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United States v. Ruiz-Valle ( 2023 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 21-1937
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    HIRAM JOSÉ RUIZ-VALLE,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Jay A. García-Gregory, U.S. District Judge]
    Before
    Gelpí, Lynch and Thompson,
    Circuit Judges.
    Joanna E. LeRoy, Research & Writing Attorney, with whom Eric
    Alexander Vos, Federal Public Defender, Franco L. Pérez-Redondo,
    Assistant Federal Public Defender, Supervisor, Appeals Division,
    Jackson B. Whetsel, Assistant Public Defender, and Kevin E. Lerman,
    Research & Writing Attorney, were on brief, for appellant.
    David C. Bornstein, Assistant United States Attorney, with
    whom W. Stephen Muldrow, United States Attorney, and Mariana E.
    Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
    Division, were on brief, for appellee.
    May 26, 2023
    GELPÍ, Circuit Judge.          In 2016, Hiram José Ruiz-Valle
    ("Ruiz-Valle") pleaded guilty to being a felon in possession of a
    firearm,   in   violation   of   
    18 U.S.C. §§ 922
    (g)(1),    924(a)(2).
    Following his initial release from prison, Ruiz-Valle's supervised
    release has been revoked four times.
    Ruiz-Valle now appeals his latest revocation sentence on
    the ground that the district court erred by imposing in violation
    of   
    18 U.S.C. § 3583
    (e)(3)      a     twenty-four-month    term   of
    reimprisonment, and, by further imposing in violation of 
    18 U.S.C. § 3583
    (h) a twelve-month term of supervised release to follow.1
    1 We quote these statutes at some length because their terms
    are of significance to the disposition of the issue before us.
    Section 3583(e)(3) provides that a district court may "revoke
    a term of supervised release, and require the defendant to serve
    in prison all or part of the term of supervised release" upon a
    finding "by a preponderance of the evidence that the defendant
    violated a condition of supervised release."     But it also says
    (emphasis ours) that
    a defendant whose term is revoked under this
    paragraph may not be required to serve on any
    such revocation more than 5 years in prison if
    the offense that resulted in the term of
    supervised release is a class A felony, more
    than 3 years in prison if such offense is a
    class B felony, more than 2 years in prison if
    such offense is a class C or D felony, or more
    than one year in any other case.
    Section 3583(h) states that when a supervised-release term "is
    revoked and the defendant is required to serve a term of
    imprisonment that is less than the maximum term of imprisonment
    authorized under subsection (e)(3), the court may include a
    requirement that the defendant be placed on a term of supervised
    release after imprisonment." But it also states (emphasis ours)
    that "[t]he length of such a term of supervised release shall not
    exceed the term of supervised release authorized by statute for
    - 2 -
    Moreover,    he    argues      that   § 3583(e)(3)       is    unconstitutional    as
    applied to him.
    We affirm the sentence of reimprisonment imposed upon
    revocation;       however,     vacate   the    subsequent        supervised-release
    term.
    I.      BACKGROUND
    Ruiz-Valle pleaded guilty to possessing a firearm as a
    convicted     felon,      in    violation      of   
    18 U.S.C. §§ 922
    (g)(1),
    924(a)(2).       This offense carried a ten-year maximum imprisonment
    sentence,2 and is a Class C felony per 
    18 U.S.C. § 3559
    (a)(3) --
    for which the maximum supervised-release term is 36 months per 
    18 U.S.C. § 3583
    (b)(2). The district court ultimately sentenced Ruiz-
    Valle to an eighteen-month term of imprisonment, followed by a
    three-year supervised-release term.
    We     next   summarize      the   disposition         of    Ruiz-Valle's
    sentences following his multiple supervised release revocations.
    the offense that resulted in the original term of supervised
    release, less any term of imprisonment that was imposed upon
    revocation of supervised release."
    The importance of the highlighted language will be addressed
    later.
    2 References and citations to section 924(a)(2) in this
    opinion are to the provision as it existed at the time of
    Ruiz-Valle's charged conduct.   These provisions have since been
    amended by the Bipartisan Safer Communities Act, 
    Pub. L. No. 117-159, § 12004
    , 
    136 Stat. 1313
    , 1329 (2022), which transposed
    the penalty provision for section 922(g) from section 924(a)(2) to
    924(a)(8), providing for a longer maximum period of imprisonment.
    See United States v. Minor, 
    63 F.4th 112
    , 118 n.4 (1st Cir. 2023)
    (en banc).
    - 3 -
    Given that the first three of these are not the subject of this
    appeal, we only indicate the outcome of each without tarrying into
    further detail.
    Ruiz-Valle's first revocation, in January 2019, resulted
    in reimprisonment of six months along with a new supervised-release
    term of three years.          His second revocation, in October 2019,
    resulted in another six-month imprisonment term plus two years of
    supervised release.          The third revocation, in December 2020,
    resulted in ten months imprisonment and two years of supervised
    release.
    Ruiz-Valle was released from prison in May 2021.                   By
    then   and   upon   completion     of    his     third   revocation      sentence,
    Ruiz-Valle had collectively served twenty-two months in prison for
    his several violations.       In August 2021, the U.S. Probation Office
    sought his arrest for new supervised-release violations, to wit,
    testing positive for cocaine use, failing to comply with his drug-
    testing condition, failing to appear at his counseling sessions,
    and    breaching    his    family's     peace    as   charged   in   a    criminal
    complaint.
    At his fourth revocation hearing , defense counsel told
    the    district    court   that   he    saw     "three   possible"    sentencing
    "solutions" to Ruiz-Valle's latest supervised-release infractions:
    (1) "four months" in prison and "more treatment," (2) "two years"
    in prison and "no more supervision," or (3) "one year" in prison
    - 4 -
    and   "no    further   supervision."       Ruiz-Valle's    sentencing      memo
    requested option (1).          But at the hearing his lawyer requested a
    "one year" prison sentence, with "no further supervision."                   In
    defense counsel's view, sentencing Ruiz-Valle to two years in
    prison -- after his client had already served twenty-two months in
    prison on his earlier revocations -- would be "excessive."               But he
    also said that "before you would accumulate" already-served prison
    "time, now you don't accumulate" it.
    Opposing the defense's request, the government stated
    that it did not want Ruiz-Valle out "in a year" because he had "no
    interest in rehabilitating himself" and so releasing him too soon
    might lead to a "negative outcome."
    The district court classified Ruiz-Valle's violations as
    Grade C and his Criminal History Category as II, and calculated an
    advisory sentencing range of four to ten months imprisonment.               The
    court, however, varied upward and imposed the statutory maximum
    sentence of two years in prison followed by one additional year of
    supervised release.
    Ruiz-Valle objected to the sentence imposed, arguing it
    was    procedurally     and    substantively     unreasonable.      He   first
    insisted that the district court "cannot impose supervision after
    it    imposes   [the]     statutory     maximum"    because   the   sentence
    "exceeds . . . what is allowed by law" and offends "due process."
    He    next   claimed    that    the   statutory-maximum   prison    term   was
    - 5 -
    "excessive" and that "the lack of accumulation of the . . . prior
    sentences imposing revocation, again, violated his right to have
    a final sentence that is limited to the statutory maximum of . .
    . imprisonment on a revocation."             He added that "any sentence over
    a total accumulated of 24 months . . . should not be allowed."
    And he concluded that "any sentence over a total accumulated of
    twenty-four months . . . should not be allowed.
    The district court noted Ruiz-Valle's post-sentence
    objections.     The government took no position as to the same.                  Ruiz-
    Valle timely appealed.
    II.    DISCUSSION
    Ruiz-Valle asserts that the district court erred under
    § 3583(e)(3)         by      imposing    a      twenty-four-month         term     of
    reimprisonment without deducting the cumulative prison time served
    for   all    four    violations.        Alternatively,     he    argues    that    if
    § 3583(e)(3)        indeed    authorizes      his    current    twenty-four-month
    prison term, the same is unconstitutional.                 He then claims that
    the district court could not impose the new twelve-month term of
    supervised release under § 3583(h).                  We address each argument
    seriatim.
    A. REIMPRISONMENT UPON REVOCATION
    Section 3583(e)(3) pertinently provides (emphasis ours)
    that "[a] defendant whose term is revoked under this paragraph may
    not be required to serve on any such revocation more than . . . 2
    - 6 -
    years in prison if such offense is a class C . . . felony."                      As
    Ruiz-Valle sees it, the district court had to -- but did not --
    "subtract the aggregate length of prior imprisonment terms imposed
    upon       revocation    of    supervised     release    when   calculating    the
    statutory maximum" for his last revocation.
    A dicta of ours indicates that Congress's 2003 addition
    of the phrase "on any such revocation" meant that the provision's
    statutory caps on post-revocation prison terms apply "afresh” to
    each new revocation.             See United States v. Tapia-Escalera, 
    356 F.3d 181
    , 185-86, 188 (1st Cir. 2004).3 And "every court of appeals
    to consider" whether the statutory caps reset with each new
    revocation "has determined" that the 2003 amendment abolishes "the
    credit       for   terms        of     imprisonment     resulting    from     prior
    revocations."      United States v. Sears, 
    32 F.4th 569
    , 574 (6th Cir.
    2022) (quotation marks omitted and collecting cases from the
    Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, and D.C. Circuits);
    see also United States v. Cunningham, 
    800 F.3d 1290
    , 1293 (11th
    Cir. 2015) (per curiam) ("hold[ing], as have each of the circuits
    that have examined the question, that upon each revocation of
    supervised release a defendant may be sentenced to the felony class
    limits       contained        within    §   3583(e)(3)     without    regard    to
    3Such statement is dicta because Tapia-Escalera addressed
    the proper reading of § 3583(e)(3)'s pre-2003 text. See id. at
    188.
    - 7 -
    imprisonment       previously   served    for    revocation        of   supervised
    release").
    Ruiz-Valle responds with page after page of argument
    that the district court (and those other circuits, apparently)
    erred    by   misunderstanding     §   3583(e)(3)'s        text,    context,    and
    legislative history -- committing a constitutional error to boot.
    But the insurmountable problem for him is that he waived these
    arguments     by   arguing   the   opposite      below.4      Noting     that   the
    "statutory maximum" prison sentence for his revocation was "2
    years", Ruiz-Valle repeatedly told the district court that it could
    give him the maximum term.         He did say that a new prison term of
    "two years after he's already served 22 months in other revocations
    . . . could be excessive" -- a claim he made after discussing his
    personal issues.       But he conceded that he could not "accumulate"
    against the statutory maximum the "time" he had already spent in
    prison on the prior revocations. And by telling the district court
    that it could sentence him to 24 months in prison on his current
    revocation, he waived any claim that the court could not do so --
    on either statutory or constitutional grounds.               See United States
    v. Chen, 
    998 F.3d 1
    , 6 (1st Cir. 2021) (explaining that a party
    waives an issue by "purposefully abandon[ing] it, either expressly
    4 The Federal Public Defender for the District of Puerto Rico
    has represented Ruiz-Valle before the district court and now before
    us.
    - 8 -
    or by taking a contrary position" in the district court); see 
    id.
    (adding that "[a]n issue may also be waived if counsel's own
    conduct invited the [district court's] ruling") see also United
    States v. Gates, 
    709 F.3d 58
    , 63 (1st Cir. 2013) (emphasizing that
    "a party cannot concede an issue in the district court and later,
    on appeal, attempt to repudiate that concession and resurrect the
    issue").
    Arguing against this conclusion, Ruiz-Valle reads his
    counsel's      later    statements        as     preserving       these       error
    claims-- statements      like    the       "lack     of     accumulation         of
    the . . . prior sentences imposing revocation, again, violated his
    right to have a final sentence that is limited to the statutory
    maximum    of . . . imprisonment     on    a    revocation"      and   that    "any
    sentence over a total accumulated of 24 months . . . should not be
    allowed."    We are unconvinced.
    Counsel did not develop this "lack of accumulation" and
    "total accumulated" statements into an objection that the court
    could not impose the 24-month prison term.                And counsel's words
    are not specific enough to preserve the error claims, particularly
    since   he   conceded   just    moments        earlier    that   he    could    not
    "accumulate" against the maximum term the "time" he had served in
    prison on his prior revocations.               What is more, one can read
    counsel's statements as saying the district court could not impose
    supervised release after sentencing Ruiz-Valle to that prison
    - 9 -
    term.   All of which cuts against Ruiz-Valle's preservation theory.
    That is because these statements were not "sufficiently specific
    to call to the district court's attention" that the prison term
    violated    § 3583(e)(3).   See United States v. Espinoza-Roque, 
    26 F.4th 32
    , 36 (1st Cir. 2022) (quotation marks omitted).           And
    "[i]ssues not squarely raised in the district court will not be
    entertained on appeal."     See United States v. Barnett, 
    989 F.2d 546
    , 554 (1st Cir. 1993) (emphasizing that "[j]udges are not
    expected to be mindreaders" so "a litigant has obligation to spell
    out his arguments squarely and distinctly or else forever hold his
    peace" (quotation marks omitted)).          Ruiz-Valle also offers no
    persuasive reason for relaxing the raise-or-waive rule (as it is
    known).
    The bottom line is that Ruiz-Valle did not preserve any
    argument -- statutory or constitutional -- regarding the district
    court's sentence of imprisonment vis-a-vis § 3583(e)(3).        Hence
    whatever views we may have on these precise issues must be left
    for another case on another day.
    B. SUPERVISED RELEASE ON REVOCATION
    Section 3583(h) relevantly provides (emphasis ours) that
    when the district court imposes a new term of supervised release
    "after imprisonment" upon revocation, that term "shall not exceed
    the term of supervised release authorized by statute for the
    offense that resulted in the original term of supervised release,
    - 10 -
    less any term of imprisonment that was imposed upon revocation."
    No one disputes that Ruiz-Valle's § 922(g)(1) violation is the
    crime underlying his original supervised-release term; that this
    violation is a Class C felony; and that the maximum authorized
    supervised-release term for that crime was 36 months.             Because the
    district court sentenced him to an "aggregate term of [46] months"
    in prison on all his revocations, and because 46 months "exceeds"
    36 months, Ruiz-Valle argues that the court "erred in imposing
    additional supervision."
    Citing United States v. Maxwell, 
    285 F.3d 336
     (4th Cir.
    2002), the government in its brief "concedes that once the district
    court sentenced Ruiz[-Valle] to 36 months of imprisonment on his
    revocations in this case, the court erred under § 3583(h) by
    imposing additional supervised release."            The government insists,
    however,   that      Ruiz-Valle    invited   the   error   he   now   tries   to
    challenge.    Cutting through the parties' thrust and parry, we note
    that Ruiz-Valle argued -- ultimately and concisely -- for "no
    further supervision"       and so reject the government's invited-error
    theory.
    "[W]e    ordinarily    review   sentences     imposed    following
    revocation of supervised release for abuse of discretion."               United
    States v. Rodríguez-Meléndez, 
    828 F.3d 35
    , 38 (1st Cir. 2016).
    However, in this instance, even under plain-error review (which is
    - 11 -
    not defendant-friendly), Ruiz-Valle prevails.5     See United States
    v. Tapia-Escalera, 
    356 F.3d 181
    , 183 (1st Cir. 2004).
    Every circuit to consider the question agrees that when
    imposing a term of supervised release following revocation of a
    previous term of supervised release, § 3583(h) requires that the
    term be reduced by all post-revocation terms of imprisonment
    imposed with respect to the same underlying offense.     See, e.g.,
    United States v. Rodríguez, 
    775 F.3d 533
    , 537 (2d Cir. 2014);
    United States v. Zoran, 
    682 F.3d 1060
    , 1063 (8th Cir. 2012); United
    States v. Hernández, 
    655 F.3d 1193
    , 1198 (10th Cir. 2011); United
    States v. Vera, 
    542 F.3d 457
    , 462 (5th Cir. 2008); Maxwell, 
    285 F.3d at 342
    .   The rationale is straightforward:
    When the word "any" is properly read in its
    § 3583(h) statutory context, Webster's Third
    New International Dictionary provides that the
    word "any" means "all."          Specifically,
    Webster's Third New International Dictionary
    provides that when the word "any" is "used as
    a function word to indicate the maximum or
    whole of a number or quantity," for example,
    "give me [any] letters you find" and "he needs
    5 Plain-error review requires the appellant to show "(1) that
    an error occurred (2) which was clear or obvious and which not
    only (3) affected the [appellant's] substantial rights, but also
    (4) seriously impaired the fairness, integrity, or public
    reputation of judicial proceedings." United States v. Rivera, 
    51 F.4th 47
    , 51 (1st Cir. 2022) (quotation marks omitted). The parties
    sparred fiercely over whether Ruiz-Valle waived any plain-error
    argument by not addressing plain-error in his opening brief. But
    the    government    now    concedes — based    on    case-specific
    circumstances — that if waiver occurred, we should excuse it
    because "justice so requires." United States v. Torres-Rosario,
    
    658 F.3d 110
    , 116 (1st Cir. 2011).      Accepting the government's
    concession, we go the "justice so requires" route.
    - 12 -
    [any] help he can get," the word "any" means
    "all."   Here, the word "any" in the phrase
    "less any term of imprisonment that was
    imposed   upon   revocation   of   supervised
    release," § 3583(h) (emphasis added), is
    obviously used as a function word to indicate
    the maximum or whole of a number or quantity
    just as the word "any" is used in the
    dictionary examples quoted above.
    Maxwell, 
    285 F.3d at 341
     (some citations omitted).          "Thus, a plain
    reading of the reference to 'any term of imprisonment' in the
    statute must include the prison term in the current revocation
    sentence together with all prison time served under any prior
    revocation sentences imposed with respect to the same underlying
    offense."     Rodríguez, 
    775 F.3d at 537
    . Speaking for the Tenth
    Circuit,     then-Judge    (now-Justice)     Gorsuch     explained     that
    § 3583(h)'s "language -- left unamended in 2003 and thus quite
    unlike § 3583(e)(3) -- does (expressly) require a district court
    to aggregate and credit all prior prison terms when determining
    the maximum amount of supervised release it can impose for any
    revocation."      See Hernández, 
    655 F.3d at 1198
     (second emphasis
    added).     "So as a defendant serves . . . more time in prison for
    each revocation, a district court can impose           . . . less time on
    supervised release."      
    Id.
    The   government's   main      response    is    that    absent
    controlling cases on his side (from the First Circuit or Supreme
    Court, which all agree he does not have), Ruiz-Valle must show
    that his reading of § 3583(h) "is compelled by the statute's
    - 13 -
    language itself."             See United States v. Caraballo-Rodriguez, 
    480 F.3d 62
    , 70 (1st Cir. 2007).                 The government thinks that he has
    not made this showing.              We do.    After all, Rodríguez and Maxwell
    both held on plain-error review that a "plain" reading of § 3583(h)
    requires aggregation.            Rodríguez, 
    775 F.3d at 536-37
    ; Maxwell, 
    285 F.3d at 342
    .          Maxwell actually called this an "obvious[]" reading.
    See 
    285 F.3d at 341
    .            We agree.     And we also find the government's
    position here passing strange, seeing how it conceded in Maxwell
    that this kind of error is "plain for purposes of establishing"
    the clear-or-obvious "prong" of plain-error review.                         Compare 
    285 F.3d at 342
        (noting      that   "[t]he    phrase    'less    any    term   of
    imprisonment          that    was   imposed       upon   revocation    of    supervised
    release'"        in    §     3583(h)'s     last    sentence   "is     not    reasonably
    susceptible to an interpretation which . . . ignore[s] any prior
    terms of imprisonment imposed as part of prior postrevocation
    sentences, for the same underlying offense"), with id. at 339
    (noting that "[a]lthough the government opposed Maxwell's argument
    in its appellate brief, at oral argument, the government candidly
    and forthrightly conceded all issues in the appeal in favor of
    Maxwell").6
    That the plain or obvious reading of the statute supports
    6
    plain     error    distinguishes     Ruiz-Valle's    case    from
    Caraballo-Rodríguez, an opinion the government relies on. See 
    480 F.3d at 71
     (observing that "[t]he dictionary definitions" of key
    statutory terms "do not prove [defendant's] claim").      It also
    - 14 -
    III.   CONCLUSION
    The district court's prison sentence upon revocation is
    AFFIRMED, and the imposition of the one-year supervised-release
    term to follow is REVERSED. Accordingly, we REMAND to the district
    court for the limited purpose of entering judgment without any
    additional term of supervised release in accordance with this
    opinion.
    distinguishes his case from United States v. Richards, another
    opinion the government cites to. See 
    243 F.3d 763
    , 771 (1st Cir.
    2000) (concluding that an "interpretation" pressed on appeal was
    not "obvious" under relevant statutory language).
    - 15 -