* Of the Federal Circuit, sitting by designation.



# United Stat es Court of Appeals

For the First C ircuit

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 H e rnández-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, 2004-2- BOUDIN, Chief Judge . In 1995, José Tapia-Escalera pled guiltyto possessing a kil ogr am 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 superv isedrelease by failing to report to the probation officer andfailing 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 sh ould know that Mr .

Tapia is not going to contest the allegations, the violation of failing to report to th e probation officers as directed and failing to notifya change of address w ithin 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 no t then contest that either. Defense counsel then proposed a period of five to eleven months of home detention with electronic monitoring. After finding-3-

that the violations had occurred, the district judge rejectedthis suggestion, saying that this was the second time Tapia had violated release condition s. The judge imposed a new term of 30 months' imprisonment (but no further term of supervised release following this imprisonment). This sentence exceededthe 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 contes t the char ges. Tapia then claims that the 30- month term of imprisonment violated a statutory cap governing maximumpenalties 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 for1 At 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 to ok ef fect but the changes do not affect our decision. -4- the statutory cap issue, we think there is an error which might or might not be treated as plain under United St ates v. Ol ano , 507 U.S. 725, 732-36 (1993) ; but since the plain error issue is itself complicatedand 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 fi nding 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, andTapia's counse l r eserved 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 Defend ant 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.2 Among other deta i led 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). -5- 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 cont est the f ailure to report and notifyallegations and that Tapia had also "accepted" the truth of the charge that he had bee n usi ng heroin. Counsel then launched immediately into his proposal for home detention.

Thereafter, in the a rgum ents about the proper penalty, Tapia's violations were take n for granted and the district judge didno more than make a formal finding to that effect when he announcedthe penalty . At no point did the judge ask Tapia personallywhether he committedthe violations or whether he waived his right to have evidence presented on this subject; and the government neither presented nor describedany independent evidence of the violations. All this, says Tapia, rendered the finding of violations improper.

This would certainly be so if the proceeding we re one under Rule 11 for the taking of a plea of guilty, 2 but the-6-

revocation proceeding is of a more informal character. The principal requirements laid down by Rule 32.1 for the mer its hearing are notice of the alleged violation, right to counsel, an opportunityto 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 preliminaryhearing, 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 m ust 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 concernedbecause 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 w ould have simplified matters if the district court had addressed Tapia, asked him whether he understood and admitted to the charges, and obtained his persona l acqu iescence. But, taking account of "the attendant circumstances," we are satisfied for the reasons discussed below that Tapi a did understand the-7-

charges, knew he could contest them, and chose not to do so. In addition, it ap pears 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 hadfailed to report as required, or to call to excuse his absence,

on two specific dates: Jun e 25 andAugust 7, 2002. It also said that during a home visit on Aug ust 15, 20 02, family members had admittedthat Tapia had not returnedhome 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 anyof this was unclear or inaccurate. Further, Tapia was not a novice. In addition to his prior criminal history, he had been thro ugh a guil ty plea proceeding in this very case and had even been through a revocation pro cee ding for his first violation of release conditions.

Even now, nothing affirmatively suggests that Tapia misunderstoodhis options or that he had any defense to the charges aga inst hi m. He did not move in the district court after sentencing to challenge the finding of violations, just the length-8-

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 ground s: f irst, 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 previouslyserved 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 appearedto 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.3d1, 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's3 The 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). -9- crime and later viol ati ons, 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 priso n al l or part of the term o f supervised release authorizedby statute for the offense that resultedin 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 requ i red to serve more than 5 years in prison if the offense tha t 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 carrieda forty-year maximumit is a class B felony, see 18 U.S.C. § 3559(a)(2) (2000), andso 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 off ense; 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. 3-10- Bycontrast 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 con fus ing where a se condviolation of conditions occurs, this language necessarily refers bac k to the original offense of conviction, which is the pla ce 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 m inimumfor 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 imposedfor violating supervisedrelease 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 abov e, 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 of4 "W hen 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 placedon a term of supervised release after imprisonment. The length of such a term of supervised release shall not e xceed the termof supervised release au thoriz ed by statute for the offense that resulted in the original term of supervised release, less any termof imprisonment that was imposed upon revocation of supervised release." 18 U.S.C. § 3583(h) (2000). -11- supervisedrelease. 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 incorp orat es a "subtr acti on" principle: the "less any term" language means that whatever new term of supervised release couldotherwise 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 some wha t 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 fo r th e same5 The exception may be cases where the supervised release

authorizedby 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). -12- 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 contraryto subsection (e)(3)'s language, as it might be if that sub sec tion affi rmativelysaid that the three-year cap should be applied without subtraction of any term of imprisonment served for a prior violatio n 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 alreadyserved on post-release imprisonment. 18 U.S.C. § 3583(e)(3) (2000).

Even so it is surprising that th e be st legislative history available as to subsection (e)(3) squarely supports Tapia's reading of the statute. The 1991 Senate Report di scussi ng6 The 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. -13- virtuallythe 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 exam ple, i n the case of a Class C felony for which the maximum supervised release term is three years, a defendant who is revoked and re-imprisonedfor 18 months could be ordered to serve as much as 18 additional months on supervisedrelease (36-month maximum term of supervised release - 18 months imprisonment = 18 months possible re-release supervision). If the same defendant w a s again revoked, he couldbe re-imprisoned for not exceeding six months (24-month cap - 18 months previously-servedimprisonment = 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 creditedfor 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 exp lan ation 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 tec hnical provision that was7 UnitedS tate s 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) (go vern ment 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), overruledon other grounds by United States v. Withers , 128 F.3d 1167, 1172 (7th Cir. 1997). -14- 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 promp ted by the legislative history, the government conceded in several prior circuit cases that the imprisonme nt 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 s o. As already noted, the statute's language does not strictly forbid the interpol ated limitation sought by Tapia; this result is endorsed by unusually explicit legislative history;-15-

it has been several times conceded by the government; and five circuits have now followed the government's original concessions. To the extent tha t 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 threa ten mu ch 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 legi slativ e history, it could easily amend subsection (e)(3).

It turns out, although neither side mentioned the point, that Congress has al tered 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. 65 0, 6 51 (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.-16- The 2003 am endment does not apply in this case, Tapia having commi tte d the original offense (as well as the new violati ons ) 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 retroactivelyand, of course, the government h as 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 affirmedbut the term of imprisonment must be reduced from 30 to 26 months and the matter is remandedfor this purpose.

It is so ordered .