*Of the Federal Circuit, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 03-1028

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ D. TAPIA-ESCALERA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

 Boudin, Chief Judge,

Lourie* and Lynch, Circuit Judges.

Gabriel Hernández-Rivera, by appointment of the court, for

appellant.

Germán A. Rieckehoff, Assistant United States Attorney, with

whom H.S. García, United States Attorney, and Sonia I. TorresPabón, Assistant United States Attorney, Chief, Criminal Division,

were on brief for appellee.

January 28, 2004
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BOUDIN, Chief Judge. In 1995, José Tapia-Escalera pled

guilty to possessing a kilogram of cocaine with intent to

distribute. 21 U.S.C. § 841 (2000). He was sentenced to five

years of imprisonment followed by five years of supervised release.

Tapia was released after his term of imprisonment but in January

2000, he violated the terms of his supervised release and, after a

revocation hearing, was sentenced to ten months in prison for the

violation and four years of supervised release following this new

term.

In October 2002, the Probation Office notified the court

by motion that Tapia had again violated the conditions of his

supervised release by failing to report to the probation officer

and failing to notify the office of his change of address. In

December 2002, the district court conducted a revocation hearing.

As soon as the district judge stated the charges, Tapia's counsel

said:

 First, the Court should know that Mr.

Tapia is not going to contest the allegations,

the violation of failing to report to the

probation officers as directed and failing to

notify a change of address within 72 hours.

That is accepted.

I've also asked him if it's, in fact,

true that he admitted to the probation office

that he was using heroin, which he has

accepted, and we will not then contest that

either.

Defense counsel then proposed a period of five to eleven

months of home detention with electronic monitoring. After finding
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that the violations had occurred, the district judge rejected this

suggestion, saying that this was the second time Tapia had violated

release conditions. The judge imposed a new term of 30 months'

imprisonment (but no further term of supervised release following

this imprisonment). This sentence exceeded the period--apparently

five to eleven months--recommended by the Sentencing Commission's

table, U.S.S.G. § 7B1.4 (2002); but this table is an "advisory"

policy statement rather than a formal guideline. U.S.S.G. ch. 7,

pt. A introductory cmt. 3(a) (2002); United States v.

Ramirez-Rivera, 241 F.3d 37, 40 (1st Cir. 2001).

On this appeal, Tapia does not challenge the district

judge's deviation from the guidelines' suggested range. Instead,

Tapia first argues that the finding of liability cannot stand

because there was no admission by Tapia personally, no independent

evidence of his violations, and no proper waiver of his right to a

hearing to contest the charges. Tapia then claims that the 30-

month term of imprisonment violated a statutory cap governing

maximum penalties for violating conditions of release, 18 U.S.C. §

3583(e)(3) (2000).

None of these claims were raised in the district court.

Accordingly, one might expect the government to argue that the

plain error standard had to be met on appeal, but it has not done

so. Anyway, the attacks on liability fail whether reviewed under

the plain error standard or ordinary standards of review. As for
1At the time of the arrest and preliminary hearing, the rules

governing such proceedings were set forth in an earlier version of

Fed. R. Crim. P. 32.1; one day before the December 2, 2002, hearing

on the merits, a recodified version of the rules took effect but

the changes do not affect our decision.

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the statutory cap issue, we think there is an error which might or

might not be treated as plain under United States v. Olano, 507

U.S. 725, 732-36 (1993); but since the plain error issue is itself

complicated and the government has not argued for applying the

Olano test, we consider the statutory cap issue on the merits.

We start with the challenge to the district court's

finding that Tapia violated conditions of his release. After

Tapia's arrest, he was brought before a magistrate judge on

November 20, 2002, for a preliminary hearing to establish probable

cause.1 The government relied on the Probation Office's report,

and Tapia's counsel reserved his defense. The magistrate judge

then advised Tapia and his counsel that Tapia would be held for the

revocation hearing, adding:

[Tapia] is entitled to bring his own

witnesses and to challenge any evidence the

Government presents as well as to cross

examine any Government witness or bring his

own evidence to show that the violation[s]

were not committed.

My instruction to the Probation Office

is that the Defendant is to be provided with

the discovery available to sustain the

allegation or the representations made in the

motion for revocation of condition of release.
2Among other detailed prescriptions for guilty pleas, the

"court must address the defendant personally in open court" to

ensure that the plea is voluntary, Fed. R. Crim. P. 11(b)(2); must

advise the defendant of a whole litany of rights, Fed. R. Crim. P.

11(b)(1)(A)-(N); and in addition "the court must determine that

there is a factual basis for the plea," Fed. R. Crim. P. 11(b)(3).

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At the revocation hearing held on December 2, 2002,

Tapia's counsel intervened as soon as the judge explained that

Tapia had been ordered arrested because of his violation of

conditions of release and had allegedly admitted that he was using

heroin. Counsel then made the statement quoted earlier explaining

that Tapia was not going to contest the failure to report and

notify allegations and that Tapia had also "accepted" the truth of

the charge that he had been using heroin. Counsel then launched

immediately into his proposal for home detention.

Thereafter, in the arguments about the proper penalty,

Tapia's violations were taken for granted and the district judge

did no more than make a formal finding to that effect when he

announced the penalty. At no point did the judge ask Tapia

personally whether he committed the violations or whether he waived

his right to have evidence presented on this subject; and the

government neither presented nor described any independent evidence

of the violations. All this, says Tapia, rendered the finding of

violations improper.

This would certainly be so if the proceeding were one

under Rule 11 for the taking of a plea of guilty,2 but the
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revocation proceeding is of a more informal character. The

principal requirements laid down by Rule 32.1 for the merits

hearing are notice of the alleged violation, right to counsel, an

opportunity to appear and present evidence and a (qualified) right

on request to question adverse witnesses. Fed. R. Crim. P.

32.1(b)(2)(A)-(D). Tapia was advised of these rights at his

preliminary hearing, he had counsel, and he makes no claim that the

charges were unknown to him.

Nevertheless, this court has insisted that before the

defendant forgoes the opportunity in a revocation case to contest

the charges, the defendant must understand his procedural rights

and choose not to exercise them. United States v. Correa-Torres,

326 F.3d 18, 22-23 (1st Cir. 2003). Correa-Torres stressed that

there is no talismanic formula; the judgment depends both on what

the defendant was told and upon "the totality of the attendant

circumstances." Id. at 23. The court there was especially

concerned because the defendant himself expressed some disagreement

with the truth of the charges, yet no evidence was taken or formal

waiver secured. Id. at 24.

It would have simplified matters if the district court

had addressed Tapia, asked him whether he understood and admitted

to the charges, and obtained his personal acquiescence. But,

taking account of "the attendant circumstances," we are satisfied

for the reasons discussed below that Tapia did understand the
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charges, knew he could contest them, and chose not to do so. In

addition, it appears that there was ample evidence of the

violations, which needed only be shown by a preponderance of the

evidence, 18 U.S.C. § 3583(e)(3) (2000).

The motion by the Probation Office that started the

proceeding was precise as to dates and details. It said that Tapia

had failed to report as required, or to call to excuse his absence,

on two specific dates: June 25 and August 7, 2002. It also said

that during a home visit on August 15, 2002, family members had

admitted that Tapia had not returned home since August 7, 2002, and

that he "has been using controlled substances." 

Thus, the detailed charges were known, Tapia was told of

his procedural rights at the preliminary hearing, defense counsel

made clear in Tapia's presence that Tapia did not contest the

charges and had admitted drug use, and Tapia made no protest that

any of this was unclear or inaccurate. Further, Tapia was not a

novice. In addition to his prior criminal history, he had been

through a guilty plea proceeding in this very case and had even

been through a revocation proceeding for his first violation of

release conditions.

Even now, nothing affirmatively suggests that Tapia

misunderstood his options or that he had any defense to the charges

against him. He did not move in the district court after

sentencing to challenge the finding of violations, just the length
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of the sentence. Nor has he identified on appeal anything that he

misunderstood or might reasonably have misunderstood. And he has

never suggested that he had a defense to any of the charges. Under

these circumstances we decline to disturb the finding of liability.

Turning now to the sentence, Tapia contests the term of

imprisonment--30 months--on two related grounds: first, that the

proper statutory cap on his sentence was 24 months and, second,

that the statute imposing the cap requires that the 10 months Tapia

previously served for the violations in 2000 be subtracted from the

maximum (which, depending on how we resolve the first issue, is

either 24 or 36 months). The first claim is wrong--Tapia's counsel

appeared to retreat from it at oral argument--but the second we

accept by a very close margin. 

Starting as always with the statutory language,

Spookyworld, Inc. v. Town of Berlin (In re Spookyworld, Inc.), 346

F.3d 1, 7 (1st Cir. 2003), the main provision at issue is 18 U.S.C.

§ 3583(e)(3) (2000), which authorizes re-imprisonment for

violations of supervised release conditions and fixes caps on the

possible new terms of imprisonment. It was originally enacted in

1987 but was modestly modified and reenacted in full as part of a

set of amendments in 1994. Violent Crime Control and Law

Enforcement Act of 1994, Pub. L. No. 103-322, Sec. 110505, §

3583(e)(3), 108 Stat. 1796, 2016-17 (1994). At the time of Tapia's
3The Commission's scheme grades supervised release violations

from A through C based on criteria set forth in U.S.S.G. § 7B1.1.

This scheme has no direct connection to the felony classification

scheme invoked by subsection (e)(3), which is based on criteria set

forth in 18 U.S.C. § 3559(a). 

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crime and later violations, this section said in pertinent part

that if a defendant violates conditions of release, the 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

authorized by statute for the offense that

resulted in such term of supervised release

without credit for time previously served on

postrelease supervision . . . except that a

defendant whose terms is revoked under this

paragraph may not be required to serve 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 . . . .

18 U.S.C. § 3583(e)(3) (2000).

Since Tapia's original drug offense carried a forty-year

maximum it is a class B felony, see 18 U.S.C. § 3559(a)(2) (2000),

and so the three-year cap for revocation applies to Tapia. Tapia's

counsel argued in his brief that the cap should be the two-year cap

for a class C felony because the district judge found that Tapia's

violation was only a grade C offense; but the district judge was

there referring to the Commission's classification scheme used to

fix a recommended sentence range for the violation of conditions,

U.S.S.G. § 7B1.4 (2002); this is a different scheme used for a

different purpose.3
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By contrast the cap for maximum reimprisonment is a

binding cap fixed by the statute and is keyed not to the violation

of conditions but to "the term of supervised release authorized by

statute for the offense that resulted in such term of supervised

release." 18 U.S.C. § 3583(e)(3). Although slightly confusing

where a second violation of conditions occurs, this language

necessarily refers back to the original offense of conviction,

which is the place where there is a "term of supervised release

authorized by statute" for a particular offense, e.g., 21 U.S.C.

§ 841 (2000) (fixing a four-year minimum for Tapia's original

offense).

The question how to apply the cap is much more difficult.

The government says that the three-year cap applies afresh to the

30-month sentence imposed on Tapia in 2002, so that sentence was

within the 36-month maximum. Tapia argues that the cap applies to

the aggregate of all time imposed for violating supervised release

conditions growing out of the original criminal conviction; if so,

then Tapia--having served 10 months for supervised release

violations in 2000--could now be sentenced to only 26 months (36

months minus 10 months) for the latest violations.

If one looks only to the bare language of subsection

(e)(3) quoted above, the most straightforward reading favors the

government's position. The three-year cap is described as applying

wherever the defendant is found to have violated conditions of
4"When a term of supervised release 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. The

length of such a term of supervised release shall not exceed the

term of supervised release authorized by statute for the offense

that resulted in the original term of supervised release, less any

term of imprisonment that was imposed upon revocation of supervised

release." 18 U.S.C. § 3583(h) (2000). 

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supervised release. 18 U.S.C. § 3583(e)(3). Nothing in the

statute's language says explicitly that in calculating the cap for

the second term, the first term is to be subtracted from the threeyear maximum.

The language of the second sentence of subsection (h)

bolsters the government's reading of subsection (e)(3). Subsection

(h) imposes a cap of its own on the supervised release term that

can be imposed after a defendant is incarcerated for violating

release conditions.4 And this cap explicitly incorporates a

"subtraction" principle: the "less any term" language means that

whatever new term of supervised release could otherwise be imposed

must be reduced by the term or terms of imprisonment previously

served for violating supervised release. Still, the inference in

the government's favor is somewhat tempered because (h) was not

drafted until well after the original (e)(3).

Nor does the government's reading create a cruel or

senseless result. True, a defendant might serve successive

substantial terms for supervised release violations for the same
5The exception may be cases where the supervised release

authorized by statute is life--as, apparently, is the case for the

statute under which Tapia was convicted. 21 U.S.C. § 841 (2000);

see United States v. Cortes-Claudio, 312 F.3d 17, 22-23 (1st Cir.

2002). 

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original crime; but each one would be for a new supervised release

violation. Further, if prior terms had to be aggregated, then when

the maximum cap figure had been served the defendant could violate

minor conditions with impunity. By contrast, subsection (h)'s own

aggregation requirement usually prevents indefinite re-imprisonment

because eventually no new term of supervised release can be

imposed.5

So far the case for the government looks strong. But

note that reading the statute Tapia's way is not flatly contrary to

subsection (e)(3)'s language, as it might be if that subsection

affirmatively said that the three-year cap should be applied

without subtraction of any term of imprisonment served for a prior

violation of release conditions. Indeed, subsection (e)(3) does

provide that the amount of imprisonment is to be calculated

"without credit for time previously served on post-release

supervision" but it makes no mention of denying credit for time

already served on post-release imprisonment. 18 U.S.C. §

3583(e)(3) (2000).

Even so it is surprising that the best legislative

history available as to subsection (e)(3) squarely supports Tapia's

reading of the statute. The 1991 Senate Report discussing
6The amendments were not actually passed until three years

later as part of the omnibus Violent Crime Control and Law

Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796

(1994), but the differences are only minor. 

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virtually the same language adopted in 1994 makes clear that the

cap is to apply to the aggregate term of all imprisonments for

release condition violations.6 The report contains a precise

example to this effect:

For example, in the case of a Class C felony

for which the maximum supervised release term

is three years, a defendant who is revoked and

re-imprisoned for 18 months could be ordered

to serve as much as 18 additional months on

supervised release (36-month maximum term of

supervised release - 18 months imprisonment =

18 months possible re-release supervision).

If the same defendant was again revoked, he

could be re-imprisoned for not exceeding six

months (24-month cap - 18 months

previously-served imprisonment = 6 months

allowable imprisonment) and if so imprisoned,

could not thereafter be placed on supervision

(because the two-year imprisonment cap would

have been reached). Thus, under [the

amendments], a defendant would always be

credited for incarceration time against both

the cap on re-imprisonment and the maximum

authorized period of supervised release.

137 Cong. Rec. S7772 (daily ed. June 13, 1991) (emphasis added).

Just as the "plain meaning" of statutes is a matter of

degree, so legislative history is not all of a piece. Here, the

Senate Report is no chance remark in a hearing or on the floor but

is a full-scale explanation of the bill in detail, and it is

clarity itself on the point at issue. Arguably, the author of the

report misread subsection (e)(3), a technical provision that was
7United States v. Jackson, 329 F.3d 406, 407-08 & n.7 (5th

Cir. 2003) (accepting government concession but expressing doubt as

to its soundness); United States v. Swenson, 289 F.3d 676, 677

(10th Cir. 2002) (government conceded point); United States v.

Merced, 263 F.3d 34, 37-38 (2d Cir. 2001) (government conceded

point); United States v. Brings Plenty, 188 F.3d 1051, 1054 (8th

Cir.1999) (in dictum accepting government concession); United

States v. Beals, 87 F.3d 854, 857-58 (7th Cir. 1996) (in dictum),

overruled on other grounds by United States v. Withers, 128 F.3d

1167, 1172 (7th Cir. 1997).

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not the main focus of legislative attention in 1994; but

nevertheless this was the gloss Congress had before it when it

reenacted the subsection.

In all events, perhaps prompted by the legislative

history, the government conceded in several prior circuit cases

that the imprisonment cap should be reduced by revocation terms

already served. Five circuits have now adopted Tapia's reading of

the statute, although all were in dicta, after government

concessions, or both.7 Among them, only the Fifth Circuit followed

this course "dubitante," pointing out (as we have done above) that

the statutory language taken alone favors the government. United

States v. Jackson, 329 F.3d 406, 408 n.7 (5th Cir. 2003). 

In our own case, the U.S. Attorney's office, reading the

statute afresh, urges us to follow the language and disregard the

legislative history. Although this is a very close call, we

decline to do so. As already noted, the statute's language does

not strictly forbid the interpolated limitation sought by Tapia;

this result is endorsed by unusually explicit legislative history;
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it has been several times conceded by the government; and five

circuits have now followed the government's original concessions.

To the extent that we are left with any uncertainty after these

considerations, the rule of lenity applies to tip the balance in

the defendant's favor. See, e.g., United States v. Luna-Diaz, 222

F.3d 1, 3 n.2 (1st Cir. 2000).

The outcome does not threaten much harm. A three-year

cap even in the aggregate would normally suffice to punish even a

succession of petty supervised release violations like failing to

report. Where the violation is more serious (such as drugs), it is

independently a crime and can be independently prosecuted in a

criminal case. And, if a new Congress disliked the result spelled

out in the 1991 legislative history, it could easily amend

subsection (e)(3).

It turns out, although neither side mentioned the point,

that Congress has altered the statute to adopt the government's

position for the future. The 2003 PROTECT Act adds to subsection

(e)(3) the phrase "on any such revocation" so that the statute now

reads "a defendant whose term is revoked under this paragraph may

not be required to serve on any such revocation more than 5 years

if . . . ." PROTECT Act, Pub. L. No. 108-21, tit. I, § 101(1), 117

Stat. 650, 651 (2003). The intent of the 2003 Congress cannot

alter the law as enacted in 1994, but reading the 1994 statute in

Tapia's favor has only limited consequences.
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The 2003 amendment does not apply in this case, Tapia

having committed the original offense (as well as the new

violations) before the latest amendment. Cf. Johnson v. United

States, 529 U.S. 694, 701-02 (2000). Nothing in the new statute as

it concerns § 3583(e)(3) suggests an effort to apply this amendment

retroactively and, of course, the government has not relied upon

the new amendment at all. Under the circumstances, the 1994

language as we have construed it governs the remand.

The judgment adjudicating violation of conditions of

release is affirmed but the term of imprisonment must be reduced

from 30 to 26 months and the matter is remanded for this purpose.

It is so ordered.