United States Court of Appeals For the First Circuit
No. 21-1735
UNITED STATES OF AMERICA,
Appellee,
v.
HECTOR E. NAVARRO-SANTISTEBAN, A/K/A PEPITO, A/K/A PEPE JR., A/K/A HECTOR E. NAVARRO-SANTIESTEBAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Barron, Chief Judge, Lipez and Montecalvo, Circuit Judges.
José David Rodríguez, with whom Franco L. Pérez-Redondo, Assistant Federal Public Defender, and Eric Alexander Vos, Federal Public Defender, were on brief, for appellant.
Gregory B. Conner, Assistant United States Attorney, with whom Maarja T. Luhtaru, Assistant United States Attorney, W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, were on brief, for appellee. September 29, 2023 MONTECALVO, Circuit Judge. Héctor Navarro-Santisteban
("Navarro") appeals from a decision of the federal district court
revoking his term of supervised release and ordering him to return
to prison for an additional two years. The revocation followed
the court's finding that Navarro made unlawful death threats in
violation of a condition of his release barring the commission of
a new crime. Navarro contends that the court erred by admitting
and considering his probation officer's hearsay testimony over his
limited confrontation right without first weighing whether it was
in the interests of justice to do so. The government concedes
that the district court erred but claims the error was harmless.
We agree with the government that the error was harmless, and we
therefore affirm the revocation. However, because we conclude
that the error may have affected the court's decision to impose an
upwardly variant sentence, we vacate Navarro's sentence and remand
to the district court for resentencing on the proper record and
consistent with this opinion.
I. Background1
In 2016, Navarro received a sixty-month prison sentence
and eight years of supervised release for conspiracy to possess
with intent to distribute cocaine within 1000 feet of a protected
location in violation of 21 U.S.C. §§ 841(a)(1), 846, and 860.
1 We draw our recitation of the facts from the district court record.
- 3 - Navarro completed his custodial sentence and was placed
on supervised release in February 2020. On May 31, 2020, the
United States Probation Office for the District of Puerto Rico
("Probation") learned that Navarro had made death threats to
members of his family and that, following involvement by the Puerto
Rico Police Department, a criminal complaint had been filed in
connection with the incident. Though Navarro was never arrested
or charged, Probation moved to initiate revocation proceedings
based on the incident. Probation alleged several violations
including that Navarro had made unlawful threats in violation of
his supervised-release condition that barred him from
"commit[ting] another federal, state[,] or local crime."2 Navarro
admitted to the violations, and on September 2, 2020, the district
court revoked his term of supervision and sentenced him to nine
months' reincarceration to be followed by seven years' supervised
release.
Navarro was placed back on supervision in March 2021.
On June 11, 2021, after three months in a residential reentry
2 Probation also alleged that Navarro had violated the conditions of supervised release requiring him to (1) answer truthfully to all inquiries by the probation officer and follow all instructions of the probation officer; (2) notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer; and (3) participate in a mental health treatment program.
- 4 - center, Navarro moved into his father's home.3 Two days later, on
June 13, 2021, Navarro's father confronted Navarro about suspected
synthetic marijuana use. A verbal altercation ensued, culminating
in Navarro's father filing for, and obtaining, orders of eviction
and protection the next day. The mother, who resided nearby, also
obtained an order of protection against Navarro. No related
charges were filed, and Navarro complied with the three orders
without incident. One week after the incident, on June 21, 2021,
the father opted not to renew the protective order and did not
pursue the matter further.
On June 18, 2021, Navarro's probation officer notified
the district court of the altercation and moved to initiate
revocation proceedings based on the circumstances surrounding the
altercation. The motion alleged that Navarro had violated the
conditions of his release barring: (1) the use and possession of
a controlled substance and (2) the commission of a new crime.
Navarro contested the alleged violations.
A. Preliminary Revocation Hearing
At Navarro's preliminary revocation hearing, the
magistrate judge found no probable cause to support the alleged
3 Pursuant to the conditions of his release, Navarro spent his first three months on supervision residing at a residential reentry center.
- 5 - drug-related violations and dismissed them.4 This left the
government's allegation that Navarro had violated the
supervised-release condition barring the commission of a new
crime. The government advanced two theories on which the violation
could be predicated: (1) that, under Puerto Rico law, the threats
Navarro directed at his parents qualified as a misdemeanor
"threats" offense and (2) that Navarro violated Puerto Rico law by
vandalizing his mother's home. Relying on the probation officer's
in-court testimony, the magistrate found the threats-based theory
supported by probable cause and allowed it to proceed. Support
for the vandalism-based theory, however, was "second or third[-
]layer hearsay," so the magistrate concluded that "the interest of
justice d[id] not allow [the court] to take [the alleged vandalism]
into consideration as a possible ground for violating the first
condition" and dismissed it. Because of the magistrate's no
probable cause findings, at the final revocation hearing, the
government was limited to its theory that Navarro violated the
conditions of his release by making unlawful threats.
4 When a probation officer moves to revoke supervised release, "a magistrate judge must promptly conduct a hearing to determine whether there is probable cause to believe that a violation occurred." Fed. R. Crim. P. 32.1(b)(1)(A). If there is no probable cause, the proceeding must be dismissed. Id. at 32.1(b)(1)(C). If probable cause exists, a district court will hold a revocation hearing where the government has the burden of proving the violation by a preponderance of the evidence. Id.; United States v. Whalen, 82 F.3d 528, 531–32 (1st Cir. 1996).
- 6 - B. Final Revocation Hearing
The court held the final revocation hearing on August
30, 2021. To prove Navarro violated a condition of his release
barring any new crimes, the government sought to prove that Navarro
violated Puerto Rico's law criminalizing threats resulting in
determined harm.5 As support, the government presented two
witnesses, Navarro's probation officer and Navarro's mother, and
submitted three voicemail recordings. There is no indication that
the government ever elicited testimony from Navarro's father,
although it did enter his father's account through the probation
5 Although Probation did not identify a specific offense, the parties and the court appear to have operated under the shared understanding that the new crime underpinning the alleged violation was "threats," a misdemeanor offense under Puerto Rico law. The statute provides:
Any person who threatens one or several individuals with causing determined harm to their person or family, physical integrity, rights, honor, or patrimony will incur in a misdemeanor.
The person will have committed a felony and a fixed term of imprisonment will be imposed to any person who threatens to commit a crime, if said threat results in the evacuation of a building, place of meeting, or public transportation facility.
Penal Code of Puerto Rico, Article 177 (certified translation of Article 177, a criminal statute currently without official published translation, as recorded in Dora Nevares-Muñiz, Código Penal de Puerto Rico 280 (4th ed. 2019)).
- 7 - officer's testimony.6 Navarro objected to his probation officer
testifying to "what . . . [his] father told her" and asserted his
"right to cross-examine [his] father." Without questioning why
Navarro's father was not present or inquiring into the reliability
of the hearsay testimony, the district court overruled Navarro's
objection, stating "[t]he rules of evidence don't apply in
revocation hearings, so denied," and admitted the testimony.
Navarro's probation officer testified that, on June 13,
2021, Navarro and his father got into a verbal altercation. She
stated that during the altercation Navarro acted aggressively and
made death threats that put his father "in fear for his life."
She further testified that as a result, Navarro's father "filed a
protection order and eviction order because he didn't feel safe
with Hector Navarro being in his own home." The probation officer
explained that her testimony was based on telephonic conversations
with the father in the days following the incident. On cross
examination, the probation officer conceded that the father
"requested that [the] order [of protection] be withdrawn" one week
later, when it was set to expire, because "he wasn't interested in
pursuing the charges." The probation officer further added that
6 The probation officer testified that she interviewed both of Navarro's parents in the days after Navarro was evicted from his father's house and that each told her that Navarro had threatened them. She testified that the death threats occurred over a two-day period, first directed at the father on June 13, 2021, and then at the mother on June 14, 2021.
- 8 - Navarro admitted to threatening his parents, but the probation
officer offered no details about the substance of the purported
verbal admission.
The government also questioned the mother about the
incident between Navarro and his father. She testified that she
spoke with the father the following day, June 14, 2021, and learned
then that "they had some trouble because of [Navarro's] us[e of]
potpourri and his dad filed an Order of Eviction and also a
protection order" but admitted that she did not know exactly what
happened. When questioned further about why the father sought the
order of protection, his mother said she "believe[d] it was because
of his use of the potpourri."
The mother also testified to communications she received
from Navarro after his altercation with his father. She explained
that "because of what [had] happened with his father, [Navarro]
started calling [her] on the phone and leaving messages" accusing
her of influencing his father's decision to obtain the orders of
protection and eviction. Although the mother received multiple
calls from Navarro, she conceded that only one contained
threatening language.7 In that call, which occurred on June 14,
2021, Navarro asked his mother "[w]hether it was because of [her]
7 In support, the government submitted several of the messages Navarro left for his mother, which the court admitted over Navarro's objection.
- 9 - that the Order of Protection was filed" by his father and "in a
threatening tone . . . said to tell him because he was gonna get
a knife and he was going to kill his dad, kill [her], and [her]
partner."
Later that day, the mother obtained her own protective
order against Navarro. After the order was served on June 15,
2021, Navarro sent a final message to his mother asking "[w]hy
harassment? What harassment is that?" and told his mother that she
does not "know what [she's] doing . . . what [she's] getting into
because the problem he had was not with [her]."
In addition to presenting evidence on Navarro's
communications with his parents, the government introduced a
voicemail message that Navarro left for his sister who was living
in the mainland United States. Over Navarro's objection, the
message was read as a real-time translation into the record. It
said: "You're gonna die. And I'll take pleasure in that that
you're gonna die. You and [your husband]."
The mother testified that she received the message from
her daughter and had then forwarded it to Probation. She later
admitted that she could not recall when her daughter sent the
voicemail but speculated that it would have been after Navarro had
started calling her over the incident between Navarro and his
father.
- 10 - In closing, Navarro argued that the government's
evidence was insufficient to establish a violation of Puerto Rico's
"threats" offense. Navarro argued that, even if the court were to
credit the hearsay testimony, the threats as described by Probation
were conclusory and lacked the definite qualities required to
convict on a "threats" offense under Puerto Rico law.
In the event the court revoked his supervised release,
Navarro advocated for a guidelines sentence of three to nine
months. The government, in turn, requested a twenty-four-month
sentence. Highlighting that it would be Navarro's second
revocation for making death threats, the government argued that an
above-guidelines sentence was necessary to provide a level of
security to the family beyond what a protective order could offer.
Following arguments, the court found that Navarro
violated the condition of his release prohibiting the commission
of another federal, state, or local crime -- a Grade C
violation8 -- "by making death threats to family members as
indicated in the motion filed by the probation officer and the
testimony heard by the [c]ourt today." And on that basis, the
court revoked Navarro's supervised release.
8 Supervised release violations are categorized into three grades. U.S.S.G. § 7B1.1(a). Grade C is the least severe and covers conduct that constitutes crimes punishable by imprisonment of one year or less and violations of all other conditions of supervision that are not predicated on criminal conduct. Id.
- 11 - In the colloquy that followed, the court explained "why
the defendant was revoked and the factors [it] took into
consideration on why the term of imprisonment was imposed." These
decisions were based on its findings that "Mr. Navarro made death
threats to his family members -- his mother, his father, his
sister, and his sister's husband;" that "[t]he threats made to his
family members caused his mother to fear for her life, as she
testified today, caused his father to evict him from his house
where he was living, and caused his sister to inform her mother of
the threats made by Mr. Navarro;" that "threats were made to Mr.
Navarro's mother including getting a gun and a knife to kill her,
her partner, [his] father;" and that "Mr. Navarro's father feared
for his life who then evicted [Navarro] from his house . . . [and]
[m]ore threats were made to the father who didn't feel secure."
Before ending its discussion on the nature and
circumstances of the violation, the court noted that:
Mr. Navarro's father's house and his mother's house are near each other[,] in the same subdivision within five minutes walking distance of each other. [Navarro's mother] said that one of the messages that she received was received when she was not at home; when she returned home the windows and the door had been destroyed.
The court then sentenced Navarro to twenty-four months in prison,
fifteen months over the top of the guidelines range, and six years
of supervised release. The court elaborated:
- 12 - The death threats made by Mr. Navarro will not be taken lightly by this [c]ourt as the conduct poses a significant and imminent risk to his family and to public safety. Mr. Navarro's behavior went against the conditions of supervised release imposed on him and showed no respect towards the [c]ourt which is why he is facing a second revocation proceeding for the same reasons he was first revoked. The [c]ourt will not tolerate this type of behavior which is in detriment not only to his family but to society as a whole.
At the end of the hearing, Navarro objected to the
procedural and substantive reasonableness of the sentence. He
also reiterated his belief that the court erred by considering
inadmissible and unreliable evidence:
As to the threats to his father, again we didn't have an opportunity to cross-examine his father here. We don't have a written statement of him. We don't know the specifics of these threats and the [c]ourt in its ruling listed these threats in its sentence. So, Your Honor, we understand that the [c]ourt considered unreliable evidence in this case.
Navarro concluded by noting two final objections: first to the
court's reference to the property damage to the mother's home,
despite "nothing connecting [him] to the[] event," and second to
the court's finding that Navarro made unlawful threats where they
were not "real" and "determined." This timely appeal followed.
II. Discussion
A. Revocation
On appeal, Navarro contends that the district court's
erroneous admission of his father's out-of-court statements
- 13 - through the probation officer's testimony violated Federal Rule of
Criminal Procedure 32.1(b)(2)(C) ("Rule 32.1(b)(2)(C)") and
deprived him of his limited right to confront witnesses under the
Due Process Clause of the Fifth Amendment.
Having found Navarro's claim preserved, we review the
court's decision to revoke his supervised release for abuse of
discretion, see Whalen, 82 F.3d at 532, and its underlying factual
findings, including the "underlying finding of a violation[,]
. . . for clear error," United States v. Wright, 812 F.3d 27, 30
(1st Cir. 2016). "Along the way, we draw our own legal
conclusions," United States v. Colón-Maldonado, 953 F.3d 1, 3-4
(1st Cir. 2020), "mindful, though, that a material error of law
always amounts to an abuse of discretion." United States v.
Rodriguez, 919 F.3d 629, 634 (1st Cir. 2019).
It is well established that neither the Federal Rules of
Evidence nor the Confrontation Clause of the Sixth Amendment
circumscribe the admissibility of hearsay in revocation
proceedings. United States v. Bueno-Beltrán, 857 F.3d 65, 67-68
(1st Cir. 2017). However, the presiding court's discretion over
evidentiary decisions is not without limits. One such check is
the defendant's "limited right to confront adverse witnesses both
under Rule 32.1(b)(2)(C) . . . and the Due Process Clause of the
Fifth Amendment." United States v. Cintrón-Ortiz, 34 F.4th 121,
124 (1st Cir. 2022). The bounds of this right are embodied in
- 14 - Rule 32.1(b)(2)(C), which states that a defendant in a revocation
proceeding may "question any adverse witness unless the court
determines that the interest of justice does not require the
witness to appear." Fed. R. Crim. P. 32.1(b)(2)(C); see
Colón-Maldonado, 953 F.3d at 8 ("[Rule 32.1(b)(2)(C)] draws from
the accused violator's due process 'right to confront and
cross-examine adverse witnesses (unless the hearing officer
specifically finds good cause for not allowing confrontation).'"
(quoting Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973))). To make
such a determination, 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. Colón-Maldonado, 953 F.3d
at 8. And "constructing that balance requires weighing the
reliability of the hearsay statement against the reasons proffered
by the government for the witness's absence." United States v.
Franklin, 51 F.4th 391, 396 (1st Cir. 2022); see also United States
v. Taveras, 380 F.3d 532, 536 (1st Cir. 2004) ("The court is to
balance the person's interest in the constitutionally guaranteed
right to confrontation against the government's good cause for
denying it. An important element of the good cause analysis is
the reliability of the evidence that the Government seeks to
introduce." (internal citation and quotation marks omitted)).
Navarro argues that the district court committed
reversible error by (1) admitting the probation officer's hearsay
- 15 - testimony without determining it was in the interests of justice
to do so over his limited confrontation right and (2) relying on
the improperly admitted hearsay testimony to find that Navarro had
violated the terms of his supervised release. The government, for
its part, concedes that the court erred by admitting the challenged
hearsay testimony without determining whether it was in the
interests of justice to do so but urges us to find the error
harmless. See Rodriguez, 919 F.3d at 634, 636 (explaining that "a
material error of law always amounts to an abuse of discretion"
warranting reversal unless the error was harmless).
The government argues that the error was harmless
because, even excluding the hearsay evidence, the court had
"sufficient reasons to revoke Navarro's supervised release." To
establish harmlessness, the government must prove, "with a high
degree of confidence," United States v. Teixeira, 62 F.4th 10, 24
(1st Cir. 2023), that "considering only the non-hearsay evidence
submitted to the district court, the result would have been the
same," United States v. Mosley, 759 F.3d 664, 669 (7th Cir. 2014).
When undertaking this analysis, we "consider the evidence in the
light most favorable to the government," while paying attention to
the requirement that factual findings be based on reliable
evidence, and "recogniz[ing] the district court's broad legal
power to determine witness credibility." United States v.
- 16 - Portalla, 985 F.2d 621, 622 (1st Cir. 1993) (internal citations
omitted).
Navarro points to the court's discussion of the
violation as evidence that the hearsay influenced the court's
decision to revoke, citing the court's express reliance on the
hearsay in support of its findings and conclusions. The government
does not contest that the court expressly relied on the
inadmissible hearsay to find Navarro made death threats to his
father. But the government also considers the reliance irrelevant
where the death threats Navarro made to his mother constitute an
independent basis for the revocation. We agree.
To revoke Navarro's supervised release under
18 U.S.C. § 3583(e)(3), the district court had to find by a
preponderance of the evidence that Navarro committed a new federal,
state, or local crime, in this case the Puerto Rico misdemeanor
offense of "threats." See Teixeira, 62 F.4th at 17. To be
convicted for "threats" under Puerto Rico law, the government must
adduce evidence that the defendant "threaten[ed] one or several
individuals with causing determined harm to their person or
family." See supra note 5.
No doubt, at the hearing, the government sought to prove,
and the court ultimately found, that Navarro made several unlawful
threats. But this does not change the fact that committing the
underlying crime requires just one unlawful threat. See id. And
- 17 - here, after setting aside the threats that substantially relied on
the hearsay testimony, one sufficiently supported threat
remains: the threats to the mother.9 But Navarro challenges the
independence of the court's finding, arguing that the hearsay's
"narrative" colored the court's view of the phone call and
influenced its finding.
9 Navarro also claims that the threats to his mother lack the requisite qualities of a prosecutable threat under Puerto Rico law and therefore cannot be the basis for his violation. Specifically, he contends that the evidence does not support a finding that his "ranting soliloquy" contained "real [or true] threats," as required under Puerto Rico law because it does not satisfy (1) the "element of immediacy" nor (2) that the "fear arising from speech directed at [his mother] [was] reasonable under the circumstances." Given that these claims find no support in the record, we offer no more than is necessary to dispose of them. We begin with the immediacy requirement. In Navarro's formulation, to be convicted of "threats" under Puerto Rico law, the state must prove "an unequivocal verbal or written manifestation of willingness to cause certain harm to a determined person or their family, and an apparent danger and restlessness to the recipient of the threat or who hears it." But, as the government points out, Navarro's articulation of the elements lacks any reference to an immediacy requirement. Where Navarro offers no other support for his claim that under Puerto Rico law a "threats" offense has an immediacy element, we need go no further to dispose of Navarro's sufficiency claim. Nevertheless, even assuming the government had to prove immediacy, one could reasonably infer immediacy from the conditional nature of the threat, Navarro's declaration that he was going to get his weapons, and Navarro's relative proximity to his mother. Navarro's contention that the record cannot support a finding that his mother's fear was reasonable fares no better. To the contrary, the record contains ample evidence to support the reasonableness of her fear. On the call, Navarro blamed his mother for his situation and declared "in a threatening tone" that he was going to get a knife and kill her. Simply put, Navarro's claims of error do not hold up against his mother's direct testimony.
- 18 - While we do not dismiss the possibility that erroneously
admitted evidence could have a prejudicial effect on the inferences
a court draws from admissible testimony, that is not what happened
in this case. Here, the threats to the mother are firmly rooted
in her in-court testimony. The mother testified that Navarro said
in "a threatening tone" that "he was gonna get a knife and he was
going to kill his dad, kill me, and my partner." Because this was
an explicit, particularized death threat, we see no merit in
Navarro's claim that the taint of hearsay permeated this finding.
Accordingly, the independent support for the death threats against
the mother gives us a "high degree of confidence," Teixeira,
62 F.4th at 24, that the court's decision to revoke Navarro's
supervised release based on the alleged violation was not
influenced by its erroneous admission of the probation officer's
testimony. Cf. United States v. Serrano-Acevedo, 892 F.3d 454,
461 (1st Cir. 2018). The district court's error in admitting the
hearsay testimony was therefore harmless. Having found that the
erroneous admission of the hearsay testimony did not affect the
outcome here, we affirm the revocation of Navarro's supervised
B. Sentence
We turn now to Navarro's appeal from the ensuing
sentence. For committing the Grade C violation of his supervised
release, the district court fixed Navarro's guidelines sentence at
- 19 - three to nine months based on the nature of the violation and his
criminal history score of I. From there, the court sentenced
Navarro to twenty-four months in prison -- a fifteen-month
departure from the top of the applicable guidelines
range -- followed by six years of supervised release. On appeal,
Navarro takes aim at the procedural reasonableness of his
revocation sentence, arguing that the court's decision to vary
upward was based on (1) unreliable, hearsay evidence regarding
Navarro's alleged threats to his father and (2) clearly erroneous
facts regarding his involvement in the purported vandalism. See
Gall v. United States, 552 U.S. 38, 51 (2007). Having found
Navarro's claims of sentencing error preserved below, we review
for abuse of discretion. United States v. Soto-Soto, 855 F.3d
445, 448 (1st Cir. 2017). We address his two arguments in turn.
1. Reliability
First, Navarro claims that his sentence was predicated
on inadmissible or unreliable testimony. Navarro makes two
separate challenges to the factual underpinnings of his sentence.
The first attacks the court's reliance on hearsay-dependent
findings and turns on whether the hearsay testimony was properly
considered at sentencing. And the second targets the court's
unsubstantiated findings.
"[S]electing a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen
- 20 - sentence -- including an explanation for any deviation from the
Guidelines range," is a "significant procedural error," Gall,
552 U.S. at 51, warranting "revers[al] unless the government shows
the mistake did not affect the sentence," Colón-Maldonado,
953 F.3d at 4.
We begin with the hearsay. In this circuit, we have yet
to decide whether Rule 32.1's protections against the admission of
hearsay evidence extend to the sentencing phase of a revocation
proceeding or if the sentencing phase is governed by the general
sentencing procedure of Rule 32. See United States v.
Torres-Santana, 991 F.3d 257, 265 (1st Cir. 2021) (recognizing
circuit split on the issue and declining to resolve the legal
question where facts made it unnecessary to do so). And we need
not do so today because although "Rule 32 provides no confrontation
right and gives the court 'broad discretion to accept hearsay
evidence,'" the court may only rely on hearsay if "the information
has sufficient indicia of trustworthiness to warrant a finding of
probable accuracy." Id. (quoting United States v. Rodriguez,
336 F.3d 67, 71 (1st Cir. 2003)). Indeed, a court must always
"take pains to base sentencing judgments upon reliable and accurate
information." United States v. Tavano, 12 F.3d 301, 305 (1st Cir.
1993). Therefore, regardless of whether Rule 32.1 or Rule 32
applies to sentencing decisions, the court failed to properly
assess the reliability of hearsay evidence in sentencing Navarro.
- 21 - When considering the reliability of verbal testimony, we
look to the statement itself for facts that bolster the likelihood
of its truthfulness and to the broader record for corroborating
evidence. See United States v. Fontanez, 845 F.3d 439, 443 (1st
Cir. 2017); see also Colón-Maldonado, 953 F.3d at 12. In both, we
find the government has come up short.
First, the probation officer's testimony itself lacked
hallmark indicia of reliability. "[W]hen a court extends a
defendant's sentence based on hearsay, there must be other signs
(other 'indicia of trustworthiness') to permit a reasoned
conclusion that the statements are still reliable."
Colón-Maldonado, 953 F.3d at 10 (citation omitted). Here, the
probation officer's testimony was based on a telephone
conversation with the father that occurred two months prior to the
hearing. The record contains no evidence that the probation
officer ever had the father reduce his statements to writing nor
that the probation officer had contemporaneous notes to refresh
her recollection of it. See United States v. Rondeau, 430 F.3d
44, 48 (1st Cir. 2005) (explaining that declarants reducing
statements to writing bolsters reliability); Taveras, 380 F.3d at
537-38 (finding probation officer's hearsay statements concerning
the probation officer's account of the violation unreliable where
the probation officer had met with the witness only once, the
testimony was oral, and there was no corroborating written or
- 22 - physical evidence to support the hearsay). Moreover, the probation
officer offered only vague and conclusory testimony of the father's
account, without providing any details about the circumstances
surrounding the alleged threat, the context in which it arose, or
how the father responded. See Rondeau, 430 F.3d at 48; Portalla,
985 F.2d at 624.
The probation officer here simply repeated that Navarro
"threatened [his father], and was being aggressive towards him,"
without ever stating the content of the actual threat itself.
Accordingly, we find that the probation officer's testimony lacked
indicia of reliability to support its probable accuracy.10
Moreover, the protection and eviction orders the father
obtained against Navarro do not sufficiently establish the
reliability of the probation officer's testimony. See Fontanez,
845 F.3d at 443 ("Objective evidence that corroborates a witness's
testimony may provide persuasive proof of that testimony's
reliability.").
10 We are also troubled by the prospect of admitting the hearsay without giving Navarro an opportunity to probe his father's account where the record demonstrates that Navarro's father opted not to renew the protective order after one week and defense counsel represented that Navarro and his father had since reconciled. These facts, at a minimum, cast some doubt on the probation officer's testimony that the threats to Navarro's father left the father fearing for his life. See generally Tavano, 12 F.3d at 305 ("[A] court must take pains to base sentencing judgments upon reliable and accurate information.").
- 23 - Specifically, both the probation officer and the mother
testified to conversations with the father on June 14, 2021, the
day he obtained the orders. Both were asked why the father decided
to take this step. But only the probation officer connected the
orders to Navarro's alleged death threats. The mother, on the
other hand, testified that the father obtained the eviction and
protection orders as a response to Navarro using a prohibited drug
in his father's home. This discrepancy not only undermines the
corroborating force the protective order may have otherwise had,
but also underscores more generally why the record does not support
a reliability finding here. See United States v. Flete-Garcia,
925 F.3d 17, 36 (1st Cir. 2019) ("[D]ue process demands that a
sentencing court 'consider all the available evidence, including
conflicting evidence' to 'assure itself that a piece of proof is
sufficiently reliable.'" (quoting Tavano, 12 F.3d at 305)). The
uncorroborated verbal hearsay therefore lacked the basic indica of
reliability necessary to establish its probable accuracy. And
because unreliable hearsay cannot be considered at sentencing, the
court should not have allowed it during the sentencing phase of
the hearing.11 See Taveras, 380 F.3d at 537-38. The court thus
11 The court also made several factual findings that are untethered from the record. At least one of those findings refers to a second incident between Navarro and his father involving "[m]ore threats." The record, however, contains no evidence of these threats. In another finding that appears to have no support
- 24 - abused its discretion by considering the unreliable hearsay, and
we must "reverse unless the government shows the mistake did not
affect the sentence." Colón-Maldonado, 953 F.3d at 4.
Where, as here, it is impossible to extricate the
influence of the verbal hearsay from the court's broader sentencing
rationale, we cannot find the court's error harmless.
The court reasoned that the harsh sentence was necessary
because the death threats "pose[] a significant and imminent risk
to [Navarro's] family and to public safety." We cannot ignore the
likely ways the hearsay influenced this conclusion.
First, we know from the court's own words that it placed
considerable weight on the nature and frequency of the threats
Navarro purportedly made to his father. But those threats were
based on the probation officer's hearsay testimony and therefore
cannot justify the variance. Still, other findings could explain
the variant sentence such as the mother's testimony revealing the
violent nature of Navarro's threats to her, the angry voicemail
Navarro left for his sister, and the proximity of the violation to
in the record, the court purported to cite testimony from Navarro's mother that the death threats motivated Navarro's father to evict him. But Navarro's mother did not testify that Navarro was evicted because he threatened his father. For its part, the government acknowledges that these findings were erroneous but contends that they were benign misstatements that the court did not actually rely on in crafting Navarro's sentence. Where we vacate the sentence on other grounds, we need not address these findings further.
- 25 - his release. But even though these findings do not directly rely
on the verbal hearsay, we cannot say with any certainty that the
taint of the court's error did not reach them.12 If anything, the
record suggests the inadmissible hearsay provided critical context
to support several of the court's inferences necessary to make
these findings.
For one thing, it is clear from the record that the June
13, 2021 incident between Navarro and his father precipitated the
call where Navarro threatened his mother -- the sole basis for the
violation -- and the ominous voicemail Navarro left for his sister.
See supra Section II.A. It follows that the probation officer's
testimony that Navarro had put his father in fear for his life
likely influenced the seriousness with which the court took
Navarro's threats to his mother. Moreover, the hearsay testimony
12 In a Federal Rule of Appellate Procedure 28(j) letter filed with the court following argument on December 13, 2022, the government argues that a recent decision interpreting Puerto Rico's "threats" offense establishes that "Navarro's statement to his mother that he would 'get a knife and . . . kill his dad, kill me [(the mother)], and [her] partner,' constituted a threat both to his mother and to his father." It added that "[p]articularly for the sentencing phase of the hearing, the district court's conclusion that Navarro had threatened his father is supported by reliable evidence." Regardless of whether Navarro's statement to his mother contained one threat or three under Puerto Rico law, we see nothing in the record to suggest that the court's decision to vary was based exclusively, or even primarily, on the substance of that call. And, even accepting that Navarro's call to his mother contained threats directed at both his parents, our conclusion -- that the inadmissible hearsay influenced the sentencing outcome here -- remains unchanged.
- 26 - provided support for the court's inference that the voicemail
Navarro left for his sister contained a genuine threat. Indeed,
the weight of the probation officer's testimony is compounded by
the fact that she testified first. Therefore, the hearsay
testimony regarding Navarro's alleged threats against his father
inevitably dominated the court's assessment of the circumstances
and colored its view of the mother's testimony.
Also of note is Navarro's observation that the
revocation judgment issued by the court states that Navarro's term
of supervision was being revoked for a violation -- making death
threats to family members -- that ended on June 13, 2021. But the
only record evidence of a threat on or before June 13, 2021 is the
probation officer's testimony that Navarro threatened his father.13
Navarro contends that the court's entry on the judgment underscores
the critical role the threats directed at his father played in the
court's decision to revoke his supervised release. We agree
because regardless of whether this date selection was intentional
(i.e., the judge wanted to signal that the revocation was based
entirely on the threats to the father) or a scrivener's error
(i.e., the judge did not mean to exclude the evidence of threats
made to other family members), without considering conduct
13 The record shows that the call where Navarro threatened his mother occurred on June 14, 2021 and the voicemail to Navarro’s sister was left sometime after that.
- 27 - postdating June 13, 2021, the record is entirely devoid of evidence
justifying the upward variance imposed.
Still, the government argues that even if the court
erroneously relied on findings tainted by the verbal hearsay, the
error is of no consequence because the court ultimately rested the
variance on the fact that Navarro was before the court on his
second threats-based violation. To be sure, Navarro's history of
threatening family members likely weighed into the court's
sentencing decision, as did the fact that he received a guidelines
sentence for his first violation. But, nonetheless, we cannot
ignore the considerable weight the court gave to the nature and
frequency of the death threats. In particular, the court
considered each threat individually when discussing the relevant
conduct. The court's focus on cataloguing the individual threats
suggests that the hearsay testimony played into its assessment of
the sentencing factors and therefore influenced Navarro's
sentence. See United States v. Rodríguez-Meléndez, 828 F.3d 35,
39 (1st Cir. 2016) (summarizing that erroneous factual findings
affect the outcome of a proceeding when they weigh on an issue the
court considered "salient" to its sentencing decision, even if the
issue is not "the most important factor in [the court's] sentencing
decision"). Accordingly, because of the outsized role the hearsay
played in the court's factual findings, we cannot extricate its
influence from the court's broader sentencing rationale. We
- 28 - therefore vacate Navarro's revocation sentence and remand for
resentencing on the proper record.
2. Vandalism
We turn next to Navarro's argument that the court relied
on unsupported vandalism allegations in selecting Navarro's
sentence. The court, just before handing down its sentence,
remarked that:
Mr. Navarro's father's house and his mother's house are near each other[,] in the same subdivision within five minutes walking distance of each other. [The mother] said that one of the messages that she received was received when she was not at home; when she returned home the windows and the door had been destroyed.
From this, Navarro contends the court implicitly found him
responsible for the damage to his mother's home and erroneously
considered it "indicative of [his] dangerousness" in crafting his
sentence.
The government responds that the summary of the mother's
testimony could not be fairly understood as a culpability finding.
In any case, the government continues, the record shows no signs
that the court considered the vandalism allegation at sentencing.
The fact that the court raised these allegations just
before imposing its sentence, in our view, lends strong support to
Navarro's contention of reliance. That said, we stop short of
finding error here where the record is ambiguous and where we have
- 29 - already determined that Navarro's sentence must be vacated and the
matter remanded for resentencing. We do clarify, however, that
given the lack of reliable evidence to support the vandalism
allegations, the court is precluded from relying on such
allegations at resentencing.
III. Conclusion
For the foregoing reasons, we affirm the district court's
order revoking Navarro's term of supervision, vacate the court's
sentence, and remand for resentencing consistent with this
opinion.
- 30 -