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First Circuit: Justification for Upward Sentencing Departure Following Supervised Release Revocation Must Be Ade-quately Explained

by Matt Clarke

The U.S. Court of Appeals for the First Circuit held that the U.S. District Court for the District of Puerto Rico’s upward variant sentence after revocation of supervised release in a case for conspiracy to possess cocaine with intent to distribute was “procedurally and substantively unreasonable because the court failed to adequately justify imposing the statutory maximum 36-month sentence under 18 U.S.C. § 3583(e)(3).”

Roberto Reyes-Correa (“Reyes”) pleaded guilty to conspiring to possess cocaine with intent to distribute near a protected location. He was sentenced to 30 months in prison followed by six years of supervised release. Following his release from prison, he was required to attend outpatient substance abuse treatment due to his history of abusing opioids and cocaine.

Reyes tested positive for marijuana four times over eight months, so he was sent to an inpatient substance abuse treatment program. He subsequently tested positive for Buprenorphine and left the program. His supervised release was revoked, and he was sentenced to nine months’ imprisonment followed by five years of supervised release.

Following his release from reimprisonment, Reyes failed to show up for three urinalysis appointments and three therapy sessions and failed to pick up medication to treat his bipolar disorder. His supervised release was revoked, and he was sentenced to a year in prison followed by four years of supervised release.

When released a third time, Reyes was required to attend therapy for his “dual disorders” but “demonstrated [a] hostile, defiant, and disrespectful attitude towards treatment personnel while [being] resistant to treatment regulations.” Neither that nor his failure to report receiving a speeding ticket within two days was sufficient for his probation officer (“PO”) to seek revocation.

Then the PO received a confidential report that Reyes was “acting erratically and under the influence of what appear[ed] to be synthetic cannabinoids” and “videos and a picture depicting [Reyes] under the strong effect of a controlled substance.” He had also failed to pick up the medication for his bipolar disorder. This motivated the PO to move for revocation. He shared the information and videos with the court prior to the revocation hearing.

Reyes did not contest the allegations in the motion. Instead, he said his mental health disorder made it difficult for him to deal with his substance abuse disorder. Despite a Guidelines recommendation of three to nine months’ imprisonment for this Grade C (no new crime) violation, Reyes requested 12 months. The prosecutor also recommended 12 months, but the court, stating that it “agreed with the probation officer,” sentenced Reyes to 36 months – the statutory maximum for this type of violation. Reyes objected to the pre-hearing submission of the videos and the excessiveness of the sentence.

After the hearing, Reyes discovered that his PO had recommended nine months, not 36. When this was brought to the court’s attention, it responded by striking “the court agrees with the probation officer” from the hearing transcript. Reyes timely appealed.

The First Circuit rejected the claim that the PO’s pre-hearing submission of the videos and preparation of “wording” for the judge constituted improper ex parte communication that violated Reyes’ due process rights. It noted that “‘[e]x parte communication between the probation officer and the court is usually permissible where the court is merely seeking advice or facts relevant to the sentencing calculus, the court may not rely on them unless they have been disclosed to the parties and subjected to adversarial testing. United States v. Bramley, 847 F.3d 1 (1st Cir. 2017).

The Court ruled that the videos were improperly relied upon in sentencing because they had not previously been disclosed to defense counsel. However, they did not constitute new information that counsel did not know about prior to sentencing, a point driven home by the fact that Reyes did not contest any of the facts in the revocation motion. Thus, it did not constitute a reversible error.

Likewise, the “wording” the PO provided to the court was likely within the advice a PO may give a court and, to the extent that it might have exceeded being advice, was harmless as it did not affect the sentence imposed, the Court concluded. Williams v. United States, 503 U.S. 193 (1992).

However, what was not harmless, according to the Court, was the court’s failure to justify its variant upward departure, which it was required to do pursuant to United States v. Del Valle-Rodriguez, 761 F3d. 171 (1st Cir. 2014). To explain its imposing a sentence that was four times the recommended maximum, the court only included the same “boilerplate language” the First Circuit had previously held was inadequate in United States v. Serrano-Berrios, 38 F.4th 246 (1st Cir. 2022), the Court stated.

To justify an upward variance, the Court stated that a court must articulate why it believes the defendant’s case differs from the norm and “the greater a deviation from [the Guidelines sentencing range], the more compelling a sentencing court’s justification must be.” Del Valle-Rodriguez.

Neither the boilerplate language nor the judge’s remarks prior to sentencing him that “Reyes has shown that he is unable to comply with the law or the conditions of supervision imposed on him by this court” followed by a recitation of the facts of the case and the conclusion that “[t]he probation office has extinguished every resource, including [outpatient] and inpatient treatment during previous revocations; drug testing, medicated assistance, drug treatment and cognitive behavioral interventions” were adequate justification, according to the Court.

“None of those statements are sufficient. When a court provides a ‘mere listing of the facts … without emphasis on any particular circumstance’ it becomes ‘impossible to tell’ why the court landed on a sentence that quadrupled the guidelines sentencing range.” United States v. Muñoz-Fontanez, 61 F.4th 212 (1st Cir. 2023).

Thus, the Court was also unable to infer from the record how Reyes’ case could be so different from other cases involving mentally ill, drug dependent defendants having difficulty complying with supervised release to justify the large upward departure.

Accordingly, the Court vacated the 36-month sentence and remanded for resentencing consistent with its opinion. See: United States v. Reyes-Correa, 81 F.4th 1 (1st. Cir. 2023).   

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Related legal case

United States v. Reyes-Correa



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