.1(b) and the Due Process Clause of the Fifth
Amendment. Although we agree that the District Court erred by
admitting the challenged testimony, we conclude that the error was
harmless. We therefore affirm.
I.
A.
In 2013, García pleaded guilty in the United States
District Court for the District of Puerto Rico to one count of
conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1349
and 1344, and one count of aggravated identity theft, in violation
of 18 U.S.C. § 1028A ("Case No. 13-299"). While awaiting
sentencing on those counts, García was charged with an additional
count of unauthorized use and transfer of access devices, in
violation of 18 U.S.C. § 1029(a)(2) ("Case No. 15-524"). He
pleaded guilty to that count in 2015.
- 2 - The District Court sentenced García to a total of 89
months' imprisonment for the three convictions. It also imposed
a total of five years of supervised release, comprising five years
of supervised release for one of the counts from 2013, one year of
supervised release for the other count from 2013, and three years
of supervised release for the count from 2015, all to be served
concurrently with one another. As relevant here, for each term of
supervised release, the District Court imposed -- as it was
required to do under 18 U.S.C. § 3583(d) -- the following
condition: "The defendant shall not commit another federal, state
or local crime."
B.
After serving his term of imprisonment, García began his
supervised release terms in May 2022. In August 2023, the United
States Probation Office filed a motion in the United States
District Court for the District of Puerto Rico alleging that the
Probation Office "ha[d] uncovered violations to the conditions of
supervised release" in both Case No. 13-299 and Case No. 15-524.
The motion alleged that the Probation Office had
gathered evidence "indicating that Mr. García-Oquendo is currently
engaged in new criminal conduct" that "may constitute multiple
Federal crimes" including identity theft under 18 U.S.C. § 1028,
aggravated identity theft under 18 U.S.C. § 1028A, bank fraud in
violation of 18 U.S.C. § 1344, and wire fraud in violation of 18
- 3 - U.S.C. § 1343. The motion alleged that "[t]he fraudulent actions
consist of gaining access, through misrepresentation and identity
theft, to multiple bank products by using the identity of at least
two known individuals (Margarita Castro-Lopez and Roberto C.
Ortega) that did not consent for Mr. García-Oquendo to use their
information to secure bank products that to this date have caused
significant losses to First Bank of Puerto Rico."1
The Probation Office requested that the District Court
"issue[] an arrest warrant" for García and schedule "a show cause
hearing." García was subsequently arrested and brought before a
magistrate judge in the District of Puerto Rico for an "initial
appearance." Fed. R. Crim. P. 32.1(a).
The Magistrate Judge ordered García to be detained
pending further revocation proceedings. See Fed. R. Crim.
32.1(b)(1)(A), the Magistrate Judge then set a "preliminary"
revocation hearing for October 2023. See Fed. R. Crim.
P. 32.1(b)(1)(A) ("If a person is in custody for violating a
condition of probation or supervised release, a magistrate judge
1In a different part of the motion, the Probation Officer identified three (not two) potential victims: "Roberto C. Ortega, Margarita Castro Lopez and Carlito's [sic] Ortega." The government did not present any evidence about "Carlito's Ortega" in the subsequent revocation proceedings, and as the Magistrate Judge noted during the preliminary revocation hearing, "[i]t was not clear . . . whether that's the third person or whether that's also Roberto Carlos Ortega."
- 4 - must promptly conduct a hearing to determine whether there is
probable cause to believe that a violation occurred.").
The preliminary revocation hearing took place on
October 3, 2023, in front of the same Magistrate Judge. The
government called three witnesses: (1) Jonathan Pérez-Hernandez,
an investigator at FirstBank; (2) Officer Pascual Feliciano Velez
of the Puerto Rico Police; and (3) Officer George Maymí Melendez,
García's Probation Officer.
The government also introduced ten exhibits into
evidence. These included the credit card applications used to
open accounts at FirstBank under the names of Margarita Castro
Lopez ("Castro") and Roberto C. Ortega ("Ortega") and images from
surveillance cameras at various ATM machines. Neither of the
alleged victims, Castro or Ortega, testified.
Based on the evidence, the Magistrate Judge found
probable cause "certainly as to all of the allegations that pertain
to the credit card . . . of Mr. Ortega," but "no probable cause as
to the allegations concerning the credit card for Ms. Castro."
The Magistrate Judge then referred the revocation proceedings "to
the presiding District Judge for a final revocation hearing." See
Fed. R. Crim. P. 32.1(b)(1)(C) ("If the judge finds probable cause,
the judge must conduct a revocation hearing.").
- 5 - C.
1.
The "final revocation hearing" took place in the
District Court on April 8, 2024. The government presented the
same three witnesses and introduced the same ten exhibits as in
the preliminary revocation hearing. Again, neither Castro nor
Ortega testified.
Pérez, the FirstBank investigator, testified first. He
testified that the bank's fraud department had "found some
suspicious activity" regarding credit cards under the names of
Ortega and Castro. Specifically, he testified that a number of
payments had been made toward these credit cards from bank accounts
at Banco Popular and Oriental, all of which were later "reversed"
either due to insufficient funds or because the account owners had
never authorized the payments.
Pérez also identified García as "the primary suspect"
behind these activities because the telephone number and mailing
address listed in the application to create the account under
Castro's name "matched" the contact information García had
previously provided to FirstBank in his application to create an
account under his own name. He further testified that Castro's
credit card account had "an authorized credit card number under
the name of Kelvin García[]." As to Ortega's credit card
application, Pérez testified that it did not contain the same
- 6 - telephone number and mailing address as García's, but did contain
the same physical address as the one used in the application for
Castro. Pérez then testified that he interviewed Ortega.
At that point, defense counsel objected "to anything
that [Ortega] allegedly said." Defense counsel did so on the
ground that "Mr. García has confrontation rights under the Federal
Rules of Criminal Procedure 32.1(b)(2)(C)."
The District Court denied the objection, agreeing with
the government that the objection goes to "weight" not
admissibility and further reasoning that "the Rules of Evidence"
do "not necessarily" apply to "these types of procedures." With
defense counsel's objection overruled, Pérez proceeded to testify
that Ortega told him that Ortega was "a victim of ID theft." Pérez
further testified that, when he showed Ortega a photograph of
García withdrawing a cash advance from an ATM machine from Ortega's
credit card account, Ortega told him that Ortega did not know
García.
The government subsequently called Officer Feliciano of
the Puerto Rico police to the stand. Officer Feliciano testified
that he examined the credit card accounts belonging to Ortega,
Castro, and García at FirstBank. He testified that the credit
card applications under Castro's name and García's name had the
same mailing address. And he testified that García admitted at
the time of his arrest that the address was his "private" mailing
- 7 - address and that the United States Postal Service had "certifie[d]"
that the address corresponded to García. Officer Feliciano then
identified and described a photograph depicting García conducting
a transaction at an ATM from an account belonging to Castro.
Officer Feliciano also testified that he interviewed Castro.
When the government asked about what Castro told the
officer, defense counsel again made a "hearsay objection as to
what [Castro] allegedly said," contending that "[s]he could be
here, and the Government had ample time." The District Court
overruled the objection.
Officer Feliciano proceeded to testify that Castro told
him that "[s]he did not authorize [García]" to open an account in
her name and that "[s]he did not know [García]." As to the account
under Ortega's name, the officer testified that an image depicted
a man withdrawing cash from an ATM from the FirstBank account under
Ortega's name. The same officer further testified that García had
recognized the man upon seeing the photo and described him as a
"junkie that used to hang out in the gas station in the
neighborhood to whom [García] used to give some bucks so that he
would do some transactions for [García] using the card."
Officer Feliciano then described photos depicting García
withdrawing cash from the FirstBank account under Ortega's name on
three separate occasions. Officer Feliciano testified as well
that he interviewed Ortega and that Ortega provided him with a
- 8 - sworn statement which stated that "[Ortega] does not have any
account with FirstBank, never has had any accounts with FirstBank,
and did not authorize anybody to open an account under his name."
Probation Officer Maymí was the final witness for the
government. Officer Maymí testified that he had also interviewed
Ortega, who told the officer that "he didn't know [García]" and
did not authorize "that any business be conducted in his name."
He further testified that the mailing address used to open both
the account under García's name and the account under Castro's
name matched the address that García had shared as his new address
following an address change.
García did not present any witnesses.
2.
At the close of the evidence, defense counsel argued
that the government had not met its burden to prove, by a
preponderance of the evidence, that García had committed the
alleged violations of the conditions of his supervised release.
In particular, defense counsel "affirm[ed] our objection
under . . . Rule 32.1(B)(1)(b), which provides [García] with the
opportunity to question adverse witnesses at his final revocation
hearing." Defense counsel repeated that the out-of-court
statements of Ortega and Castro should have been excluded under
that rule. And without the "impermissible hearsay," defense
counsel argued, the government had not proven that García lacked
- 9 - authorization from Ortega and Castro to act on their behalf, which
the defense contended was an essential element of the alleged
crimes.
The government contended that it had proven "at least a
felony in this case." As to Ortega, the government contended that
Ortega "emphatically denie[d] to everyone who spoke to him that he
has ever had an account at First Bank," pointing to the testimony
of all three witnesses to this effect. The government also relied
on the photographs of García withdrawing cash from the account
under Ortega's name at various moments.
As to Castro, the government highlighted the fact that
the credit card application under Castro's name showed the same
mailing address that García had reported to the probation officer.
It also noted that Castro told several witnesses that "[she] never
authorized [García] to do anything on their behalf."
The District Court determined that "the Government has
met the burden of establishing by preponderance that the Defendant
has been engaged in [criminal conduct]." Listing the offenses
that the government had alleged García committed while on
supervised release, the District Court stated that it "[did]n't
need to go and dwell into every specific element[] of the offense,
aside from determining that [García's] conduct . . . amounts to a
series of possible felony offenses under State or Federal law."
In support of its conclusion that the defendant had engaged in
- 10 - such conduct, the District Court first explained that, even though
FirstBank had "corroborated" the credit card applications of both
Ortega and Castro, those accounts "were opened online" instead of
being "personally done."
The District Court further emphasized the testimony from
Probation Officer Maymí, which it said showed that "the [address]
provided by the Defendant to the bank as the mailing address for
the two fraudulently made bank loan applications" was "consistent
with" "the one that is given as the new address of the Defendant
to the probation officer."2 The same address, the District Court
explained, had been "verified by the postal inspectors as the
address for this Defendant." The District Court further relied on
the photographs "clearly depict[ing]" the defendant withdrawing
cash from the accounts of Ortega and Castro and the fact that one
of those photographs, by the defendant's own "admission[]," showed
a withdrawal by "an addict that used to hang out at the gas station
that [the defendant] paid a couple of dollars for him to conduct
the transactions."
2 Contrary to the District Court's statement, the mailing address on Castro's account matched García's address but the mailing address on Ortega's did not. García, however, does not challenge any potential error in this regard. Moreover, for reasons explained below, the other evidence on which the District Court relied strongly supported its violation finding as to both Castro and Ortega.
- 11 - Given these features of the record, the District Court
concluded that the government had met its burden of proving, by a
preponderance of the evidence, that García had violated the
condition of his supervised release terms that he not commit
another offense. As a result, the District Court "determined that
there is a basis to revoke" both terms of supervised release. The
District Court, however, "continue[d] the sentence for a month,"
in light of the government's representation to the court that it
would be presenting criminal charges to the grand jury for García's
alleged criminal conduct.
3.
After granting an additional continuance at the request
of the parties for plea agreement negotiations, the District Court
imposed the terms of imprisonment for García's supervised released
revocations on June 21, 2024. The District Court started off by
noting that, based on the evidence presented at the April 8, 2024
hearing, it had found "conduct that amounts to bank fraud and
identity theft."
The District Court then heard from the parties. Defense
counsel began by stating that she "would like to renew [her]
objections from the revocation hearing, including our position
that there is not enough evidence to revoke." She then "provide[d]
some additional mitigating information." The government, for its
part, recommended that the District Court impose a term of 24
- 12 - months of imprisonment on the grounds that García was "a repeat
offender."
The District Court then calculated García's advisory
guideline ranges for his violations of the conditions of his
supervised release terms. As to García's violation of the
condition of his supervised release term in Case No. 15-524, the
District Court calculated a guideline range of 15 to 21 months.
As to García's violation of the condition of his supervised release
term in Case No. 13-299, it calculated a guideline range of 12 to
18 months.
The District Court also considered the factors in 18
U.S.C. § 3553(a)(2)(A) and (D) as well as "the nature and
circumstances of the offense" and "the sentencing objectives."
Among other things, the Court noted that the evidence presented
indicated that "there [we]re multiple victims involved, including
common citizens and a bank institution." The District Court
imposed a term of 21 months of imprisonment in Case No. 15-524 and
18 months for Case No. 13-299, to be served concurrently with each
other.
After the District Court determined the terms of
imprisonment, defense counsel objected. In doing so, she stated,
"[W]e renew our objections as to the [C]onfrontation [C]lause and
hearsay that occurred during the hearing."
García filed this timely appeal.
- 13 - II.
We review a district court's "ultimate revocation
decision and sentence for 'abuse of discretion.'" United States
v. Colón-Maldonado, 953 F.3d 1, 3 (1st Cir. 2020) (quoting United
States v. Wright, 812 F.3d 27, 30 (1st Cir. 2016)). "Along the
way, we draw our own legal conclusions," id. at 3-4, and we review
"the underlying finding of a violation of supervised release for
clear error," Wright, 812 F.3d at 30.
III.
The only grounds that García presses on appeal for
challenging the revocations of his supervised release terms are
that the District Court relied on testimony that should not have
been admitted under Federal Rule of Criminal Procedure 32.1(b) and
the Due Process Clause of the Fifth Amendment. Therefore, we
address only those grounds.
A defendant in a supervised release revocation hearing
enjoys "a limited right to confront adverse witnesses" under both
Rule 32.13 and the Due Process Clause of the Fifth Amendment.
3 Rule 32.1(b)(1)(B)(iii) provides for this right at the preliminary revocation hearing and states that a magistrate judge "must give the person . . . upon request, an opportunity to question any adverse witness, unless the judge determines that the interest of justice does not require the witness to appear." Rule 32.1(b)(2)(C) provides for this right at the final revocation hearing and states that a "person is entitled to . . . an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear."
- 14 - United States v. Cintrón-Ortiz, 34 F.4th 121, 124 (1st Cir. 2022).
Under those provisions, "a court must balance a releasee's right
to confront the witness with what good cause may exist for denying
confrontation in a particular instance." United States v.
Navarro-Santisteban, 83 F.4th 44, 52 (1st Cir. 2023). Based on
these protections, García contends that the District Court erred
in revoking his supervised release term because its finding that
he had violated the condition of his supervised release relied on
testimony that was based on interviews with people who did not
testify at the revocation hearing and thus were not available for
cross examination by him.
García directs his challenge to the testimony from
Pérez, Officer Feliciano, and Officer Maymí,4 which introduced
Ortega's and Castro's out-of-court statements that they did not
authorize García to act on their behalf with regard to the credit
card accounts under their names at FirstBank. García contends
that the District Court erred by allowing these witnesses to
testify as to the out-of-court statements of Ortega and Castro
without "conduct[ing] a proper balancing under [Federal] Rule [of
Criminal Procedure] 32.1 and the Due Process Clause."
4 García did not object below to the testimony from Officer Maymí. But, because the government concedes that "García preserved an objection based on [Rule 32.1]," we treat the issue as preserved as to all of the witnesses' testimony.
- 15 - The government does not dispute that the District Court
failed to conduct the required balancing under Rule 32.1 before
admitting the challenged hearsay. Instead, it contends that any
such error was harmless.
To demonstrate harmlessness here, "the government must
prove, 'with a high degree of confidence,' that 'considering only
the non-hearsay evidence submitted to the [D]istrict [C]ourt, the
result would have been the same.'" Navarro-Santisteban, 83 F.4th
at 53 (first quoting United States v. Teixeira, 62 F.4th 10, 24
(1st Cir. 2023); then quoting United States v. Mosley, 759 F.3d
664, 669 (7th Cir. 2014)). We have found such errors to be harmless
where evidence other than the challenged hearsay "strongly
supports" the District Court's violation finding. Cintrón-Ortiz,
34 F.4th at 125.
In finding that García had engaged in new criminal
conduct and thus violated the conditions of his supervised release
terms, the District Court never explicitly mentioned the
challenged hearsay testimony. Instead, the District Court
justified its violation finding by pointing to the other
circumstantial evidence in the record, including the fact that
both Ortega and Castro's accounts were opened online, the fact
that García's mailing address was used to open Castro's account,
the surveillance images showing García withdrawing funds from both
accounts, and the surveillance images showing a different
- 16 - individual withdrawing cash from Ortega's account and García's
admission that the individual was a local drug addict that García
had paid to make ATM transactions on his behalf from Ortega's
account.
The record also showed that bank accounts linked to
García were used to make payments on both Ortega's and Castro's
accounts, all of which were reversed either for insufficient funds
or for lack of authorization. These so-called "reverse payments"
allowed transactions to be made with Ortega and Castro's credit
cards above the pre-set credit card limits.
The totality of this evidence gives us a "high degree of
confidence" that, setting aside Castro and Ortega's out-of-court
statements, the District Court's decision to revoke García's
supervised release would have been the same. Teixeira, 62 F.4th
at 24. The unchallenged evidence "strongly supports" the inference
that García lacked authorization from both Ortega and Castro to
conduct those transactions. Cintrón-Ortiz, 34 F.4th at 125; see
Teixeira, 62 F.4th at 25 ("To conclude that a supervised release
violation has occurred, 'the district court need not point to
direct evidence but, rather, may rely on reasonable inferences
drawn from the evidence.'" (quoting United States v. Rodriguez,
919 F.3d 629, 637 (1st Cir. 2019))). And García does not dispute
that, if he lacked authorization from either Ortega or Castro, his
conduct would have constituted identity theft, see 18 U.S.C.
- 17 - § 1028(a)(7), aggravated identity theft, see id. § 1028A(a)(1),
wire fraud, see id. § 1343, and bank fraud, see id. § 1344.
For these reasons, even assuming that the District Court
relied in any respect on the challenged testimony in finding that
García violated the conditions of his supervised release terms by
committing another federal crime, we see no reversible error. We
thus reject García's challenges to the District Court's violation
finding insofar as those challenges are based on either Rule 32.1
or the Fifth Amendment.
IV.
García separately contends that the terms of
imprisonment that the District Court imposed as a consequence of
the revocations cannot stand because the District Court relied on
the same challenged hearsay testimony in determining the terms of
imprisonment. García contends that, when the District Court
imposed terms of imprisonment at the top of his guidelines ranges,
it "made clear that it relied on this hearsay -- and the fact that
Mr. García's actions affected 'multiple victims . . . including
common citizens.'" (Alteration in original). He therefore argues
that it was error for the District Court to do so because
Rule 32.1's protections extend to the "sentencing phase" of a
revocation proceeding.
- 18 - A.
The government first contends that this claim of error
is subject to plain error review because García "did not argue
before the district court that it should have applied Rule 32.1's
protections at the sentencing-stage of the hearing." The
government then goes on to argue that García waived this claim on
appeal because he failed to argue plain error in his opening brief.
We do not agree.
When the parties reconvened for the District Court to
determine the terms of imprisonment for García's violations of his
supervised release terms, defense counsel began her argument by
"renew[ing]" her objections from the earlier hearing. After the
District Court handed down its sentence, defense counsel then again
stated, "[W]e object -- we renew our objections as to the
[C]onfrontation [C]lause and hearsay that occurred during the
hearing." (Emphasis added).
Notably, those objections occurred during the second
hearing in front of the District Court. They thus occurred after
it had already found in an earlier hearing that García had violated
the conditions of his release and when all there was left to do
was determine the terms of imprisonment for the revocations of his
release. Accordingly, those objections preserved García's claim
that the District Court should not have relied on the challenged
hearsay testimony in determining the terms of imprisonment for
- 19 - García's revocations. See United States v. Rivera-Berríos, 968
F.3d 130, 134 (1st Cir. 2020) (holding that an "objection need not
be framed with exquisite precision" to preserve a claim for
appellate review); United States v. Colón-Cordero, 91 F.4th 41, 49
(1st Cir. 2024) (holding that an objection may "callback" to
earlier arguments before the district court).
As to the merits, the government contends that "although
Rule 32.1(b)(2) applies in the guilt or violation-determination
phase of a supervised release revocation hearing, it does not apply
in the sentencing phase of the revocation hearing." Thus, the
government argues, "to the extent the [D]istrict [C]ourt did
consider the testimony regarding Ms. Castro's and Mr. Ortega's
statements, it did not err in doing so." And, in any event, the
government contends, any Rule 32.1 error was harmless because
"even without Ms. Castro's and Mr. Ortega's hearsay
statements . . . all the other evidence shows that García had
multiple 'common citizen' victims.'"
We start with the government's claim that there was no
error at all, which we reject. We then address its contention
that any error was harmless, which we conclude is persuasive.
We have "yet to decide whether Rule 32.1's protections
against the admission of hearsay evidence extend to the sentencing
- 20 - phase of a revocation proceeding." Navarro-Santisteban, 83 F.4th
at 55. Other circuits have split on the issue. Compare United
States v. Combs, 36 F.4th 502, 506-07 (4th Cir. 2022) (holding
that Rule 32.1's confrontation right applies to the sentencing
phase of revocation proceedings), with United States v. Ruby, 706
F.3d 1221, 1226-28 (10th Cir. 2013) (holding that Rule 32.1's
confrontation right does not apply to the sentencing phase of
revocation proceedings); cf. United States v. Busey, 11 F.4th 664,
668 (8th Cir. 2021) ("Due process generally does not require
confrontation during sentencing following a conviction, and due
process does not require any greater protection in the sentencing
phase of a revocation proceeding." (internal citation omitted));
United States v. Williams, 847 F.3d 251, 254 (5th Cir. 2017)
(holding the same). We now hold that Rule 32.1(b)(2)(C)'s limited
confrontation right applies to the entirety of the revocation
proceeding, both in the determination of whether the releasee has
violated the conditions of supervised release and in the
determination of whether to revoke supervised release and impose
a term of imprisonment.
To set the stage for understanding the dispute between
the parties as to whether Rule 32.1's limited confrontation right
applies to the entirety of the revocation hearing, we briefly
review the relevant legal landscape concerning the procedural
guarantees that apply to the various stages of criminal proceedings
- 21 - that are brought against criminal defendants like García. We then
circle back to the parties' contentions about whether Rule 32.1's
limited confrontation right applies both in the determination of
whether a releasee has violated the conditions of his supervised
release and in the determination of whether to revoke and impose
The Sixth Amendment "identifies the basic rights that
the accused shall enjoy in 'all criminal prosecutions.'" Martinez
v. Ct. of Appeal of Cal., Fourth App. Dist., 528 U.S. 152, 159-60
(2000) (quoting U.S. Const. amend. VI). One such right is the
right of the accused to "be confronted with the witnesses against
him." U.S. Const. amend. VI.
"[T]he protections provided by the Sixth Amendment are
available only in 'criminal prosecutions.'" United States v. Ward,
448 U.S. 242, 248 (1980). Thus, there is no Sixth Amendment
Confrontation Clause right at sentencing, United States v.
Luciano, 414 F.3d 174, 179 (1st Cir. 2005), or in a supervised
release revocation proceeding, United States v. Rondeau, 430 F.3d
44, 47-48 (1st Cir. 2005).
Nonetheless, the Due Process Clause of the Fifth
Amendment "secures . . . the right of criminal defendants to
'fundamental fairness' in the proceedings that are brought against
them." United States v. Jackson, 58 F.4th 541, 553 (1st Cir. 2023)
- 22 - (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 872
(1982)). As a result, although a court at sentencing may generally
rely on hearsay evidence without violating due process, see
Williams v. New York, 337 U.S. 241, 249-52 (1949), the hearsay
evidence must still have "sufficient indicia of reliability to
support its probable accuracy," Colón-Maldonado, 953 F.3d at 10
(quoting United States v. Mills, 710 F.3d 5, 15 (1st Cir. 2013)).
Moreover, in Morrissey v. Brewer, 408 U.S. 471 (1972),
the Supreme Court of the United States held -- in the context of
a parole revocation -- that even though a releasee facing
revocation does not have "the full panoply of rights due a
defendant" in a criminal prosecution, the releasee still is
entitled to "the minimum requirements of due process." Id. at
480, 488-89. And, Morrisey made clear, one such right is the right
"to confront and cross-examine adverse witnesses (unless the
hearing officer specifically finds good cause for not allowing
confrontation)." Id.
Notably, as other courts have recognized, Rule 32.1 was
enacted to codify the limited confrontation right for releasees
facing revocation that Morrissey recognized as a matter of due
process. See Ruby, 706 F.3d at 1226; Combs, 36 F.4th at 506. That
is also clear from the Advisory Committee Notes to the Rule. See
Fed. R. Crim. P. 32.1 advisory committee notes (2002).
- 23 - The question, then, is whether there is any basis for
concluding, as the government contends, that Rule 32.1's limited
confrontation right does not apply to the so-called "sentencing
phase" of revocation proceedings -- which concerns the
consequences for violating a condition of release -- even though
it applies to the so-called "guilt phase" -- which concerns whether
a violation has occurred. In pressing the argument that
Rule 32.1's limited confrontation right applies only to the
so-called "guilt phase," the government chiefly relies on the Tenth
Circuit's decision in Ruby, 706 F.3d 1221. But, as we will next
explain, we cannot agree.
ii.
Ruby held that the confrontation right provided for in
Rule 32.1(b)(2)(C) applies to the so-called "guilt phase" but not
to the so-called "sentencing phase." Id. at 1227-28. In so
holding, Ruby reasoned that "nothing in Rule 32.1 requires that
the hearsay evidence at issue here be subject to a different, or
higher, level of admissibility than it would be at other types of
sentencing proceedings." Id. at 1228. Ruby concluded that because
there is "no meaningful difference between sentencing at a
revocation proceeding and sentencing after a guilty plea or jury
verdict of conviction," id. at 1227, the "sentencing phase" of a
revocation hearing should be governed by Rule 32, which everyone
- 24 - agrees applies to sentencing after conviction and does not contain
a limited confrontation right, rather than by Rule 32.1.
This rationale works, however, only if Rule 32.1
impliedly distinguishes between a "guilt phase," at which its
confrontation right applies, and "a sentencing phase," at which
the right does not. We see no basis, however, for reading
Rule 32.1 to treat the term of imprisonment that a court imposes
upon revocation of a supervised release term as a "sentence"
insofar as that suggests the term of imprisonment is a separate
"sentence" to the one imposed after conviction for the original
offense. When a court decides to revoke a releasee's supervised
release and imposes post-revocation sanctions, it does not impose
a separate "sentence." See Johnson v. United States, 529 U.S.
694, 700 (2000). Rather, as the Supreme Court explained in
Morrissey, 408 U.S. at 479-80, everything that occurs during a
revocation hearing constitutes "a revocation decision," to which
Rule 32.1(b)(2)(C)'s limited confrontation right applies.
Consistent with this conclusion, courts have explained
that "supervised release is a separate part of the original
sentence." United States v. Robinson, 62 F.3d 1282, 1286 (10th
Cir. 1995). It is thus hardly evident that it makes sense to treat
only one "phase" as pertaining to sentencing. Indeed, we treat
"post[-]revocation sanctions as part of the penalty for the initial
offense." Johnson, 529 U.S. at 700; see also 18 U.S.C.
- 25 - § 3583(e)(3) (providing that the term of imprisonment that may be
imposed upon revocation cannot be longer than the term of
supervised release the court could have originally imposed).
Not surprisingly, therefore, nothing in the text of the
Rule draws a sentencing-phase/guilt-phase distinction. See Combs,
36 F.4th at 506. Indeed, Rule 32.1(b)(2) is titled "Revocation
Hearing," and the government does not dispute that revocation
hearings involve both the determination of whether there has been
a violation of the conditions of release and the determination of
the consequences for such a violation.
Subsection (b)(2)(E) of the Rule accords with this same
conclusion. It provides that a person facing revocation must have
"an opportunity to make a statement and present any information in
mitigation." Fed. R. Crim. P. 32.1(b)(2)(E). The Advisory
Committee Notes explain that this subsection was added to
"explicitly recognize[]" the right of "allocution" at
"Rule 32.1(b)(2) revocation hearings." Fed. R. Crim. P. 32.1
advisory committee's note to 2005 amendment. The right to present
mitigating evidence and the right of allocution, of course, relate
to sentencing. "That Rule 32.1(b)(2) lists the right to allocution
together with the rights to the disclosure of evidence and to
question adverse witnesses in a single list of procedural
protections -- drawing no distinction between the guilt and
sentencing phases of a revocation hearing -- indicates strongly
- 26 - that the Rule applies to the entire proceeding." Combs, 36 F.4th
at 506.
Nor, as a practical matter, does our conclusion on this
score produce an anomalous outcome. The so-called "guilt phase"
during a revocation proceeding is not "comparable" to the "guilt
phase" in a criminal proceeding. Id. at 507. While, in the
context of a criminal conviction, it may make sense to provide
greater procedural protections to a defendant "when [the court]
has to decide whether someone is guilty and must go to prison
[rather] than when it is deciding how long a convicted criminal
must serve," United States v. Littlesun, 444 F.3d 1196, 1200 (9th
Cir. 2006), the same reasoning does not apply in the revocation
context, where "the most meaningful consequences for a releasee
come" not when a court decides whether the releasee has violated
the condition of his release but "when a court decides whether to
revoke the terms of supervised release and impose additional prison
time," Combs, 36 F.4th at 507; see also id. (noting that a criminal
conviction carries with it "societal stigma and, often, the loss
of civil rights like the rights to vote and serve on a jury"
whereas the finding of a violation of a supervised release term
"involves few, if any, of these collateral consequences").
In fact, Morrissey grounded the "procedural guarantees"
it identified, including the limited confrontation right, in the
"need[] . . . to assure that the finding of a parole violation
- 27 - will be based on verified facts and that the exercise of discretion
will be informed by an accurate knowledge of the parolee's
behavior." 408 U.S. at 484 (emphasis added). Morrissey explained
that "a revocation decision" resolves both "a wholly retrospective
factual question" about whether a violation of the conditions of
supervised release has taken place and a "factual but also
predictive and discretionary" question about whether to revoke
release and the penalty to be imposed upon revocation. Id. at
479-80. And it explained that "this second step, deciding what to
do about the violation once it is identified," also "depends on
facts, and therefore it is important for the [presiding officer]
to know not only that some violation was committed but also to
know accurately how many and how serious the violations were."
Id. at 480. Thus, Morrissey suggests that the limited
confrontation right it recognized -- and Rule 32.1(b)(2)(C)
codified -- applies to the entirety of the "revocation decision,"
including the determination of whether to revoke supervised
release and impose a term of imprisonment.
We therefore reject the government's suggestion that the
confrontation right provided for in Rule 32.1(b)(2)(C) does not
apply to the entirety of such "a revocation decision," because,
prior to the so-called "sentencing phase," that Rule's limited
confrontation right applies, but, at the "sentencing phase," it
does not. Accordingly, we hold that Rule 32.1's limited
- 28 - confrontation right applies to the entirety of the revocation
proceeding.
Notwithstanding our holding that Rule 32.1's limited
confrontation right applies to the entirety of the revocation
proceeding, we must conclude that any Rule 32.1 error was harmless
on this record. To be sure, in imposing the sentence, the District
Court relied on its finding that "there [were] multiple victims
involved, including common citizens and a bank institution." But,
insofar as the District Court relied on the challenged out-of-court
statements by Ortega and Castro in making that finding, for reasons
we have already explained, the other evidence in the record
"strongly supports" the District Court's finding that Ortega and
Castro (as well as FirstBank, which administered both accounts)
were victims of García's criminal conduct. Cintrón-Ortiz, 34 F.4th
at 125. Thus, to the extent the District Court relied on the
challenged hearsay to determine the terms of imprisonment for the
revocation of García's supervised release, any resulting Rule 32.1
error was harmless.
Our conclusion on this score also requires us to reject
García's separate contention that the District Court erred in
considering the challenged hearsay in determining García's
post-revocation sanctions because the District Court failed to
analyze whether the hearsay was supported by sufficient "indicia
- 29 - of trustworthiness" and because "it would have been an abuse of
discretion for the district court to find" the hearsay evidence to
be supported by sufficient "indicia of trustworthiness." For,
even assuming that the District Court erred in this regard, any
such error was harmless for the same reasons that any Rule 32.1
error was harmless -- namely, any finding that relied on the
challenged testimony was strongly supported by the other evidence
in the record.
For the reasons given above, we affirm the District
Court's revocation order and sentences.
- 30 -