United States of America v. Frank Cortez Bonaparte

United States Court of Appeals
For the Eighth Circuit
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No. 23-2543
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United States of America
Plaintiff - Appellee
v.
Frank Cortez Bonaparte
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Jefferson City
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Submitted: October 16, 2023
Filed: November 14, 2023
[Unpublished]
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Before GRUENDER, STRAS, and KOBES, Circuit Judges.
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PER CURIAM.
In the summer of 2022, Frank Bonaparte began serving a three-year term of
supervised release for a firearm-possession offense. About six months later, his
probation officer filed a violation report alleging that Bonaparte committed six
violations of four conditions of his supervised release. Bonaparte admitted to all six
violations, including violations for possessing and using cocaine. Accordingly, the

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district court1 determined that Bonaparte committed the six violations and found that
the appropriate revocation sentencing range under the advisory sentencing
guidelines was between 12 and 18 months’ imprisonment. However, the district
court agreed to Bonaparte’s request that it take the matter under advisement and
defer imposition of a revocation sentence.
Over the following months, the probation office submitted five supplemental
reports alleging that six sweat patches worn by Bonaparte were positive for cocaine.
Bonaparte denied cocaine use when confronted with these results, and, at his final
revocation hearing in the summer of 2023, he denied using since late 2022. He
presented eleven urinalysis tests with negative results from the same period as the
sweat patches. Bonaparte argued that these results called into question the sweat
patches’ reliability. In response, the probation officer at the hearing noted that sweat
patches and urinalysis tests have different “cutoff levels” and methodologies. The
district court ultimately concluded that the urinalysis results did not call into question
the accuracy of the sweat patches because “there could be simply a different cutoff”
and “none the less, it is the patch that determines if someone has used or not used.”
Taking into account Bonaparte’s drug use and his progress in other areas, the
court varied downward from the guidelines range it had previously calculated and
sentenced him to 6 months’ imprisonment followed by another year of supervised
release.
Bonaparte timely appealed, arguing that, in light of his negative urinalysis
tests, the Government’s submission of the sweat patches without additional evidence
of their reliability was insufficient proof of the additional drug-use violations.
Bonaparte did not object to the introduction of this evidence or the court’s reliance
on it at the final revocation hearing.
1 The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri.

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When a “defendant inadvertently fails to raise an objection in the district
court,” plain-error review applies. United States v. Harrison, 393 F.3d 805, 806 (8th
Cir. 2005). On plain-error review, we will reverse only if the defendant shows that
“the district court committed an obvious error that affected his substantial rights and
seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Ellison, 71 F.4th 1111, 1114 (8th Cir. 2023). However, if a
defendant invited the error, we need not reach the claim of error at all. See United
States v. Corn, 47 F.4th 892, 895-86 (8th Cir. 2022) (“Under the invited error
doctrine, a defendant who invites the district court to make a particular ruling waives
his right to claim on appeal that the particular ruling was erroneous.”).
We conclude that Bonaparte is not entitled to plain-error review because he
invited the alleged error. At the final revocation hearing, Bonaparte acknowledged
that the sweat patches he submitted repeatedly tested positive for cocaine. Bonaparte
also agreed that sweat-patch testing is valid, agreed that sweat-patch testing has a
different “cutoff point” than urinalysis testing, and agreed that he had no evidence
to contest the sweat-patch results’ validity or accuracy. When speaking to the court,
Bonaparte acknowledged that the negative urinalysis tests “h[e]ld no weight.”
Bonaparte thus invited any error by the court in relying on the sweat patches.2 See,
e.g., Corn, 47 F.4th at 895-96 (finding invited error where defendant’s signed plea
directed the court to incorrectly classify his offense for purposes of sentencing);
United States v. Coonce, 932 F.3d 623, 636-37 (8th Cir. 2019) (finding invited error
where defense counsel affirmatively approved of an evidentiary ruling).
Affirmed.
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2 Even if Bonaparte did not invite the alleged error, we find no plain error here.
See United States v. Grimes, 702 F.3d 460, 470 (8th Cir. 2012) (explaining the
defendant bears the burden of showing a “reasonable probability” of a different
result absent the alleged error). Bonaparte admitted to six violations of his
supervised release at the first revocation hearing. As the district court noted, it could
have reached the same decision on revocation based on those violations alone.

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