United States v. Ivory Mosby , 719 F.3d 925 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-3541
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Ivory Mosby, also known as Rafiq Zareef Muhaymin
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: May 17, 2013
Filed: June 28, 2013
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Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.
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MURPHY, Circuit Judge.
Ivory Mosby was convicted of being a felon in possession of ammunition and
sentenced to fifteen years of imprisonment and five years of supervised release.
Although Mosby’s prison sentence ended in September 2007, he remained in federal
custody for some three additional years awaiting a hearing in his civil commitment
proceeding. Mosby’s civil commitment proceeding was later dismissed, and in
November 2010 he was released under supervision. In October 2012 Mosby moved
for termination of his supervised release, arguing that his five year term of supervised
release had already expired as a matter of law, or alternatively that equitable
considerations favored termination. The district court1 denied his motion, and Mosby
appeals. We affirm.
I.
Mosby2 has a lengthy criminal record. As a juvenile he was arrested on several
occasions for offenses such as grand larceny, petty larceny, breaking and entering,
and theft of property. In 1979, when he was 18 years old, Mosby was convicted of
burglarizing three different businesses. Less than a month after being released on
parole, Mosby was arrested for three more burglaries. During the next three years he
was also convicted of second degree battery, two assaults, theft, attempted escape,
and four disorderly conduct charges. Then in 1985 Mosby was convicted of first
degree attempted murder and first degree criminal sexual assault for raping a
University of Minnesota graduate student while beating her with a pipe, causing both
short and long term injuries.
In the summer of 1994, less than a year after being released on parole following
his attempted murder and sexual assault convictions, Mosby was linked to the
burglary of a suburban Minneapolis business. Law enforcement officers searched
Mosby’s house and found 89 rounds of .44 magnum ammunition. Although Mosby
was soon located driving a stolen vehicle, he refused to stop and instead led police
1
The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
2
Although Mosby legally changed his name to Rafiq Zareef Muhaymin in 1993,
our prior cases and the parties here refer to him by his original name. For
consistency, we do so as well.
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on a high speed chase. At one point Mosby aimed a loaded handheld crossbow at an
officer in pursuit. Mosby was eventually apprehended, and the crossbow and a .22
caliber starter pistol were found in his vehicle. Mosby was charged in state court with
being a felon in possession of a firearm based on the starter pistol found in his
vehicle.
That state charge was dropped after Mosby was indicted by a federal grand jury
for being a felon in possession of ammunition based on the .44 magnum ammunition
found in his house. Following a three day trial, the jury convicted him of violating
18 U.S.C. §§ 922(g)(1) and 924(e)(1). Mosby moved for a judgment of acquittal,
arguing that the government had failed to prove that the ammunition cartridges were
“in or affecting” interstate commerce because they had been manufactured and
possessed only within Minnesota. The district court granted Mosby’s motion, but we
reversed, United States v. Mosby, 60 F.3d 454, 457 (8th Cir. 1995), holding that the
interstate requirement of § 922(g)(1) had been satisfied because “[a]t least some of
the[] components” of the ammunition had been manufactured in other states. Id. On
remand, the district court determined that Mosby was subject to a fifteen year
mandatory minimum based on his criminal history and sentenced him to fifteen years
of imprisonment and five years of supervised release. Mosby appealed his conviction
on various grounds, and we affirmed. United States v. Mosby, 101 F.3d 1278, 1279
(8th Cir. 1996).
Shortly before Mosby’s prison sentence ended on September 14, 2007, the
United States filed an 18 U.S.C. § 4248 certificate in the Eastern District of North
Carolina where Mosby was in custody. The certificate sought to have Mosby civilly
committed as a sexually dangerous person, and his release from federal custody was
stayed pending its resolution. See 18 U.S.C. § 4248(a). All such proceedings in the
Eastern District of North Carolina were held in abeyance in early 2008 pending a
review of the constitutionality of § 4248. Mosby then filed a petition for writ of error
coram nobis in the District of Minnesota. The district court denied Mosby’s petition,
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and we summarily affirmed. United States v. Mosby, No. 08-3618 (8th Cir. Aug. 27,
2009). Thereafter, the Supreme Court concluded that 18 U.S.C. § 4248 is a
constitutional exercise of congressional power under the Necessary and Proper
Clause. United States v. Comstock, 130 S. Ct. 1949, 1965 (2010).
In October 2010, before any ruling by the district court on Mosby’s § 4248
commitment proceeding, he and the United States agreed to a joint stipulation. The
prosecution agreed to dismiss Mosby’s § 4248 case and release him from custody
within 24 hours. Mosby in turn agreed to dismiss three habeas actions that he had
filed while in custody. The joint stipulation stated that Mosby’s term of supervised
release would “be deemed to have begun as of the date of his actual release from
custody.” On October 15, 2010 Mosby was released from Bureau of Prisons (BOP)
custody to the United States Marshals Service, and on November 15, 2010 he was
released to a halfway house in Minnesota.
During his supervised release Mosby’s transition into the community has been
largely positive. He completed a job training program at Goodwill Easter Seals in St.
Paul and earned forklift and computer work certificates. Mosby has also worked for
the Minnesota Twins as a concessionaire at Target Field, for the Goodwill Easter
Seals, and for a local waste company. He was one of the Goodwill Easter Seals
participants of the year 2011 and was featured in a video at its 2012 awards
ceremony. Mosby has been able to find stable housing, and he has not violated any
conditions of his supervised release or failed any drug test. At the request of his
probation officer Mosby has also spoken to at risk juveniles in Minneapolis about his
experience in the criminal justice system.
In October 2012 Mosby moved the district court for termination of his
supervised release. He argued that his supervised release had commenced in
September 2007 as a matter of law and that his five year term had thus ended in
September 2012. Mosby alternatively claimed that equitable considerations favored
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termination because of his “three years in civil detention after his term of
imprisonment was completed” and his “positive transition to life outside of
incarceration.” The district court summarily denied his motion, stating in full:
“Defendant filed Motion for Termination of Supervised Release [Doc. #161]. IT IS
HEREBY ORDERED that the Motion to Request Termination of Supervised Release
is DENIED.” Mosby appeals.
II.
A.
Mosby first contends that his supervised release term began as a matter of law
in September 2007, notwithstanding the fact that he remained in federal custody for
some three years thereafter.3 He bases this argument on the “interaction and
operation” of two statutes: 18 U.S.C. § 3624, which applies to the release of
prisoners, and 18 U.S.C. § 4248, which applies to the civil commitment of sexually
dangerous persons. We review questions of statutory interpretation de novo. United
States v. House, 501 F.3d 928, 929 (8th Cir. 2007).
The language that controls the issue in this case is found in 18 U.S.C.
§ 3624(e). That statute provides in relevant part:
A prisoner whose sentence includes a term of supervised release after
imprisonment shall be released by the Bureau of Prisons to the
supervision of a probation officer who shall, during the term imposed,
supervise the person released to the degree warranted by the conditions
3
Although Mosby’s joint stipulation deemed his supervised release to begin on
“the date of his actual release from custody,” the parties now agree that he can bring
this claim since it involves the district court’s jurisdiction to supervise him under 18
U.S.C. § 3583. See United States v. Hacker, 450 F.3d 808, 814 n.4 (8th Cir. 2006).
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specified by the sentencing court. 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.
18 U.S.C. § 3624(e) (emphasis added). We are concerned here with the second
sentence in § 3624(e), which is referred to as the commencement provision.
There is no dispute that Mosby’s prison term ended on September 14, 2007.
He would ordinarily have been freed from BOP custody at that time and his
supervised release would have commenced. Just before the end of his prison term,
however, the government filed a § 4248 certificate seeking to have him civilly
committed as a sexually dangerous person. Under § 4248, such a certificate “shall
stay the release of the person pending completion of procedures contained in this
section.” 18 U.S.C. § 4248(a). Mosby therefore remained in federal custody, and he
was ultimately released on November 15, 2010.
Mosby nonetheless argues that his term of supervised release began on
September 14, 2007 because the commencement provision of § 3624(e) states that
supervised release begins when the individual is released from “imprisonment.”
Mosby stresses that from September 2007 onward he was held in civil detention,
pending the outcome of his § 4248 proceeding, rather than in imprisonment. He
asserts that civil detention necessarily differs from imprisonment because the former
is not punitive, citing the Supreme Court decisions in Kansas v. Hendricks, 521 U.S.
346, 361–63 (1997), and United States v. Comstock, 130 S. Ct. 1949, 1954, 1965
(2010). Mosby also claims that the rule of lenity counsels in favor of our adopting
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his position. See United States v. Santos, 553 U.S. 507, 514 (2008) (plurality
opinion).
The Supreme Court interpreted the phrase “released from imprisonment” in
§ 3624(e) in United States v. Johnson, 529 U.S. 53 (2000). In that case, Johnson had
been sentenced to consecutive prison terms totaling 171 months, to be followed by
three years of supervised release. Id. at 55. Two of Johnson’s convictions were later
vacated, and he was resentenced to 51 months imprisonment. By that point, however,
Johnson had already served more than 51 months in prison, and he asked to have his
supervised release term reduced accordingly. Id. at 55–56. He argued that his
supervised release had begun as a matter of law when his lawful term of
imprisonment had expired. Id.A unanimous Supreme Court ruled against Johnson, holding that an individual
is “released from imprisonment” within the meaning of the commencement provision
of § 3624(e) only after being “freed from confinement.” Id. at 57. In other words,
“[s]upervised release does not run while an individual remains in” federal custody.
Id. The Court explained that while “[i]t is true the prison term and the release term
are related, for the latter cannot begin until the former expires. Though interrelated,
the terms are not interchangeable. . . . Supervised release has no statutory function
until confinement ends.” Id. at 58–59.
Under § 3624(e) Mosby’s supervised release “commence[d] on the day [he
was] released from imprisonment,” or as the Supreme Court made clear in Johnson,
the day that he was “freed from confinement,” 529 U.S. at 57. Thus, Mosby’s term
of supervised release did not begin until he was “freed from confinement” on
November 15, 2010. See id. It would be contrary to the plain language of § 3624(e)
and the Supreme Court’s holding in Johnson for us to adopt Mosby’s position that his
term of supervised release began before he was released from federal custody.
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This conclusion is consistent with the distinct and important purposes of
supervised release. As the Supreme Court explained in Johnson: “Congress intended
supervised release to assist individuals in their transition to community life.
Supervised release fulfills rehabilitative ends, distinct from those served by
incarceration.” 529 U.S. at 59. To start a term of supervised release while an
individual is still physically confined by federal authorities would frustrate one of its
key purposes which is to help individuals as they transition into the community.
Under Mosby’s interpretation of § 3624(e), it would even be possible for an
individual to begin and end his entire term of supervised release without leaving
federal custody. That would be entirely inconsistent with the congressional purpose.
Further, in his motion before the district court and his appellate brief Mosby
acknowledges the benefit he has received while on supervised release.
Mosby argues that Johnson is not controlling because that case involved a
defendant whose release was delayed due to an erroneous prison sentence, while
Mosby’s release was stayed due to the government’s initiation of a § 4248 civil
commitment proceeding. Mosby contends that we should adopt the position taken
by a majority of a Ninth Circuit panel in United States v. Turner, 689 F.3d 1117 (9th
Cir. 2012), and its companion case United States v. Bolander, 487 F. App’x 349 (9th
Cir. 2012). In those cases, two detainees had completed their respective prison
sentences like Mosby and were then civilly detained pending § 4248 commitment
proceedings. Turner, 689 F.3d at 1119; Bolander, 487 F. App’x at 350. The panel
majority distinguished Johnson as not having addressed “the situation in which a
person who has completed a prison sentence is then placed in civil detention.”
Turner, 689 F.3d at 1124 (emphasis in original). It then relied on the third sentence
in § 3624(e) to conclude that the supervised release term for such an individual
begins when his prison term ends, id. at 1121–25, citing the rule of lenity, id. at
1125–26. Judge Smith explained in dissent that “[t]he commencement and tolling
provisions of 18 U.S.C. § 3624(e) are distinct” and serve different statutory functions.
Id. at 1126–27 (Smith, J., dissenting). We agree with the dissent.
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Here, the question is whether an individual who has been civilly detained under
§ 4248 immediately following a prison term has commenced his supervised release.
See Turner, 689 F.3d at 1126 (Smith, J., dissenting). As the Supreme Court explained
in Johnson, the commencement provision for supervised release in § 3624(e) is
unambiguous, and “[a]bsent ambiguity, the rule of lenity is not applicable.” 529 U.S.
at 59. No language in § 4248 governs the issue before us, nor is any language in that
statute ambiguous.
We conclude that under § 3624(e) Mosby’s supervised release began as a
matter of law on the day that he was “freed from confinement.” Johnson, 529 U.S.
at 57. Mosby’s term of supervised release thus began when he was released from
federal custody on November 15, 2010, and it did not expire in September 2012 as
Mosby contends.
B.
Mosby alternatively claims that the district court erred in rejecting his equitable
arguments for early termination of supervised release. Under 18 U.S.C. § 3583(e),
a district court “may, after considering [certain] factors . . . terminate a term of
supervised release and discharge the defendant . . . if it is satisfied that such action
is warranted by the conduct of the defendant released and the interest of justice.” We
review for abuse of discretion a district court’s denial of a motion to modify the terms
of supervised release, United States v. Davies, 380 F.3d 329, 332 (8th Cir. 2004),
including a motion for early termination of supervised release under § 3583(e),
United States v. Hutchins, 310 F. App’x 51, 51 (8th Cir. 2009) (unpublished per
curiam). We afford the district court “broad discretion” in this area, Davies, 380 F.3d
at 332, recognizing that it is in the best position to evaluate the circumstances of each
individual defendant.
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In this case the district court summarily denied Mosby’s motion, rejecting his
equitable arguments without comment. Mosby argues that early termination of his
supervised release is appropriate because he spent some three years in civil detention
where his “freedom was greatly curtailed.” Mosby emphasizes his subsequent
positive transition into the community, having found stable housing and steady work
since his release. He also points to Minnesota’s sex offender registration system,
under which he will be monitored for the rest of his life. Mosby asserts that at
minimum we should remand for the district court to explain its reasoning for denying
his motion.
We conclude that the district court did not abuse its discretion. It had presided
over Mosby’s trial and was well acquainted with his extensive criminal record, which
includes convictions for violent offenses such as first degree attempted murder and
first degree sexual assault. The district court was aware of the time that Mosby had
been detained related to his § 4248 proceeding, his subsequent positive transition to
life outside of custody, and his status as a sex offender subjecting him to state
monitoring. Neither 18 U.S.C. § 3583(e) nor relevant case law required the district
court to explain its denial of early termination of supervised release. We see no abuse
of discretion in its summary denial of Mosby’s motion.
III.
Accordingly, we affirm the district court order denying Mosby’s motion for
termination of supervised release.
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