          United States Court of Appeals
                     For the First Circuit


No. 15-2253

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                       VICTOR LOPEZ-ORTIZ,

                      Defendant, Appellant.


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

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                             Before

                  Lynch, Thompson, and Kayatta
                         Circuit Judges.


     Jamesa J. Drake, with whom Drake Law, LLC was on brief, for
appellant.
     Mainon A. Schwartz, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Julia M. Meconiates, Assistant United
States Attorney, were on brief, for appellee.


                        November 8, 2017
            KAYATTA, Circuit Judge.        Victor Lopez-Ortiz appeals the

revocation of his supervised release and the imposition of a

statutorily authorized, but above-guidelines, three-year term of

imprisonment.      He contends that the district court improperly

shifted the burdens of production and persuasion at his final

revocation hearing, an error requiring remand and resentencing.

For the reasons described below, we affirm the judgment and

sentence.

                                     I.

            In   early   2015,   Lopez-Ortiz   completed   a   sentence   of

imprisonment for conspiring to distribute cocaine in violation of

federal laws.       Just three months into an eight-year term of

supervised release, he was charged with repeatedly violating the

conditions of that release.

            The charges against Lopez-Ortiz led to a hearing on the

government's motion to revoke his supervised release.           Revocation

involves two stages.        First, the court conducts a preliminary

hearing "to determine whether there is probable cause to believe

that a violation occurred."          Fed. R. Crim. P. 32.1(b)(1)(A).

Second, the court holds a final revocation hearing, at which the

defendant has "an opportunity to appear, present evidence, and

question any adverse witness" and to "present any information in

mitigation." Fed. R. Crim. P. 32.1(b)(2)(C), (E).




                                   - 2 -
            At   Lopez-Ortiz's       preliminary     revocation      hearing    on

August 11, 2015, the probation officer responsible for Lopez-Ortiz

testified that Lopez-Ortiz had reported an address of record at

which he did not actually live, failed to appear for scheduled

drug tests on three occasions, admitted to another probation

officer that he was using synthetic marijuana, failed to attend

scheduled mental health treatment, and failed to remain at his

transitional housing program and follow its rules, all in violation

of several stated conditions of his supervised release.                   On cross-

examination, defense counsel raised no challenge to the officer's

description of Lopez-Ortiz's conduct.             Rather, counsel sought to

question   the   witness     about    the     results    of   a   mental    health

examination performed on Lopez-Ortiz at his counsel's request

prior to the hearing. The government objected, arguing that Lopez-

Ortiz's    mental   health    assessment       was   irrelevant      to    whether

probable cause existed for the charged violations. Defense counsel

responded that the information about Lopez-Ortiz's mental health

went "directly . . . to why he didn't participate" in the scheduled

mental health treatment. The government noted that defense counsel

must therefore be "making an admission that he violated the

conditions."     Counsel for Lopez-Ortiz did not respond to this

characterization,     and    the     questioning        continued.         At   the

conclusion of the hearing, the magistrate judge determined that

probable cause existed for the charged violations.


                                      - 3 -
               Before the final revocation hearing, counsel for Lopez-

Ortiz filed a motion requesting a continuance and updating the

court on the status of the case.                In addition to requesting the

continuance due to a scheduling conflict, defense counsel used the

motion    to    explain      Lopez-Ortiz's      position.         That   explanation

eschewed any contention that Lopez-Ortiz had not acted as charged

by the government.        Instead, counsel argued that "[o]f the alleged

violations, the only one which by statute requires mandatory

revocation [is] the failure to attend drug testing" and that Lopez-

Ortiz "did not violate said condition willfully and voluntarily."

Counsel    also     requested    that    "should     the    Court      find    that   he

willingly and voluntarily incurred in [sic] any of the alleged

violation[s] other than the drug testing, his supervision be

modified rather than revoked."            The motion further admitted that

Lopez-Ortiz, "without the [probation office's] consent, squatted

an apartment in [a] housing project and refused to leave the

apartment      to   attend    appointments       scheduled       by   [the    probation

office]," claiming that Lopez-Ortiz did so "due to fear for his

[life]."    Finally, the motion excerpted a portion of the report of

the psychologist, Dr. Alexandra Ramos, who conducted Lopez-Ortiz's

mental    health     examination,       noting    that     the    report's      excerpt

"summarizes the arguments which will be presented at the final

revocation hearing."          The report concluded that a "combination of

factors is the reason why [Lopez-Ortiz] violated the terms of his


                                        - 4 -
probation by fleeing his placement and not participating in mental

health treatment."

          The beginning of the final revocation hearing evidenced

some confusion over which party should proceed first.   Over Lopez-

Ortiz's objection, the district court ordered his counsel to

proceed first, stating that the burden is "on you."1

          Defense counsel then called two witnesses: (1) Lopez-

Ortiz's probation officer and (2) the psychologist who evaluated

Lopez-Ortiz and authored the report containing her evaluation.

Both witnesses testified on direct examination that Lopez-Ortiz

did not comply with certain conditions of his supervised release.

The probation officer testified that Lopez-Ortiz had "left the

housing project" at which he was supposed to remain and "did not

attend" a scheduled appointment.   The psychologist testified that

a "combination of . . . factors," including "a limited intellectual

capacity," a "severe beating" Lopez-Ortiz had endured, "the use of

synthetic marijuana," "and the perceived threat on his life and

subsequent paranoia," "explains why he violated the conditions of




1 THE COURT: [To the defendant] Have you decided what, how are we
going to proceed in this case? Are you going to want the hearing,
or are you going to waive the hearing?
THE DEFENDANT: I want it to be held.
THE COURT: All right. Call your first witness.
[DEFENSE COUNSEL]: Your Honor, I understand the burden is on the
government.
THE COURT: No. It's on you.
[DEFENSE COUNSEL]: Okay.


                              - 5 -
his   supervised   release."      The    government    cross-examined    both

witnesses, eliciting further testimony that Lopez-Ortiz abandoned

his transitional housing program, failed to report for mental

health   treatment,   failed     to     follow   the   probation   officer's

instructions, and missed three scheduled drug tests in February

and March of 2015.

           The court concluded that "it is a fact that [Lopez-

Ortiz] has violated the conditions of his supervised release."

The court further explained that it had read the psychologist's

report as to Lopez-Ortiz's mental health and agreed that "he needs

treatment."     The   court    then    revoked   Lopez-Ortiz's     supervised

release.      Lopez-Ortiz     unsuccessfully      sought   reconsideration,

arguing again that his violations were not voluntary because of

his mental health issues.        The court sentenced Lopez-Ortiz to a

three-year term of imprisonment, the maximum allowed under 18

U.S.C § 3583(e)(3), plus three years of supervised release.              The

court also stated that it would "strongly recommend to the Bureau

of Prisons that . . .    Mr. Lopez-Ortiz be designated to serve this

sentence at the Butner Medical Institute in Butner, North Carolina,

so that he can receive inpatient substance abuse treatment" and

other health services.

                                       II.

           Lopez-Ortiz contends that the district court erred in

announcing that he bore "the burden of proof and persuasion."


                                      - 6 -
Although that was not quite what the district court said, the

government does not seem to contest Lopez-Ortiz's spin on the

district court's statement, or that the district court erred.                The

government also says that the district court erred because it

"required      that   Lopez-Ortiz      present   evidence     at   the     final

revocation hearing," which is also not what the court said.

            We think it more likely that the district court presumed,

although failed to confirm, that there was no challenge to the

fact of a violation, and that Lopez-Ortiz simply wanted to "present

any information in mitigation."          Fed. R. Crim. P. 32.1(b)(2)(E).

Nevertheless, given the government's acquiescence, we will assume

that the district court did indeed err in announcing that Lopez-

Ortiz   need    proceed   first   as    the   party   with   the   burdens    of

production and proof.      So the pivotal question is whether and with

what degree of confidence we can say there was no harm.              Claiming

that his constitutional due process rights are at stake, Lopez-

Ortiz argues that we should vacate his sentence unless we can find

that the assumed error was harmless beyond a reasonable doubt,

citing Chapman v. California, 386 U.S. 18, 24 (1967).                    Whether

that is the appropriate standard we need not decide because any

error here was harmless by any measure.

            To explain why this is so, we train our attention on

what was at issue in the final revocation hearing. As the parties'

pre-hearing filings made clear, Lopez-Ortiz indisputably conducted


                                    - 7 -
himself as claimed by the government.     Even on appeal, Lopez-Ortiz

forthrightly makes no argument that he did not act as charged.

            In theory, the parties' concordance nevertheless left

unresolved the question of mens rea.        The relevant statute, 18

U.S.C. § 3583(e)(3), authorizes revocation of a term of supervised

release in favor of imprisonment if, pursuant to Federal Rule of

Criminal Procedure 32.1, the court "finds by a preponderance of

the evidence that the defendant violated a condition of supervised

release."    Revocation is mandatory if the defendant "refuses to

comply with drug testing imposed as a condition of supervised

release."    18 U.S.C. § 3583(g)(3).    Although the statute makes no

express mention of any mens rea requirement, the word "refusal"

arguably implies some such element, and at least one circuit court

has squarely held that revocation requires that a violation be

"knowing."    See United States v. Napulou, 593 F.3d 1041, 1045 (9th

Cir. 2010); see also United States v. Muñoz, 812 F.3d 809, 822–23

(10th Cir. 2016) (reading a "knowing" standard into a condition of

supervised release); United States v. Adkins, 743 F.3d 176, 196

(7th Cir. 2014) (noting that Due Process requires clarity in

supervised release prohibitions).      Such a conclusion is consistent

with our own case law presuming that one generally need know the

facts that make one's conduct unlawful in order to be convicted of

a crime.    See United States v. Ford, 821 F.3d 63, 74–75 (1st Cir.

2016).     So, had there been a dispute concerning whether Lopez-


                                - 8 -
Ortiz knew that he was missing his required drug testing, an order

that he must proceed first to prove a lack of such knowledge might

well have caused prejudice.

             Here, though, Lopez-Ortiz never even hinted that he was

unaware that he was skipping his required drug testing.                      To the

contrary,      even   before    the     final    revocation     hearing     he    left

undisputed the evidence that he understood his obligation to appear

for drug testing, and understood that he was choosing to fail to

appear.      The probation officer testified at the probable cause

hearing that he spoke with Lopez-Ortiz on the phone about his

obligation to attend drug testing.                His counsel never suggested

any interest in challenging the existence of such awareness.                      And

on appeal he makes no claim that his conduct was not knowing.

             Instead,       counsel    sought    to   present   evidence     from   a

psychologist aimed at establishing that Lopez-Ortiz did not act in

a   manner   that     was    "truly    voluntary."       In   the   words    of    the

psychologist, "a combination of a limited intellectual capacity,

[a]   severe    beating,      the     use   of   synthetic    marijuana     and   [a]

perceived threat on his life and subsequent paranoia impaired

his . . . ability . . . to make a decision and evaluate the

consequences of his actions."                This "combination of factors,"




                                        - 9 -
opined the psychologist, "explains why he violated the conditions

of his supervised release."2

             The problem for Lopez-Ortiz is that he can cite no

precedent suggesting that "involuntariness" in the sense of being

fearful or experiencing duress negates an element of the charged

violation.    The Model Penal Code does state that a person "is not

guilty of an offense unless [his or her] liability is based on

conduct   that   includes    a   voluntary   act."     Model   Penal   Code

§ 2.01(1).    But, an omission constitutes a voluntary act when "[he

or she] is physically capable" of performing an act, and has some

duty to perform it.         Id. § 2.01(1), (3) (noting that omission

liability must be based on a legal duty to act or an express

statement in the law that the omission constitutes the offense).

Involuntary acts are the product of "reflexes, convulsions, and

movements occurring during unconsciousness," United States v.

Torres, 74 M.J. 154, 158 (C.A.A.F. 2015), as well as actions

performed while sleepwalking, Smith v. State, 663 S.E.2d 155, 157

(Ga. 2008).    Proof that one acts due to addiction, or out of fear,

is not proof that one acts involuntarily.            See Powell v. Texas,

392 U.S. 514, 535 (1968) (plurality opinion) (alcoholism); United

States v. Solorzano-Rivera, 368 F.3d 1073, 1080–81 (9th Cir. 2004)

(fear of police harassment).


2 Lopez-Ortiz appears to have feared for his life if he ventured
outside.


                                  - 10 -
               This is not to say that Lopez-Ortiz's evidence was

irrelevant.       We can assume (without deciding) that it may have

provided   some     type   of   affirmative        defense,    such      as   duress.

Certainly, such proof might have been submitted under Rule 32.1 as

grounds for mitigation. In either event, though, Lopez-Ortiz would

have borne the burden of proof for those subjects.                    Cf. Dixon v.

United States, 548 U.S. 1, 17 (2006) (absent legislation to the

contrary, the defendant in a criminal trial bears the burden of

proving    a    defense    of   duress);     see    also     Fed.   R.    Crim.      P.

32.1(b)(2)(C), (E) (allowing the defendant to "present evidence"

and "present any information in mitigation").

               As an alternative argument, Lopez-Ortiz posits that the

district   court     settled    on   a    longer    prison    sentence        than   it

otherwise would have imposed because it placed the burden on Lopez-

Ortiz to convince the court that something shorter than the three-

year maximum was appropriate.             Whatever one might think of this

argument in the abstract, it fails in practice.                In explaining the

sentence, the district court evidenced no hint that the burden of

proof played any role at all.            The district court expressly relied

on the entirely undisputed factual information submitted by the

government prior to the hearing (as confirmed at the hearing).

               Nor did the court reject the evidence offered by Lopez-

Ortiz in mitigation.        While the court properly did not view that

evidence as relevant to determining whether the charged violations


                                     - 11 -
occurred, or whether Lopez-Ortiz knew what he was doing, the court

indicated that it was "impressed by the report submitted by

Dr. Ramos."        The court also expressly agreed with Dr. Ramos's

recommendation that Lopez-Ortiz be placed in a drug treatment

program in a restricted area, such as a prison with adequate

resources.        This recommendation caused the court to "strongly

recommend to the Bureau of Prisons that based on the evaluation

performed by Dr. Ramos . . . Lopez-Ortiz be designated to serve

[his] sentence at the Butner Medical Institute in Butner, North

Carolina,    so    that   he   can   receive   inpatient   substance   abuse

treatment" and other health services.

             In sum, Lopez-Ortiz knowingly violated the terms of his

supervised release.       The only issue was what significance should

be assigned to the testimony of Lopez-Ortiz's expert in sentencing.

The district court actually accepted the factual gist of that

testimony    (that    Lopez-Ortiz     was   psychologically   resistant   to

compliance with the key terms of supervised release), rejecting

only the fully mitigative import defense counsel would draw from

that testimony. On such a record, the manner in which the district

court proceeded could not have caused Lopez-Ortiz any improper

prejudice.

                               III. Conclusion

             We affirm the judgment and sentence.




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