United States v. Sullivan ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30546
Plaintiff-Appellee,
v.  D.C. No.
CR-97-42-GF-SEH
DENNIS EDWARD SULLIVAN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
April 12, 2007—Seattle, Washington
Filed September 28, 2007
Before: Alex Kozinski and Raymond C. Fisher,
Circuit Judges, and Andrew J. Guilford,* District Judge.
Opinion by Judge Guilford
*The Honorable Andrew J. Guilford, United States District Judge for
the Central District of California, sitting by designation.
13339
UNITED STATES v. SULLIVAN 13341
COUNSEL
David F. Ness, Assistant Federal Public Defender, and
Anthony R. Gallagher, Chief Federal Defender, Billings,
Montana, for the defendant-appellant.
Eric B. Wolff, Assistant United States Attorney, Billings,
Montana, for the plaintiff- appellee.
OPINION
GUILFORD, District Judge:
We consider whether Defendant-Appellant Dennis Edward
Sullivan (“Sullivan”) was under federal supervised release
when he failed a drug test, thus violating his supervised
release terms. This determination turns on whether Sullivan’s
detention in a Montana community pre-release center (“Pre-
Release Center”) was an “imprisonment” under 18 U.S.C.
§ 3624(e) (“§ 3624(e)”). We conclude that it was not an
imprisonment, and the district court therefore lacked jurisdic-
tion because Sullivan’s supervised release had expired.
Facts
Sullivan failed a drug test by testing positive for marijuana
on August 24, 2006. The United States District Court for the
District of Montana ruled this was a violation of Sullivan’s
supervised release, finding that it had not expired. This super-
vised release arose from a 1998 federal conviction for posses-
13342 UNITED STATES v. SULLIVAN
sion of a stolen money order. For this conviction, Sullivan
was sentenced to 18 months in prison and three years of
supervised release that required him to refrain from any
unlawful use of a controlled substance. As a result of his vio-
lation of the terms of his supervised release, Sullivan was sen-
tenced to 12 additional months in prison and 20 more months
of supervised release.
The district court ordered Sullivan’s original prison sen-
tence to run concurrently with sentences from the Montana
state court. On February 21, 2001, Sullivan was transferred
from a Montana prison to a Pre-Release Center. [Montana
Department of Corrections Adult Offender Internal & Exter-
nal Movement Record p. 1] On September 6, 2002, Sullivan
was released from the Pre-Release Center. Id. Sullivan was
later imprisoned on a state parole violation. Both parties agree
that all of Sullivan’s time in custody, other than in a Pre-
Release Center, tolled his term of supervised release.
Sullivan’s entire criminal history need not be detailed since
the dispute centers on whether Sullivan’s federal supervised
release initially commenced when he was transferred from a
Montana prison to a Pre-Release Center, and whether his
supervised release time was tolled while in the Pre-Release
Center.
We review de novo whether the district court had jurisdic-
tion to revoke a term of supervised release. United States v.
Vargas-Amaya, 389 F.3d 901, 903 (9th Cir. 2004); United
States v. Morales-Alejo, 193 F.3d 1102, 1104 (9th Cir. 1999).
Analysis
Sullivan argues that his supervised release ended before he
failed his drug test because his supervised release commenced
when he was transferred from a Montana prison and was not
tolled while in the Pre-Release Center. Conversely, the gov-
ernment argues that Sullivan’s supervised release had not
UNITED STATES v. SULLIVAN 13343
ended before he failed his drug test because his supervised
release time did not run while he was in the Pre-Release Cen-
ter, following his transfer from a Montana prison.
[1] Section 3624(e) provides the method for calculating
supervised release time in this case:
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 . . . .
Section 3624(e) focuses our analysis on the words “impris-
onment” and “imprisoned” to describe the type of confine-
ment that controls commencement and tolling of supervised
release time. If detention in a Pre-Release Center constitutes
imprisonment, Sullivan’s supervised release did not com-
mence until he was released from the Pre-Release Center, and
remained in effect when he failed his drug test. Both federal
law and Montana state law indicate that time in community
treatment centers like Montana’s Pre-Release Center is not
“imprisonment.” Thus, here, we can look to both federal and
state law without deciding which law controls in determining
if there has been an “imprisonment” under § 3624(e) in Mon-
tana’s Pre-Release Center. We also need not determine
whether detention in a Pre-Release Center is “probation or
supervised release or parole” running “concurrently” under
§ 3624(e) with Sullivan’s supervised release, as we reach the
same result by finding Pre-Release Center time is not impris-
onment.
[2] Federal law, in various contexts, classifies detention in
facilities like a Pre-Release Center as different from imprison-
13344 UNITED STATES v. SULLIVAN
ment. The Supreme Court has held that detention at a commu-
nity treatment center, where the defendant is not subject to the
control of the Bureau of Prisons, is not “imprisonment” and
therefore cannot be credited against a defendant’s prison sen-
tence. Reno v. Koray, 515 U.S. 50, 59 (1995). We cited Reno
in Tanner v. Sivley, 76 F.3d 302, (9th Cir. 1996), which held
that confinement in a community treatment center is different
from “official detention” under the statute involved. Id. at
303-04. In United States v. Latimer, 991 F.2d 1509 (9th Cir.
1993), we also held that based on the plain language and
structure of the United States Sentencing Guidelines, commu-
nity confinement is not incarceration or imprisonment. Id. at
1511-15. This mirrors the Department of Justice’s Office of
Legal Counsel’s interpretation that under the Federal Sentenc-
ing Guidelines, “[c]ommunity confinement does not consti-
tute imprisonment for purposes of a sentencing order.” OLC
Opinion of Dec. 13, 2002.
Our distinction also has been echoed by other circuits. See
United States v. Cintron-Fernandez, 356 F.3d 340, 347 (1st
Cir. 2004) (explaining that under § 5C1.1(d) and (e) “home
detention and community confinement are considered as
‘Substitute Punishments’ for imprisonment, not merely differ-
ent forms of imprisonment itself”); United States v. Elkins,
176 F.3d 1016, 1020 (7th Cir. 1999); United States v. Horek,
137 F.3d 1226, 1229 (10th Cir. 1998); United States v.
Pielago, 135 F.3d 703, 713 (11th Cir. 1998), United States v.
Adler, 52 F.3d 20, 21 (2d Cir. 1995). But see United States v.
Rasco, 963 F.2d 132, 135-36 (6th Cir. 1992) (holding that
confinement in a community treatment center due to a parole
revocation was “imprisonment”).
[3] Because our court and other federal courts in different
settings consistently find facilities comparable to a Pre-
Release Center not to be imprisonment, we likewise find that
time spent in a Pre-Release Center is not imprisonment under
§ 3624(e). This holding is in line with our practice to “inter-
pret ‘[t]he statutory scheme of sentencing, including the
UNITED STATES v. SULLIVAN 13345
Guidelines . . . harmoniously as a whole.’ ” United States v.
Vallejo, 69 F.3d 992, 994 (9th Cir. 1995) (quoting United
States v. Shorthouse, 7 F.3d 149, 152 (9th Cir. 1993) (inter-
preting § 3624(e)).
[4] We also look to Montana state law, which helps deter-
mine the nature of Pre-Release Centers in Montana. The Mon-
tana Supreme Court stated that Montana’s “prerelease centers
are part of the community corrections system which exists as
an alternative to imprisonment.” State v. Chandler, 922 P.2d
1164, 1166 (Mont. 1996) (emphasis added). The court
explained that “[t]he correctional policy of the State of Mon-
tana is to deal with nonviolent offenders in ways other than
imprisonment.” Id. (emphasis added). Emphasizing the reha-
bilitative aspect of these alternatives to imprisonment, the
court noted that “[s]uch a ‘facility or program’ contemplates
and, in fact, mandates that participants will be involved with
employment, educational services, vocational training,
resources, treatment and restitutional activities outside of the
confines of the particular place where they are required to
reside . . . .” Id. at 1167. Thus, while describing the features
and goals of its state’s Pre-Release Centers, the Montana
Supreme Court repeatedly indicated that detention in a Pre-
Release Center was not imprisonment.
The features and goals of Pre-Release Centers in Montana
and elsewhere are different from imprisonment, and instead
are much more similar to those of federal supervised release.
The United States Supreme Court has stated:
Congress intended supervised release to assist indi-
viduals in their transition to community life. Super-
vised release fulfills rehabilitative ends, distinct from
those served by incarceration. See 18 U.S.C.
§ 3553(a)(2)(D); United States Sentencing Commis-
sion, Guidelines Manual §§ 5D1.3(c), (d), (e) (Nov.
1998); see also S. Rep. No. 98-225, p. 124 (1983)
(declaring that “the primary goal [of supervised
13346 UNITED STATES v. SULLIVAN
release] is to ease the defendant’s transition into the
community after the service of a long prison term for
a particularly serious offense, or to provide rehabili-
tation to a defendant who has spent a fairly short
period in prison for punishment or other purposes
but still needs supervision and training programs
after release”).
United States v. Johnson, 529 U.S. 53, 59 (1999).
The many cases finding that detention in facilities like Pre-
Release Centers is not imprisonment are supported by the rec-
ognition that such facilities use different methods and seek
different goals than imprisonment.
[5] We therefore conclude that Sullivan’s supervised
release period began on February 21, 2001, when he was
transferred to a Pre-Release Center. As a result, Sullivan’s
supervised release period expired before the U.S. Probation
Office filed a petition for revocation of supervised release on
August 31, 2006. The district court therefore had no authority
to revoke Sullivan’s supervised release. See United States v.
Morales-Alejo, 193 F.3d 1102, 1104 (9th Cir. 1999).
REVERSED.