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United States v. Fontanez

United States Court of Appeals, First Circuit

January 9, 2017

UNITED STATES OF AMERICA, Appellee,
v.
RAFAEL FONTANEZ, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Mark G. Mastroianni, U.S. District Judge]

          Robert Herrick and Nicholson Herrick LLP on brief for appellant.

          Carmen M. Ortiz, United States Attorney, and Kelly Begg Lawrence, Assistant United States Attorney, on brief for appellee.

          Before Lynch, Selya and Lipez, Circuit Judges.

          SELYA, Circuit Judge.

         Defendant-appellant Rafael Fontanez challenges evidentiary rulings made in the course of the revocation of his supervised release and the ensuing revocation sentence. After careful consideration, we reject his asseverational array and affirm the judgment below.

         I. BACKGROUND

         We start with an overview of the relevant facts and the travel of the case. On October 15, 1998, the appellant was charged with one count of conspiracy to possess with intent to distribute cocaine base (crack cocaine) and three specific-offense counts of distribution of that controlled substance. See 21 U.S.C. §§ 841(a)(1), 846. The indictment alleged the applicability of 21 U.S.C. § 841(b)(1)(A)(iii), which provides for a sentence up to life imprisonment.[1]

         The appellant maintained his innocence and went to trial. The jury found him guilty on all counts. The appellant had stipulated to the quantity of drugs for which he should be held accountable - a series of transactions involving specified amounts, totaling more than one kilogram - and the jury was not asked to make (and did not make) a separate drug-quantity determination.

         At the disposition hearing, the sentencing court noted that the jury "had to have found [the appellant] guilty of more than 50 grams." This drug quantity exposed the appellant to a maximum penalty of life imprisonment instead of the default maximum penalty of twenty years in prison. Compare 21 U.S.C. § 841(b)(1)(A)(iii) with id. § 841(b)(1)(C). The court proceeded to sentence the appellant to an eighteen-year term of immurement, to be followed by a five-year term of supervised release.[2]

         The appellant served his incarcerative term and, on June 11, 2014, began serving his supervised release term. On November 29, 2014, a man was stabbed at a bar in Springfield, Massachusetts. An anonymous telephone call named the appellant as the perpetrator. Three days later, a Springfield police officer, Eric Podgurski, interviewed the victim in the hospital. He showed the victim an eight-person photo array, which included a picture of the appellant. The victim identified the appellant as the malefactor and wrote on his picture: "I am 100 percent this is the guy that stabbed me."

         In due course, the appellant was charged in a Massachusetts state court with attempted murder and assault with a dangerous weapon. He was later brought before the federal district court in a revocation proceeding aimed at determining whether he had violated the conditions of his supervised release (which included a condition forbidding him from committing "another federal, state, or local crime" during the currency of his supervised release).

         The revocation hearing was continued at the appellant's request. When the rescheduled date arrived, the government explained that the victim was out of state due to a pre-planned vacation. In lieu of the victim's testimony, it sought to introduce, through Podgurski, hearsay evidence anent both the photo array identification and the anonymous telephone call. The district court allowed this evidence over the appellant's objection. The government also introduced other evidence, including the bar's video surveillance footage capturing the commission of the crime.

         The district court found, by a preponderance of the evidence, that the appellant had committed the stabbing and, thus, had violated the conditions of his supervised release. The court based this determination primarily on the surveillance video, the victim's identification of the appellant in the photo array, and evidence of the victim's wounds. The court then determined that the offense undergirding the appellant's supervised release term was an offense that fell within the purview of 21 U.S.C. § 841(b)(1)(A)(iii) and, accordingly, was a Class A felony. See 18 U.S.C. § 3559(a)(1). Having made this determination, the court sentenced the appellant to a four-year incarcerative term for violating the conditions of his supervised release. This timely appeal followed.

         II. ANALYSIS

         The appellant challenges both the finding that he violated the conditions of his supervised release and the sentence ...


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