United States Court of Appeals For the First Circuit
No. 25-1683
UNITED STATES,
Appellee,
v.
ROBERTO ORTIZ-RODRÍGUEZ,
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, Breyer,* Associate Justice, Gelpí, Circuit Judge.
Laura I. Soto-Santiago, with whom Rachel Brill, Federal Public Defender, and Franco L. Pérez-Redondo, Assistant Federal Public Defender, Supervisor, Appellate Division, were on brief, for appellant. Maarja T. Luhtaru, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Juan Carlos Reyes-Ramos, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
* Hon. Stephen G. Breyer, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. May 20, 2026 BARRON, Chief Judge. In this appeal, Roberto
Ortiz-Rodríguez ("Ortiz") challenges the revocation of his term of
supervised release and his resulting sentence. He does so chiefly
on the ground that he was denied notice of one of the violations
of his conditions of supervised release on which the sentence
rests. We affirm.
I.
A.1
In July 2021, Ortiz pleaded guilty in the United States
District Court for the District of Puerto Rico to one count of
knowingly possessing a firearm as a prohibited person (based on
his status as a person with a qualifying felony conviction), in
violation of 18 U.S.C. § 922(g)(1). The District Court sentenced
Ortiz to a forty-one month term of imprisonment, to be followed by
a three-year term of supervised release.
The terms of Ortiz's supervised release included
mandatory conditions that prohibited him from: (1) "commit[ting]
another federal, state[,] or local crime"; (2) "unlawfully
possess[ing] a controlled substance"; or (3) failing to "refrain
from any unlawful use of a controlled substance." His term of
1 We draw the underlying facts from "the plea agreement," "the transcript[] of the . . . revocation hearing[]," United States v. Rosa-Borges, 101 F.4th 66, 69 (1st Cir. 2024) (citation modified), and the uncontested portions of the "motions submitted by [Ortiz's] probation officer to the [D]istrict [C]ourt," United States v. Maldonado-Negroni, 141 F.4th 333, 335 n.1 (1st Cir. 2025).
- 3 - supervised release was also subject to a special condition that
required Ortiz to "participate in an approved substance abuse
monitoring and/or treatment services program" and to submit to
drug testing.
Ortiz began his term of supervised release in
September 2024. Shortly thereafter, in October 2024 and
February 2025, he submitted two urine samples in accord with the
drug-testing condition. The first sample tested positive for
marijuana, and the second for marijuana and cocaine. Ortiz agreed
to participate in an outpatient substance abuse and mental health
treatment program but left it without authorization on
March 6, 2025.
In April 2025, Ortiz again submitted a urine sample in
accord with the drug-testing condition. It tested positive for
marijuana and cocaine. He once again agreed to participate in a
substance abuse treatment program, this time at a residential
treatment facility with outpatient treatment to follow.
On April 25, 2025, Ortiz's probation officer filed a
motion that notified the District Court that Ortiz had violated
the conditions of his supervised release. That motion stated that
Ortiz had "incurred the following violations": (1) "MANDATORY
CONDITION: 'YOU MUST REFRAIN FROM ANY UNLAWFUL USE OF CONTROLLED
SUBSTANCES'" and (2) "SPECIAL CONDITION[:] 'THE DEFENDANT SHALL
PARTICIPATE IN AN APPROVED SUBSTANCE ABUSE . . . TREATMENT
- 4 - SERVICES PROGRAM.'" It also described the facts underlying those
violations -- namely, the three positive urine samples and the
facts of Ortiz's drug treatment described above. Finally, it
requested that the District Court "take notice of the content of
th[e] motion and allow [Ortiz] to continue under supervised release
and to continue receiving treatment services." The District Court
granted the motion.
Shortly thereafter -- on April 30, 2025 -- Ortiz "became
hostile towards staff members" at the residential drug treatment
facility, and a probation officer who was present at the time "had
to de-escalate the situation."2 Within the next week, Ortiz
abandoned the program. His discharge report stated that he had
been "seen under the influence of an unknown controlled substance
or medication."
On May 15, 2025, Ortiz was admitted to yet another drug
treatment program. Within his first several days in that program,
Ortiz was "observed . . . with red eyes, appearing sleepy and
displaying a negative attitude, which indicated he might be under
the influence of a controlled substance."
On May 21, 2025, another urine sample that Ortiz
submitted in accord with the drug-testing condition tested
2 Ortiz does not appear to dispute this fact, but he does note that the motion "uses the label 'hostile' without providing an account of the specific conduct or speech acts that subjective term meant to cover."
- 5 - positive for marijuana and cocaine. Ortiz's "negative" behavior
at the treatment facility did not improve, and on May 23, 2025, a
staff member at the facility "witnessed what appeared to be a
synthetic cannabis cigarette fall from one of [Ortiz's] pockets."
When confronted the following day, Ortiz admitted that he had used
synthetic cannabis. He was removed from the program on
May 28, 2025.
On May 30, 2025, Ortiz's probation officer filed a
second motion notifying the District Court of Ortiz's alleged
violations of the terms of his supervised release and requesting
the issuance of an arrest warrant. That motion again identified
the same two conditions as above as ones for which Ortiz had
"incurred . . . violations": (1) the mandatory condition
prohibiting unlawful use of controlled substances and (2) the
special condition regarding participation in substance abuse
treatment. The motion included the same facts as those in the
first motion, as well as information about Ortiz's fourth positive
urine sample and his continued lack of success in and compliance
with his drug treatment programs.
The motion went on to state that, although Ortiz "has
been respectful towards his probation officer, he has failed to
abide by the substance use treatment programs designed to assist
him" and "has been unable to comply with the conditions of his
supervised release." On that basis, the motion requested that an
- 6 - arrest warrant be issued and that Ortiz be brought before the court
"to [s]how [c]ause as to why his [s]upervised [r]elease [t]erm
should not be revoked."
B.
Ortiz was brought before a Magistrate Judge, who advised
Ortiz of the supervised release violations "alleged in the [m]otion
filed by" his probation officer. The Magistrate Judge ordered
that Ortiz be appointed counsel. Ortiz waived his right to a
preliminary revocation hearing, and the Magistrate Judge "found
probable cause as to all violations included in the motion filed
by" Ortiz's probation officer.
The case was then referred to a district judge on the
United States District Court for the District of Puerto Rico, who
held a hearing on revocation of Ortiz's supervised release.
Ortiz's counsel stated at the hearing's outset that Ortiz was "not
contesting the allegations." The counsel explained that Ortiz's
mother had "tragically committed suicide a week before [Ortiz]
was . . . released from prison," which "took a toll on [Ortiz],"
leading him to "f[a]ll into a deep depression" and
"self-medicat[e] . . . causing him to relapse." As mitigating
factors, the counsel first noted that Ortiz had concerns about the
health of his father, who had been admitted to the hospital and
whose prognosis was "not good." She also highlighted Ortiz's
compliance with other conditions of his supervised release, as
- 7 - well as his recognition "that he needs to be committed to his
rehabilitation." Ortiz requested a five-month term of
incarceration, followed by three months in a residential reentry
facility.3
The District Court then heard from the government, which
did not oppose Ortiz's sentencing request. Although the government
acknowledged that Ortiz had not complied with the terms of his
supervised release despite having "been given all the resources
available to the probation officer's office," it acknowledged the
"special circumstance regarding [Ortiz's] dad's health." On that
basis, it described Ortiz's sentencing request "in these
particular circumstances" as "warranted."
The government concluded by requesting "that no
additional supervised release term be imposed." It explained that,
in its view, a sentence of five months' incarceration and three
months in a reentry facility was "sufficient sanctioning in this
case."
After noting that Ortiz did not contest the violations,
the District Court stated: "[T]he Court finds that [Ortiz]
violated the conditions of the supervised release term . . . by
using controlled substances illegally[] and by not complying with
the rules and regulations established as part of his outpatient
3 Ortiz declined the opportunity to speak on his own behalf.
- 8 - and inpatient substance abuse treatment as indicated in the motions
filed by [Ortiz's] probation officer." Accordingly, the District
Court revoked Ortiz's term of supervised release.
The District Court then turned to the task of imposing
the revocation sentence.
Under Chapter 7 of the United States Sentencing
Guidelines Manual, a violation of a condition of supervised release
is categorized as either Grade A, Grade B, or Grade C. See U.S.
Sent'g Guidelines Manual § 7B1.1(a) (U.S. Sent'g Comm'n 2024)
[hereinafter "U.S.S.G."].4 Grade A violations include "conduct
constituting (A) a federal, state, or local offense punishable by
a term of imprisonment exceeding one year that (i) is a crime of
violence, (ii) is a controlled substance offense, or
(iii) involves possession of a firearm or destructive device" or
"(B) any other federal, state, or local offense punishable by a
term of imprisonment exceeding twenty years." Id. § 7B1.1(a)(1).
Grade B violations include "conduct constituting any other
federal, state, or local offense punishable by a term of
imprisonment exceeding one year." Id. § 7B1.1(a)(2). Grade C
4 The Sentencing Guidelines were amended after the hearing was held before the District Court; the relevant guidelines addressing supervised release violations were relocated from § 7B to § 7C. See U.S.S.G. app. C, vol. IV, amend. 835 (2025); U.S.S.G. §§ 7C1.1-1.5 (2025). For clarity, we refer to and cite the Sentencing Guidelines as they existed at the time of Ortiz's sentencing.
- 9 - violations include "conduct constituting (A) a federal, state, or
local offense punishable by a term of imprisonment of one year or
less; or (B) a violation of any other condition of supervision."
Id. § 7B1.1(a)(3).
The District Court first found that Ortiz's conduct
constituted a Grade B violation under § 7B1.1(a)(2) because "using
controlled substances requires possession of controlled
substances" and, "[u]nder Puerto Rico law, possession of
controlled substances is an offense with a term of imprisonment of
more than one year." It additionally noted that, "according to
First Circuit case law, the presence of a controlled substance in
[Ortiz's] urine constitutes possession of a controlled substance."5
Given the finding of a Grade B violation and that Ortiz
had a Criminal History Category of III, the District Court
calculated the recommended sentencing range under the Guidelines
for his supervised release violations as eight to fourteen months
of imprisonment. See U.S.S.G. § 7B1.4(a). The District Court
then described the facts in the probation officer's motions, which
it found showed that Ortiz was "unable to comply with the law or
the conditions of supervision imposed." It explained that, "[t]o
promote adequate deterrence" and "protect the public from
5The District Court did not cite a particular provision of Puerto Rico law, or a particular First Circuit case, as a basis for either proposition.
- 10 - additional crimes by . . . Ortiz," "a sentence at the high end of
the guideline range is . . . sufficient but not greater than
necessary" to further the sentence's purposes. It then pronounced
its judgment that Ortiz be sentenced to a fourteen-month term of
incarceration.
The District Court stated that Ortiz "may appeal [the
court's] findings if they are contrary to law" and asked the
defense, "Anything else, [defense counsel]?" Ortiz's counsel
responded with two objections. First, she "object[ed] to the
sentence" on the ground that "it is more than necessary to achieve
the goals of justice upon revocation." Second, she "object[ed] to
the finding of the violations as [G]rade Bs" on the ground that
"the guidelines distinguish [G]rade Cs and [G]rade Bs for a
reason, and they distinguish the possession of a drug user for
personal use and the criminal possession," stating that the two
"should be treated differently."
The District Court "noted and denied" the objections and
asked whether there was "[a]nything else." Ortiz did not respond.
Counsel for the government responded that it had "[n]othing
further."
Ortiz timely appealed.
II.
Ortiz first contends that the District Court committed
legal error by "sua sponte recharacteriz[ing]" his "technical
- 11 - violations of [supervised release, namely] drug use and treatment
noncompliance," "as felony drug possession." As Ortiz sees things,
that error violated his due process rights and Federal Rule of
Criminal Procedure 32.1 ("Rule 32.1") by denying him notice of the
violation that served as the basis for the sentence imposed
following revocation of the term of his supervised release. He
explains that neither of the motions that were filed with the
District Court "assert[ed], or even suggest[ed], that [he] had
committed the offense of knowing possession of a controlled
substance under" Puerto Rico law. On that basis, he argues that
he lacked notice of "the nature and severity of the allegations"
he was facing.
A.
The Fifth Amendment to the United States Constitution
provides that "[n]o person shall . . . be deprived of life,
liberty, or property, without due process of law." U.S. Const.
amend. V. At the sentencing stage of a revocation proceeding, the
"minimum requirements of due process" to which a defendant is
entitled include the right to receive "written notice of the
claimed violations" and "disclosure . . . of evidence against
him." Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973) (quoting
Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). Those rights have
also been codified under Rule 32.1, which applies to revocations
and modifications of supervised release. See Fed. R. Crim.
- 12 - P. 32.1(b)(2)(A)-(B) (entitling a person subject to a revocation
hearing to (A) "written notice of the alleged violation" and
(B) "disclosure of the evidence against" him); see also United
States v. Martin, 984 F.2d 308, 310 (9th Cir. 1993) (stating that
Rule 32.1 "incorporates [Scarpelli's] same minimal due process
requisites" in the supervised release revocation context).
Neither party disputes that Ortiz was entitled under
Rule 32.1 to "written notice of [his] alleged violation[s]." Their
disagreement concerns whether he received that notice.
The government contends that Rule 32.1 requires only
that the defendant receive notice of the conduct that forms the
basis for the alleged violations. It goes on to contend that Ortiz
received such notice because he was informed of the positive drug
tests that formed the basis for the District Court's finding of a
Grade B violation. The government cites precedent of our sister
circuits that hold that notice of the allegedly violative conduct
is sufficient to satisfy Rule 32.1. See United States v. Gordon,
961 F.2d 426, 429-30 (3d Cir. 1992); cf. also United States v.
Sistrunk, 612 F.3d 988, 992 (8th Cir. 2010) (holding that, as to
an alleged violation of the condition prohibiting new crimes,
"citation to the alleged statutory violation" is not required under
Rule 32.1).
Ortiz's challenge relies, in part, on the Advisory
Committee notes to Rule 32.1. They state that notice "must be
- 13 - sufficient to apprise the [releasee] of the conditions of his
[supervised release] which he is alleged to have violated, as well
as the dates and events which support the charge." Fed. R. Crim.
P. 32.1 advisory committee's note to 1979 amendment (quoting
Kartman v. Parratt, 397 F. Supp. 531, 534 (D. Neb. 1975)). He
also relies on other circuit court decisions that suggest that,
for notice to comply with Rule 32.1, the defendant must be apprised
of the specific condition which he allegedly violated. See United
States v. Chatelain, 360 F.3d 114, 121 (2d Cir. 2004); United
States v. Kirtley, 5 F.3d 1110, 1113 & n.4 (7th Cir. 1993); see
also United States v. Havier, 155 F.3d 1090, 1093 (9th Cir. 1998)
(holding that, if it is not otherwise evident, an asserted
violation of the condition prohibiting commission of new crimes
requires identification of the specific crime allegedly
committed).
In general, "[w]e review issues of law, including the
[D]istrict [Court]'s interpretation of a Federal Rule of Criminal
Procedure, de novo." United States v. Sevilla-Oyola, 770 F.3d 1,
10 (1st Cir. 2014). We similarly review de novo alleged denials
of due process. See United States v. García-Oquendo, 144 F.4th
66, 73 (1st Cir. 2025). Where a challenge is unpreserved, however,
our review is only for plain error. See United States v.
- 14 - Rodríguez-Meléndez, 828 F.3d 35, 38 (1st Cir. 2016); United States
v. Stile, 845 F.3d 425, 429 (1st Cir. 2017).
Ortiz argues that he preserved his contention that he
was denied the required notice when he objected to his revocation
sentence on the ground that "the guidelines distinguish" between
Grade B and Grade C violations "for a reason." He contends that
objection sufficed to "alert[] the court to the action the defense
wished the court to take," even if it was "admittedly imperfect."
"The point of a timely objection," however, "is to bring
a 'live' issue to the district court's attention at a time when
the court can effectively address any error." United States v.
Davis, 923 F.3d 228, 236 (1st Cir. 2019). We fail to see how
Ortiz's objection constituted an objection to the lack of notice
that would "enable [the District Court] to take appropriate
corrective action" with respect to that specific deficiency. Lee
v. Kemna, 534 U.S. 362, 378 (2002) (quoting Osborne v. Ohio, 495
U.S. 103, 125 (1990)); see also United States v. Whalen, 82 F.3d
528, 531 (1st Cir. 1996) (noting that, by first presenting an
argument on appeal, the appellant had "deprived the district court
of the opportunity to consider and rule on the issue").
Our decision in United States v. Colón-Cordero, 91 F.4th
41 (1st Cir. 2024), on which Ortiz relies, does not support a
different conclusion. There, we determined that claims of
sentencing error had been preserved after defense counsel objected
- 15 - to the length of a sentence and its reasonableness in light of the
defendant's "fact history." Id. at 49-50. We concluded that,
when viewed in context, those objections were sufficient to "call[]
the district court's attention to the perceived sentencing
problems" -- namely, insufficient consideration of a mitigating
characteristic, an erroneous factual determination, and
insufficient explanation for an upwardly variant sentence. Id. at
48-49. The "thematic" overlap that we concluded in Colón-Cordero
sufficed "to make the district court aware of the . . . claimed
errors" is not present here. Id. at 50.
We also find unpersuasive Ortiz's contention that the
plain error standard should not apply because "the circumstances
provided [him with] no meaningful opportunity to object" below.
He relies on United States v. Rodriguez, in which we declined to
apply the plain error standard after concluding that "the defendant
had no realistic opportunity to object before the entry of
judgment." 919 F.3d 629, 635 (1st Cir. 2019). We reached that
conclusion because the district court referred to the evidence
only in a "statement [that] was part and parcel of the court's
final decision" as pronounced from the bench. Id.
Here, however, the District Court expressly asked Ortiz
whether he had "[a]nything else" following its sentencing
pronouncement. Moreover, Ortiz's counsel took that opportunity to
- 16 - object to the finding that Ortiz's conduct amounted to a Grade B
violation.
Ortiz's final argument about preservation is that it
"was not required" because the District Court's "ruling
introduce[d] a new sentencing basis that could not reasonably have
been foreseen by counsel." In support of that contention, Ortiz
points to United States v. Cortes-Claudio, 312 F.3d 17, 24 (1st
Cir. 2002). But, in addition to the fact that the sentencing basis
at issue here was announced prior to the District Court's
pronouncement of Ortiz's sentence, the District Court made the
reasons for its decision clear before the hearing had concluded
and gave Ortiz a chance to make the objection he now advances.
Cf. id. at 19, 24. Yet Ortiz failed to take advantage of that
opportunity.
C.
Because plain error review applies, Ortiz must show
"(1) that an error occurred (2) which was clear or obvious and
which not only (3) affected [his] substantial rights, but also
(4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." Rodríguez-Meléndez, 828 F.3d
at 38 (quoting United States v. Roy, 506 F.3d 28, 30 (1st Cir.
2007)). The government argues that Ortiz cannot do so in part
because there was no error at all. It reasons that the allegedly
violative conduct described in the motions that Ortiz's probation
- 17 - officer submitted to the District Court sufficed to supply the
required notice. We cannot agree.
A key purpose of Rule 32.1's notice requirement is to
allow a releasee to prepare to defend himself against the charges
against him. See United States v. Correa-Torres, 326 F.3d 18, 22
(1st Cir. 2003) (stating that Rule 32.1 "safeguard[s] the
defendant's obvious stake in preserving his liberty"); Chatelain,
360 F.3d at 121 (stating that Rule 32.1 "notice must be sufficient
to allow the releasee to prepare to defend against the charges").
The degree of punishment to which a person might be subjected may
obviously loom large in that calculus.
Here, the probation officer's motions identified only
two specified conditions of Ortiz's supervised release that had
allegedly been violated: drug use and noncompliance with drug
treatment. They did not identify the condition that prohibited
new criminal conduct as also having been violated. So, even if
the conduct that the motions identified as providing the basis for
the two named violations itself could have provided a basis for
finding that Ortiz also had committed that third violation, it is
not evident from the identification of that conduct alone that
Ortiz needed to defend himself against an allegation that he had
violated that condition as well. Rather, Ortiz reasonably could
have understood that his supervised release term was being revoked
and that he would be sentenced based solely on the named violations
- 18 - and not the additional one relating to knowing possession of a
controlled substance.
After all, the government does not dispute that the
violations specified in Ortiz's motions constitute Grade C
violations, for which revocation is discretionary6 and which, in
Ortiz's case, carried a guideline sentencing range of five to
eleven months. See U.S.S.G. §§ 7B1.3(a)(2), 7B1.4(a). By
contrast, a violation of the condition prohibiting new criminal
conduct constitutes a Grade B violation, for which revocation was
mandatory7 and which, in Ortiz's case, carried a guideline
sentencing range of eight to fourteen months. See id.
§§ 7B1.3(a)(1), 7B1.4(a). We note, too, that the government did
not take a contrary position in the revocation proceedings, such
as by arguing for a sentence inconsistent with the named violations
and in that way potentially placing Ortiz on notice that he could
be considered as having violated the condition prohibiting the
6 The Guidelines in place at the time of Ortiz's sentencing stated that "the court may . . . revoke . . . supervised release" for a Grade C violation. U.S.S.G. § 7B1.3(a)(2) (2024). The 2025 Guidelines, by contrast, state that revocation "may be appropriate for a Grade C violation." Id. § 7C1.3(b) (2025). 7 The Guidelines in place at the time of Ortiz's sentencing stated that, "[u]pon a finding of a Grade . . . B violation, the court shall revoke . . . supervised release." U.S.S.G. § 7B1.3(a)(1) (2024). The 2025 Guidelines state that revocation is "often appropriate for a Grade B violation." Id. § 7C1.3(b) (2025).
- 19 - commission of new crimes. In these circumstances, then, the notice
that Ortiz received was insufficient.
The government does argue that we must conclude
otherwise because Rule 32.1 provides only the right to receive
notice of an alleged violation, not to receive notice of the
applicable grade of any such violation. The government points to
the language of U.S.S.G. § 7B1.1(a), which defines the grade of
violation by reference to the "conduct" of the releasee and not,
in the government's words, "necessarily the specific condition of
supervised release the defendant violated." But the "grades"
defined under § 7B1.1(a) are specifically of the "violations" of
supervised release at issue. See id. And, as we have already
explained, Rule 32.1 safeguards a releasee's right to receive
notice of such alleged violations.
Notwithstanding that there was error, we need not decide
whether that error was "clear or obvious." Rodríguez-Meléndez,
828 F.3d at 38 (quoting Roy, 506 F.3d at 30). The reason is that
Ortiz has failed to meet his burden to show that the error
"affected [his] substantial rights," id. -- something he can do
only by showing "a reasonable likelihood that, but for the claimed
error, his sentence would have been different," United States v.
Rabb, 5 F.4th 95, 103 (1st Cir. 2021); see also United States v.
Abraham, 63 F.4th 102, 110 (1st Cir. 2023) ("To show that an
- 20 - error . . . affected his substantial rights, an appellant must
demonstrate prejudice . . . .").
Ortiz does argue that, "[h]ad he received proper
notice," "he could have contested the violations" or "presented
evidence about the specific substances involved." He
conspicuously fails to assert, however, that he would have argued
that he in fact did not possess illicit substances.
Ortiz also argues that, had he had the notice in
question, he could have "challenged the legal theory of
constructive possession" relating to his positive urine tests.
But he again fails to explain what arguments he would have advanced
to the District Court had he had an opportunity to do so. In the
portion of his brief addressing First Circuit caselaw concerning
drug possession having been inferred from evidence of drug use,
Ortiz does not develop an affirmative argument as to why such an
inference is improper. Instead, he simply argues that "[t]he
government's anticipated arguments [as to why drug use necessarily
entails drug possession] lack merit."
To be sure, in doing so, Ortiz tries to distinguish two
of our cases that are adverse to his position -- United States v.
Dow, 990 F.2d 22 (1st Cir. 1993), and United States v. Brennick,
337 F.3d 107 (1st Cir. 2003) -- on various grounds, including that
the defendants in those cases had confessed to drug possession or,
in one case, had actual notice of the alleged violation. He also
- 21 - contends that the relevant discussions in those cases were dicta.
But he does not explain why those distinctions make it reasonably
likely that, notwithstanding those precedents, he would have
succeeded in challenging an inference of possession based on the
evidence of use in the form of positive drug tests, which he does
not appear to challenge. Cf., e.g., Smith v. City of Boston, 460
F. Supp. 3d 51, 56-57 (D. Mass. 2020) ("[A] district court
ordinarily gives great weight to the dicta of its court of
appeals . . . ."). Although "an appellant need not prove that an
argument would have necessarily been successful if raised [below],
he must do more than claim that he could have done something
differently and maybe that would have led to a different result."
United States v. Harbour, 417 F. App'x 507, 514 n.4 (6th Cir. 2011)
(unpublished).8
D.
Ortiz also argues that, absent notice of the Grade B
violation on which the District Court relied, his waiver of
Rule 32.1 rights was invalid because it was not knowing and
voluntary. He argues that his sentence must therefore be vacated
under our opinion in United States v. Correa-Torres, where we
8 Ortiz also argues that he could have "pursued other defensive strategies appropriate to criminal rather than technical violations." We reject this argument for similar reasons, as Ortiz's "mere assertions that he would have [done things] differently" is insufficient to show prejudice. See United States v. Medina, 73 F. App'x 464, 467 (1st Cir. 2003) (unpublished).
- 22 - stated, "When a term of . . . supervised release is revoked
following an invalid waiver of Rule 32.1 rights, the preferred
practice is to vacate the ensuing sentence and start the proceeding
afresh." 326 F.3d at 25. We are not persuaded.
In identifying that "preferred practice" in
Correa-Torres, we relied on United States v. LeBlanc, in which the
Seventh Circuit vacated and remanded in a case in which the
district court revoked a term of supervised release after
"accept[ing] the [releasee's] stipulation" to the alleged
violation. LeBlanc, 175 F.3d 511, 514 (7th Cir. 1999); see
Correa-Torres, 326 F.3d at 25. Similarly, in Correa-Torres, we
noted that the district court "[r]el[ied] upon the [releasee's
Rule 32.1] waiver" in revoking the releasee's term of supervised
release. 326 F.3d at 21. We there explained that we saw "no
reason to deviate from the norm" in LeBlanc and other cases, and
we therefore vacated to allow the releasee an opportunity on remand
to "withdraw his prior stipulation." Id. at 25.
Here, however, the District Court did not indicate that
it relied on Ortiz's waiver, as opposed to making an independent
finding based on the record before it, in concluding that Ortiz
had committed a violation. At the hearing, the District Court
stated: "[T]he Court finds that [Ortiz] has violated the
- 23 - conditions of the supervised release term . . . ."9 And it went
on to detail the facts of Ortiz's positive urine tests, which it
said "show[ed] that [Ortiz] is unable to comply with the law or
the conditions of supervision imposed on him." As we have
explained, Ortiz does not contend on appeal that that factual basis
for the District Court's finding of violative conduct was
erroneous, such as by arguing that he did not use illicit drugs or
that the positive urine samples indicating marijuana and cocaine
use were incorrect. And, as we have also explained, he also does
not develop a legal argument as to why those facts, if true, would
be insufficient to support the District Court's finding that Ortiz
had violated the terms of his supervised release.
We therefore do not see any reason not to require Ortiz
to show prejudice in this case. Cf. United States v.
Díaz-Concepción, 860 F.3d 32, 38 (1st Cir. 2017) (stating, in
9We acknowledge that the District Court made that finding "[a]fter having heard . . . Ortiz's counsel, the [p]rosecutor, and . . . Ortiz having decided not to say anything." Ortiz does not contend, however, that the District Court rested its finding on Ortiz's waiver rather than on the evidence before it. We additionally acknowledge that the District Court stated that Ortiz violated his supervised release conditions specifically "by using controlled substances illegally[] and by not complying with the rules and regulations established as part of his outpatient and inpatient substance abuse treatment." Ortiz does not on that basis argue, however, that the District Court never found that he violated the condition prohibiting the commission of new crimes. Indeed, Ortiz appears to assume that the District Court implicitly made such a finding, as he states that the court "revok[ed] supervised release based on conduct not alleged in the revocation [motions]." We therefore proceed on that assumption as well.
- 24 - applying plain error review to a challenge based on an assertedly
invalid Rule 11 plea, that "an appellant's bare contention that he
might have pled differently" is insufficient to show harm to his
substantial rights, particularly where the evidence is otherwise
"uncontested").
III.
That brings us to Ortiz's final ground for challenging
his revocation sentence, which is that, "[e]ven if adequate notice
had been provided," the "[D]istrict [C]ourt did not conduct an
adequate colloquy to ensure" that he "knowingly, intelligently,
and voluntarily waived his rights under Rule 32.1." That is so,
he explains, because the District Court "did not personally address
[him] about the charges or his rights." He goes on to contend
that, by analogy to the requirements under Federal Rule of Criminal
Procedure 11 for taking a defendant's plea to a criminal charge,
"where the record is silent on these matters, we cannot presume a
knowing and voluntary waiver." (Citing Boykin v. Alabama, 395
U.S. 238, 242-43 (1969).) He goes on to argue that his case is
marked by deficiencies like those in Correa-Torres, in which we
found a waiver of Rule 32.1 rights invalid on the ground that
"nothing in the record adequately evinces that the [releasee]
understood the nature of the accusation that triggered the
revocation proceeding" and the record did not show "that the court
- 25 - advised the [releasee] of his rights or that counsel reviewed those
rights with him." 326 F.3d at 24-25.
Correa-Torres was clear, however, that the question of
whether a waiver of Rule 32.1 rights is invalid is heavily fact
dependent. Id. at 23. Indeed, we went so far as to suggest that
each case is practically sui generis with respect to a waiver's
validity. See id. And here, the record shows that Ortiz was
granted an initial appearance in accord with Rule 32.1, that the
Magistrate Judge presiding over that proceeding "advised [Ortiz]
of his rights, including his right to a preliminary hearing," and
that Ortiz "waive[d] his right to a preliminary hearing and
submitted [an] official waiver form." Yet Ortiz does not address
this aspect of the record in lodging this challenge. Nor does he
develop an argument that he cannot be deemed to have knowledge of
his rights unless he is informed of those rights by a district
judge rather than a magistrate judge. In this respect, Ortiz's
blanket challenge to his revocation sentence based on the absence
of a colloquy fails.
That said, Ortiz appears also to make a more limited
challenge based on the colloquy being inadequate. He argues that
"any pre-hearing attorney-client discussions would have focused on
the likely consequences of admitting to" violations of the
conditions prohibiting drug use and requiring compliance with drug
treatment rather than "the remote possibility that the court would
- 26 - sua sponte transform drug-use allegations into felony possession
charges." And, although he does not expressly make the point,
that contention would appear to carry through to cast doubt on the
colloquy between the Magistrate Judge and Ortiz, as the record
shows that the Magistrate Judge specifically advised Ortiz of the
supervised release violations "alleged in the [m]otion[s] filed
by" Ortiz's probation officer, without any indication that Ortiz
would have also been informed of a potential violation of the
new-crimes condition.
Nonetheless, as we explained above, we do not understand
Correa-Torres to require us to vacate a judgment revoking a term
of supervised release in a case where we do "see . . . reason to
deviate from" that "preferred practice." 326 F.3d at 25. And
here, as we have explained, Ortiz does not argue that the District
Court relied upon his waiver in finding that he violated the terms
of his supervised release, and he also does not indicate specific
evidence he would have submitted, witnesses he would have called,
or legal arguments he would have made in challenging the basis for
the District Court's finding. For these reasons, we hold Ortiz to
his burden under the plain error standard to show harm to his
"substantial rights," Rodríguez-Meléndez, 828 F.3d at 38 (quoting
Roy, 506 F.3d at 30), which -- for reasons we have explained -- he
has failed to do.
- 27 - IV.
For the foregoing reasons, we affirm.
- 28 -