United States v. Mulero-Diaz ( 2016 )

United States Court of Appeals
For the First Circuit
No. 14-2207
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS MULERO-DÍAZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, Chief U.S. District Judge]
Before
Thompson, Lipez, and Barron,
Circuit Judges.
Juan J. Hernández López de Victoria for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
for appellee.
January 29, 2016
BARRON, Circuit Judge. Carlos J. Mulero-Díaz appeals
the District Court's revocation of his term of supervised release
and imposition of a three-year term of imprisonment for violations
of the conditions of that supervised release. We affirm.
I.
On December 3, 2009, Mulero pleaded guilty to one count
of conspiracy to possess with intent to distribute narcotics in
violation of 21 U.S.C. §§ 841, 846, and 860. He was sentenced to
seventy months' imprisonment and eight years' supervised release.
The conditions of supervised release required Mulero to, among
other things, (1) "not commit another federal, state or local
crime," (2) "not possess a firearm [or] ammunition," and (3)
"notify the probation officer within seventy-two hours of being
arrested or questioned by a law enforcement officer."
After Mulero was released from his term of imprisonment
and while he was on supervised release, the United States Probation
Office requested that the District Court issue an arrest warrant
and conduct a show-cause hearing as to why Mulero's supervised
release should not be revoked as a result of his violations of his
conditions of supervised release. The District Court granted the
Probation Office's requests.
At the show-cause hearing, Mulero conceded that he had
violated the terms of his supervised release. He admitted that he
had been arrested on two occasions -- once for driving while
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intoxicated, and a second time for driving without a driver's
license and without a vehicle registration sticker. He also
admitted that he had failed to report the arrests to his probation
officer and that he had, in fact, driven while intoxicated and
without proper license or registration.
Mulero contended that this conduct warranted a finding
that he had committed a "Grade C" violation of his conditions of
supervised release -- the least serious type of supervised release
violation, and one that permits but does not require revocation.
See U.S.S.G. §§ 7B1.1, 7B1.3. But the government argued that
Mulero had also engaged in more serious offenses: domestic violence
and possessing a weapon. The government argued that, due to those
offenses, Mulero should be found to have committed a "Grade A"
violation -- a violation that would result in mandatory revocation
of his supervised release and a greater guidelines sentencing range
than would a Grade C violation. See id.
To make that case, the government at the show-cause
hearing introduced the testimony of Puerto Rico police officer
Juan La Santa Soto, as well as the testimony of Miriam Morales
Martinez, Mulero's probation officer. La Santa testified that, on
a morning in April 2014, the Puerto Rico Police Department received
an anonymous call concerning a domestic violence incident in
Reparto Flamingo, in Bayamon, Puerto Rico. La Santa testified
that upon arriving at the scene to investigate, he found two
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couples arguing on the street. One of those couples, La Santa
recounted, was Mulero and a woman named "Jamie." Jamie was later
identified at the hearing as Jamie Figueroa.
La Santa testified that he told Mulero that he was
investigating a domestic violence incident, and that Mulero told
him, among other things, that he should "go to hell" and that
Mulero wanted to "hit [La Santa] in the face." La Santa said that
he then called his supervisor, and that when his supervisor came,
Mulero challenged the supervisor to a fight. La Santa further
stated that Mulero then left, at which point Figueroa told La Santa
that Mulero owned a firearm, and that the firearm was in the
apartment where they were both living.
La Santa recounted Figueroa's retrieving the firearm and
turning it over to La Santa. According to La Santa, the firearm
was a .40 caliber pistol, and it was loaded. La Santa testified
that he then arrested Mulero after Mulero had returned, and found
one .40 caliber bullet in Mulero's pocket.
Mulero's probation officer, Morales, testified regarding
a second incident. She stated that in May 2014 she received a
call reporting domestic violence between Mulero and Figueroa.
Morales testified that she interviewed Figueroa, who -- according
to Morales -- complained that Mulero had appeared at her house on
May 21 with Wilfredo Sandoval Ayala. According to Morales,
Figueroa said that Mulero had been aggressive and had broken a
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window, and so Figueroa had fled her home. Morales said that
Figueroa told Morales that Figueroa had gone to a neighbor for
help, and that when the neighbor opened the door for her, Mulero
had spilled gasoline on Figueroa. And, Morales testified, Figueroa
had requested a restraining order after this incident and her
request had been granted.
In addition, Morales testified that she had spoken with
Figueroa's neighbor, who had corroborated Figueroa's story.
According to Morales, the neighbor reported that Figueroa had asked
him to let her into his house because "Mulero was being aggressive
against her." Morales said the neighbor also told her that Mulero
had been "bothering the neighbors" by "yelling, threatening,
[firing] shots in the air, and . . . fighting [with Figueroa]."
The District Court credited the testimony of La Santa
and Morales. The District Court found that there was "no doubt
about the domestic violence incidents," and "no doubt" about
Mulero's "possessing that weapon" and possessing ammunition. The
District Court thus concluded that there was "sufficient evidence
to find a [G]rade A violation."
Despite so concluding, the District Court classified
Mulero's conduct as a Grade C violation. Because Mulero had a
criminal history category of I, the resulting guidelines sentence
was three- to nine-months' imprisonment. See U.S.S.G. § 7B1.4.
But the District Court did not sentence Mulero to a term of
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imprisonment within the three- to nine-months range. Instead, the
District Court concluded that the "guidelines do not provide the
punishment [that is] necessary for deterrence." Characterizing
Mulero's violations as "blatant, clear, in clear disregard for the
law . . . [and the] conditions of supervised release, constituting
a threat to the life of individuals, [and] constituting a threat
to the neighborhood in which you live," the District Court imposed
a sentence of three years' imprisonment. See 18 U.S.C. 3583(e).
Mulero appeals.
II.
Mulero first argues that the District Court erred in
admitting hearsay evidence at the show-cause hearing "without
balancing [Mulero's] right to confront witnesses with the
government's cause for denying confrontation pursuant to [Federal
Rule of Criminal Procedure] 32.1(b)(2)(C)." Specifically, Mulero
argues that the District Court should have asked the government
for some "explanation" for why Figueroa, the unnamed neighbor who
observed the alleged gasoline incident, and Sandoval (the man who
went to Figueroa's home with Mulero just before the gasoline
incident), "were not called to testify."
Mulero is correct that a defendant who faces revocation
of his term of supervised release does have a "limited
confrontation right" under Federal Rule of Criminal Procedure
32.1(b)(2)(C). And, under that Rule, Mulero was entitled to "an
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opportunity to . . . 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). We have said,
moreover, that "[i]n conducting this analysis, a court should
consider the reliability of the hearsay testimony and the
government's reason for declining to produce the declarant."
United States v. Rondeau, 430 F.3d 44, 48 (1st Cir. 2005).
The record does not reveal that the District Court
expressly engaged in such a weighing. But Mulero at no point
invoked Rule 32 at the show-cause hearing. As a result, the
government contends that Mulero has waived any argument premised
on the Rule or, at the least, forfeited it, such that we may review
his challenge only under the demanding plain error standard.
Mulero argues that he did generally contest the reliability of the
testimony that the government offered at the show-cause hearing.
He also notes that he objected that one witness testifying for the
government -- Officer La Santa -- lacked personal knowledge of
some of the facts to which he testified.
But when the District Court overruled the objection by
Mulero on the ground that the Federal Rules of Evidence did not
govern the show-cause hearing, Mulero did not then assert that he
had an independent right under Rule 32 to have the court balance
the reliability of the testimony against the government's interest
in not having the declarant appear before admitting the hearsay
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testimony. Nor did Mulero renew his objection when La Santa
testified -- at the District Court's direction -- regarding the
basis of his knowledge of the facts to which Mulero had objected.
And at no point in the hearing did Mulero object to Probation
Officer Morales's testimony, on any basis. For these reasons,
Mulero's Rule 32 challenge is at least forfeited, and we review
for plain error. See, e.g., United States v. Shoup, 476 F.3d 38,
42 (1st Cir. 2007) (reviewing an unpreserved hearsay claim under
the plain error standard).
To show plain error, Mulero "must show that (1) an error
occurred; (2) the error was plain; (3) the error affected the
defendant's substantial rights; and (4) the error 'seriously
affect[ed] the fairness, integrity or public reputation of
judicial proceedings.'" United States v. Ortiz-García, 665 F.3d
279, 285 (1st Cir. 2011) (alteration in original) (quoting United
States v. Rivera-Maldonado, 560 F.3d 16, 19 (1st Cir. 2009)).
Mulero's argument fails at the third prong, even assuming his
argument does not also flunk the first two. Under that third
prong, Mulero must establish that there is "a reasonable
probability that, but for [the error claimed], the result of the
proceeding would have been different." United States v. Dominguez
Benitez, 542 U.S. 74, 81-82 (2004) (alteration in original)
(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). But
Mulero makes no developed argument to this effect.
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Mulero does not explain why it is probable that the
District Court, had it engaged in the balancing that Mulero
contends Rule 32 requires, would have demanded the in-court
testimony of Figueroa, given that she claimed to be the victim of
domestic violence and given that her out-of-court statements were
corroborated by her neighbor and by La Santa's observations. Cf.
Rondeau, 430 F.3d at 48-49 (stating that, "[b]ecause the safety
concern was supported by record evidence, it was within the
district court's discretion to conclude that there was good reason
for the declarants not to testify," and finding out-of-court
accounts reliable where they "were offered to the police
separately, but were materially identical"). Nor does Mulero
explain why it is probable that the District Court, had it engaged
in such a balancing analysis, would have found unreliable the out-
of-court statements of the neighbor, given that those statements
were corroborated, in turn, by Figueroa.1 See id. In fact, Mulero
makes no argument at all that the District Court would have reached
a different conclusion in this case had it not committed the error
he alleges. Mulero has thus failed to meet his burden of showing
plain error.
1 As for Mulero's challenge regarding Sandoval's out-of-court
statements, we see no such statements in the record, and Mulero
points us to none.
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III.
Mulero next argues that the District Court erred in
revoking his term of supervised release. Mulero's briefing is
hardly clear on this point, but, as far as we can tell, his only
argument to this effect is that the District Court based its
decision to revoke supervised release on conduct that the District
Court did not, in fact, find. We review a decision to revoke
supervised release for abuse of discretion, United States v.
Whalen, 82 F.3d 528, 532 (1st Cir. 1996), and we conclude that
there was no abuse here.
The District Court explained that it had "no doubt" that
Mulero had possessed a firearm and committed domestic violence.
The District Court therefore concluded that there was "sufficient
evidence to find a [G]rade A violation," which would trigger
mandatory revocation. The District Court did state that it was
concerned that finding a Grade A violation would "just generate an
appeal as to whether the legal standard of preponderance was met
or not," and thus the District Court decided to classify Mulero's
conduct as constituting a Grade C violation, which entitles a
district court to exercise its discretion to revoke supervised
release. See U.S.S.G. § 7B1.3(a)(2) ("Upon a finding of a Grade
C violation, the court may (A) revoke probation or supervised
release; or (B) extend the term of . . . supervised release and/or
modify the conditions of supervision."). But, in classifying
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Mulero's conduct as a Grade C violation, the District Court did
not suggest in any respect that it was not satisfied that the
conduct had occurred. And the testimony at the hearing adequately
supports that finding by a preponderance of the evidence. Thus,
Mulero's only argument as to why the District Court abused its
discretion -- that the District Court relied on conduct it never
supportably found had occurred -- fails.
IV.
Mulero argues finally that his three-year sentence is
unreasonable, both procedurally and substantively. But neither
contention holds up.
Mulero first contends that the sentence is unreasonable
because it is "based on hearsay evidence admitted in violation of
[Rule] 32.1(b)(2)(C)." To the extent Mulero is merely restating
his first argument -- that the District Court erred in admitting
hearsay statements without first conducting the balancing required
by Rule 32.1(b)(2)(C) -- that argument lacks merit for the reason
that we have already stated. And to the extent Mulero is arguing
that the District Court erred because this hearsay evidence simply
could not be admitted under the standard provided by Rule 32, the
argument is insufficiently developed to warrant review. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (holding that
"issues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived").
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That leaves only Mulero's contention that his sentence
is substantively unreasonable because it is "three times the
applicable sentence should [the court] have declared that [Mulero]
committed a Grade A violation." In fact, the sentence is only two
times higher than the high end of the guideline range, 18 months,
for a Grade A violation for someone with Mulero's criminal history.
See U.S.S.G. § 7B1.4. And, in any event, the District Court found
that Mulero had violated the terms of his supervised release by,
among other things, committing domestic violence and possessing a
weapon. We cannot say that, in light of those findings, Mulero's
three-year sentence is unreasonable, notwithstanding that it
varies from the guidelines range. See United States v. Battle,
637 F.3d 44, 51 (1st Cir. 2011) ("A sentence will stand so long as
there is 'a plausible sentencing rationale and a defensible
result.'" (quoting United States v. Martin, 520 F.3d 87, 96 (1st
Cir. 2008))); Gall v. United States, 552 U.S. 38, 49-50 (2007)
(stating that a district court may impose an upward variance after
"an individualized assessment based on the facts presented" and an
"adequate[] expla[nation of] the chosen sentence").
V.
For the foregoing reasons, the decision of the District
Court is affirmed.
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