United States v. David Brown , 651 F. App'x 216 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4256
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DAVID LLOYD BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
Senior District Judge. (3:02-cr-00036-NKM-1)
Submitted: February 17, 2016 Decided: June 8, 2016
Before WYNN, DIAZ, and HARRIS, Circuit Judges.
Vacated by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Christine Madeleine
Lee, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia,
for Appellant. Anthony P. Giorno, United States Attorney,
Heather Lynn Carlton, Assistant United States Attorney,
Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This appeal stems from the district court’s second
revocation of David Lloyd Brown’s original term of supervised
release. The district court found that it had jurisdiction in
April 2015 over Brown’s already once-revoked supervised-release
term, even though Brown had completed his revocation sentence
approximately ten months earlier in June 2014. Brown argues
that his release term expired upon completion of his revocation
sentence and that because his probation officer petitioned for
revocation in November 2014, the post-expiration petition did
not save the court’s jurisdiction under 18 U.S.C. § 3583(i),
which provides that the court’s revocation power “extends beyond
the expiration of the term of supervised release . . . if,
before [the term’s] expiration, a warrant or summons has been
issued.” For the reasons that follow, we agree. Accordingly,
we vacate the district court’s judgment.
I.
In 2003, Brown pleaded guilty to various federal fraud-
related charges, and was sentenced to 100 months of
imprisonment, followed by five years of supervised release. On
October 7, 2009, Brown’s supervised release began.
In November 2013, the court revoked Brown’s supervised
release for technical release violations and imposed a sentence
of seven months’ imprisonment, to be followed by a new twelve-
2
month term of supervised release. While serving his revocation
sentence, Brown was indicted in Charlottesville, Virginia, on
state drug charges in connection with offenses committed in
September and October 2013, during his original supervised-
release term. Brown completed his revocation sentence in June
2014, but he was held on a state detainer pending resolution of
the Commonwealth’s case.
In November 2014, after Brown pleaded guilty to and was
sentenced on the state drug charges, his probation officer
petitioned the district court to revoke the original supervised-
release term for a second time—this time on the basis of the
conduct underlying the state charges.
Brown moved to dismiss the petition for lack of
jurisdiction, claiming that his original supervised release had
expired, and that the sentencing court did not have revocation
power under § 3583(i) because the probation officer failed to
petition for revocation before the release term’s expiration.
Brown also argued that the court did not have jurisdiction to
revoke the second supervised-release term (i.e., the twelve-
month term imposed in November 2013) on the basis of conduct
occurring during the original release term.
The district court held a revocation hearing, in which the
government clarified that it did not seek revocation of the
second supervised-release term, but rather wanted the court to
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impose additional prison time for the more serious violations
committed during the original release term. The district court
agreed and concluded that it had jurisdiction under United
States v. Winfield, 665 F.3d 107 (4th Cir. 2012), to again
revoke Brown’s original supervised release. After crediting
Brown with seven months already served, the court imposed four
concurrent fifteen-month revocation prison sentences, to be
served consecutively to the state sentence for the drug-related
conduct. The district court did not impose a new term of
supervised release because the state sentence included a five-
year term of supervised release.
Brown filed a timely notice of appeal.
II.
On appeal, Brown challenges the district court’s conclusion
that it had jurisdiction in April 2015 to revoke Brown’s
supervised release for a second time. “We review de novo a
challenge of a district court’s jurisdiction to rule upon
alleged violations of supervised release.” Winfield, 665 F.3d
at 109. Brown contends that his original term of supervised
release expired in June 2014, upon the completion of his first
revocation sentence. 1 We agree. 2
1
Before the district court, Brown argued that his first
revocation sentence ended in November 2013 when the court first
revoked the original release term, see J.A. 83, but the
4
In Winfield, we held that a district court’s revocation of
a supervised-release term did not conclude the court’s
jurisdiction over that release term. Id. at 112. We explained
that the court retained jurisdiction “to hold a second violation
hearing and impose a [new revocation] sentence.” Id. In
crafting these holdings, we implied that a revoked release term
expires at or around the time that the originally imposed term
would have ended had there not been a revocation. Id.; cf.
United States v. Buchanan, 638 F.3d 448, 449, 458 (4th Cir.
2011) (providing that a five-year supervised-release term began
in 1993 and that the defendant, who absconded supervision in
1995, had three years of supervision remaining when he was
apprehended many years later because the defendant’s fugitive
status tolled his supervised release).
Winfield’s original three-year term of supervised release
began in August 2007. Winfield, 665 F.3d at 108–09. His
probation officer petitioned the court for revocation in October
2009 (on the basis of technical release violations) and twice
government does not argue waiver on appeal. Moreover, this
being a jurisdictional question, we have an obligation to ensure
that the district court’s jurisdiction was proper. E.g., In re
Kirkland, 600 F.3d 310, 314 (4th Cir. 2010).
2 Brown also argues that the five-month delay between the
filing of the petition and the revocation hearing was
unreasonable. Because we reverse on jurisdictional grounds, we
do not reach this issue.
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amended the petition before May 2010 (both times on the basis of
substantive release violations for which Winfield had been
charged in state court). Id. at 109. In May 2010, the district
court held a revocation hearing, and the parties agreed to
bifurcated proceedings to allow time for the resolution of the
pending state charges. Id. At the May 2010 proceeding, the
court effectively revoked Winfield’s release and imposed a
twelve-month revocation sentence. Id. at 109, 111–12. The
court held the second hearing in September 2010, revoked
Winfield’s original supervised-release term for a second time,
and imposed another twelve-month revocation sentence. 3 Id. at
109. Notably, the court did not impose a new term of supervised
release to follow the revocation sentences.
In holding that the initial revocation did not end the
court’s jurisdiction over the release term, we suggested that
(1) the defendant’s supervised release had not expired as of the
first release revocation in May 2010, (2) the probation
officer’s revocation-petition amendments between October 2009
and May 2010 were filed before the original release term’s
expiration, and (3) the second revocation hearing in September
3
In Winfield, we noted that it was not clear whether the
district court intended the September revocation sentence to run
concurrently or consecutively to the May revocation sentence, or
whether the court intended for the twelve-month sentences to run
concurrently or consecutively with Winfield’s state sentences.
665 F.3d at 109 n.1.
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2010 fell after the release term’s expiration. See id. at 112.
Thus, Winfield’s original release term expired in or around
August 2010.
In light of Winfield, we understand how the district court
arrived at its decision: Brown’s original release term would
have expired in October 2014, five years after the imposition of
a five-year release term in October 2009. Because it is
undisputed that pretrial detainment tolls supervised release,
United States v. Ides, 624 F.3d 666, 669 (4th Cir. 2010),
Brown’s pre-trial detainment, beginning in June 2014 after he
completed the revocation sentence, tolled the approximately four
months remaining on his original supervised-release term.
Because the November 2014 revocation petition was filed before
the expiration of the supervised-release term, the district
court concluded that it had jurisdiction.
But the newly imposed period of supervised release—a
circumstance not present in Winfield—changes the analysis. The
parties here agree that in June 2014, upon his release from
federal custody, Brown would have begun to serve his second term
of supervised release (not the remainder of his original release
term—if one exists), and they agree that the pre-trial
detainment on the state charges tolled Brown’s second release
term. See Appellant’s Br. at 12–13; Appellee’s Br. at 9–10 &
n.4; see also 18 U.S.C. § 3624(e) (“The term of supervised
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release commences on the day the person is released from
imprisonment . . . .”). Indeed, both the district court and
government were careful in this case to clarify that the second
revocation applied only to Brown’s original release term—not to
the second, see United States v. Brown, No. 3:02CR00036-1, 2015
WL 1883645, at *1 (W.D. Va. Apr. 24, 2015); J.A. 103; Appellee’s
Br. at 10, which avoided the problem at the center of United
States v. Wing, see 682 F.3d 861, 865 (9th Cir. 2012)
(concluding that “once a term of supervised release has been
revoked, a later-discovered violation of a condition of that
term cannot form the basis of a revocation of a subsequent term
of supervised release”).
Had Brown been released—rather than detained—in June 2014,
his new twelve-month term of supervised release would have
begun, and the district court would have improperly revoked that
release term in April 2015. Thus, when a revocation sentence is
to be followed by a new, separate term of supervised release, we
see no meaningful distinction between the defendant’s completion
of the revocation sentence and release from custody, and the
defendant’s completion of the revocation sentence and
subsequent, unrelated pre-trial detainment. The pre-trial
detainment’s legal significance operates on the new term of
supervised release (so as to toll it) and has nothing to do with
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the completed revocation sentence—or, therefore, the original
supervised-release term.
Accordingly, Brown’s original term of supervised release
expired in June 2014 when he completed his revocation sentence,
making the probation officer’s November 2014 petition to revoke
the original release term fall after that term’s expiration. As
a result, the district court did not have jurisdiction in April
2015, on the basis of a November 2014 revocation petition, to
revoke Brown’s original term of supervised release and impose a
new revocation sentence.
III.
For the foregoing reasons, we vacate the district court’s
judgment. We direct the clerk to issue the mandate forthwith.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
VACATED
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