Of the Northern District of California, s i t ting by * designation. 

# UnitedStates C ou rt o f App eals

For th e First C ircuit

No. 07-1063 UNITED STATES OF AMERICA, Appellee,

v . BILLY ROY, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE [Hon. D. Brock Hornby, U.S. District Judge]

Before Boudin, Chief Judge, Lynch, Circuit Judge, and Schwarzer, Senior District Judge. *

Robert C. Andrews for appellant. Margaret D. McGaughey, Appellate Chief, with whom Paula D. Silsby, United States Attorney, was on brief for appellee.

October 23, 2007The condition is readily explained: Roy was also convicted in 1 1998 of unlawful sexual conduct. The victim was a 14-year-old girl who had been babysitting for Roy's nephews. -2- BOUDIN, Chief Judge. On April 9, 2001, aft e r p l eading
gu i l t y t o p o s s e s s i o n o f c h i l d p o r n o g r a p h y , 1 8 U . S . C. § 2252A(a)(5)(B) (2000), Billy Roy was sentenced to 24 months in prison and three years of supervised release. Among the conditions of Roy's supervised release were that he participate in a mental health program and avoid contact with children under age 18 without the approval of his supervisor. 1

Since his release from prison on the pornography conviction, Roy's supervised re l e a se has been revoked on three occasions for, among other things, having contact with the two young children of his girlfriend, Jennifer Woodward. On the first occasion, Roy was sentenced in 2004 to four months in prison and 32 months of supervised release; one of the conditions of supervised release required Roy to spend three months in community confinement after release from prison.

Roy's supervised release was revoked a second time in July 2005, for his failure to comply with the terms of his mental health treatment pr o g ram by continuing to have contact with his girlfriend and her children. This time he was sentenced to eight months in prison and an additional term of 24 months of supervised release. United States v. Roy, 438 F.3d 140, 142 (1st Cir.), cert. denied, 126 S. Ct. 2945 (2006). Shortly after his release, Roy was-3-

once again arrested for violating the terms of supervision by again having contact with Woodward's young children; he was sentenced to 12 months in prison.

Roy now appeals the third revocation sentence. His main argument is that he was protected by a 24-month aggregate limit on prison time for violations of supervised releas e ; t h at his three months of community confinement imposed as pa r t of the first revocation sentence should count toward that aggregate cap; and therefore that--counting the first as seven month s a n dsecond as eight--his sentence on the third revocation could be no more than nine months (24-(7+8)=9).

Roy did not raise this objection in the district court. The pr o b a t i on report on the third revocation assumed that the maximum sentence was 12 months, as did the sentencing judge and the parties. The government now says that the applicable ag g r egate maximum was 36 months; Roy says it was 24 but that c o mmunity confinement counts. We do not need to resolve either contention because Roy's claim of error does not meet the requirements for plain error review.

Under United States v. Olano, 507 U.S. 725, 732 (1993), the formal requirements for recognizing plain error are t h a t t he claimant satisfy each of four different tests by showing: "(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant's substantial rights, but also (4)-4-

seriously impaired the fairness, integrity, or public reputation of judicial proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

Combined, these requirements set a v ery high threshold and deliberately so. The j o b o f the lawyer is to tell the judge when a mistake is being made while it can readily be corrected; the cost of undoing a mistake raised for the first time on appeal can be very high. Even in criminal cases, mistakes by c o u nsel not meeting plain err o r s tandards are tolerated--unless counsel is deficient to the point of incompetence prejudicing the defendant. United States v. Torres-Rosario, 447 F.3d 61, 64 (1st Cir. 2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

That the error be "plain" is a central part of the Olano requirements but its rationale may be less evident than the other three requirements. Probably one reason for requiring "plainness" is the notion that a judge even without objection should respond to obvious errors; but a more prudential reason is that "close cases" involve issues that could be decided either way, while blatant errors, when left uncorrected, ar e m ore disturbing to public confidence in the trial process.

The la s t o ft h e s e r e a s o n s m a ye x p l a i n w h y , c o n t r a r yto one's first instinct, the Supreme Court has ruled that an error not "plain" or previously settled at the time the district court ruled can become "plain" where, prior to appellate review, interv e n i ngSection 3583(e)(3) says i n relevant part that "a defendant 2 whose term is revoked under this paragraph may not be required to serve . . . more than 3 years in prison if [the underlying] 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 o t her case." We do not reach the question, which is in dispute, of whether Roy's case is affected by the PROTECT Act of 2003's modification of this section. PROTECT ACT, Pub. L. No. 108-21, tit. I, § 101, 117 Stat. 650, 651 (2003). -5- law has resolved the issue clearly. Johnson v. United States, 520 U.S. 461, 468 (1997). But the requirement of "plain" error would be abolished if the issue is still debatable before the appeals court hears the case and becomes plain only because the court then resolves it. An error is normally plain after the court has ruled.

Here, it was not "plain" when the district court acted, and is not now "plain" on ap p e a l , w hether the time spent in community confinement as a part of supervised release following an earlier revocation should or should not count toward an aggregate limit on the maximum period of imprisonment for a series of revocations
. N either statutory text, substantial precedent or policy considerations clearly answer the question in Roy's favor. Arguably, there was no error; if error existed, it was not plain.

Under the sta t u t e, the district court is permitted for violation of conditions to "revoke a term of supervis e dr e lease, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute," 18 U.S.C. § 3583(e)(3), subject to a statutory cap, whi c h we read as applied 2 to the aggreg a t e of all time served for such violations. United-6-

States v. Tapia-Escal e r a, 356 F.3d 181, 187-88 (1st Cir. 2004). Whether time in community confinement counts as time "in prison" is not answered by text or further definition.

Neither do policy considerations settle the issue: prison might be conceived of as the most restrictive form of punishment; where community confinement or home detention f a l l o n a spectrum between incarceration and complete freedom of movement is a question with no precise answer; ne i t h er is the relative relationship between the former two. And, both community and home confinement can be more or l e ss restrictive depending on the facilities themselv e s or the type of monitoring required by the district court.

Roy cites to no authority supporting his contention that time spent in community confine m e nt must be credited toward the statutory maximum; indeed, precedent seems to weigh in favor of the government. See United States v. Horek, 137 F.3d 1226, 1229 (10th Cir.), cert. denied, 525 U.S. 88 (1998) (ho l d ing that community confinement need not be deducted from maximum term of imprisonment when sentencing a defendant whose probation has been revoked); cf. United States v. Adler, 52 F.3d 20, 21 (2d Cir. 1995) (recognizing that community c o nfinement does not qualify as imprisonment counting toward minimum term).

Our view would not change were we to accept Roy's argument that community confinement should be treated noUnited States v. Ferguson, 369 F.3d 847, 851 (5th Cir. 2004); 3 see also United States v. Kravchuk, 335 F.3d 1147, 1159 (10th Cir.), cert. denied, 540 U.S. 941 (2003) (finding that sentence of 27 months imprisonment plus three months of home detention required as part of supervised release constituted an upward departure where the guidelines permitted a maximum sentence of 27 months); United States v. Leaphart, 98 F.3d 41, 43 (2d Cir. 1996) (precluding imposition of the maximum term of incarceration under section 358 3 ( e ) ( 3 ) i na d d i t i o nt o a p e r i o do fh o m e d e t e n t i o n under subsection (e)(4)). -7- d i f f e r ently from home detention. Though some circuits have held that credit for home detention is required tow a r d the statutory
cap, other courts h ave come out the other way, see United States

3 v. Hager, 288 F.3d 136, 138 (4th Cir.), cert. denied, 537 U.S. 962 (2002), and we have yet to resolve the issue, cf. United States v. Martin, 363 F.3d 25, 37-39 (1st Cir. 2004) (holding that, for purposes of double jeopardy, defendant must receive credit--though not day-to-day credit--for time spent in community confinement or home detention). Anyway, the equation of home detent i o n and community confinement is itself an open question.

In short, we think the 12-month term was not plain error and turn to Roy's remaining argument, which was preserved. Roy argued in the district court, and again on appeal, that he should hav e b e e n sentenced to a halfway house because his medical condition (high cholesterol) could not be well treated in prison. The distric t c ourt's decision turns on factual and discretionary judgments where the standard of review is weighted against Roy.-8- Roy offers a colorable argument that community confinement may be imposed under section 3583 despite the statute's failure to so explicitly provide, but the question is not whether the court could have sentenced Roy to a halfway house but instead whether its failure to do so was an abuse of discretion. See United States v. Ramirez-Rivera, 2 4 1 F .3d 37, 40-41 (1st Cir. 2001). Indeed, Roy argues only that "direct placement in Pharos House may be imposed in this case" a n d s u p ports this claim by reference to 18 U.S.C. § 3563(b), which sets forth "[d]iscretionary conditions" of probation.

The district judge balanced the extremely serious nature of Roy's conduct against the medical concerns and the prospect that better treatment might be available in a halfway house environment. Weighing these factors, the court concluded that the proper balance was a 12-month sentence accompanied by a recommendati o n t h at Roy receive proper medical treatment in the prison setting. This was not an abuse of discretion.

Affirmed.