Rule 32.1 Notice Must Track the Condition Alleged When Conduct Is Treated as a Higher-Grade “New Crime” Violation—But Plain-Error Relief Requires Prejudice

I. Introduction

United States v. Ortiz-Rodríguez addresses a recurring supervised-release revocation problem: whether a releasee receives adequate notice under due process and Federal Rule of Criminal Procedure 32.1 when the petition (or probation motion) alleges “technical” violations (drug use and treatment noncompliance), but the district court sentences using a higher guideline grade by treating the same conduct as a “new crime” (here, felony drug possession under Puerto Rico law).

The appellant, Roberto Ortiz-Rodríguez (“Ortiz”), began supervised release in September 2024 after a conviction under 18 U.S.C. § 922(g)(1). He repeatedly tested positive for marijuana and cocaine, repeatedly failed treatment placements, and was discharged from programs. The probation officer filed two motions that identified violations of (1) the mandatory condition to “refrain from any unlawful use of controlled substances” and (2) the special substance-abuse treatment condition—without expressly alleging violation of the separate mandatory condition prohibiting the commission of “another federal, state[,] or local crime.”

At revocation, Ortiz did not contest the allegations and requested a below-range sentence (five months’ custody plus reentry placement); the government did not oppose. The district court nevertheless treated the conduct as a Grade B violation on the theory that drug use implies possession and that possession is a Puerto Rico felony, yielding an 8–14 month advisory range, and imposed 14 months. Ortiz appealed principally on lack-of-notice and waiver grounds.

II. Summary of the Opinion

The First Circuit affirmed. It held:

• Notice error: Ortiz did not receive adequate Rule 32.1 notice to support sentencing him as though he had committed an additional “new crime” violation (Grade B) when the probation motions named only drug use and treatment noncompliance (Grade C). Notice of conduct alone was insufficient in these circumstances.
• Plain-error posture: The notice argument was unpreserved; therefore, plain-error review applied.
• No prejudice: Even assuming error (and without deciding whether it was “clear or obvious”), Ortiz failed to show a reasonable likelihood of a different outcome—he did not meaningfully articulate what factual or legal defense he would have mounted against the possession/new-crime characterization.
• Waiver arguments fail absent prejudice: Ortiz’s attempt to invoke United States v. Correa-Torres did not warrant automatic vacatur; unlike cases where revocation rested on a stipulation/waiver, the district court made findings based on the record, and Ortiz still failed to show harm to substantial rights.

III. Analysis

A. Precedents Cited

1. Due process baseline for revocation proceedings

• Morrissey v. Brewer, 408 U.S. 471 (1972): Recognized “minimum requirements of due process” in parole revocation, including written notice of claimed violations and disclosure of evidence. The First Circuit uses Morrissey as the constitutional foundation for revocation procedure.
• Gagnon v. Scarpelli, 411 U.S. 778 (1973): Applied Morrissey principles to probation revocation and reiterated notice/disclosure requirements. The court quotes Scarpelli to anchor Rule 32.1’s protections in due process.

2. Rule 32.1 notice content: conduct-only vs condition-specific approaches

• United States v. Gordon, 961 F.2d 426 (3d Cir. 1992): Cited for the proposition that notice of allegedly violative conduct can satisfy Rule 32.1. The government relied on this “conduct-notice” view.
• United States v. Sistrunk, 612 F.3d 988 (8th Cir. 2010): Cited (cf.) for the idea that, where “new crimes” are alleged, a statutory citation is not necessarily required. The First Circuit treats this as supportive of a flexible notice framework, but not dispositive.
• Rule 32.1 Advisory Committee Note (1979) quoting Kartman v. Parratt, 397 F. Supp. 531 (D. Neb. 1975): Invoked by Ortiz for a more structured requirement: notice should identify the condition(s) allegedly violated and the dates/events supporting the charge. The panel treats the note as consistent with a notice purpose centered on meaningful defense preparation.
• United States v. Chatelain, 360 F.3d 114 (2d Cir. 2004) and United States v. Kirtley, 5 F.3d 1110 (7th Cir. 1993): Cited for the position that notice must apprise the releasee of the specific condition allegedly violated. The First Circuit does not adopt a rigid formula but uses these cases to reinforce that notice must be adequate for defense preparation, especially when grading affects exposure.
• United States v. Havier, 155 F.3d 1090 (9th Cir. 1998): Cited for the proposition that when it is not otherwise evident, alleging a “new crimes” violation requires identifying the specific crime. This supports the First Circuit’s concern that drug-use allegations do not transparently alert a defendant that a separate “new crime” violation is at issue.

3. Standard of review and preservation doctrines

• United States v. Sevilla-Oyola, 770 F.3d 1 (1st Cir. 2014): De novo review for interpretation of federal rules—stated as the default, but displaced here by forfeiture.
• United States v. García-Oquendo, 144 F.4th 66 (1st Cir. 2025): De novo review for due process claims—again subject to preservation.
• United States v. Rodríguez-Meléndez, 828 F.3d 35 (1st Cir. 2016) and United States v. Stile, 845 F.3d 425 (1st Cir. 2017): Frame the plain-error standard applied once the court finds the notice claim unpreserved.
• United States v. Davis, 923 F.3d 228 (1st Cir. 2019); Lee v. Kemna, 534 U.S. 362 (2002) (quoting Osborne v. Ohio, 495 U.S. 103 (1990)); and United States v. Whalen, 82 F.3d 528 (1st Cir. 1996): Used to emphasize that an objection must be specific enough to allow a district court to correct the alleged error in real time.
• United States v. Colón-Cordero, 91 F.4th 41 (1st Cir. 2024): Ortiz’s preservation analog; distinguished because objections there “thematically” matched the later appellate claims.
• United States v. Rodriguez, 919 F.3d 629 (1st Cir. 2019) and United States v. Cortes-Claudio, 312 F.3d 17 (1st Cir. 2002): Cited for situations where plain error may not apply because there was no meaningful chance to object or the basis was unforeseeable; the panel finds those circumstances absent because the district court asked “Anything else?” and counsel did object (but not on notice grounds).

4. Prejudice and plain error in sentencing contexts

• United States v. Rabb, 5 F.4th 95 (1st Cir. 2021) and United States v. Abraham, 63 F.4th 102 (1st Cir. 2023): Supply the “reasonable likelihood” prejudice requirement for substantial-rights harm.
• United States v. Dow, 990 F.2d 22 (1st Cir. 1993) and United States v. Brennick, 337 F.3d 107 (1st Cir. 2003): Adverse First Circuit authority referenced in Ortiz’s attempt to challenge the inference of possession from use. The panel notes Ortiz did not develop an argument showing why distinguishing these cases would likely change the result below.
• Smith v. City of Boston, 460 F. Supp. 3d 51 (D. Mass. 2020): Cited for the practical proposition that district courts give weight to circuit dicta—undercutting Ortiz’s “it was dicta” strategy as a showing of likely success.
• United States v. Harbour, 417 F. App'x 507 (6th Cir. 2011) and United States v. Medina, 73 F. App'x 464 (1st Cir. 2003): Unpublished decisions used to reinforce that speculative “I could have argued X” claims do not establish prejudice.

5. Rule 32.1 waivers and the role of stipulations

• United States v. Correa-Torres, 326 F.3d 18 (1st Cir. 2003): Central to Ortiz’s waiver argument. The panel reads it as fact-intensive and as supporting vacatur primarily where revocation followed from an invalid waiver/stipulation on which the court relied.
• United States v. LeBlanc, 175 F.3d 511 (7th Cir. 1999): Cited (via Correa-Torres) as an example where the court vacated revocation following an accepted stipulation, illustrating the “preferred practice” of restarting proceedings when waiver is invalid and relied upon.
• United States v. Díaz-Concepción, 860 F.3d 32 (1st Cir. 2017) and Boykin v. Alabama, 395 U.S. 238 (1969): Deployed to address Ortiz’s analogy to Rule 11 plea colloquies and to emphasize that even when waiver/plea-type errors are asserted, prejudice cannot rest on bare assertions.

B. Legal Reasoning

1. Why the First Circuit found a notice error

The court begins with the functional purpose of Rule 32.1 notice: enabling preparation of a defense and protecting the “obvious stake in preserving liberty.” In Ortiz’s case, the probation motions named only two conditions (drug use and treatment participation) and did not identify the “new crimes” condition. That mattered because:

• The two named violations were concededly Grade C and carried a lower advisory range (5–11 months for Ortiz).
• The district court instead sentenced on a Grade B theory that implied an additional “new crime” (felony possession) with a higher range (8–14 months) and, under the then-current policy statement, mandatory revocation language for Grade B.
• The government did not argue for a sentence that would have signaled the court might be treating the case as Grade B, which reinforced the reasonableness of Ortiz’s expectation that only the named violations were in play.

The court therefore rejects the government’s contention that notice of the positive drug tests alone sufficed. The problem was not merely “grade notice” in the abstract; it was that Ortiz was not told that a different condition (commission of a crime) was effectively being used to increase the violation grade and guideline exposure.

2. Why the error did not justify relief (plain error / prejudice)

Having found forfeiture, the court applies the four-part plain-error test and resolves the appeal at the substantial-rights step. Ortiz bore the burden to show a reasonable likelihood that, with proper notice, the outcome— including the sentence—would have been different.

The court finds Ortiz’s prejudice showing inadequate because he did not identify a concrete defense:

• He did not assert he would have contested possession factually (despite not challenging the positive tests).
• He gestured at challenging “constructive possession” from urinalysis but did not articulate an argument that would likely succeed despite potentially adverse circuit authority (United States v. Dow, United States v. Brennick).
• He did not specify witnesses, evidence, or legal theories that would have materially changed the district court’s finding or sentence.

Because prejudice was not established, the panel did not need to decide whether the notice error was “clear or obvious.”

3. The waiver/colloquy arguments and the limited reach of Correa-Torres

Ortiz attempted to convert the notice defect into a structural waiver defect, arguing his waiver of Rule 32.1 rights was unknowing and thus required vacatur under United States v. Correa-Torres. The panel resists that extension:

• Correa-Torres is treated as fact-dependent and especially concerned with situations where revocation follows from a waiver/stipulation the court relies on.
• Here, the record reflected a magistrate-judge appearance where Ortiz was advised of rights and signed a waiver form. Ortiz did not grapple with that record or argue advisements must come from the district judge.
• Critically, the panel understood the district court to have made findings based on the record (drug tests and treatment failures), not simply to have revoked because Ortiz “admitted.”
• Even if the specific Grade B theory was not flagged during pre-hearing discussions, Ortiz still failed to show how a different colloquy would have produced a different result—bringing the analysis back to prejudice.

C. Impact

The decision’s most important practical effect is its two-part guidance for supervised-release revocations in the First Circuit:

• Charging/notice discipline: When the government/probation seeks (or the court might consider) treating drug use as implicating an additional “new crime” condition—thereby raising the guideline grade—Rule 32.1 notice should identify that condition (and, where not evident, the specific crime). Motions that list only technical conditions risk being deemed inadequate.
• Appellate posture discipline: Defendants must timely object on notice/Rule 32.1 grounds. On appeal, especially under plain error, they must articulate concrete prejudice—what they would have contested and how it could plausibly have changed grade, revocation decision, or sentence.

The opinion also signals a limiting principle on Correa-Torres: “preferred practice” vacatur for invalid waivers is not automatic where the district court’s revocation and sentencing rest on independent record findings and the appellant cannot show a realistic alternative outcome.

IV. Complex Concepts Simplified

• Supervised release revocation: After prison, a defendant must comply with conditions; if not, the court may revoke supervised release and impose additional imprisonment.
• Rule 32.1 notice: Before revocation, the defendant must receive written notice of the alleged violations and the evidence against him—enough to prepare a defense.
• Grades (A/B/C) under Chapter 7: Policy statements categorize violations by seriousness; higher grades generally increase the advisory imprisonment range. Here, “technical” drug-use/treatment violations were treated as Grade C, while “new crime” conduct punishable by >1 year was treated as Grade B.
• Plain error: If an argument was not properly raised below, the appellant must show not only error but that it likely mattered to the outcome (prejudice) and undermined the fairness/integrity of proceedings.
• “Substantial rights” (prejudice): In this context, the appellant must show a reasonable likelihood the sentence would have been different absent the error—not merely a speculative possibility.
• Waiver of revocation rights: A defendant may give up certain hearing rights, but the waiver must be knowing and voluntary; whether it is valid is judged from the full record, not a single formulaic colloquy.

V. Conclusion

United States v. Ortiz-Rodríguez recognizes a meaningful Rule 32.1 notice defect when a revocation proceeding that is framed in writing as involving only technical conditions is effectively transformed at sentencing into a higher-grade “new crime” violation. But the decision is equally a cautionary tale about remedies: without a timely objection and without a concrete showing of prejudice—what defense would have been mounted and why it could plausibly have changed the grade or sentence—appellate courts will affirm under plain-error review. The case thus tightens notice expectations while reinforcing that, in revocation appeals, procedure and prejudice are inseparable.