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United States v. Lopez-Ortiz

United States Court of Appeals, First Circuit

November 8, 2017

UNITED STATES OF AMERICA, Appellee,
v.
VICTOR LOPEZ-ORTIZ, Defendant, Appellant.

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

          Jamesa J. Drake, with whom Drake Law, LLC was on brief, for appellant.

          Mainon A. Schwartz, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, were on brief, for appellee.

          Before Lynch, Thompson, and Kayatta Circuit Judges.

          KAYATTA, CIRCUIT JUDGE

         Victor Lopez-Ortiz appeals the revocation of his supervised release and the imposition of a statutorily authorized, but above-guidelines, three-year term of imprisonment. He contends that the district court improperly shifted the burdens of production and persuasion at his final revocation hearing, an error requiring remand and resentencing. For the reasons described below, we affirm the judgment and sentence.

         I.

         In early 2015, Lopez-Ortiz completed a sentence of imprisonment for conspiring to distribute cocaine in violation of federal laws. Just three months into an eight-year term of supervised release, he was charged with repeatedly violating the conditions of that release.

         The charges against Lopez-Ortiz led to a hearing on the government's motion to revoke his supervised release. Revocation involves two stages. First, the court conducts a preliminary hearing "to determine whether there is probable cause to believe that a violation occurred." Fed. R. Crim. P. 32.1(b)(1)(A). Second, the court holds a final revocation hearing, at which the defendant has "an opportunity to appear, present evidence, and question any adverse witness" and to "present any information in mitigation." Fed. R. Crim. P. 32.1(b)(2)(C), (E).

         At Lopez-Ortiz's preliminary revocation hearing on August 11, 2015, the probation officer responsible for Lopez-Ortiz testified that Lopez-Ortiz had reported an address of record at which he did not actually live, failed to appear for scheduled drug tests on three occasions, admitted to another probation officer that he was using synthetic marijuana, failed to attend scheduled mental health treatment, and failed to remain at his transitional housing program and follow its rules, all in violation of several stated conditions of his supervised release. On cross-examination, defense counsel raised no challenge to the officer's description of Lopez-Ortiz's conduct. Rather, counsel sought to question the witness about the results of a mental health examination performed on Lopez-Ortiz at his counsel's request prior to the hearing. The government objected, arguing that Lopez-Ortiz's mental health assessment was irrelevant to whether probable cause existed for the charged violations. Defense counsel responded that the information about Lopez-Ortiz's mental health went "directly . . . to why he didn't participate" in the scheduled mental health treatment. The government noted that defense counsel must therefore be "making an admission that he violated the conditions." Counsel for Lopez-Ortiz did not respond to this characterization, and the questioning continued. At the conclusion of the hearing, the magistrate judge determined that probable cause existed for the charged violations.

         Before the final revocation hearing, counsel for Lopez-Ortiz filed a motion requesting a continuance and updating the court on the status of the case. In addition to requesting the continuance due to a scheduling conflict, defense counsel used the motion to explain Lopez-Ortiz's position. That explanation eschewed any contention that Lopez-Ortiz had not acted as charged by the government. Instead, counsel argued that "[o]f the alleged violations, the only one which by statute requires mandatory revocation [is] the failure to attend drug testing" and that Lopez-Ortiz "did not violate said condition willfully and voluntarily." Counsel also requested that "should the Court find that he willingly and voluntarily incurred in [sic] any of the alleged violation[s] other than the drug testing, his supervision be modified rather than revoked." The motion further admitted that Lopez-Ortiz, "without the [probation office's] consent, squatted an apartment in [a] housing project and refused to leave the apartment to attend appointments scheduled by [the probation office], " claiming that Lopez-Ortiz did so "due to fear for his [life]." Finally, the motion excerpted a portion of the report of the psychologist, Dr. Alexandra Ramos, who conducted Lopez-Ortiz's mental health examination, noting that the report's excerpt "summarizes the arguments which will be presented at the final revocation hearing." The report concluded that a "combination of factors is the reason why [Lopez-Ortiz] violated the terms of his probation by fleeing his placement and not participating in mental health treatment."

         The beginning of the final revocation hearing evidenced some confusion over which party should proceed first. Over Lopez-Ortiz's objection, the district court ordered his counsel to proceed first, stating that the burden is "on you."[1]

         Defense counsel then called two witnesses: (1) Lopez-Ortiz's probation officer and (2) the psychologist who evaluated Lopez-Ortiz and authored the report containing her evaluation. Both witnesses testified on direct examination that Lopez-Ortiz did not comply with certain conditions of his supervised release. The probation officer testified that Lopez-Ortiz had "left the housing project" at which he was supposed to remain and "did not attend" a scheduled appointment. The psychologist testified that a "combination of . . . factors, " including "a limited intellectual capacity, " a "severe beating" Lopez-Ortiz had endured, "the use of synthetic marijuana, " "and the perceived threat on his life and subsequent paranoia, " "explains why he violated the conditions of his supervised release." The government cross-examined both witnesses, eliciting further testimony that Lopez-Ortiz abandoned his transitional housing program, failed to report for mental health treatment, failed to follow the probation officer's instructions, and missed three scheduled drug tests in February and March of 2015.

         The court concluded that "it is a fact that [Lopez-Ortiz] has violated the conditions of his supervised release." The court further explained that it had read the psychologist's report as to Lopez-Ortiz's mental health and agreed that "he needs treatment." The court then revoked Lopez-Ortiz's supervised release. Lopez-Ortiz unsuccessfully sought reconsideration, arguing again that his violations were not voluntary because of his mental health issues. The court sentenced Lopez-Ortiz to a three-year term of imprisonment, the maximum allowed under 18 U.S.C § 3583(e)(3), plus three years of supervised release. The court also stated that it would "strongly recommend to the Bureau of Prisons that . . . Mr. Lopez-Ortiz be ...


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