          United States Court of Appeals
                       For the First Circuit


No. 18-1388

                      UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

              ANTHONY J. COLÓN-MALDONADO, a/k/a/ Guelo,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Francisco A. Besosa, U.S. District Judge]


                               Before

                    Torruella, Thompson, Kayatta,
                           Circuit Judges.


     Andrew S. McCutcheon, Assistant Federal Public Defender, with
whom Eric A. Vos, Federal Public Defender, Vivianne M. Marrero-
Torres, Assistant Federal Public Defender, Supervisor, Appeals
Section, and Franco L. Pérez-Redondo, Research & Writing
Specialist, were on brief, for appellant.
     Thomas F. Klumper, Assistant United States Attorney, Senior
Appellate Counsel, with whom Rosa Emilia Rodríguez-Vélez, United
States Attorney, and Mariana E. Bauzá-Almonte, Assistant United
States Attorney, Chief, Appellate Division, were on brief, for
appellee.

                            March 6, 2020
              THOMPSON, Circuit Judge.    In early 2017, Anthony Colón-

Maldonado completed his sentence for federal drug crimes and began

his six-year term of supervised release.         Just six months later,

a police complaint charged him on "information and belief" with

committing aggravated domestic abuse under Puerto Rico law.             It

did not indicate how police got that information, or why they

believed Colón committed the offense; after all, in Puerto Rico

(like many states), a complaint is just an accusation that starts

off a criminal case.      See P.R. Laws Ann. tit. 34, Ap. II, §§ 5,

34.    Colón pled down to a lesser offense.       Nonetheless, based on

the complaint, a U.S. district court found that Colón committed

the more serious crime — violently so — and sentenced him to thirty

months in federal prison for violating the terms of his release.

This    was    error.    Accordingly,     we   vacate   and   remand    for

resentencing.

                           Revocation Primer

              Before we dive into the facts, some background.          When

imposing a prison sentence, a federal court may impose a term of

supervised release — a "form of postconfinement monitoring" during

which the defendant must follow a series of conditions designed to

help him or her "transition to community life" and to thwart

reoffending.     Mont v. United States, 139 S. Ct. 1826, 1833 (2019)

(quoting Johnson v. United States, 529 U.S. 694, 697 (2000)); see

also United States v. Joseph, 109 F.3d 34, 38–39 (1st Cir. 1997).


                                  - 2 -
As one condition, the court must always order "that the defendant

not commit another Federal, State, or local crime during the term

of supervision."     18 U.S.C. § 3583(d).    If the supervisee breaks

this or another condition, the court may (after a hearing) "revoke

a term of supervised release[ ] and require the defendant to serve

in prison all or part of the term of supervised release authorized

by statute" for the crime of conviction.      18 U.S.C. § 3583(e)(3).

             The revocation hearing has two stages. See United States

v. Morin, 889 F.2d 328, 332 (1st Cir. 1989). First, the government

must prove by a preponderance of the evidence (i.e., that it is

more likely than not) that the defendant violated the release

condition.     See United States v. Tanco-Pizarro, 892 F.3d 472, 475

(1st Cir. 2018) (citing 18 U.S.C. § 3583(e)(3)).        Then, if the

court finds a violation, it must decide whether to modify the

defendant's supervised release (for example, it could set harsher

conditions) or revoke it and impose more prison time.          United

States v. Whalen, 82 F.3d 528, 532 (1st Cir. 1996).      To guide the

sentencing decision, the United States Sentencing Guidelines set

three grades of supervised release violations — with the highest,

Grade A, reserved for "conduct constituting" a "crime of violence,"

a "controlled substance offense," or two other types of serious

crimes.   See U.S.S.G. § 7B1.1(a).       The guidelines say that when

the defendant commits such a crime, courts should revoke release




                                 - 3 -
and impose a sentence within the highest range listed for the

defendant's criminal history category.1            Id. §§ 7B1.3, 7B1.4.

             To decide if the defendant breached his conditions and

(if so) what sentence to impose, the court may "consider evidence

including letters, affidavits, and other material that would not

be admissible in an adversary criminal trial."                 Morrissey v.

Brewer, 408 U.S. 471, 489 (1972); see also United States v. Rondón-

García, 886 F.3d 14, 21 (1st Cir. 2018) ("During a sentencing

hearing, neither the Federal Rules of Evidence nor the Sixth

Amendment's confrontation clause applies.").              To influence those

decisions, however, the evidence must (at minimum) be "reliable."

United States v. Portalla, 985 F.2d 621, 622 (1st Cir. 1993); see

also United States v. Mills, 710 F.3d 5, 15 (1st Cir. 2013)

(explaining that at sentencing, "the court can consider all kinds

of   relevant    information     regardless   of    admissibility    at   trial

(including      hearsay   that    has   never      been   tested    by    cross-



      1The supervised release statute requires courts to consider
this guideline range (among other factors) before revoking release
and imposing the sentence. See 18 U.S.C. § 3583(e) (citing id.
§ 3553(a)(5)). The other factors include: the nature and
circumstances of the offense, id. § 3553(a)(1); the history and
characteristics of the offender, id.; the need for adequate
deterrence, id. § 3553(a)(2)(B); the need to protect the public,
id. § 3553(a)(2)(C); and the penological needs of the offender,
such   as  the   need   for  special   care   or  treatment,   id.
§ 3553(a)(2)(D). See Tanco-Pizarro, 892 F.3d at 480 (citing United
States v. Vargas-Dávila, 649 F.3d 129, 131 (1st Cir. 2011)).




                                    - 4 -
examination),"     but    only    if   "it     has   'sufficient    indicia   of

reliability to support its probable accuracy'" (quoting U.S.S.G.

§ 6A1.3)).

             As with other judgment calls, we review the ultimate

revocation decision and sentence for "abuse of discretion." United

States v. Wright, 812 F.3d 27, 30 (1st Cir. 2016).             Along the way,

we draw our own legal conclusions (interpreting the Guidelines de

novo) and test the court's material factfinding for "clear error."

Id.; see also United States v. Ruiz-Huertas, 792 F.3d 223, 226

(1st Cir. 2015).         If the district court "select[ed] a sentence

based on clearly erroneous facts" or "improperly calculat[ed] the

Guidelines range," that's a "significant procedural error," United

States v. Sayer, 916 F.3d 32, 37 (1st Cir. 2019) (quoting Gall v.

United States, 552 U.S. 38, 51 (2007)) — and we reverse unless the

government shows the mistake did not affect the sentence, see

United States v. Romero-Galindez, 782 F.3d 63, 70 (1st Cir. 2015).

             On to this case.

                                 How We Got Here

             In 2014, Colón was sentenced to seventy months in federal

prison and six years of supervised release for his part in a

conspiracy to deal drugs near a protected location.                See 21 U.S.C.

§ 841(a)(1).      After six months on supervised release, he was

arrested again — this time by Puerto Rico police.                  In a pair of

criminal complaints filed in Puerto Rico court, Officer Edmee


                                       - 5 -
Malavé wrote that Colón had assaulted and threatened his then-

girlfriend, Jessica Alomar.     As a result, he was charged with two

domestic violence crimes under Puerto Rico law:       aggravated abuse

and abuse by threat.       See Articles 3.2 and 3.3 of Puerto Rico

Domestic Violence Law 54, P.R. Laws Ann. tit. 8, §§ 632, 633.2

Before   long,   Colón's   probation   officer   (Nelson   Mendoza)   had

reported the charges to the United States District Court for the

District of Puerto Rico and petitioned the court to revoke Colón's

supervised release based on the new alleged crimes.

           So Colón was brought back to federal court.         There, a

U.S. magistrate judge held a preliminary revocation hearing —

designed to determine whether there's "probable cause to believe

that a violation occurred."      Fed. R. Crim. P. 32.1(b).      Mendoza

took the stand as the only witness.      He hadn't seen what happened



     2 The root crime of "abuse" under Puerto Rico law is defined
as follows:
     Any person who employs physical force or psychological
     abuse, intimidation, or persecution against his/her
     [domestic partner] in order to cause physical harm to
     the person, the property held in esteem by him/her,
     except that which is privately owned by the offender, or
     to another person, or to cause serious emotional harm,
     shall be guilty of a fourth-degree felony in the upper
     end of the range.
P.R. Laws Ann. tit. 8, § 631.     Aggravated abuse criminalizes
"abuse" in certain aggravating circumstances, including "when
committed against a pregnant woman."    P.R. Laws Ann. tit. 8,
§ 632(i). Abuse by threat is "threaten[ing] to cause harm to [a
domestic partner] . . . or to destroy property cherished by the
victim." P.R. Laws Ann. tit. 8, § 633.


                                 - 6 -
between   Colón   and    Alomar,   but   (he    testified)   he   had   done   a

"preliminary investigation," meaning he spoke to Alomar and Malavé

over the phone.     According to Mendoza, Alomar (who was pregnant

with Colón's baby) said that Colón had followed her to a hospital

in Guayama or Salinas (Mendoza wasn't sure which, or why Alomar

was going there).       When they got to the hospital, they argued and

Colón "grabbed her by the hair" and "slammed [her] to the ground."

On the way down, her head hit the wall.

           When Mendoza spoke to Malavé, Malavé had said that Alomar

had given him the same basic story.            Malavé had rehashed Alomar's

account in the criminal complaints, which the government entered

in evidence at the preliminary hearing.           The first, which charged

Colón with aggravated abuse under Article 3.2, read:

           [On or about August 13, 2017 in Salinas, Puerto
           Rico, Colón] illegally, voluntarily, maliciously,
           knowingly and with criminal intention, used
           physical   force  against   Mrs.  Jessica   Alomar
           Rodríguez, with whom he lived together five months
           ago, consisting in [sic] the fact that he grabbed
           her strongly with his hands by her abdomen to take
           away her cellular phone; grabbed her strongly by
           her hair, shook her and she hit the wall and fell
           to the ground. The victim is pregnant.

The second, charging abuse by threat (Article 3.3), said:

           [On or about August 13, 2017 in Salinas, Puerto
           Rico, Colón] illegally, voluntarily, maliciously,
           knowingly and with criminal intention, threatened
           with bodily injury Mrs. Jessica Alomar Rodríguez,
           with whom he lived together for five months and did
           not have any children, but who is pregnant,
           consisting in [sic] the following: "I'll blow you
           up, you make me feel like hitting you, you miserable


                                    - 7 -
          bitch," feeling [sic] the victim afraid and
          threatened that defendant may fulfill his threat.

The back of the complaints reflected that after hearing testimony

from Malavé and Alomar, a Puerto Rico magistrate judge had found

probable cause for the Article 3.2 (aggravated abuse) charge, but

not for the Article 3.3 (abuse-by-threat) charge.

          Alomar    herself   gave   a   sworn   written   statement    to

Commonwealth prosecutors, but (said Mendoza) the prosecutors were

"not going to relinquish that sworn statement [while] the [Puerto

Rico] case [was] ongoing," for some reason.            So the federal

magistrate judge relied on Mendoza's testimony, along with the two

complaints, to find probable cause that Colón committed a new crime

and violated his conditions of release.      He ordered Colón detained

until the final revocation hearing — when a U.S. district judge

would decide whether he'd in fact committed the violations and

whether to revoke his release and send him back to prison.             See

Fed. R. Crim. P. 32.1(b).

          In the meantime, Colón — facing the aggravated abuse and

abuse-by-threat charges in Puerto Rico court — pled guilty to a

lesser offense:    attempted abuse under Article 3.1.      See P.R. Laws

Ann. tit. 8, § 631.     So at the final revocation hearing, Colón

admitted that he'd violated Article 3.1 and thus the "no new

crimes" condition.     But his crime (attempted abuse) was only a

Grade B violation, he argued. See U.S.S.G. § 7B1.1(a)(2) (defining



                                 - 8 -
a Grade B violation as "conduct constituting any other federal,

state, or local offense punishable by a term of imprisonment

exceeding one year").     First, Abuse didn't qualify as a "crime of

violence" under the categorical approach described in Mathis v.

United States, 136 S. Ct. 2243, 2248–52 (2016) and Descamps v.

United States, 570 U.S. 254, 273–74 (2013) (looking to the elements

of the crime as defined in the law, instead of an offender's

conduct, to see if it counts).       And neither did Aggravated Abuse,

for that matter.      Second, the court could not "rely on" the

complaints to "establish that [he used] physical violence" to

commit a violent crime.      "So there [was] no factual basis for a

finding of a 3.2 violation, or any other criminal conduct that

[was] not attempted 3.1 in this case."           As a result, he claimed,

his guideline range was only 12–18 months in prison.

            The district judge disagreed.        First, he set aside the

"categorical approach," reasoning that he could look to Colón's

"actual   conduct"   to   conclude   that   he   committed   a   "crime   of

violence" and a Grade A violation.          And he found that Colón's

"actual conduct was the [crime] charge[d]": "us[ing] physical

violence against his pregnant girlfriend" to commit aggravated

abuse under Article 3.2(i), which was a "crime of violence" under

§ 7B1.1(a)(1).    To support that finding, over Colón's objection,

the court relied on Malavé's two sworn complaints.               And that's

about it.    Neither Mendoza, nor Malavé, nor Alomar testified at


                                 - 9 -
the final revocation hearing.         And the government did not give the

district    judge   a   transcript    of    Mendoza's     testimony;     it   only

mentioned that (as noted on the docket and in the U.S. magistrate

judge's written order) the magistrate judge had "found probable

cause [for the violations] after listening to [Mendoza]" and

reviewing the complaints.         If the Commonwealth prosecutors ever

turned    over   Alomar's   written    statement,      the   government       never

offered it as evidence in this case.

             Based on the Grade A tag and Colón's criminal history

category of IV, the judge fixed his guideline range at 24–30 months

in prison.       From that starting point, he imposed a thirty-month

prison sentence, adding four more years of supervised release.3

             At the end of the hearing, Colón reiterated that he

"continue[d] to preserve [his] objections under Rule 32.1 to th[e]

Court's     findings    under   [Article]     3.2   and   whether   or   not     it

qualifies as a crime of violence, to th[e] Court's findings under

[§] 7B1.4(a) regarding what is the actual conduct in this case,

and   the    substantive    and   procedural        unreasonableness     of     the

sentence that was ultimately imposed[.]"               He then appealed, and

here we are.


      3 The judge also determined that Colón violated other
conditions by using illegal drugs, failing to attend drug
treatment, and failing to follow Mendoza's instructions, as
alleged in two previous motions Mendoza had filed. Colón does not
argue that the judge erred in finding he committed these other
violations, and none of them were Grade As. See 7B1.1(a)(1).


                                     - 10 -
                                   Our Take

             On appeal, as he did below, Colón admits that he violated

the "no new crimes" condition and does not challenge the district

court's decision to revoke his supervised release.                   Instead, he

attacks his thirty–month sentence. In his eyes, the district court

misapplied the Guidelines in concluding that his crime was a

Grade A violation under U.S.S.G. § 7B1.1(a)(1)(A)(i).                 We agree.

                                  Framework

             To be a Grade A violation under § 7B1.1(a)(1)(A)(i), the

defendant's new criminal "conduct" must "constitut[e]" a "crime of

violence," as defined in § 4B1.2(a).             See U.S.S.G. § 7B1.1 and

cmt. n.2.      Proving this takes two steps.          First, the government

must   point     to    a   federal,     state,   or    local     offense    that

"categorically"       meets   § 4B1.2(a)'s     definition   of   a    "crime   of

violence."     United States v. García-Cartagena, No. 18-1629, ___

F.3d ___ [Slip op. at 16] (lst Cir. March 6, 2020).                   That means

(as pertinent here) that the elements of the alleged crime must

require "the use, attempted use, or threatened use of physical

force against another person."          United States v. Frates, 896 F.3d

93, 97 (1st Cir. 2018); see also United States v. Martinez, 762

F.3d 127, 133 (1st Cir. 2014) (explaining that here, "'physical

force' means violent force — that is, force capable of causing

physical pain or injury to another person" (quoting Johnson v.

United States, 559 U.S. 133, 140 (2010)).             Sometimes, a state law


                                      - 11 -
might       "list   elements   in   the   alternative,    and    thereby   define

multiple crimes" (meaning it's "divisible").               Mathis, 136 S. Ct.

at 2249.      But if the statute defining the offense is overbroad and

indivisible, that's it; the crime doesn't count.                See id. at 2257.4

               On the other hand, if at least one crime defined in the

statute requires violent force (or the elements of an offense

listed in § 4B1.2(a)(2) or of a "controlled substance offense"

under § 4B1.2(b)) to commit it, the court moves to the second step,

at which the government must prove by a preponderance of the

evidence that the defendant committed that crime.                    See García-

Cartagena, ___ F.3d ___ [Slip op. at 16, 23–24].                  And that means

if the statute is overbroad but divisible, the government must

prove the defendant committed the offense with the required element

(here, violent force).          Id. at 16, 23–24.        To do so, it can use

any reliable proof it has (including hearsay, at least if the

"interests of justice" don't demand live witnesses, Fed. R. Crim.

P. 32.1(b)(2)(C)). Id. at 16, 23–24. Since the grade of violation

depends on actual conduct, the court can look past so-called

Shepard documents (like the charging document, jury instructions,


        4
       The government asserts that the categorical approach does
not apply at all in revocation proceedings under § 7B1.1(a)(1), so
the district court may skip the first step and find a Grade A
violation whenever it determines that the defendant used,
attempted to use, or threatened to use physical force against
someone (without analyzing the elements of the law the government
alleges he violated). We reject this position in García-Cartagena,
___ F.3d ___ [Slip. op. at 16–23], also issued today.


                                      - 12 -
plea colloquy, or judgment), which are only needed "to determine

what crime . . . a defendant was convicted of."            Id. at 16–17, 25–

26 (quoting Mathis, 136 S. Ct. at 2249).5

                        Step One: "Crime of Violence"

               To recap, Colón pled guilty to attempted abuse under

Article 3.1, and the district judge found he committed aggravated

abuse       under   Article   3.2(i).    Abuse     is   "physical    force    or

psychological        abuse,   intimidation,   or   persecution      against   [a

domestic partner] . . . in order to cause physical" or "serious

emotional harm," P.R. Laws Ann. tit. 8, § 631 (emphasis added),

and aggravated abuse under Article 3.2(i) is just "abuse" of a

pregnant woman, id. § 632.         So you don't need violent force for a

conviction.         The government doesn't urge otherwise; instead, it

argues that Article 3.1 (and hence Article 3.2) is "divisible."

We said so in United States v. Serrano-Mercado, 784 F.3d 838, 844

(1st Cir. 2015) (addressing Article 3.1). Stressing the word "or,"

we figured that the law "set[ ] out multiple constellations of

elements in the alternative": one "requir[ing] the use or threat

of 'physical force'" and "others requir[ing] psychological abuse,


        5
       In United States v. Willis, the Ninth Circuit reversed the
order of operations, instructing courts to first "determine
whether the defendant's uncharged conduct constitutes a particular
statutory offense" and then "determine if such an offense meets
the specified criteria." 795 F.3d 986, 993–94 (9th Cir. 2015).
We're agnostic on the sequence.




                                    - 13 -
intimidation or persecution."    Id.   And we saw a "strong" argument

"that the statute's 'physical force' element involve[d] the kind

of violent force 'capable of causing physical pain or injury to

another person,'" making it a crime of violence.          Id. at 845

(quoting Johnson, 559 U.S. at 140).      So we affirmed the use of the

sentence enhancement at issue (U.S.S.G. § 2K2.1(a)(3)).        Id. at

850.   Based on Serrano-Mercado, the government says we're bound to

conclude Article 3.1 is divisible and that abuse by "physical

force" is a crime of violence.

           But that's not quite right.        In Serrano-Mercado, we

reviewed the issue for plain error, so the most we needed to decide

was that Article 3.1 was not "obvious[ly]" indivisible.        Id. at

844–45.   Such a "no-plain-error holding" wasn't a "ruling on the

merits" (i.e., whether Article 3.1 was in fact divisible, and if

so, whether the "physical force" version was indeed a "Crime of

violence").   See Rodríguez–Miranda v. Benin, 829 F.3d 29, 41, 44–

45 (1st Cir. 2016).       And anyway, the defendant conceded that

Article 3.1 was divisible into multiple offenses. See Serrano-

Mercado, 784 F.3d at 846.     Given the parties' agreement on the

issue, we assumed that any statute listing items in the disjunctive

was divisible, without asking whether Article 3.1's methods of

"abuse" were distinct elements (i.e., facts the prosecution must

prove to sustain a conviction) or merely various factual ways of

committing the offense.    See id. at 843.     A year later, however,


                                - 14 -
the Supreme Court clarified that there's a difference; a statute

that "merely specifies diverse means of satisfying a single element

of a single crime," so that a jury "need not find (or a defendant

admit) any particular item," is indivisible.            United States v.

Faust, 853 F.3d 39, 52–54 (1st Cir. 2017) (quoting Mathis, 136 S.

Ct. at 2249, and finding that it overruled circuit precedent that

had   deemed   Massachusetts   "resisting   arrest"    divisible).   So,

Serrano-Mercado does not establish that Article 3.1 is divisible

under Mathis.

           In this case, the district judge did not consider whether

"physical force" is an element of a distinct crime under Article

3.1 or 3.2, and whether (if so) that force must be "violent" to

support a conviction. See Faust, 853 F.3d at 51–53 (citing Mathis,

136 S. Ct. 2248–50).       Nonetheless, we need not resolve those

questions here — because even if "forcible" Abuse (or Aggravated

Abuse) is a discrete (that is, divisible) crime, the government

produced no reliable evidence at the revocation hearing to show

Colón used physical force to commit it.       And the district court's

contrary finding — that Colón "use[d] physical violence against

his pregnant girlfriend" to violate Article 3.2 — was clear error.

                     Step Two: The Actual Conduct

           As we said up front, that finding hinged on the two

complaints Malavé filed in Puerto Rico court.         As we see it, Colón

mounts two attacks on those complaints.      First, he invokes Fed. R.


                                 - 15 -
Crim. P. 32.1(b)(2)(C), which gives a defendant in a "revocation

hearing" the right to cross-examine the government's witnesses

unless the court "determines that the interest of justice does not

require the witness to appear."              Fed. R. Crim. P. 32.1(b)(2)(C).

The rule draws from the accused violator's due process "right to

confront and cross-examine adverse witnesses (unless the hearing

officer      specifically        finds     good     cause    for     not     allowing

confrontation)."     Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973);

see Fed. R. Crim. P. 32.1, advisory committee's note to 2002

amendment.     So under the rule, the court may not credit an out-

of-court statement ("hearsay," in legalese, see Fed. R. Evid.

801(c)) unless it finds that the statement is reliable and the

government's reason(s) for not having the speaker or author (the

"declarant") testify outweighs the defendant's interest in cross-

examining him/her.        See United States v. Bueno-Beltrán, 857 F.3d

65, 68 (1st Cir. 2017) (citing United States v. Rondeau, 430 F.3d

44, 47–48 (1st Cir. 2005)).              In his first challenge, Colón urges

the district court abused its discretion when it considered the

hearsay in Malavé's complaints without conducting the balancing

due process and Rule 32.1(b)(2)(C) require.

             In response, the government picks up a thread we dropped

earlier; a revocation hearing has two phases, it reminds us:                    "the

guilt   or    violation-determination             phase"    and    "the    sentencing

phase."       According     to    the     government,       Rule    32.1(b)(2)(C)'s


                                         - 16 -
"limited confrontation right" and balancing test, Bueno-Beltrán,

857 F.3d at 68, only apply at the first stage (the violation-

finding phase) — not the second (the sentencing phase). See United

States v. Ruby, 706 F.3d 1221, 1226–28 (10th Cir. 2013) (so

holding).       Since Colón admitted that his Article 3.1 offense and

drug use broke his release conditions, there was no need for a

violation hearing; all that remained was sentencing.                        That's why,

"when Colón appeared for the final revocation, the court proceeded

to the sentencing phase" without objection.                      And at that point

(says    the    government),        the    court      could   rely    on   the   hearsay

allegations         in     Malavé's       complaint         without     weighing     the

government's reasons for not presenting live witnesses.

               We   can     leave     the        parties'     squabble      over    Rule

32.1(b)(2)(C)        for    another       day6    —   because    even      if    Malavé's


     6 That said, the government's bid to limit Rule 32.1 runs into
an immediate hitch; we've already written that Rule 32.1 governs
post-revocation sentencing. See United States v. Daoust, 888 F.3d
571, 575 (1st Cir. 2018) (rejecting defendant's argument that Rule
32(h) required notice of the court's intent to impose an above-
guideline post-revocation sentence because "procedures for
supervised release revocation sentences are delineated in . . .
[Rule] 32.1").    Still, this statement in Daoust was arguably
dictum; on plain error review, the court only needed to find it
not "clear and obvious" that Rule 32(h) applied. See Rodríguez–
Miranda, 829 F.3d at 41, 44–45 ("[A] no-plain-error holding does
not constitute a 'ruling on the merits.'" (quoting United States
v. Caraballo–Rodriguez, 480 F.3d 62, 70 (1st Cir. 2007))). Since
Colón does not respond to the government's "Rule-32.1-does-not-
apply" argument in his reply brief, and we conclude the complaints
were insufficient evidence even if they were admissible, we won't
address whether (or how) Rule 32.1(b)(2)(C) applies to evidence
used only to determine the post-revocation sentence.


                                          - 17 -
complaints were admissible without live testimony, the district

court still had to find they were reliable enough to show that

Colón more-likely-than-not used physical force.7                         See Rondón-

García, 886 F.3d at 21, 23; United States v. Zuleta-Alvarez, 922

F.2d       33,   36–37    (1st   Cir.    1990)   (stating     that   even    when    the

defendant offers no rebuttal evidence, "the sentencing court still

ha[s] to make an independent determination as to the reliability

of the [sentence-enhancing] evidence presented by the government,"

which       must   "verify       the    accuracy   of   its     information     by     a

preponderance        of    the   evidence").       In   fact,    we've      repeatedly

cautioned against relying on mere charges to "infer unlawful

behavior unless there is proof by a preponderance of the evidence

of the conduct initiating [those] arrests and charges."                       Rondón-

García, 886 F.3d at 25–26 (citing United States v. Cortés-Medina,

819 F.3d 566, 570 (1st Cir. 2016)); see also United States v.


       7
       The government argues that Colón forfeited his "due process
and Rule 32.1 contentions" by failing to specify them below. But
Colón timely and repeatedly objected to the district court's use
of the complaints to make factual findings about his criminal
conduct. Right after the court read the complaints aloud, Colón
"object[ed]" to their use "for purposes of finding what was the
criminal conduct committed in this case," arguing they were "not
something th[e] Court [could] rely upon to make a factual finding
or establish that there was physical violence." And throughout
the hearing, he maintained that "there [was] no factual basis for
a finding of a 3.2 violation[ ] or any other criminal conduct
[beyond] attempted 3.1." Even if these objections failed to invoke
Rule 32.1's limited confrontation right, they were "sufficiently
specific to call the district court's attention" to his more basic
gripe: that the complaints were too unreliable to prove he used
physical force.


                                          - 18 -
Marrero-Pérez, 914 F.3d 20, 23–24 (1st Cir. 2019) (holding that

"error occurs when a district judge relies on an arrest report,

without some greater indicia of reliability that the conduct

underlying the arrest took place," to impose an upward departure).8

That's   in   part   because,   under   U.S.S.G.   6A1.3(a),   information

relied on to enhance a defendant's sentence must "ha[ve] sufficient


     8 Our plain error holding in Marrero-Pérez also drew from
U.S.S.G. § 4A1.3 ("Departures Based on Inadequacy of Criminal
History Category"), which states that "[a] prior arrest record
itself shall not be considered for purposes of an upward departure
under this policy statement." Id. § 4A1.3(a)(3). For that reason,
we've questioned (without deciding) whether Marrero-Pérez makes it
plain error to rely on bare arrest reports to impose an upward
variance. See United States v. Miranda-Díaz, 942 F.3d 33, 40 (1st
Cir. 2019) (distinguishing a "departure," an out-of-guideline-
range "sentence[ ] imposed under the framework set out in the
Guidelines," from a variance, which "results from a court's
consideration of the statutory sentencing factors enumerated in 18
U.S.C. § 3553(a)" and finding the complained-of variance wasn't
plain error because the district court "merely refer[red] to the
defendant's dismissed charges in the course of relying on certain
conduct that took place in connection with [them] and that conduct
[was] described in unchallenged portions of the [PSR]" (internal
quotation marks omitted)); United States v. Rodríguez-Reyes, 925
F.3d 558, 564–65 (1st Cir. 2019) (noting the departure-variance
distinction, but affirming on plain error because "other 'indicia
of reliability,'" including unchallenged facts in the PSR,
"support[ed] that Rodríguez engaged in the conduct charged"). If
some future case turned on it, it's not clear the departure-
variance distinction would hold up as a viable limit on Marrero-
Pérez.   See United States v. Ríos-Rivera, 913 F.3d 38, 45 (1st
Cir. 2019) ("[T]here is no discernible difference between
departure and variance sentences." (citing United States v.
Santini-Santiago, 846 F.3d 487, 489–90 (1st Cir. 2017))). Anyway,
§ 4A1.3(a)(3) and Marrero-Pérez both rest on a basic principle
equally applicable here: a bare arrest or charge does not prove
the defendant committed the crime. See Marrero-Pérez, 914 F.3d at
23 (holding that "no weight should be given in sentencing to
arrests not buttressed by independent proof of conduct" because
"proof only of an arrest is no proof of guilt").


                                  - 19 -
indicia of reliability to support its probable accuracy."          But the

roots run deeper; even before the Guidelines regime, the Supreme

Court held it violated due process to impose a "sentence[ ] on the

basis of assumptions concerning [a defendant's] criminal record

which [are] materially untrue."       Townsend v. Burke, 334 U.S. 736,

740–41 (1948).      "To give content to this right, a court must take

pains to base sentencing judgments upon reliable and accurate

information."      United States v. Tavano, 12 F.3d 301, 305 (1st Cir.

1993); see also United States v. Flete-Garcia, 925 F.3d 17, 36

(1st Cir. 2019) ("[D]ue process demands that a sentencing court

'consider    all    the   available   evidence,   including   conflicting

evidence' to 'assure itself that a piece of proof is sufficiently

reliable.'" (quoting Tavano, 12 F.3d at 305).

            Reflexive reliance on hearsay accusations can hollow out

those rights.       After all, as the Federal Rules of Evidence and

"virtually every State" recognize:

            out-of-court statements . . . lack the conventional
            indicia of reliability: they are usually not made
            under oath or other circumstances [like penalty of
            perjury] that impress the speaker with the
            solemnity of his [or her] statements; the
            declarant's word is not subject to cross-
            examination; and he [or she] is not available in
            order that his [or her] demeanor and credibility
            may be assessed by the [factfinder].

Chambers    v.   Mississippi,   410   U.S.   284,   298   (1973)   (citing

California v. Green, 399 U.S. 149, 158 (1970)).           So when a court

extends a defendant's sentence based on hearsay, there must be


                                  - 20 -
other signs (other "indicia of trustworthiness") to permit a

reasoned conclusion that the statements are still reliable.                    See

Rondón-García, 886 F.3d at 21 (quoting United States v. Rodríguez,

336 F.3d 67, 71 (1st Cir. 2003)); see also United States v.

McGowan,     668   F.3d   601,   606–07    (9th    Cir.    2012)   ("Challenged

information is deemed false or unreliable if it lacks some minimal

indicium of reliability beyond mere allegation."                (cleaned up)).

             We've catalogued examples before.            See United States v.

Marino, 833 F.3d 1, 5 (1st Cir. 2016).                     Testimony given in

affidavits,    depositions,      and    past    trials    or   hearings   usually

passes muster because it's based on personal knowledge, sworn under

penalty of perjury, and (in a deposition or trial) often sifted

through cross-examination.         See id. (citing Gagnon, 411 U.S. at

782 n.5); United States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st

Cir. 2010) (trial); United States v. Riccio, 529 F.3d 40, 47 (1st

Cir. 2008) (deposition); United States v. Brewster, 127 F.3d 22,

28 (1st Cir. 1997) (affidavit).          Courts may dub other out-of-court

statements reliable if they fall into a recognized exception to

the hearsay rule, Rondeau, 430 F.3d at 48 (statements in 911 call

reporting threat with gun were reliable as excited utterances under

Fed. R. Evid. 803(2)), if other evidence corroborates them, United

States v. Fontanez, 845 F.3d 439, 443 (1st Cir. 2017) (surveillance

video   of   stabbing     "corroborated     the   victim's      account   of   the

incident (as related to [the testifying police officer])" and


                                       - 21 -
"confirmed the victim's identification of the appellant"); Mills,

710 F.3d at 16 (informants' statements "were detailed, mutually

corroborative     on    key    points,       and     compatible      with       the   events

surrounding     [the    defendant's]         arrest"),     or       if    the    witness's

account    is    "replete       with     details,"       among       other       signs     of

reliability, Rodríguez, 336 F.3d at 70–72 (where the court properly

found that the defendant induced another inmate to write a false

letter to the court based on the AUSA's summary of an FBI interview

in which the inmate disclaimed the letter, bolstered by the

letter's "conclusory" nature and the defendant's earlier attempt

to pull similar shenanigans).

           But when those signs (or others like them) are absent,

hearsay alone cannot support the sentence.                  In Rondón-García, for

example,   the    sentencing         court     considered       a   letter       from    the

defendant's late wife (alleging he'd threatened and abused her)

and   unsourced    info       from   a   probation       officer         suggesting      the

defendant arranged her murder.                 886 F.3d at 23.             We held that

relying on this information was obvious error "on both notice and

reliability      grounds"       because        the    hearsay       allegations          were

uncorroborated,        undetailed,       and    undisclosed         to    the    defendant

before sentencing. Id. n.2 (emphasis added). We also "express[ed]

our   distaste    for     [the]      district        court's    reliance         on    [the]

defendant's record [described in the PSR] of prior arrests and

charges without convictions" to vary upward from the guideline


                                         - 22 -
range (even when the PSR "contained detailed facts underlying the

individual          charges"),      warning      that      "[a]     court     imposing

incarceration for a later crime cannot simply presume that past

charges resolved without conviction ... are attributable to flawed

or   lax      prosecutorial        or     judicial    systems     rather     than     the

defendant's innocence."            Id. at 25–26 (quoting Cortés-Medina, 819

F.3d at 576–77 (Lipez, J., dissenting)).                   We ultimately affirmed,

but only because Rondón's two procedural challenges "succumb[ed]

to the heavy burden of plain error review."                          Id. at 24, 26

(explaining         that   the    claims    failed    on   prongs    four    and    two,

respectively); see also Marrero–Pérez, 914 F.3d at 23–24                      (relying

in part on Rondón-García to deem it plain error to depart upward

based    on    an    arrest      report    "without     some   greater      indicia    of

reliability that the conduct underlying the arrest took place").9




     9  In at least two other cases, even though the hearsay
statements had some indicia of reliability, we remanded for
resentencing because other evidence undermined their credibility
and the district court did not explain why it still relied on them.
See United States v. Lacouture, 835 F.3d 187, 190 (1st Cir. 2016)
(vacating sentence and remanding for district court to explain if
and why it found transcript of child victim's statements during
investigative interview were reliable despite inconsistent police
reports); United States v. Jimenez-Martinez, 83 F.3d 488, 494 (1st
Cir. 1996) (holding that co-defendant's affidavit alleging
defendant took part in a three-kilo drug deal could not support
sentence increase without more evidence because defendant
proffered that affiant did not understand defendant's language,
the affiant never testified in court or grand jury, and no other
evidence corroborated his story).



                                           - 23 -
            In United States v. Taveras, we vacated a revocation

judgment that was also based on uncorroborated, unsworn hearsay

with no other marks of reliability.            380 F.3d 532, 535–38 (1st

Cir. 2004).     A probation officer had testified that in two short

interviews, a woman told her the defendant had threatened her with

a gun.     Id. at 535–36.       But the accusations didn't satisfy a

hearsay    exception   (they    were   not   "excited    utterances"),   were

"neither written nor sworn," and "the government failed to provide

any corroborating evidence" or "any background details about [the

declarant] or her relationship with [the defendant]."             Id. at 537–

38.   Such "[u]nsworn verbal allegations," we noted, are "the least

reliable type of hearsay."        Id. at 537 (quoting United States v.

Comito, 177 F.3d 1166, 1171 (9th Cir. 1999)); see also Marino, 833

F.3d at 7 ("[A]n affidavit is substantially more reliable because

it is both in writing — eliminating reliance on the listener's

memory — and sworn to.").         Though we relied on Rule 32.1, our

result did not hinge on its balancing test; instead, we concluded

the hearsay was "wholly unreliable" and couldn't support the

violation finding — even if the government couldn't (at least

without great difficulty) produce the woman (who'd disappeared) in

court.    Taveras, 380 F.3d at 536 n.7, 538.

            In this case, the district court had even less reason to

trust     the   unattributed,     uncorroborated        hearsay   allegations

rehashed in Malavé's complaints.             First, the accusations were


                                   - 24 -
double hearsay:          the complaints (themselves hearsay) were sworn

only "on information and belief" — in other words, on "secondhand

information that [Malavé] believe[d] to be true."                Information and

Belief, on, Black's Law Dictionary (11th ed. 2019); see also P.R.

Laws Ann. tit. 34, Ap. II, § 5 (permitting "prosecutors and members

of the State Police" to "sign and swear to complaints when the

facts constituting the offense are known to them by information

and belief").      Second, they did not indicate where Malavé got his

info or how he formed his belief.                 And even assuming he got the

story from Alomar (instead of other officers, for example), there

was no evidence of how the two spoke (e.g., in person or over the

phone), in what circumstances, or for how long — so there was no

reason    to    think    that    Malavé    had    "an   opportunity     to   observe

[Alomar's] demeanor during the interview" or had any other basis

to judge her credibility.           See United States v. Fennell, 65 F.3d

812,    813    (10th    Cir.    1995)   (holding     that    probation   officer's

testimony, which repeated "unsworn out-of-court statements made

[over the phone] by an unobserved witness and unsupported by other

evidence" could not sustain the defendant's sentence enhancement).

Third, other than the fact that she lived with Colón briefly, the

complaints supplied no background on Alomar, her relationship with

Colón, or how it soured.            See Taveras, 380 F.3d at 538.               And

finally, the Puerto Rico magistrate did not even find probable

cause    to    support    the    Article    3.3    charge,    casting    even   more


                                        - 25 -
suspicion on the threat complaint (if not both of them). In short,

the district court had no reasonable basis to find the contents of

Malavé's   complaints   were   reliable   "beyond   mere   allegation."

McGowan, 668 F.3d at 606–07.

           So it was clear error for the judge to conclude, as he

did, that Colón's "actual conduct was the [conduct] charge[d]" in

the complaints.   Standing alone, those bare charges — "without

some greater indicia of reliability that the conduct underlying

[them] took place" — could not prove by a preponderance of the

evidence that Colón "us[ed] physical violence against his pregnant

girlfriend," as the judge found.     Marrero-Pérez, 914 F.3d at 24;

see Rondón-García, 886 F.3d at 25–26 (warning that "a criminal

charge alone," without more, does not prove "criminal guilt of the

charged conduct" (quoting United States v. Gallardo-Ortiz, 666

F.3d 808, 815 (1st Cir. 2012)).10

           In making that finding, the judge also noted that "the

[U.S.] magistrate judge found probable cause as to Mr. Colón's

violation of Article 3.2 and 3.3."    But of course, "the sentencing


     10 The probation officer's in-court testimony (that Alomar
told the same story to him and Malavé) might have given the
accusations more oomph, but no transcript of that testimony was
filed before (or at) the final revocation hearing, and the district
judge gave no indication he'd listened to an audio recording or
reviewed some other record of the testimony.        Indeed, at the
revocation hearing, the government referred only to the "minute of
[the preliminary] hearing" on the docket, which just said the
magistrate judge "found probable cause after listening to
[Mendoza's] testimony."


                                - 26 -
court        [must]   make   an   independent   determination     regarding   the

reliability of all proffered evidence," Zuleta-Alvarez, 922 F.2d

at 35–36, and a district court may not rely on another (federal or

state) judge's probable cause determination to find that the

government's proof met the higher "preponderance" standard, see

United States v. Rivera, 825 F.3d 59, 63 (1st Cir. 2016) (noting

that "probable cause does not demand . . . proof by a preponderance

of the evidence").11

                                     Bottom Line

                So all told, the district judge's Grade A finding — based

only on unsubstantiated allegations in a charging document — was

clear error.          And that error inflated Colón's guideline range.         As

we said earlier, "a district court's error in calculating the

guideline        range    requires    resentencing   where   it    'affects    or

arguably affects the sentence imposed.'"              Lacouture, 835 F.3d at

189 (quoting United States v. Ramos-Paulino, 488 F.3d 459, 463

(1st Cir. 2007)). And that's true here; the district court rattled

off its "physical force" and "Grade A" findings when it imposed

the sentence and gave no hint it would've given the same sentence




        11
        For those reasons, the Puerto Rico magistrate's finding
that there was probable cause to support the Article 3.2 charge
doesn't help, either.


                                       - 27 -
without   them.    As   such,   we   must   vacate   and   remand   for

resentencing.12




     12 In the conclusion of his brief, Colón asks us to direct
that a different district judge handle resentencing, saying the
previous judge's factfinding was "problematic" and citing United
States v. Hernández-Rodríguez, 443 F.3d 138, 148 (1st Cir. 2006)
(noting that "[t]here are occasions when a matter is appropriately
remanded to a different district judge not only in recognition of
the difficulty that a judge might have putting aside his previously
expressed views, but also to preserve the appearance of justice").
"Ordinarily," however, "district judges are free to keep or to
reassign remanded cases in accordance with local rules and
practice," United States v. Bryant, 643 F.3d 28, 35 (1st Cir.
2011), and Colón does not explain why remanding to a different
jurist here would "preserve the appearance of justice."         His
argument to that effect is therefore waived. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).




                                - 28 -
