United States v. Larry Taylor ( 2018 )

Case: 17-60379 Document: 00514386389 Page: 1 Date Filed: 03/14/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-60379
Fifth Circuit
FILED
Summary Calendar March 14, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
LARRY TAYLOR,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:05-CR-62-1
Before BARKSDALE, PRADO, and OWEN, Circuit Judges.
PER CURIAM: *
Larry Taylor challenges the revocation of his supervised release,
claiming: because the revocation petition was filed after his term of supervised
release expired, the district court lacked jurisdiction to order the revocation.
The court, however, determined Taylor’s supervised release was tolled for a
total of 597 days, which rendered the petition timely.
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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No. 17-60379
Taylor asserts the tolling period was miscalculated under 18 U.S.C.
§ 3624(e) because it included 125 days of pretrial detention. (He also questions
the correctness of the date upon which his supervised release commenced, but
fails to adequately brief that issue and, therefore, has waived its review. E.g.,
Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986) (litigants represented by
counsel not entitled to liberal construction of the pleadings)).
A district court’s jurisdiction to revoke supervised release is reviewed de
novo. E.g., United States v. Jackson, 426 F.3d 301, 304 (5th Cir. 2005). It “has
jurisdiction to revoke a defendant’s supervised release during the term of
supervised release, or within a reasonable time after the term of supervised
release has expired if a summons or warrant regarding a supervised release
violation was issued prior to the expiration of the term of supervised release”.
Id. (citing 18 U.S.C. § 3583(i)). Along that line, under 18 U.S.C. § 3624(e), “[a]
term of supervised release does not run during any period in which the person
is imprisoned in connection with a conviction for a Federal, State, or local crime
unless the imprisonment is for a period of less than 30 consecutive days”. 18
U.S.C. § 3624(e).
Taylor does not dispute he was detained for 125 days on the same drug
charge for which he was later convicted. Instead, he contends we should follow
United States v. Marsh, 829 F.3d 705 (D.C. Cir. 2016), which held: because a
person in pretrial detention “has yet to be convicted”, such detention cannot
toll supervised release.
It goes without saying that Marsh is not controlling. E.g., United States
v. Phillips, 210 F.3d 345, 351 n.4 (5th Cir. 2000) (this court is not bound by the
case law of another circuit). Moreover, we have addressed tolling under 18
U.S.C. § 3624(e) and have held: a “[p]retrial detention falls within [that
statute’s language concerning] ‘any period in which the person is imprisoned’
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No. 17-60379
and tolls the period of supervised release, provided a conviction ultimately
occurs”. United States v. Molina-Gazca, 571 F.3d 470, 474 (5th Cir. 2009).
Although Taylor asserts Molina-Gazca should be overruled, one panel of
this court may not overrule the decision of another absent a change in law or
a superseding en banc or Supreme Court decision. E.g., United States v.
Lipscomb, 299 F.3d 303, 313 & n.34 (5th Cir. 2002) (citing Burge v. Parish of
St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999)). Taylor fails to point to any
such basis; and, our court has reiterated that Molina-Gazca “made clear that
pretrial detention indeed tolls a term of supervised release so long as it is in
connection with a conviction”. United States v. Juarez-Velasquez, 763 F.3d
430, 434 (5th Cir. 2014).
Insofar as Taylor suggests in his reply brief that Molina-Gazca requires
that time spent in pretrial detention must be credited as time served in order
to be “in connection with a conviction” for purposes of 18 U.S.C. § 3624(e), that
issue was not raised in his opening brief or by the Government. See United
States v. Davis, 602 F.3d 643, 648 n.7 (5th Cir. 2010) (“although we need not
consider these arguments because they are raised for the first time in his reply
brief, we have discretion to do so”). In any event, Taylor’s pretrial detention
was credited as time served on his subsequent conviction.
Accordingly, because Taylor’s 125 days of pretrial detention tolled his
supervised release, see Molina-Gazca, 571 F.3d at 474; 18 U.S.C. § 3624(e), the
revocation petition was timely and the district court had jurisdiction to order
the revocation of supervised release, see 18 U.S.C. § 3583(i).
AFFIRMED.
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