Of the Northern District of California, sitting by *

designation.

United States Court of Appeals

For the First Circuit

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, 2007
The 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.

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BOUDIN, Chief Judge. On April 9, 2001, after pleading

guilty to possession of child pornography, 18 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conviction, Roy's supervised release has been revoked on three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Roy's supervised release was revoked a second time in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 program 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
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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 release; that his three

months of community confinement imposed as part of the first

revocation sentence should count toward that aggregate cap; and

therefore that--counting the first as seven months and second 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 probation 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 aggregate

maximum was 36 months; Roy says it was 24 but that community

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 that the

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)
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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 very high threshold

and deliberately so. The job of 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 counsel not

meeting plain error standards 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, are more disturbing to public

confidence in the trial process.

The last of these reasons may explain why, contrary to

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, intervening
Section 3583(e)(3) says in 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 other 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).

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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 appeal, whether 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. Neither 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 statute, the district court is permitted for

violation of conditions to "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," 18 U.S.C. §

3583(e)(3), subject to a statutory cap, which we read as applied 2

to the aggregate of all time served for such violations. United
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States v. Tapia-Escalera, 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 fall on a spectrum

between incarceration and complete freedom of movement is a

question with no precise answer; neither is the relative

relationship between the former two. And, both community and home

confinement can be more or less restrictive depending on the

facilities themselves or the type of monitoring required by the

district court.

Roy cites to no authority supporting his contention that

time spent in community confinement 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) (holding 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 confinement 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 no
United 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

3583(e)(3) in addition to a period of home detention under

subsection (e)(4)).

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differently from home detention. Though some circuits have held

that credit for home detention is required toward the statutory

cap, other courts have 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 detention 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

have been sentenced to a halfway house because his medical

condition (high cholesterol) could not be well treated in prison.

The district court's decision turns on factual and discretionary

judgments where the standard of review is weighted against Roy.
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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, 241 F.3d 37, 40-41 (1st Cir.

2001). Indeed, Roy argues only that "direct placement in Pharos

House may be imposed in this case" and supports 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 recommendation that Roy

receive proper medical treatment in the prison setting. This was

not an abuse of discretion.

Affirmed.