United States v. Fontanez ( 2017 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 15-1360
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    RAFAEL FONTANEZ,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Mark G. Mastroianni, U.S. District Judge]
    Before
    Lynch, Selya and Lipez,
    Circuit Judges.
    Robert Herrick and Nicholson Herrick LLP on brief for
    appellant.
    Carmen M. Ortiz, United States Attorney, and Kelly Begg
    Lawrence, Assistant United States Attorney, on brief for appellee.
    January 9, 2017
    SELYA,      Circuit      Judge.        Defendant-appellant       Rafael
    Fontanez challenges evidentiary rulings made in the course of the
    revocation of his supervised release and the ensuing revocation
    sentence.              After        careful     consideration,     we      reject       his
    asseverational array and affirm the judgment below.
    I.   BACKGROUND
    We start with an overview of the relevant facts and the
    travel of the case. On October 15, 1998, the appellant was charged
    with one count of conspiracy to possess with intent to distribute
    cocaine base (crack cocaine) and three specific-offense counts of
    distribution           of    that    controlled       substance.     See    21    U.S.C.
    §§ 841(a)(1), 846.             The indictment alleged the applicability of 21
    U.S.C. § 841(b)(1)(A)(iii), which provides for a sentence up to
    life imprisonment.1
    The   appellant       maintained      his   innocence   and     went   to
    trial.       The jury found him guilty on all counts.                    The appellant
    had stipulated to the quantity of drugs for which he should be
    held accountable — a series of transactions involving specified
    amounts, totaling more than one kilogram — and the jury was not
    asked       to   make       (and    did   not   make)    a   separate    drug-quantity
    determination.
    1
    At the time, section 841(b)(1)(A)(iii) applied to offenses
    involving more than fifty grams of cocaine base. The triggering
    amount has since been increased to 280 grams. See Fair Sentencing
    Act of 2010, Pub. L. No. 111-220, § 2(a)(1), 124 Stat. 2372, 2372.
    - 2 -
    At the disposition hearing, the sentencing court noted
    that the jury "had to have found [the appellant] guilty of more
    than 50 grams."      This drug quantity exposed the appellant to a
    maximum penalty of life imprisonment instead of the default maximum
    penalty   of    twenty    years   in   prison.        Compare   21    U.S.C.
    § 841(b)(1)(A)(iii) with 
    id. § 841(b)(1)(C).
             The court proceeded
    to sentence the appellant to an eighteen-year term of immurement,
    to be followed by a five-year term of supervised release.2
    The appellant served his incarcerative term and, on June
    11, 2014, began serving his supervised release term.            On November
    29, 2014, a man was stabbed at a bar in Springfield, Massachusetts.
    An anonymous telephone call named the appellant as the perpetrator.
    Three days later, a Springfield police officer, Eric Podgurski,
    interviewed the victim in the hospital.          He showed the victim an
    eight-person     photo   array,   which    included   a   picture    of   the
    appellant.     The victim identified the appellant as the malefactor
    2  The appellant insists that this judgment does not
    "establish[] a conviction for a violation of 21 U.S.C.
    § 841(b)(1)(A)(iii)" because the written judgment states only that
    the appellant was found guilty of violating 21 U.S.C. §§ 841(a)(1)
    and 846. By its terms, though, that written judgment "adopts the
    factual findings and guideline application in the presentence
    report" — a report that stated unambiguously that "21 U.S.C.
    § 841(b)(1)(A)(iii) applies" to the appellant's sentence. In all
    events, the court made it luminously clear at the sentencing
    hearing   that    the   sentence    was   premised    on   section
    841(b)(1)(A)(iii). If there were a material conflict between the
    written judgment and the oral sentence (and we see none), the
    latter would control. See United States v. Riccio, 
    567 F.3d 39
    ,
    40 (1st Cir. 2009).
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    and wrote on his picture: "I am 100 percent this is the guy that
    stabbed me."
    In    due       course,      the     appellant    was     charged    in     a
    Massachusetts state court with attempted murder and assault with
    a dangerous weapon.             He was later brought before the federal
    district court in a revocation proceeding aimed at determining
    whether he had violated the conditions of his supervised release
    (which   included        a     condition        forbidding    him    from     committing
    "another federal, state, or local crime" during the currency of
    his supervised release).
    The revocation hearing was continued at the appellant's
    request.      When       the   rescheduled        date   arrived,      the    government
    explained that the victim was out of state due to a pre-planned
    vacation.         In   lieu    of   the    victim's      testimony,     it    sought    to
    introduce, through Podgurski, hearsay evidence anent both the
    photo array identification and the anonymous telephone call.                           The
    district     court       allowed    this        evidence     over    the     appellant's
    objection.         The    government        also     introduced      other     evidence,
    including    the       bar's    video     surveillance       footage    capturing      the
    commission of the crime.
    The district court found, by a preponderance of the
    evidence, that the appellant had committed the stabbing and, thus,
    had violated the conditions of his supervised release.                         The court
    based this determination primarily on the surveillance video, the
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    victim's identification of the appellant in the photo array, and
    evidence of the victim's wounds.            The court then determined that
    the offense undergirding the appellant's supervised release term
    was    an   offense     that   fell    within    the    purview     of    21    U.S.C.
    § 841(b)(1)(A)(iii) and, accordingly, was a Class A felony.                           See
    18 U.S.C. § 3559(a)(1).         Having made this determination, the court
    sentenced the appellant to a four-year incarcerative term for
    violating the conditions of his supervised release.                      This timely
    appeal followed.
    II.    ANALYSIS
    The   appellant        challenges   both    the    finding        that    he
    violated the conditions of his supervised release and the sentence
    imposed.     We discuss these challenges sequentially.
    A.   The Supervised Release Violation.
    The appellant's merits challenge is premised on his view
    that   the   court      improperly     allowed   the    admission        of    hearsay
    evidence.     He submits that the district court should not have
    permitted     Podgurski        to     testify    either        to   the       victim's
    identification of the appellant in the photo array or to the
    anonymous telephone call.              Inasmuch as these objections were
    preserved below, we review the court's decision to admit the
    challenged evidence for abuse of discretion.              See United States v.
    Rondeau, 
    430 F.3d 44
    , 48 (1st Cir. 2005).
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    In revocation proceedings, a releasee does not have a
    Sixth Amendment right to confront adverse witnesses.    See 
    id. He has
    only a more circumscribed right, delineated in the Federal
    Rules of Criminal Procedure.     Hearsay evidence is allowable but,
    under Rule 32.1(b)(2)(C), a releasee is entitled to "question any
    adverse witness unless the court determines that the interest of
    justice does not require the witness to appear."     In making such
    a determination, the court must balance the releasee's right to
    confront the witnesses against him with what good cause may exist
    for denying confrontation in a particular instance.    See 
    Rondeau, 430 F.3d at 48
    .    In practice, this need for balancing requires the
    court to weigh both the apparent reliability of the hearsay
    evidence and the government's proffered reason for not producing
    the declarant.     See 
    id. Here, the
    district court concluded that the interests of
    justice did not require the victim's live testimony.   In assailing
    this conclusion, the appellant trains his fire principally on the
    district court's decision to admit Podgurski's testimony regarding
    the photo array.    He argues that, as a practical matter, the court
    failed to carry out the balancing test at all because it admitted
    the testimony despite finding that the government's reason for not
    producing the victim was "very weak."    He further argues that the
    district court's crediting of that "very weak" reason and its
    - 6 -
    admission of the hearsay evidence was an abuse of discretion.            We
    do not agree.
    To     begin,   Podgurski's      photo   array    testimony    was
    characterized by several indicia of reliability.             As an initial
    matter, the government introduced a surveillance video of the
    stabbing, which corroborated the victim's account of the incident
    (as related to Podgurski).        So, too, it confirmed the victim's
    identification    of    the   appellant.        Objective   evidence    that
    corroborates a witness's testimony may provide persuasive proof of
    that testimony's reliability.         See 
    id. Here, moreover,
       the    officer's   interaction   with    the
    victim bolstered the testimony's reliability.           Cf. United States
    v. Taveras, 
    380 F.3d 532
    , 538 (1st Cir. 2004) (finding hearsay
    testimony unreliable where probation officer had only spoken to
    victim briefly).       Podgurski met with the victim face-to-face in
    the hospital and interviewed him at length.                 The victim was
    cooperative, and his account of the stabbing was both internally
    consistent and consistent with the video.           The consistency of a
    declarant's account of events may lend support to a finding of
    reliability.    See United States v. Marino, 
    833 F.3d 1
    , 6 (1st Cir.
    2016); 
    Rondeau, 430 F.3d at 48
    .          And according to the district
    court (which had the advantage of observing Podgurski's demeanor
    at first hand), Podgurski "testified in a way that [indicated]
    that he was getting reliable information from the victim."
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    Relatedly,   the   victim      identified     the   appellant
    confidently.     He   expressed   no   doubt,   and    memorialized   the
    identification in writing on the photograph that he selected (a
    photograph that was, in fact, a photograph of the appellant).         The
    victim's confidence in his account was a factor to which the court
    could give weight in gauging the reliability of that account.         See
    United States v. DeCologero, 
    530 F.3d 36
    , 62 (1st Cir. 2008).
    Last — but far from least — the manner in which Podgurski
    handled the photo array bolstered the finding of reliability.         The
    array was presented to the victim while the central events were
    fresh in his mind (his identification was made a scant three days
    after the stabbing). Furthermore, Podgurski took care in composing
    and presenting the photo array: before showing it to the victim,
    he read aloud a comprehensive explanation of the photo array
    process.   Among other things, this explanation warned the victim
    that the perpetrator might or might not be included in the array.
    Importantly, the photographs used in the array were of men whose
    looks were generally similar to the appellant's.        And, all of the
    photographs had the same background (thus mitigating the risk of
    drawing attention to a particular photograph).
    The short of it is that the photo array testimony bore
    the hallmarks of reliability.       The close proximity between the
    crime and the identification, the time that Podgurski spent with
    the victim, the victim's level of certainty, and the lack of any
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    suggestiveness in the photo array all support the identification's
    reliability, see 
    id., and thus
    support a finding that the Podgurski
    testimony should be regarded as reliable. The fact that the victim
    memorialized the identification in writing (on the back of a
    correctly selected photograph of the appellant) also signals the
    testimony's trustworthiness.    See 
    Rondeau, 430 F.3d at 48
    (finding
    hearsay testimony reliable where declarants "reduced their verbal
    statements to writing").
    In the Rule 32.1(b)(2)(C) context, strong evidence of
    reliability can counterbalance a weak reason for not producing the
    declarant.     See, e.g., 
    Marino, 833 F.3d at 6-7
    ; United States v.
    Boyd, 
    792 F.3d 916
    , 920 (8th Cir. 2015).   Given this principle, we
    think that the government in this case furnished "a sufficient
    reason" for not producing the victim.      
    Rondeau, 430 F.3d at 49
    .
    The revocation hearing was not held when originally scheduled and,
    on the continued date, it is undisputed that the victim was out of
    state for a legitimate reason (totally unrelated to the case).
    The district court found that to be an adequate reason for not
    producing him as a witness.       On the facts of this case, that
    finding was plausible.
    In an effort to blunt the force of this reasoning, the
    appellant suggests that the government never intended to call the
    victim as a witness.     Therefore, he says, the court's assumption
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    that only "a scheduling issue" prevented the government from
    calling the victim was clearly erroneous.3
    This is magical thinking.       The record reflects that the
    government had planned to have the victim in attendance; but after
    the hearing was continued at the appellant's request, the victim
    left       on   vacation.   On   the   new   hearing   date,   the   prosecutor
    expressly stated that he had been expecting the victim to be
    present.
    To be sure, the prosecutor did tell the court that he
    "was going to attempt to try the case without putting [the victim]
    on the stand and further victimize the victim who has to testify
    in state court.        He already testified in the grand jury and has to
    testify at trial there."         But these remarks indicate, at most, a
    vague, noncommittal desire to avoid putting the victim on the
    stand, not a decision to refrain from doing so.4
    We add, moreover, that although the government's reason
    for not producing the victim may have been weak, the appellant
    3
    In this regard, the court stated: "I think the government
    offered evidence [that] it really was just a scheduling issue. It
    was a vacation-type issue and trying to serve a subpoena on this
    particular witness" would have been futile.
    4
    We add that, in appropriate circumstances, the desire not
    to further victimize the victim may provide an additional reason
    for not requiring a victim to testify. Cf. 
    Rondeau, 430 F.3d at 49
    (permitting hearsay testimony rather than forcing declarants to
    testify in front of releasee who caused them to fear for their
    safety). We have no occasion to explore this point today.
    - 10 -
    contributed to the victim's absence.          After all, it was the
    appellant who requested and received the original continuance,
    thus creating the conflict between the new hearing date and the
    victim's planned vacation.    In striking the requisite balance, the
    district court was entitled to take into account the fact that the
    appellant contributed to the government's inability to produce the
    witness.   See United States v. Williams, 
    443 F.3d 35
    , 45 (2d Cir.
    2006)   (holding   that   releasee's   "interest   in   confronting   the
    declarant is entitled to little, if any, weight" when releasee's
    actions caused declarant's absence).
    By the same token, the appellant — after being advised
    of the victim's unavailability — neither suggested nor expressed
    a willingness to agree to a further continuance.        This fact, too,
    was pertinent to the striking of the balance. See generally United
    States v. Sepulveda, 
    15 F.3d 1161
    , 1178 (1st Cir. 1993) (discussing
    general rule that "a defendant who does not request a continuance
    will not be heard to complain on appeal that he suffered prejudice
    as a result").
    In constructing the balance between the reliability of
    proffered hearsay evidence and the need for confrontation, the
    district court's discretion is broad.      See 
    Marino, 833 F.3d at 5
    -
    7; 
    Rondeau, 430 F.3d at 48
    -49.         In this instance, the district
    court did not abuse its broad discretion in admitting the photo
    array testimony.
    - 11 -
    We need not tarry over the anonymous telephone call.
    The district court took pains to note that it gave Podgurski's
    testimony about the anonymous call only the weight that it "might
    deserve," which the court described as "not considerable but some
    weight."    Given the substantial other evidence of the appellant's
    involvement in the stabbing (including Podgurski's photo array
    testimony) and the infinitesimal role that the call played in the
    court's analysis, any error in admitting Podgurski's testimony
    about the anonymous call was manifestly harmless.                 See United
    States v. Mosley, 
    759 F.3d 664
    , 669 (7th Cir. 2014) (holding that
    erroneous admission of hearsay evidence in revocation proceeding
    was harmless error when "the result would have been the same
    without admitting the hearsay").
    B.    The Sentence.
    The maximum sentence for a person who violates the
    conditions of his supervised release varies based on the severity
    of "the offense that resulted in the term of supervised release."
    18 U.S.C. § 3583(e)(3).      For that purpose, offenses are grouped in
    various categories.     Those groupings have real-world consequences:
    a Class C or D felony bears a maximum sentence upon revocation of
    supervised release of two years; a Class B felony bears a maximum
    sentence upon revocation of supervised release of three years; a
    Class   A   felony   bears   a    maximum    sentence   upon   revocation   of
    supervised release of five years; and all other offenses bear a
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    maximum sentence upon revocation of supervised release of one year.
    See 
    id. These categories
    correspond to the maximum penalties that
    can be imposed for the underlying offenses: a Class D felony is an
    offense that carries a term of imprisonment of at least five but
    less than ten years; a Class C felony is an offense that carries
    a term of imprisonment of at least ten but less than twenty-five
    years; a Class B felony is an offense that carries a term of
    imprisonment of at least twenty-five years but less than life
    imprisonment; and a Class A felony is an offense that carries a
    maximum penalty of either death or life imprisonment.              See 
    id. § 3559(a).
    The appellant argues that the district court lacked the
    authority to sentence him to more than two years of imprisonment
    for violating his supervised release.         In support, he argues that
    the court misclassified his underlying offense as a Class A felony
    when it should have been considered a Class C felony.                   The
    appellant preserved this argument at the revocation hearing, and
    we review his classification challenge de novo.        See United States
    v. Eirby, 
    515 F.3d 31
    , 35 (1st Cir. 2008).
    The basic facts are clear.         The jury convicted the
    appellant of violating sections 841(a)(1) and 846.               Neither of
    these offenses requires a specific drug quantity in order to
    convict,     and   the   jury   made     no     explicit   drug-quantity
    determination.      Without   such   a   determination,    the    "default"
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    statutory maximum of twenty years ordinarily would apply.                   See 21
    U.S.C. § 841(b)(1)(C); United States v. Portes, 
    505 F.3d 21
    , 25
    (1st Cir. 2007).
    Here, however, the sentencing court found the appellant
    responsible for over a kilogram of cocaine base and sentenced him
    under 21 U.S.C. § 841(b)(1)(A)(iii).                 At the time, that statute
    required a drug quantity of more than fifty grams of cocaine base
    and carried a maximum sentence of up to life imprisonment.                     The
    appellant,    in     effect,   is   seeking     to    challenge,   albeit    quite
    belatedly,         the   sentencing      court's         resort    to     section
    841(b)(1)(A)(iii).
    In Apprendi v. New Jersey, the Supreme Court held that
    "any fact that increases the penalty for a crime beyond the
    prescribed statutory maximum must be submitted to a jury, and
    proved beyond a reasonable doubt."             
    530 U.S. 466
    , 490 (2000).      The
    appellant argues that the district court's classification of his
    earlier conviction as a Class A felony rested upon a fact not found
    by the jury (drug quantity) and, thus, offended Apprendi.
    The    government      counters    that    the   appellant     cannot
    collaterally attack his sentence in this proceeding. It adds that,
    in any event, the indictment in the original case charged a drug
    quantity sufficient for a Class A felony, the appellant stipulated
    to such a quantity, and the district court appropriately sentenced
    him based on that quantity.
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    It is entirely likely that the appellant's challenge to
    his sentence is not properly before us.           See 
    Eirby, 515 F.3d at 36
    (describing appellant's Apprendi claim in similar circumstances as
    an impermissible "collateral attack"); see also Trenkler v. United
    States, 
    536 F.3d 85
    , 96 (1st Cir. 2008) (describing 28 U.S.C.
    § 2255 as the "exclusive means of challenging the validity of [a
    federal   prisoner's]       conviction     or    sentence,"        with   limited
    exceptions).      But because his challenge fails on the merits
    regardless, we bypass the "collateral attack" issue.
    To be blunt, the appellant's argument collides head-on
    with binding precedent.         At trial, the appellant stipulated to a
    drug quantity that was well in excess of the threshold needed for
    a Class A felony.        At sentencing for the underlying offense, the
    sentencing court's drug-quantity determination was based on the
    stipulation.       We    have    stated    in    no    uncertain     terms    that
    "[f]actfinding premised on a defendant's admissions is not a
    practice invalidated by Apprendi."              
    Eirby, 515 F.3d at 36
    .          In
    this   case,   the      stipulation    obviated       the   need    for   a   jury
    determination of drug quantity because the appellant "had agreed
    to the drug quantities, thereby leaving nothing for the jury to do
    on that issue."      United States v. Etienne, 
    772 F.3d 907
    , 923 n.9
    (1st Cir. 2014).     And in the absence of any Apprendi error at the
    original sentencing, the court below cannot plausibly be said to
    have committed an Apprendi error at the revocation hearing by
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    treating the appellant's prior conviction as a Class A felony.
    See 
    id. at 923;
    Eirby, 515 F.3d at 36
    .
    It is true, as the appellant suggests, that the Eirby
    defendant — unlike the appellant — had entered a guilty plea.         
    See 515 F.3d at 32
    .   For   present   purposes,   though,   this   is   a
    distinction without a difference: what matters is that here, as in
    Eirby, the sentencing court's drug-quantity determination was
    based on the defendant's stipulation.
    It is also true, as the appellant suggests, that the
    stipulation in Etienne was relevant to an element of the offense,
    
    see 772 F.3d at 923
    , and not — as here — merely to a sentencing
    factor, see United States v. Delgado-Marrero, 
    744 F.3d 167
    , 185
    (1st Cir. 2014) ("Prior to [Apprendi], . . . 'drug quantity' was
    considered . . . a 'sentencing factor' that the sentencing judge
    could determine by a preponderance of the evidence."). Once again,
    the distinction that the appellant draws has no significance: in
    both Etienne and this case, the defendant stipulated to a fact,
    not a fact only to be used for a certain purpose.             See United
    States v. Teeter, 
    257 F.3d 14
    , 28 (1st Cir. 2001) ("Should the
    court decide to accept and act upon factual stipulations for
    sentencing purposes, the parties usually will be firmly bound.").
    That ends this aspect of the matter.       The appellant's
    original supervised release term was imposed as part of his
    sentence for a crime to which the penalty provisions of 21 U.S.C.
    - 16 -
    §   841(b)(1)(A)(iii)    applied    (by   virtue   of   his   drug-quantity
    stipulation).     See 
    Etienne, 772 F.3d at 923
    ; 
    Eirby, 515 F.3d at 36
    ; cf. United States v. McIvery, 
    806 F.3d 645
    , 651 (1st Cir. 2015)
    (holding that any error in imposition of mandatory minimum sentence
    based on drug quantity neither charged in indictment nor proven to
    a   jury    was    harmless   because       evidence    of    quantity   was
    "uncontested").     Consequently, that underlying offense was a Class
    A felony, see 18 U.S.C. § 3559(a)(1), and the court below was
    authorized to sentence him to a term of imprisonment of up to five
    years for violating his supervised release conditions, see 
    id. § 3583(e)(3).
        It follows inexorably that the appellant's claim of
    sentencing error is baseless.
    III.   CONCLUSION
    We need go no further. For the reasons elucidated above,
    the judgment is
    Affirmed.
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