United States v. Reyes-Correa

81 F.4th 1

UNITED STATES of America, Appellee, v. Roberto REYES-CORREA, a/k/a Robertito, Defendant, Appellant.

No. 21-1913

United States Court of Appeals, First Circuit

August 31, 2023

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]

Samuel P. Carrion, Assistant Federal Public Defender, with whom Eric Alexander Vos, Federal Public Defender, Franco L. Pérez-Redondo, Assistant Federal Public Defender, Supervisor, Appeals Division, and Kevin E. Lerman, Research & Writing Attorney, were on brief, for appellant.

David C. Bornstein, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before Gelpí, Thompson, and Montecalvo Circuit Judges.

MONTECALVO, Circuit Judge.

In this appeal, Roberto Reyes-Correa ("Reyes") challenges a statutory maximum thirty-six-month sentence that the district court imposed following a revocation of supervised release. Reyes argues that the district court, in arriving at the sentence, improperly relied on ex parte communications with a probation officer, which Reyes claims constitutes reversible error. Reyes also contends that the district court's upwardly variant sentence was procedurally and substantively unreasonable. Because we agree that the district court's failure to adequately justify the sentence was procedural error, we vacate the sentence and remand to the district court for resentencing.

I. Background

To begin, we recount the facts leading up to the revocation sentence at issue here. In 2014, Reyes pled guilty to conspiring to possess cocaine with intent to distribute near a protected location.¹ Reyes had been charged with being a "facilitator" and a lookout for a drug trafficking organization, which entailed acting as a messenger and an intermediary "when clients did not want to go into the housing project." At the time of his guilty plea, Reyes was a first-time offender with no prior arrests or convictions. Following Reyes's plea, the court sentenced him to thirty-seven months' imprisonment followed by a six-year supervised-release term. Shortly thereafter, Reyes filed an assented-to motion to reduce his sentence. The district court granted the motion, and Reyes's sentence was reduced to thirty months, with no change to the supervised release term.

A. First Supervised Release Term

In July 2016, Reyes was released from prison and entered supervised release. Before his arrest, Reyes had struggled with a substance use disorder, informing the Probation Office ("Probation") that "he ha[d] a history of Percocet use, approximately four pills a day" and "that he used cocaine daily, spending about $100 a day."² Upon release, as required by the conditions of his probation, Reyes began attending an outpatient substance abuse treatment program. In December 2017, Reyes's probation officer notified the district court that Reyes had tested positive for marijuana four times over the previous eight months. The probation officer requested that no action be taken because Reyes had been referred to an inpatient residential substance abuse treatment program. In February 2018, however, Reyes tested positive for buprenorphine.³ Shortly after, Reyes left the program, and the court issued a warrant for his arrest. When Reyes was arrested and brought before the district court, he admitted to violating conditions of his supervised release by consuming drugs and abandoning his treatment without authorization. The court revoked his term of supervision and sentenced him to nine months in prison followed by five years of supervised release.

B. Second Supervised Release Term

In March 2019, Reyes completed his reimprisonment term and began his second term of supervised release, now with a different probation officer. Three months into his term of supervision, Reyes's probation officer claimed Reyes had violated the conditions of release and requested that a warrant issue to arrest Reyes. The probation officer alleged that Reyes had failed to show up for two scheduled urine testing appointments and three drug treatment program sessions. He also stated that Reyes had been "prescribed psychotropic medications to stabilize [his] mental health disorders" and though instructed to pick up the medication, Reyes had failed to provide evidence that he had done so. The probation officer cited this failure as another violation of Reyes's supervised release conditions. The district court then issued a warrant for Reyes's arrest.

When Reyes was arrested and brought before the court, he admitted to the alleged violations. The court once again revoked his supervised release and sentenced him to one year in prison followed by four years of supervised release. In addition to the standard conditions, the court added that Reyes must "reside at the [r]esidential [r]eentry [c]enter" for the first six months of his supervised release.

C. Third Supervised Release Term

In July 2020, Reyes was released for his third term of supervised release -- the term at issue in this appeal. Due to the COVID-19 pandemic, the residential reentry center where Reyes resided had to "lockdown every participant," which meant that Reyes's access to "substance abuse and mental health treatment [was] very limited." In an informative motion to the court, the probation officer explained that Reyes had a "substance abuse history" and that one year prior, Reyes had undergone a psychiatric evaluation that diagnosed him with "Bipolar disorder, Type 1, mixed episodes." As a result of the limited treatment at the residential reentry center, the probation officer stated that Reyes had "been struggling with his substance abuse problem and [e]specially with his mental health condition." So, in November 2020, the court suspended the residential reentry center condition, allowed Reyes to move into his mother's home, and referred Reyes to outpatient treatment for his "dual disorder."

Over the next seven months, the probation officer filed two informative motions detailing Reyes's progress. Reyes had continued with treatment but also "demonstrated [a] hostile, defiant and disrespectful attitude towards treatment personnel while [being] resistant to treatment regulations." But he would, at points, also apologize and "recognize[ ] his attitude problem, explosive behavior and mental health condition while admitting his need of treatment." As the COVID-19 pandemic raged on, Reyes's treatment reports were delayed, and Reyes's progress appeared to slow.

In May 2021, Reyes informed his probation officer that he had been pulled over several days prior for speeding and driving without a license. The probation officer told Reyes that he had violated a release condition by failing to notify the probation officer within three days of any contact with a law enforcement officer. Reyes also began missing treatment appointments, and in June 2021, Reyes's mother contacted the probation officer to report that Reyes had been hospitalized for four days for expressing suicidal ideations.

Given the above, the probation officer asked the court to take no action with regard to the earlier alleged violation in order to give Probation and the treatment center the time to "emotionally stabilize [Reyes] and continue with the implementation of the dual treatment."

Two weeks later, however, on July 6, 2021, the probation officer requested that the court issue an arrest warrant for Reyes. First, the probation officer explained that a confidential source informed Probation that Reyes had been "acting erratically and under the effects of what appear[ed] to be synthetic cannabinoids." The officer also received "videos and a picture depicting [Reyes] under the strong effect of a controlled substance." Second, the treatment center had informed the probation officer that Reyes had not been "ingesting his medication properly and [that] last week he did not pick up his prescribed medication." On July 23, 2021, Reyes was arrested.

D. The Revocation Proceeding at Issue in This Appeal

On August 6, 2021, following his arrest, Reyes appeared before a magistrate judge and waived the preliminary hearing. On October 18, 2021, the court held Reyes's revocation hearing. Reyes did not contest any of the allegations in Probation's motion. He instead explained his struggles with bipolar disorder and severe depression. He stated that his "defiant" behavior was not due to his substance use disorder but instead was linked to his mental health conditions and that "the medication [was] what [was] crucial." Taking that into account, Reyes requested a sentence of twelve months' imprisonment with no supervised release to follow. The government also recommended a twelve-month sentence. The government took no position on the supervised release term and deferred to the court's judgment.

The court revoked Reyes's supervised release term based on Reyes's use of illegal substances, his failure to notify Probation regarding his contact with law enforcement, and his failure to follow the instructions of the outpatient treatment program. The court explained that because the violations were Grade C, the applicable guidelines sentencing range was three to nine months' imprisonment.⁴ The court then sentenced Reyes to thirty-six months' imprisonment, the statutory maximum for Reyes's violation. See 18 U.S.C. § 3583(e)(3). Upon doing so, the court recounted the facts of Reyes's case and noted that it had "viewed the video" of Reyes under the effect of synthetic cannabinoids.

Reyes's defense counsel specifically objected to (1) the probation officer's ex parte submission of videos as "a matter of procedure" and (2) the excessive length of the sentence as substantively unreasonable. While objecting to the sentence length, Reyes's counsel also pointed to the fact that Reyes's violations were "Type C violations" and not "equal...