United States v. Swenson ( 2007 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 10, 2007
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 07-4138
v. (D.C. No. 2:03-CR-135-PGC)
(District of Utah)
K EN D A LL R OSSEL SWE N SON,
Defendant-Appellant.
OR DER AND JUDGM ENT *
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Kendall Rossel Swenson is a state prisoner serving time in a Utah facility
after his 2007 convictions for burglary, criminal mischief, theft, and receipt of
stolen property. Because he was on federal supervised release at the time of his
state conviction, M r. Swenson contends that he is in “primary federal custody”
and seeks to be brought before the federal district court for a prompt preliminary
hearing on the violation of his federal parole. The district court denied M r.
*
After examining the briefs and appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case
is therefore ordered submitted without oral argument. This order and judgment is
not binding precedent except under the doctrines of law of the case, res judicata
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Swenson’s motion for a hearing because he is, in fact, currently in state custody.
W e affirm.
***
M r. Swenson was convicted of one count of attempted bank larceny, in
violation of 18 U.S.C. § 2113(a), in the United States District Court for the
District of Utah in 2003. He was sentenced to 27 months in prison, plus 36
months of supervised release. His prison sentence was to run concurrently with a
state sentence, arising out of a conviction in state court on related crimes,
pursuant to which he was already incarcerated. In January 2006, M r. Sw enson
was released from prison and began serving his federal supervised release.
W hile on supervised release, M r. Swenson was arrested in Logan, Utah and
convicted in Cache County court in 2007 of two counts of burglary, two counts of
criminal mischief, one count of theft, two counts of theft by receipt of stolen
property, and one count of the manufacture or possession of burglary tools. M r.
Sw enson is currently in the Utah State Prison system serving his sentences for
those crimes.
In the action now before us, M r. Sw enson sought relief, in the form of a
hearing pursuant to Federal Rule of Criminal Procedure 32.1(a), from the federal
district court in which he was sentenced in 2003. The district court dismissed his
claims for a hearing because M r. Sw enson, by the time of his motions, was “not
presently in federal custody on a charge of violating probation or supervised
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release conditions.” The district court pointed out that M r. Sw enson was
“admittedly in state custody serving a state prison sentence on a state conviction.”
***
Rule 32.1(a) provides that one “held in custody for violating probation or
supervised release must be taken without unnecessary delay before a magistrate
judge.” Fed. R. Crim. P. 32.1(a). The district court, as the sentencing court,
retained jurisdiction over questions related to the terms of M r. Swenson’s
supervised release, and we have jurisdiction over its final decision dismissing his
motions for a hearing. See 18 U.S.C. § 3583; 28 U.S.C. § 1291; United States v.
Lawson, 108 F.3d 341 (Table), 1997 W L 82479, at *1, *3 & n.2 (10th Cir. 1997).
W e review the district court’s interpretation of and compliance with the Federal
Rules of Criminal Procedure de novo. United States v. Cereceres-Zavala, --- F.3d
----, 2007 W L 2421755, at *2 (10th Cir. 2007); United States v. Davis, 339 F.3d
1223, 1229 (10th Cir. 2003).
Even construing M r. Swenson’s pro se pleadings liberally, as we must,
Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007); Andrews v. Heaton, 483 F.3d
1070, 1076 (10th C ir. 2007), w e are obliged to affirm. Like the district court, w e
conclude that the admitted fact that M r. Swenson is currently serving a state
sentence for his state crimes means that he is in state custody. Rule 32.1(a)
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entitles only those currently in federal custody to a hearing, and the fact that M r.
Swenson is not in federal custody ends our inquiry. 1
W e affirm.
ENTERED FOR THE COURT
Neil M . Gorsuch
Circuit Judge
1
Even assuming that, after his arrest in Logan, Utah and prior to his Cache
County conviction, M r. Sw enson was detained for some period of time due solely
to a federal detainer – a determination we are unable to make conclusively on the
record before us – and even assuming that such a detention required a sentence
revocation hearing, the moment M r. Sw enson was convicted of a state crime and
began serving his sentence, he was properly in the custody of the state of Utah
and that claim was rendered moot.
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