34 F.4th 143
2d Cir.2022Background
- Carlos Peguero was convicted of federal bank robbery (sentenced 2007) and placed on supervised release; he had prior supervised-release violations.
- Two alleged domestic-violence incidents in 2019: Fishkill (May 12) — J.D. gave a sworn statement saying Peguero hit her on the head with a glass bottle causing a laceration; Yonkers (Sept. 3) — alleged punching/choking with medical records corroborating injuries.
- J.D. later refused to testify at the federal revocation hearing, citing seizures/anxiety and fear; prosecutors moved to admit her prior sworn Fishkill Statement under Fed. R. Crim. P. 32.1(b)(2)(C).
- The district court admitted the Fishkill Statement (finding good cause), found by a preponderance that Peguero committed multiple supervised-release violations including second-degree assault (Specification Four), revoked supervised release, and sentenced him to 28 months.
- The written judgment mistakenly listed Specification Nine as proven though the district court orally found it unproven; government conceded the clerical error. On appeal, Peguero challenged (1) sufficiency re: the bottle element, (2) admission of J.D.’s out-of-court statement (due process / confrontation), and (3) the clerical error; a dissent argued more broadly that revocation proceedings imposing >1 year based on new conduct are unconstitutional without indictment/jury/BRD.
Issues
| Issue | Peguero's Argument | Government's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that injury was caused by a glass bottle (§ 120.05(2) element) | No finding/evidence that the bottle, rather than his hand, caused the laceration; evidence insufficient | District court reasonably inferred bottle struck victim based on sworn statement, 911 call, photo, officer observations | Affirmed — court did not abuse discretion; preponderance standard satisfied |
| Admission of J.D.’s sworn out-of-court Fishkill Statement under Rule 32.1(b)(2)(C) (and related Due Process/Confrontation claim) | Admission abused discretion; J.D. was available and hearsay unreliable; constitutional rights violated | Good cause: J.D. refused for medical/fear reasons, statement sworn and corroborated, balancing supports admission | Affirmed — court properly found good cause and reliability; Rule 32.1 balancing not abused |
| Constitutional challenge (raised by dissent) that revocation imposing >1 year for new conduct requires indictment/jury/BRD | (Dissent) Revocation that results in >1 year based on new, unindicted conduct is a new prosecution triggering Fifth and Sixth Amendment rights | Precedent: revocation is part of original sentence/conditional liberty; revocation proceedings are not new prosecutions and need only basic due process | Rejected — majority follows binding Circuit precedent and upholds §3583(e)(3) as constitutional |
| Clerical error: written judgment lists Specification Nine as proven despite oral ruling to the contrary | Written judgment conflicts with oral pronouncement; must be corrected | Government concedes error and requests remand to amend judgment | Vacated in part and remanded to amend judgment: oral pronouncement controls; Specification Nine removed as proven |
Key Cases Cited
- Morrissey v. Brewer, 408 U.S. 471 (due-process framework for parole revocation and limited procedural protections)
- United States v. Haymond, 139 S. Ct. 2369 (2019) (examining constitutionality of a distinct supervised-release provision and highlighting constitutional concerns)
- Johnson v. United States, 529 U.S. 694 (2000) (supervised release as part of original sentence; postrevocation penalties relate to original offense)
- United States v. Edwards, 834 F.3d 180 (2d Cir. 2016) (preponderance standard for revocation; standard of review)
- United States v. Carthen, 681 F.3d 94 (2d Cir. 2012) (Rule 32.1 balancing and good-cause analysis for admitting hearsay when declarant unavailable)
- United States v. Doka, 955 F.3d 290 (2d Cir. 2020) (Haymond does not overrule §3583(e)(3) precedent; supervised-release revocation constitutional)
- United States v. Diaz, 986 F.3d 202 (2d Cir. 2021) (revocation proceedings are not criminal prosecutions; evidentiary and confrontation protections limited)
- United States v. Glenn, 744 F.3d 845 (2d Cir. 2014) (court may find defendant committed another crime in revocation despite no conviction)