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United States v. Mulero-Diaz

United States Court of Appeals, First Circuit

January 29, 2016

UNITED STATES OF AMERICA, Appellee,
v.
CARLOS MULERO-DÍAZ, Defendant, Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Aida M. Delgado-Colón, Chief U.S. District Judge.

Juan J. Hernández López de Victoria for appellant.

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, for appellee.

Before Thompson, Lipez, and Barron, Circuit Judges.

OPINION

Page 93

BARRON, Circuit Judge.

Carlos J. Mulero-Díaz appeals the District Court's revocation of his term of supervised release and imposition of a three-year term of imprisonment for violations of the conditions of that supervised release. We affirm.

I.

On December 3, 2009, Mulero pleaded guilty to one count of conspiracy to possess with intent to distribute narcotics in violation of 21 U.S.C. § § 841, 846, and 860. He was sentenced to seventy months' imprisonment and eight years' supervised release. The conditions of supervised release required Mulero to, among other things, (1) " not commit another federal, state or local crime," (2) " not possess a firearm [or] ammunition," and (3) " notify the probation officer within seventy-two

Page 94

hours of being arrested or questioned by a law enforcement officer."

After Mulero was released from his term of imprisonment and while he was on supervised release, the United States Probation Office requested that the District Court issue an arrest warrant and conduct a show-cause hearing as to why Mulero's supervised release should not be revoked as a result of his violations of his conditions of supervised release. The District Court granted the Probation Office's requests.

At the show-cause hearing, Mulero conceded that he had violated the terms of his supervised release. He admitted that he had been arrested on two occasions -- once for driving while intoxicated, and a second time for driving without a driver's license and without a vehicle registration sticker. He also admitted that he had failed to report the arrests to his probation officer and that he had, in fact, driven while intoxicated and without proper license or registration.

Mulero contended that this conduct warranted a finding that he had committed a " Grade C" violation of his conditions of supervised release -- the least serious type of supervised release violation, and one that permits but does not require revocation. See U.S.S.G. § § 7B1.1, 7B1.3. But the government argued that Mulero had also engaged in more serious offenses: domestic violence and possessing a weapon. The government argued that, due to those offenses, Mulero should be found to have committed a " Grade A" violation -- a violation that would result in ...


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