United States v. Oyervides ( 2022 )

Case: 21-50844 Document: 00516237374 Page: 1 Date Filed: 03/14/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 14, 2022
No. 21-50844
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Angelic Ermalinda Oyervides,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:17-CR-1302-1
Before Barksdale, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Angelic Ermalinda Oyervides pleaded guilty to conspiracy to
transport illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) & (B)(i).
The district court sentenced her to 12 months of incarceration followed by
three years of supervised release. Six months after Oyervides’s release, she
was cited for a misdemeanor assault against her domestic partner. Although
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 21-50844
Oyervides admitted she and her partner had “shoved each other,” the case
was dismissed after Oyervides was found not guilty. After the dismissal, her
probation officer filed a report with the district court detailing the incident,
but recommending that the court take no further action at that time.
Subsequently, in March 2020, Oyervides was arrested and charged with
aggravated assault with a deadly weapon and assault causing bodily injury.
This time, the probation officer filed a petition to revoke Oyervides’s
supervised release. In addition to renewing the earlier assault allegation, the
petition detailed the new allegation that Oyervides had assaulted an ex-
girlfriend and another woman with a knife. While the revocation petition was
pending, the charges were dismissed on the day of trial due to a missing
witness. At the revocation hearing, the Government offered the revocation
petition as evidence that Oyervides had violated the conditions of her release.
Although Oyervides objected that “the report [wa]s wrong[,]” the district
court found by a preponderance of the evidence that Oyervides had violated
the conditions of her supervised release by committing a new crime. It
sentenced her to 15 months in prison, followed by a new 21-month term of
supervised release. She now appeals to this court, arguing that the district
court erred by relying solely on the bare allegations in the revocation petition,
without any other evidence.
I.
As an initial matter, the parties contest the applicable standard of
review in this case. This court generally reviews a district court’s decision to
revoke supervised release for abuse of discretion. United States v. Spraglin,
418 F.3d 479, 480 (5th Cir. 2005). But when a defendant fails to challenge a
district court’s finding that she violated a condition of her release, we review
for plain error only. United States v. Jang, 574 F.3d 263, 266 (5th Cir. 2009).
The Government asserts that Oyervides’s statement during the revocation
hearing that she did not have a knife during the alleged incident and that “the
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report is wrong” was insufficient to preserve her challenge to the sufficiency
of the evidence in the revocation petition. We disagree. A party need not
use the magic words “I object” to preserve an issue. United States v. Flores-
Martinez, 677 F.3d 699, 710, n.6 (5th Cir. 2012). No bright line rule exists to
determine issue preservation. United States v. Soza, 874 F.3d 884, 889 (5th
Cir. 2017). The objection need only “be sufficiently specific to alert the
district court to the nature of the alleged error and to provide an opportunity
for correction.” United States v. Rodriguez-Leos, 953 F.3d 320, 324 (5th Cir.
2020) (citing United States v. Neal, 578 F.3d 270, 272 (5th Cir 2009)).
Additionally, “the objection and argument on appeal need not be identical;
the objection need only give the district court the opportunity to address the
gravamen of the argument presented on appeal.” United States v. Nesmith,
866 F.3d 677, 679 (5th Cir. 2017) (cleaned up) (citations omitted). Here,
Oyervides stated that the report of the alleged assault in the revocation
petition was incorrect, and her counsel repeatedly stressed that the
allegations in the petition did not establish that Oyervides had committed the
assault, but at most that she had been arrested, and that the state had
dismissed the resulting charges. These statements were sufficiently specific
to alert the court to the fact that Oyervides disputed the factual allegations in
the revocation petition and to provide an opportunity for correction. See
Rodriguez-Leos, 953 F.3d at 324–26; see also United States v. Hernandez-
Montes, 831 F.3d 284, 290 (5th Cir. 2016) (The “[k]ey is whether the
objection is specific enough to allow the court to take evidence and receive
argument on the issue.”).
This court’s recent opinion in United States v. Zarco-Beiza does not
change this result. 24 F.4th 477, 481–82 (5th Cir. 2022). There, we found
that a defendant’s assertion at sentencing that “he is presumed innocent of
any arrests or apprehension not resulting in a conviction” was insufficient to
preserve an objection to the district court’s consideration of a bare arrest
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record. Id. at 480–81. We reasoned that because the problem with
considering a bare arrest record “is the lack of indicia of reliability, not merely
the presumption of innocence” this objection was insufficient to bring the
specific bare arrest record claim to the district court’s attention. Id. at 482,
n.4. Here, in contrast, Oyervides clearly disputed the reliability of the factual
allegations in the revocation petition. Thus, Oyervides brought to the court’s
attention her argument that the alleged facts were unreliable and lacked an
evidentiary basis, sufficiently preserving this argument for appeal. We
review for abuse of discretion.
II.
“A district court may revoke a defendant’s supervised release if it
finds by a preponderance of the evidence that a condition of release has been
violated.” United States v. Minnitt, 617 F.3d 327, 332 (5th Cir. 2010). In
meeting this standard, a district court may generally consider any evidence
in support of a petition to revoke supervised release. See 18 U.S.C. § 3661.
But there are limits. The court abuses its discretion when it relies on a bare
arrest record to find that a defendant committed a new offense in violation of
the conditions of her release. United States v. Foley, 946 F.3d 681, 686 (5th
Cir. 2020). “An arrest record is ‘bare’ when it refers ‘to the mere fact of an
arrest’”—like the date or charge—without “information about the
underlying facts.” Id. (citation omitted). By contrast, “an arrest record is
not bare . . . when it is accompanied by a factual recitation of the defendant’s
conduct that gave rise to a prior unadjudicated arrest and that factual
recitation has an adequate evidentiary basis with sufficient indicia of
reliability.” Id. (cleaned up). “If the factual recitation lacks sufficient indicia
of reliability, then it is error for the district court to consider it[.]” United
States v. Windless, 719 F.3d 415, 420 (5th Cir. 2013) (citing United States v.
Harris, 702 F.3d 226, 231 (5th Cir. 2012)); see also Foley, 946 F.3d at 686
(relying on Windless in the context of a revocation proceeding).
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Oyervides argues that the arrest record at issue here lacked sufficient
indicia of reliability because the revocation petition did not identify the
source of the allegations, and no complaining witness was available for trial,
leading the state to drop the charges. She relies heavily on Foley, 946 F.3d at
686–87, to support this argument. In Foley, we held that the court erred in
relying on an arrest record in a revocation petition where the revocation
petition stated the date, charge, jurisdiction, and disposition of pending
charges, but did not “provide any context regarding the underlying facts and
circumstances surrounding [the defendant]’s arrest or his conduct leading to
the arrest.” Id. at 687. But in holding so we stated that “a district court errs
when it relies on a bare allegation of a new law violation contained in a
revocation petition unless the allegation is supported by evidence adduced at
the revocation hearing or contains other indicia of reliability, such as the
factual underpinnings of the conduct giving rise to the arrest.” Id. (emphasis
added).
Here the allegation in the petition contained a detailed description of
the facts underlying Oyervides’s arrest. In addition to information about the
date, charge, jurisdiction, and pending disposition, it also included
underlying information about the factual circumstances that led to
Oyervides’s arrest, such as the victims’ detailed recounting of events and the
arresting officers’ observations of the victims’ injuries. These factual
underpinnings are sufficient indicia of reliability for the district court to have
relied on the arrest report in sentencing Oyervides. See Harris, 702 F.3d at
229; cf. United States v. Whitehead, 986 F.3d 547, 550 n.3 (5th Cir. 2021)
(distinguishing Foley where the presentence investigation report included
details about facts underlying arrests based on police reports); see also United
States v. Parkerson, 984 F.3d 1124, 1129–30 (5th Cir 2021) (finding sufficient
indicia of reliability in an uncorroborated police report because it was “quite
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detailed and specific, including the location of the alleged assault . . . [and]
the nature of the weapon that was allegedly used”).
III.
For the foregoing reasons, we AFFIRM.
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