FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO HON. JUAN M. PÉREZ-GIMÉNEZ, U.S.
Alexander Vos, Federal Public Defender, Vivianne M. Marrero,
Assistant Federal Public Defender, Supervisor, Appeals
Section, and Andrew S. McCutcheon, Assistant Federal Public
Defender, on brief for appellant.
Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and Thomas F. Klumper,
Assistant United States Attorney, Senior Appellate Counsel,
on brief for appellee.
Howard, Chief Judge, Torruella and Boudin, Circuit Judges.
BOUDIN, Circuit Judge.
Carlos Bodon-Lespier ("Bodon") appeals from the
district court's order revoking his supervised release.
In 2009, Bodon was sentenced to a 78-month term of
imprisonment for a drug offense, 21 U.S.C. §§
841(a)(1), 846, 860--later reduced to 63 months, 18 U.S.C.
§ 3582(c)(2)--and an eight-year period of supervised
release, 18 U.S.C. § 3583(a); 21 U.S.C. § 860(a).
April 2016, while on supervised release, Bodon was arrested
for possessing with intent to distribute marijuana and
cocaine, in violation of Puerto Rico law, P.R. Laws Ann. tit.
24, § 2401(a)(1). The terms of his supervised release
conditions forbade him from possessing controlled substances
or committing a federal, state or local crime. If such
possession were proved in federal court by a preponderance of
the evidence, as determined by the judge, Bodon's term of
supervised release could be revoked, 18 U.S.C. §
district judge held a two-day hearing at which both the
government and Bodon called and cross-examined witnesses.
After weighing and evaluating the credibility of the
witnesses, a task within the province of the district judge
in a revocation proceeding, United States
v. Portalla, 985 F.2d 621, 622 (1st Cir.
1993), the district court found by a preponderance of the
evidence that the defendant unlawfully possessed and
distributed a controlled substance and revoked Bodon's
supervised release. Bodon now appeals.
the standard of review when evaluating a district judge's
decision to revoke a term of supervised release is for abuse
of discretion, United States v.
Wright, 812 F.3d 27, 30 (1st Cir. 2016), but in
certain contexts the phrase "abuse of discretion"
is "perhaps more misleading than helpful,"
United States v. Bater, 594 F.3d
51, 54 & n.1 (1st Cir. 2010). In the first instance the
district court asks whether a violation of supervised release
conditions has been shown by a preponderance of the evidence,
18 U.S.C. § 3583(e)(3); United States
v. Whalen, 82 F.3d 528, 531-32 (1st Cir.
1996); if appealed, that factual finding is reviewed for
clear error, id.; see also United States
v. Ramos-González, 775 F.3d 483, 490
n.5 (1st Cir. 2015).
the evidence in the light most favorable to the government,
Wright, 812 F.3d at 29, this revocation case is a
clear affirmance. Police learned from an anonymous tip that
Bodon was selling drugs outside of a residence in Ponce,
Puerto Rico. Two detectives responded; one had previously
arrested Bodon in 2007 for firearms violations. The officers
saw Bodon holding a black backpack and later saw him hand a
plastic bag they believed to be marijuana to a man who had
recently gotten out of a parked car.
officers called for backup and arrested Bodon, who attempted
to flee by climbing onto a balcony, and also arrested another
man, one Martínez, who appeared also to be involved in
the transaction. Martínez claimed that the backpack
Bodon had been seen carrying belonged to him. The backpack
contained cocaine, marijuana, cash, and a digital weight
finder of fact the district judge has "broad legal power
to determine witness credibility." Portalla,
985 F.2d at 622. Here, the district judge considered the
witnesses and other evidence offered by the defense--one
witness was Bodon's wife--and found them unpersuasive.
Martínez claimed to own the backpack but the court
appeared to accept the officers' testimony that Bodon was
seen holding the drugs and making the transfer to a customer.
counsel questioned the anonymous tip and faulted the officers
for not following internal department procedures (requiring
that they keep detailed records of anonymous tips on
designated official forms), but the judge reasonably accepted
the officers' testimony. That Bodon attempted to flee and
was caught with the drugs lends further weight to the
officers' description of the drug transaction.
Bodon says that the district court violated his due process
rights. A revocation is less draped in due process than a
criminal trial, United Statesv.Tapia-Escalera, 356 F.3d 181, 184 (1st Cir. 2004),
but Bodon had ample opportunity to cross- examine government
witnesses. Bodon says that testimony from two defense
witnesses was improperly ...