# U nitedStates C ou rt o f App eals For th e Firs t C ircuit

No. 08-1516 UNITED STATES OF AMERICA, Appellee,

v . EDUARDO PAGÁN-RODRÍGUEZ, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before Lynch, Chief Judge, Selya and Lipez, Circuit Judges.

David W. Román and Brown & Ubarri on brief for appellant. Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney (Appellate Chief), and Juli a M econiates, Assistant United States Attorney, on brief for appellee.

March 31, 2010-2- SELYA, Circuit Judge. This appeal raises an issue as to the district court's authority to postpone indefinitely the holding of a supervised release revocation hearing. We conclude that the court below unrea s o n a b ly delayed the holding of the hearing, but that its error was harmless. Accordingly, we affirm.

The facts are straightforward. On October 8, 1993, thedistrict court sentenced defendant-appellant Eduardo PagánRodríguez to a 120-month prison term following his conviction for a federal drug-trafficking offense. See 21 U. S . C. § 841(a)(1). The court simultaneously imposed a five-year term of supervised release. The appellant completed h is prison sentence and began serving his supervised release term in April of 2002.

On December 20, 2006 — during the currency of his supervised release — the probation department moved for issuance of an arrest warrant, ch a r g i n g that the appellant had broken the conditions of his supervised release. Specifically, the probation department alleged that the appellant (i) had been arrested by local authorities for narcotics offenses; (ii) had failed to report the arrest on his subsequent monthly supervision reports; (iii) had failed to notify his probation officer of the arrest within 72 hours; and (iv) had consorted with a convicted felon. The district court issued the requested warrant on January 30, 2007.

The appellant appeared in the district court on February 12, 2007, at which time a magistrate judge ordered him temporarily-3-

detained. Three days later, the magistrate judge held a preliminary revocation h e a ring. Although the appellant accepted the failure-to-report and failure-to-notify violations, he disputed the remaining (more serious) char g e s. The judge found probable cause and referred the matter for a final revocation hearing.

The final revocation hearing was scheduled for March 16, 2007. On that date, the district court, acting sua sponte, declined to proceed, instead continuing the hearing sine die while awaiting the resolution of the narcotics charges then pending against the appellant in the local court.

Nine months passed without any further ac t i v ity. On December 18, 2007, the appellant moved to dismiss t h e r e vocation
proce e d i ng, asserting that the protracted delay in holding the final revocation hearing violated his right to due process of law. Three months later, the probation department responde d b y moving for disposition of i ts pending revocation motion on the merits. This motion noted that the appellant had admitted guilt in the local court with respect to the recent narcotics charges and, on February 7, 2008, had been sen t e n c e d t o a total of eight years' imprisonment.

Spurred by these filings, the district court scheduled a final revocation hearing for March 14, 200 8
. A t t h at time, the court denied the appellant's motion to dismiss the revocation proceeding. The appellant acknowledged that he had been convictedThe right to a timely hearing is assured, more generally, by 1 the Due Process Clause. Some courts have analyzed failures to hold timely revocation hearings in terms of a constitutional benchmark. See, e.g., Santana, 526 F.3d at 1259. Whether viewed as a breach of the rule or of the Due Process Clause, the result in this case -4- on the local narcotics charges. Consequently, the district court revoked his s u p e rvised release and imposed a thirty-month incarcerative sentence, consecutive to the sentence previously imposed by the local court. This timely appeal followed.

The appellant advances only a single claim of error. He asseverates that indefinite postponement of his f i nal revocation hearing infringed his right to have the hearing held within a reasonable period of time. This claim presents a question of law and, as such, engenders de novo review. United States v. Santana, 526 F.3 d 1 2 57, 1260 (9th Cir. 2008); United States v. Ramos, 401 F.3d 111, 115 (2d Cir. 2005); s e e also United States v. Rondeau, 430 F.3d 44, 47 (1st Cir. 2005).

The prospect of revocation of conditional release places in jeopardy an offender's condi t i o n a l liberty. That jeopardy is exacerbated by the possibility of detention pending the holding of a revocatio n h e aring. The offender, therefore, has a right to a timely hearing on a motion for re v o c a t ion of supervised release. Once the district court has determined that there is probable cause to believe that a violation may have occurred, a final revocation hearing must be held "within a reasonable time." Fed. R. Crim. P. 32.1(b)(2). 1would be the same. -5- In this case, the district court c o n tinued the final revocation hearing sine die, pending resolution of the l o c al narcotics charges. As a result, the hearing was delayed for nearly a year. Consequently, the question before us reduces to whether, on these facts, a twelve-month period of delay was reasonable.

Reasonableness has a protean quality. What is reasonable in one set of circumstances may be unreasonable in another set of circumstances. Cf. United S t a tes v. Rodriguez-Morales, 929 F.2d 780, 785 (1st Cir. 1991) (describing "reasonableness" i n the community caretaker context a s "embody[ing] a concept, not a constant").

Here, the relevant circumstances can easily be catal o g u ed. At the time of the continuance, there was no date

cer t a i n for disposition of the charges pending against the appellant in the local court. There is nothing to in d i c a te that witnesses or evidence were unavailable to the district court. Plainly, the district court was c o mp e tent to act on its own, and the standards for finding an offender in violation of a supervised release condition are differen t from, and not dependent on, the standards f o r finding a criminal defendant guilty beyond a reasonable doubt. Compare, e.g., United States v. Oquendo-Rivera, 5 8 6 F . 3 d6 3 , 6 6 ( 1 s t C i r . 2 0 0 9 ) ( e x p l a i n i n gt h a t g o v e r nment's burden at revocation hearing was to prove, by a preponderance of-6-

the evidence, the conduct giving rise to the potential revocation hearing), with, e.g., United States v. Piper, 298 F.3d 47, 59 (1st Cir. 2002) (explaining that, for a criminal conviction, government has the burden of proving guilt beyond a reasonable doubt).

To be sure, when an offender's conduct is alleged to vio l a t e b o t h a c o n d i t i o n o f h i s s u p e r v i s e d r e l e a s e a n d a state cri m i n a l law, a state court adjudication of the latter may be relevant to a federal adjudication o f the putative supervised release violation. See, e.g., United States v. Poellnitz, 372 F.3d 562, 571 (3d Cir. 2004 ) ; United States v. Chaklader, 987 F.2d 75, 77 (1st Cir. 1993). But supe r v i s e d r elease is itself a valuable

comm o d i t y , a n d a d i s t r i c t c o u r t c a n n o t l e a v e a n o f f e n d e r i n limbo indefinit e l ywhile waiting for a state court to adjudicate a counterpart criminal charge. S e e U n i ted States v. Reeks, 441 F. Supp. 2d 123, 125 (D. Me. 2006). In the absence of consent or some compelling reason for delay, an offender is entitled to the timely holding of a final revoca t i o n h earing. See Fed. R. Crim. P. 32.1(b)(2).

In t h i s i nstance, the appellant did not consent to the delay. Nor did t he government seek to postpone the hearing. The circumstances were not out of the ordinary a n d , f or aught that appears, there was no compelling reason to wait indefinitely for the counterpart criminal cases to run their course. On these facts, theS i m i l a r l y , i f t h e v i o l a t i o n w e r e t o b e a n a l y z e di n due 2 process terms, relief from the judgment would not be m a n d a ted unless the violation caused prejudice; that is, unless it affected the offender's substantial rights. Santana, 526 F.3d at 1260. -7- delay was objectively unreasonable: the district court, as a matter of law, waited too long before holding the final revocation hearing.

This conclusion does not e n d o ur journey. Although unreasonable delay in holding a final revocation hearing constitutes a violation of Rule 32.1(b)(2), that violation does not re q u i re vacation of the judgment unless it affected the offender's subst antial rights. See Santana, 526 F.3d at 1260 (requiring a 2 showing of "both unreasonable delay and prejudice"); United States v. Throneburg, 87 F.3d 851, 853 (6th Cir. 1996) (similar).

There is no sembl ance of prejudice here. The appellant
notes that he remained in custody during the period of approximately one year that elapsed between the sua sponte contin u a n c e and the holding o f t h e hearing. In many cases, the loss of a year would constitute significant prejudice. See, e.g., United States v. Rasmussen, 881 F.2d 395, 398-99 (7th Cir. 1989) (noting that a delay of thi r t e en months gives "pause" to the court and requires a more stringent review of the other f a c t ors in the analysis for preju d i c e). Here, however, the appellant pleaded guilty to the Puerto Rico narcotics charges, a n d h e does not suggest that the delay in holding the revocation hearing influenced that plea. Then, when the hearing was belatedly held, the district court sentencedA few courts have held that a district court does not have 3 authority to run a sentence for a supervised release violation consecutive to a state sentence not yet imposed. See, e.g., United States v. Clayton, 927 F.2d 491, 493 (9th Cir. 1991). Under this view, the appellant might be able to argue that delaying the hearing until after the Puerto Rico court had sentenced him was prejudicial. We need not speculate. Passing the point that Clayton exemplifies a minorit y r u l e, see, e.g., United States v. Sumlin, 317 F.3d 780, 782 (8th Cir. 2003); United States v. Hernández, 234 F.3d 252, 256 (5th Cir. 2000); United States v. Williams, 46 F.3d 57, 58-59 (10th Cir. 1995); United States v. Ballard, 6 F.3d 1502, 1510 (11th Cir. 1993), the appellant has not made such an argument. It is, therefore, waived. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). -8- the appellant to thirty months in prison. The a p pellant does not claim either that this sentence w a s i nappropriate or that, if sentenced earlier, t h i s punishment would have been more lenient. 3 Finally, the court gave the appellant credit for all the time that he had spent in custody while awaiting the holding of the f i nal revocation hearing. The end result is that the appellant will serve only the time that he would in any event have served. He did not, therefore, suffer any cognizable prejudice. See Santana, 526 F.3d at 1261 (noting t hat offender did not suffer prejudice through unreasonable delay when prerevocati on incarceration was fully credited against th e s entence eventually imposed). Nor did the appellant suffer cognizable prejudice even though the delay resulted in his inability to ask the local court to sentence him concurrently with the federal term of imprisonment. See Throneburg, 87 F.3d at 853 (noting that defendant did not suffer prejudice t h o u g h delay result ed in defendant's inability to request state court to allow-9-

concurrent sentences)
. That speculative opportunity to request leniency in the local c o u r t d oes not render his federal sentence improper. We need go no f u r ther. Although we find error in the district court's decision to put off the final revocation hearing sine die, that error was harmless because it caused no prejudice to the appellant. The judgment appealed from may, therefore, stand.

Affirmed