United States v. Alcantara-Mendez

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-2675
UNITED STATES,
Appellee,
v.
ENOC ALCÁNTARA-MÉNDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, Senior U.S. District Judge]
Before
Lipez, Selya and Howard,
Circuit Judges.
Raymond Rivera Esteves on brief for appellant.
Nelson Pérez-Sosa, Assistant U.S. Attorney, and Rosa Emilia
Rodríguez-Vélez, United States Attorney, on brief for appellee.
September 24, 2008
Per Curiam. Enoc Alcántara-Méndez ("Alcántara") appeals
from a district court judgment revoking his term of supervised
release and imposing a prison term and new supervised release
term.1 Appointed appellate counsel has filed a merits brief, and
we have permitted Alcántara to file a supplemental pro se brief.
We affirm because Alcántara has not shown any abuse of discretion
by the district court. See United States v. McInnis, 429 F.3d 1,
4 (1st Cir. 2005) (discussing the appellate review standard).
On appeal, Alcántara first raises a narrow challenge to
the district court's revocation decision. He appears to argue that
the district court erroneously determined that by not registering
as a sex offender after his release from prison, Alcántara had
violated a statutorily mandated supervised release condition that
the court should have, but did not, impose in its criminal
judgment. In our view, his argument essentially misconstrues the
record. The district court actually found that Alcántara had
1
By the time the appeal was briefed, Alcántara had completed
the nine-month prison term that the court had imposed, but his
appeal is not moot. After his revocation prison term expired, he
was immediately arrested and detained for a new offense, and so he
still faces the 12-month supervised release term imposed by the
court. See United States v. Johnson, 529 U.S. 53, 57-58 (2000)
(concluding that a supervised release term begins on the day on
which an inmate is "in fact freed from confinement" to the
supervision of a probation officer which may not coincide with the
expiration date of the prison term) (analyzing the first two
sentences of 18 U.S.C. § 3624(e)); United States v. DeLeon, 444
F.3d 41, 55 (1st Cir. 2006) ("It is well settled that a convict's
claim is not moot if he has finished his prison term but still
faces supervised release[.]").
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violated his supervised release conditions "by engaging in new
criminal conduct, to wit: Failing to register as a sex offender as
mandated by both Federal and local Government statute." Alcántara
quotes this exact ruling in his counseled brief, but does not claim
that this ruling was erroneous. Although the district court did
not specify the exact supervised release condition that had been
violated, there could have been no doubt which condition the court
meant. The criminal judgment expressly stated that one supervised
release condition was that Alcántara not commit "another federal,
state or local crime."
In his pro se brief, Alcántara also presses Fifth
Amendment objections to the district court's revocation decision.
As argued on appeal, however, his claims lack merit. The probation
officer was not obliged to warn Alcántara in advance that his
statements at the revocation hearing could be used against him.
See Fed. R. Crim. P. 32.1(b)(2)(A) (requiring only that written
notice of "the alleged violation" be given). Nor has Alcántara
explained why his seemingly voluntary statements at the hearing
were involuntary or compelled, so as to implicate the Fifth
Amendment. See United States v. Jones, 299 F.3d 103, 110-11 (2d
Cir. 2002) (concluding that a person charged with a supervised
release violation who voluntarily chooses to testify at a
revocation hearing cannot later claim that his testimony was
compelled); see also United States v. Meléndez, 228 F.3d 19, 22
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(1st Cir. 2000) (rejecting a claim that Miranda warnings are
generally required before a person is subjected to "in-court
questioning"). In addition, Alcántara seeks to exclude his
statements only on the ground that they implicated him in conduct
for which his supervised release term could be revoked. He has not
argued for exclusion on the ground that his statements implicated
him in new criminal conduct for which he might later be prosecuted.
See United States v. Roy, 438 F.3d 140, 144 (1st Cir. 2006)
(rejecting a Fifth Amendment claim under similar circumstances).
Finally, Alcántara suggests that, in its revocation
sentence, the district court could not impose a supervised release
condition on him that requires him to register as a sex offender.
Alcántara waived this claim at the revocation hearing by expressly
telling the court--twice--that he would obey its direct order
instructing him to register as a sex offender and by failing to
object when the court later imposed the condition on him. The
supervised release condition he now objects to is essentially a
direct order that will become effective when Alcántara's supervised
release term begins.
Affirmed.
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