Revocation Sentencing Must Be Based on the Revocation Record: Extra-Record Trial Evidence Cannot Supply a Grade A Finding

I. Introduction

In United States v. Fernandez-Santos (1st Cir. May 15, 2026), the First Circuit vacated a statutory-maximum revocation sentence after concluding that the district court committed procedural error by relying on information outside the revocation record to find that the defendant knowingly possessed a machine gun—an essential fact that drove a Grade A violation determination and the resulting sentence.

The appellant, Diego Fernández-Santos, was on supervised release for prior federal convictions that included a firearm offense under 18 U.S.C. § 922(g)(1). During supervised release, he was arrested; police recovered (i) a rifle and ammunition from a bedroom closet in the house where he lived and (ii) a pistol and magazine from a bag officers said he discarded. Separate new criminal charges under 18 U.S.C. § 922(g)(1) and § 922(o) were later dismissed with prejudice for government discovery violations after trial had begun. The revocation case proceeded, and the government sought a Grade A finding on the theory that Fernández possessed a “destructive device”—a machine gun—under U.S.S.G. § 7B1.1(a)(1)(A)(iii).

The central issue on appeal was not whether the district court could consider trial-related information in principle, but whether it could do so without the government placing that information into the revocation record (or otherwise giving notice and an opportunity to contest it), consistent with due process and Fed. R. Crim. P. 32.1(b)(2).

II. Summary of the Opinion

The First Circuit held that the district court procedurally erred by relying on extra-record evidence to support its finding that Fernández “knew that the rifle was a machine[ ]gun.” The government had submitted only limited transcript excerpts with its “Informative Motion,” expressly “resting” on those excerpts. Yet the district court’s mens rea finding relied on a factual premise—an “obvious” selector “switch” showing safety/semi/automatic—that was not established by the evidence the government actually introduced into the revocation record. Because that extra-record fact drove the Grade A determination and the statutory-maximum sentence, the sentence was vacated and remanded for resentencing.

The court also rejected (as waived) the government’s appellate attempt to argue that Grade A classification under U.S.S.G. § 7B1.1 does not require proof of mens rea, because the government had litigated below on the premise that it did.

The remand was limited to the current revocation record.

III. Analysis

A. Precedents Cited

1. Standard of review and sentencing framework

  • United States v. Colón-Maldonado, 953 F.3d 1 (1st Cir. 2020) and United States v. Wright, 812 F.3d 27 (1st Cir. 2016): cited for abuse-of-discretion review where objections are preserved, and for baseline revocation principles (including the government’s preponderance burden).
  • United States v. Colón-Cordero, 91 F.4th 41 (1st Cir. 2024) and United States v. Clogston, 662 F.3d 588 (1st Cir. 2011): cited for the two-step sequencing of review—procedural reasonableness first, then substantive reasonableness if needed.

2. Due process protections in revocation proceedings

  • United States v. Ramos-Carreras, 59 F.4th 1 (1st Cir. 2023): anchors the opinion’s due process analysis. The court relies on Ramos-Carreras for the propositions that revocation entails a serious deprivation of liberty; that defendants have the right to sentencing based on “accurate and reliable information”; and that “material” use of “new information” from outside the record can be reversible error (via Rivera-Rodríguez).
  • United States v. Correa-Torres, 326 F.3d 18 (1st Cir. 2003): supports the statement that releasees are entitled to a “panoply of procedural rights” notwithstanding that revocation is not part of a criminal prosecution.
  • United States v. Rivera-Rodríguez, 489 F.3d 48 (1st Cir. 2007): cited (through Ramos-Carreras) for the core procedural principle: a defendant must have an opportunity to rebut information used in sentencing, and reliance on outside-the-record information can require reversal.
  • United States v. García-Oquendo, 144 F.4th 66 (1st Cir. 2025): reinforces that Rule 32.1(b)(2)(C)’s confrontation protections apply across the revocation proceeding (violation determination and sentencing/revocation decision). While Fernandez-Santos turns primarily on extra-record use and notice/opportunity to respond, García-Oquendo supplies the broader procedural backdrop.

3. Limits on sentencing information and extra-record reliance

  • United States v. Millán-Isaac, 749 F.3d 57 (1st Cir. 2014): the opinion uses Millán-Isaac as a close analogue for remanding where a district court relied on extra-record evidence at sentencing.
  • United States v. Bramley, 847 F.3d 1 (1st Cir. 2017): cited for the proposition that sentencing discretion is “bounded” by Rule 32 and due process—framing the doctrinal constraint on what information may be used and how.

4. Waiver and the limits of appellate affirmance on alternative grounds

  • Shabshelowitz v. State of R.I. Dep't. of Pub. Safety, 155 F.4th 62 (1st Cir. 2025): invoked for the First Circuit’s strict waiver doctrine—legal theories not “raised squarely” below generally cannot be introduced on appeal.
  • Brox v. Woods Hole, 83 F.4th 87 (1st Cir. 2023): cited for the narrow circumstances in which the court will affirm on alternative grounds—when grounded in well-established principles or “manifest in the record.”
  • O'Brien v. United States, 56 F.4th 139 (1st Cir. 2022) and United States v. Lorenzo-Hernandez, 279 F.3d 19 (1st Cir. 2002): emphasize appellate courts as courts of review, not first instance, cautioning against resolving unpreserved issues without full development below.
  • United States v. Carrasco-De-Jesus, 589 F.3d 22 (1st Cir. 2009): supports applying waiver doctrine against the government—“what is sauce for a defendant's goose is most often sauce for the government's gander.”

5. “Square corners” and procedural fairness

  • Ferrara v. United States, 456 F.3d 278 (1st Cir. 2006) and Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1 (2020): used rhetorically but pointedly to require government “square corners” when liberty is at stake—underscoring that procedural defaults about the record are not technicalities but fairness requirements.
  • United States v. Rivera-Ruperto, 852 F.3d 1 (1st Cir. 2017): referenced to note that arguments raised only at oral argument are generally waived—here, the government’s suggestion of judicial notice or incorporation.

6. Remand scope and reassignment

  • United States v. Esteras, 606 U.S. 185 (2025): not reached on the merits, but flagged as relevant to the supervised release § 3553(a) analysis on remand.
  • United States v. Nieves-Díaz, 173 F.4th 8 (1st Cir. 2026) and United States v. Vázquez-Méndez, 915 F.3d 85 (1st Cir. 2019): cited for the “very unusual cases” standard for reassignment to a different judge; reassignment was denied.
  • United States v. Castillo-Torres, 8 F.4th 68 (1st Cir. 2021) and United States v. Rosa-Borges, Nos. 24-1841, 24-1842, 2026 WL 1194736 (1st Cir. May 1, 2026): used to distinguish when reassignment is warranted, noting Rosa-Borges involved an unprompted, unsourced outside-record reliance.

B. Legal Reasoning

  1. The dispositive “fact” driving the sentence had to be proven in the revocation proceeding. A Grade A finding under U.S.S.G. § 7B1.1(a)(1)(A)(iii) dramatically elevated exposure and helped justify the statutory-maximum 60-month sentence. The district court grounded the Grade A finding in a mens rea conclusion: Fernández “knew that the rifle was a machine[ ]gun.”
  2. The government controlled the revocation record—and chose to make it thin. The government attached selected transcript excerpts and explicitly told the district court it was “resting” its case on those exhibits, even representing that it had highlighted the critical passages supporting its allegations.
  3. The district court’s mens rea rationale relied on details absent from those exhibits. The district court cited an “obvious” selector “switch” evidencing safety/semi/automatic settings as the key basis for knowledge, along with Fernández’s firearm familiarity from his prior pistol conviction. But the First Circuit identified a mismatch: the one page of Agent Pérez’s testimony admitted into the revocation record did not discuss the switch/lever or its significance, and the government conceded the record lacked testimony about that feature.
  4. Due process and Rule 32.1(b)(2) require notice and a meaningful chance to contest what will be used. The court emphasized that revocation defendants have rights to reliable information and an opportunity to rebut it. If the government or court intends to rely on additional trial testimony, it must be introduced (or properly noticed/incorporated) so the defense can respond. The opinion credits Fernández’s point that defense strategy is rationally built around the evidence the government actually tenders.
  5. The government could not salvage the result by new appellate theories. The First Circuit refused to entertain the government’s newly raised argument that mens rea is unnecessary for a Grade A determination, deeming it waived under circuit law. The court also rejected the idea (floated at oral argument) that the district court could have relied on the entire trial record through judicial notice or incorporation, because the government did not seek either and affirmatively narrowed the evidentiary basis.
  6. Remedy: vacatur and remand—limited to the existing record. Consistent with the opinion’s due process premise, the court remanded “limited to the current revocation record,” citing Ramos-Carreras. This both corrects the procedural defect and prevents after-the-fact supplementation that would undercut the core notice-and-opportunity-to-respond concern.

C. Impact

1. Record discipline in revocation practice. Fernandez-Santos is a strong warning that courts and prosecutors cannot assume that evidence from related proceedings (suppression hearings, trials, dismissed cases) is automatically available for revocation sentencing. If the government wants the court to consider testimony, it must put it into the revocation record or otherwise use a procedure that provides clear notice and an opportunity to contest it.

2. Strategic consequences and fairness. The opinion foregrounds litigation reliance: the defense is entitled to shape its case around what the government actually submits. This makes the error “procedural” in a concrete way—because the missing evidence affects not only factfinding but also the adversarial choices that safeguard accuracy.

3. Waiver applies symmetrically to the government. The court’s refusal to reach the government’s new “no mens rea required” theory reinforces that appellate courts will not rescue prosecutorial choices below by deciding undeveloped guideline questions for the first time on appeal.

4. Limited remand as a meaningful remedy. By limiting resentencing to the existing revocation record, the court prevents “do-over” litigation that would dilute the due process violation identified—an important remedial stance that will matter in future cases where record shortcuts occur.

IV. Complex Concepts Simplified

  • “Revocation record”: the evidence and materials formally presented to the court for the final supervised release revocation hearing and sentencing decision. Evidence from other proceedings is not part of this record unless introduced or properly incorporated with notice.
  • Procedural reasonableness: whether the court used correct procedures—e.g., relied on accurate, reliable information and gave the parties a fair chance to address the evidence—before deciding the sentence.
  • Grade A violation (U.S.S.G. § 7B1.1): the most serious supervised-release violation category. Here, the government pursued Grade A by arguing the conduct “involve[d] possession” of a machine gun (a type of “destructive device” described in 26 U.S.C. § 5845(a)).
  • Extra-record evidence: information the judge considers that was not introduced into the governing record for that proceeding. Using it can violate due process because the defense may not know to contest it.
  • Waiver (on appeal): a party generally cannot raise a new legal theory for the first time on appeal if it was not presented to the district court, especially where the issue is complex and undeveloped.

V. Conclusion

United States v. Fernandez-Santos establishes (and forcefully applies) a practical procedural rule for supervised release revocations: when a key factual finding drives the violation grade and sentence, it must be supported by evidence in the revocation record, not by unintroduced testimony from related proceedings. The decision pairs that rule with two institutional guardrails—waiver applies to the government, and limited remand is an appropriate remedy where extra-record reliance deprived the defendant of notice and a fair opportunity to respond.