United States v. Ulises Alvarado

                 United States Court of Appeals
                             For the Eighth Circuit

                                 No. 20-2750

                             United States of America

                                       Plaintiff - Appellee


                                 Ulises Alvarado

                                    Defendant - Appellant

                     Appeal from United States District Court
                    for the Northern District of Iowa - Western

                            Submitted: March 15, 2021
                              Filed: May 25, 2021

Before SHEPHERD, ERICKSON, and KOBES, Circuit Judges.


      After his refusal to take a COVID-19 test, the district court 1 revoked Ulises
Alvarado’s supervised release and sentenced him to four months in prison. Alvarado

        The Honorable Leonard T. Strand, Chief Judge, United States District Court
for the Northern District of Iowa.
argues the district court abused its discretion in revoking his supervised release and
argues that his counsel was ineffective. We affirm.


       Alvarado was subject to five years of supervised release after completing his
sentence for failing to register as a sex offender. One of the terms of his supervised
release required him to spend the first 120 days at a Residential Reentry Center. To
enter the center, Alvarado needed to provide a negative COVID-19 test,
administered by a nasal swab. Alvarado refused, claiming it was “very painful and
invasive.” Alvarado Br. 4. While he offered to take an “alternative test” like a throat
swab or to quarantine for 14 days, Alvarado refused to take the nasal swab and told
his probation officer that he would continue to refuse all COVID-19 testing in the

       The U.S. Probation Office filed a petition to revoke Alvarado’s supervised
release. The magistrate judge 2 held a preliminary hearing and found probable cause
that Alvarado refused to comply with the reentry center’s rules. The district court
then held a final revocation hearing and found that Alvarado had violated a term of
his supervised release by refusing the COVID-19 test as required by the reentry
center. The district court noted that mandatory COVID-19 testing “is a rational and
reasonable rule” when imposed “in the middle of a worldwide pandemic,” and
Alvarado’s present and future unwillingness to comply with the rule surpassed a
simple technical violation of his supervised release. The district court sentenced
Alvarado to four months in prison followed by four years of supervised release.

      On appeal, Alvarado argues that the district court abused its discretion by
revoking his supervised release. He also argues that his attorney’s failure to ask

        The Honorable Kelly K.E. Mahoney, Chief Magistrate Judge, United States
District Court for the Northern District of Iowa.

about whether an alternative COVID-19 test would satisfy the reentry center’s
requirement was ineffective assistance of counsel.


       We review a district court’s decision to revoke for abuse of discretion,
reviewing “any findings of fact as to whether or not a violation occurred for clear
error.” United States v. Petersen, 

848 F.3d 1153

, 1156 (8th Cir. 2017). “A district
court may ‘revoke supervised release if the government proves by a preponderance
of the evidence that the defendant violated a condition of supervised release.’” 


A “decision to revoke probation should not merely be a reflexive reaction to an
accumulation of technical violations . . . .” United States v. Melton, 

666 F.3d 513

516 (8th Cir. 2012) (quoting United States v. Reed, 

573 F.2d 1020

, 1024 (8th Cir.
1978)). But “actions indicating . . . a persistent and ‘pervasive unwillingness’ to
comply with . . . the orders of a reentry center are not technical violations and may
warrant the revocation of a supervised release.” Melton, 

666 F.3d at 516


      We conclude the district court did not abuse its discretion in revoking
Alvarado’s supervised release. The terms of his release required him to abide by all
the reentry center’s rules and regulations. On admission into the reentry center,
Alvarado was required to take a COVID-19 test. He was and remains unwilling to
do so. Persistent and pervasive unwillingness to submit to a required test is not a
technical violation, see 


 so the district court did not abuse its discretion.


       Alvarado next argues that his counsel was ineffective because his attorney
failed to ask after the preliminary hearing about whether the reentry center would
allow him to quarantine for 14 days or take a different COVID-19 test in place of
the nasal swab. Alvarado argues that if the lawyer asked those questions, the
information could have been presented to the district court.

       Generally, we do not consider a claim for ineffective assistance of counsel on
direct appeal, unless “the record has been fully developed, where not to act would
amount to a plain miscarriage of justice, or where counsel’s error is readily
apparent.” United States v. Oliver, 

950 F.3d 556

, 566 (8th Cir. 2020). To succeed,
Alvarado must show “that counsel’s performance ‘fell below an objective standard
of reasonableness,’ and that the deficient performance prejudiced his defense.”
United States v. Davis, 

406 F.3d 505

, 508 (8th Cir. 2005) (quoting Strickland v.

466 U.S. 668

, 688 (1984)).

       He shows neither here. Alvarado argues the attorney should have investigated
whether alternative COVID-19 tests were available, and his failure to do so
constituted a deficient performance that prejudiced his defense. We see no error in
his counsel’s performance. U.S. Probation Officer Jennifer Elliott testified that the
reentry center required a negative COVID-19 test. Alvarado refused to provide it,
and he maintained he would continue refusing to be tested. Because the nasal swab
was the test being administered at the time, Alvarado cannot show that the attorney’s
failure to inquire about other methods of testing “fell below an objective standard of
reasonableness” or that it would have made a difference in the outcome of his case.


 Because the record needs no further development here, we reject his ineffective
assistance of counsel claim on its merits.


      The judgment is affirmed.


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