United States v. Jerry House ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3369
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Jerry Wayne House, *
*
Defendant - Appellant. *
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Submitted: May 15, 2007
Filed: August 21, 2007
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Before LOKEN, Chief Judge, JOHN R. GIBSON and WOLLMAN, Circuit Judges.
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LOKEN, Chief Judge.
Jerry Wayne House appeals the district court’s1 order revoking his term of
supervised release. House argues that revocation was unauthorized because his term
of supervised release either had not begun or had ended. He also argues delay in
ordering revocation violated his Sixth Amendment right to a speedy trial. We affirm.
In November 2002, House was charged with Missouri state law offenses while
serving a federal term of supervised release. The district court revoked supervised
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The HONORABLE CAROL E. JACKSON, Chief Judge of the United States
District Court for the Eastern District of Missouri.
release in January 2003, sentencing House to ten months in prison followed by one
year of supervised release. In September 2003, he was released from a federal prison
in Pennsylvania and promptly extradited to Warren County, Missouri, to face the still-
pending state charges. Warren County then released House on bond. In October
2003, he acknowledged in writing the conditions of his one-year supervised release
and began participating in the Eastern District of Missouri’s supervised release
program. He submitted urine samples to the Probation Office that tested positive for
methamphetamine and THC, admitted non-complying drug use, began an outpatient
drug treatment program, and was scheduled for inpatient treatment beginning in
January 2004.
In early January 2004, Warren County arrested House on new drug charges.
The district court issued a warrant charging him with violating the terms of his
supervised release, but the federal government did not immediately seek revocation.
In June 2004, he was sentenced in state court to eight years in prison and began
serving that sentence. A new federal warrant was issued in January 2005 and lodged
as a detainer with the Missouri prison. At a revocation hearing in March 2005, House
admitted several supervised release violations. The district court revoked supervised
release and sentenced him to thirty months in prison, to be served consecutively to the
undischarged portion of his state court sentence.
More than one year later, House filed a pro se motion to dismiss, arguing that
the district court lacked jurisdiction to issue the revocation order because his term of
supervised release had expired. The district court denied this motion and a later
motion for reconsideration. House appealed, and we appointed counsel to represent
him on appeal. Technically, the appeal is from the orders denying House's motion to
dismiss and motion for reconsideration. But like the parties we will treat the case as
though it was an immediate appeal from the March 2005 revocation order.
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1. House first argues that his term of supervised release did not begin when he
was released from federal custody in September 2003 because he remained in the
custody of state authorities, although free on bond. As his supervised release was
therefore not in effect when he admittedly violated its conditions in late 2003 and
early 2004, the district court had no power to revoke supervised release and impose
a revocation sentence. We review this question of statutory authority de novo. See
United States v. Hacker, 450 F.3d 808, 814 & n.1 (8th Cir. 2006).
The governing statute, 18 U.S.C. § 3624(e), provides in relevant part:
The term of supervised release commences on the day the person is
released from imprisonment and runs concurrently with any Federal,
State, or local term of probation or supervised release or parole for
another offense to which the person is subject or becomes subject during
the term of supervised release. 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.
Here, it is conceded that House was released from federal prison in September 2003.
Under § 3624(e), that commenced his term of supervised release, except for any
period in which he was “imprisoned” by Missouri authorities. As the references in
§ 3624(e) to concurrent probation and parole confirm, being free on bond is not the
same as being “imprisoned” for purposes of this statute. Thus, House's supervised
release commenced in September 2003 and was in effect when he committed multiple
violations of its conditions. Indeed, he was being actively supervised by Eastern
District of Missouri probation officers when he committed those violations.
In arguing that his supervised release term had not begun, House relies on
United States v. Vallejo, 69 F.3d 992 (9th Cir. 1995), cert. denied, 517 U.S. 1148(1996). But that case is clearly distinguishable. In Vallejo, the defendant had served
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a portion of a federal prison sentence when his conviction was reversed on appeal. On
remand, he was released on bail pending retrial, then convicted of a new charge and
sentenced to time served plus a year of supervised release. Vallejo challenged a
subsequent supervised release revocation on the ground that his supervised release
began when he was released from prison on bail and therefore the violation occurred
after the one-year term expired. The Ninth Circuit properly rejected this argument.
When Vallejo's conviction was reversed on appeal, both the prison term and the
supervised release term of his original sentence were set aside. Therefore, on remand,
the district court had no authority to place him on supervised release. He was subject
to pretrial restraints including release on conditions under 18 U.S.C. § 3142(c), but he
could not be subjected to supervised release under 18 U.S.C. § 3624(e) until he was
convicted of the new charge.
2. House next argues that, if his one-year term of supervised release began in
September 2003, it expired in September 2004, before the operative revocation
warrant issued in January 2005. Therefore, the district court lacked power to issue the
March 2005 revocation order under 18 U.S.C. § 3583(i), which provides:
(i) Delayed revocation. The power of the court to revoke a term of
supervised release for violation of a condition of supervised release, and
to order the defendant to serve a term of imprisonment . . . extends
beyond the expiration of the term of supervised release for any period
reasonably necessary for the adjudication of matters arising before its
expiration if, before its expiration, a warrant . . . has been issued on the
basis of an allegation of such a violation.
(Emphasis added.) House's argument and the government's reply invite us to take up
an issue that has divided two of our sister circuits concerning the sufficiency of the
earlier January 2004 revocation warrant, which clearly was issued during the one-year
term. Compare United States v. Garcia-Avalino, 444 F.3d 444, 446-47 (5th Cir.), cert.
denied, 127 S. Ct. 141(2006), with United States v. Vargas-Amaya, 389 F.3d 901, 907
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(9th Cir. 2004). But we need not enter that debate. As the district court recognized,
under the express terms of 18 U.S.C. § 3624(e), the one-year term of supervised
release was tolled in June 2004 when House began serving an eight-year prison
sentence imposed by the State of Missouri. Thus, the term had not expired when the
second warrant issued in January 2005, nor indeed when the district court issued its
revocation order in March 2005.
3. Finally, House argues that he was denied his Sixth Amendment right to a
speedy trial by the delay in adjudicating his supervised release violations. We doubt
this issue was properly raised in the district court. In any case, it is without merit
because the Sixth Amendment speedy trial right does not apply to supervised release
revocation proceedings, which are not stages of a criminal prosecution. See United
States v. Tippens, 39 F.3d 88, 89 (5th Cir. 1994).
The revocation judgment of the district court and the related orders dated June
30, 2006, and August 30, 2006, are affirmed.
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