United States v. Donte Island

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-3826
___________
UNITED STATES OF AMERICA
v.
DONTE ISLAND,
a/k/a Norman Tomas, a/k/a Norman Thomas
Donte Island,
Appellant
_______________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 2-03-cr-00592-001)
District Judge: Honorable Jan E. DuBois
______________
Argued: November 6, 2018
Before: AMBRO, SCIRICA, and RENDELL, Circuit
Judges.
(Filed: February 26, 2019)
Keith M. Donoghue, Esq. [ARGUED]
Federal Community Defender Office for the
Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center
Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
Bernadette A. McKeon, Esq. [ARGUED]
Robert A. Zauzmer, Esq.
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge
In this appeal, we determine whether a defendant can
count toward the service of his supervised release term a period
2
of time he is fugitive, that is, absent from the court’s
supervision. The statutory provisions governing supervised
release do not contain plain language—or indeed any
language—that expressly resolves that question. But, as the
majority of Courts of Appeals to address the question have
concluded, a defendant does not in fact serve his supervised
release term while he deliberately absconds from the court’s
supervision. Accordingly, a defendant’s supervised release
term tolls while he is of fugitive status.
Defendant Donte Island appealed to challenge the
District Court’s order revoking his supervised release and
sentencing him to a term of imprisonment. Island primarily
contended that under 18 U.S.C. § 3583(i) the Court’s
jurisdiction terminated at the end of his three-year supervised
release term. Island asserted the Court accordingly lacked
authority to revoke his release based on his involvement in a
police officer shooting first raised to the court a few days after
those three years had passed. The government maintained the
Court had jurisdiction to revoke Island’s supervised release for
the officer shooting violation based on an earlier-issued
warrant for unrelated violations. We have no occasion to
resolve that jurisdictional dispute, however, because we join
the majority of Circuits that have addressed the issue to hold
Island’s supervised release term tolled while he was fugitive
from the court’s supervision. As a result of that tolling, Island’s
term of supervised release had not yet expired when the later
warrant was issued. Because the District Court therefore had
jurisdiction over the second warrant and underlying petition of
violation, we will affirm.
I.
3
Following a jury trial in 2004, the District Court
sentenced Island to 110 months’ imprisonment and 3 years’
supervised release for possession of a firearm by a convicted
felon, 18 U.S.C. § 922(g)(1). Island commenced that three-year
supervised release term on June 26, 2013, and it was scheduled
to end on June 25, 2016.
Island completed the first two years of his release term
without incident, but on September 18, 2015, Island’s
probation officer filed a petition of violation. The petition
alleged Island had breached the terms of his release by
committing several technical, i.e., noncriminal or minor,
violations, such as failing to notify his probation officer of a
changed address and failing several drug tests. The petition
noted that “[m]ore troublesome” among the violations was
Island’s failure to report to his probation officer. App’x 34. The
officer relayed that Island “ceased reporting as instructed” on
July 17, 2015, after which his “whereabouts [were] unknown.”
App’x 34, 28. The petition chronicled over half a dozen
attempts to contact Island in the coming months, none of which
were successful. Island failed to report for a scheduled
meeting, then did not respond to phone calls, voicemails,
letters, or emails sent to him at several possible numbers and
addresses. The Court issued a warrant on the basis of that
petition the day it was filed, but that warrant remained
outstanding.
On June 27, 2016—just over three years after Island’s
supervised release term had begun—the probation office filed
a second petition of violation, styled as an “[a]mended” version
of the first. App’x 35. The Court again issued a warrant the
same day, now based on a new violation. The second petition
alleged Island had committed a serious violation of the terms
4
of his release on June 21—just under three years after Island’s
supervised release term had begun—by firing a weapon at two
police officers, hitting one. Island was arrested and taken into
custody by Delaware County authorities that day. The District
Court held a teleconference with the government and Island’s
counsel soon after receiving the petition, and the parties then
agreed to delay a hearing on both petitions of violation until
after the disposition of Island’s Delaware County charges.
Island was convicted in July 2017 of attempted murder and
other charges, then sentenced in the Court of Common Pleas of
Delaware County, Pennsylvania to 33 to 100 years’
imprisonment.
The District Court held a supervised release revocation
hearing on December 13, 2017. The government sought the
statutory maximum revocation term of 24 months’
imprisonment; at the hearing, it stressed the severity of the
officer shooting underlying the second violation petition. The
government further emphasized Island “wasn’t within hours of
completing his sentence on this. . . . He was 11 months a
fugitive, right, so it’s not like he committed the crime on the
11th hour.” App’x 57–58. In response, Island emphasized he
would already be serving 33 to 100 years in prison and argued
“it would be excessive and unnecessary based on the practical
realities of his case” to also enforce a revocation term of
imprisonment. App’x 62. The court imposed the government’s
recommended revocation sentence of 24 months, to run
consecutively after Island’s state sentence, on the basis of only
the second violation petition. Island now appeals.1
1
The District Court had jurisdiction over the original charges
under 18 U.S.C. § 3231 and over the supervised release
5
II.
Island asserts on appeal that the District Court lacked
jurisdiction under 18 U.S.C. § 3583(i) to revoke his supervised
release because the warrant underlying revocation—based on
the shooting—was untimely issued after the three-year
calendar on his supervised release term had run. The
government responds that the earlier warrant for unrelated
technical violations endowed the District Court with ongoing
jurisdiction, but also contends the warrant was timely because
Island’s three-year supervised release term was tolled while he
was of fugitive status. We may “affirm on any ground
supported by the record,” United States v. Mussagre, 405 F.3d
161, 168 (3d Cir. 2005),2 and we will here affirm on the basis
that fugitive tolling of Island’s supervised release term
rendered the second warrant timely.
A.
We begin with an overview of the purpose of the
supervised release scheme before turning to how fugitive
tolling supports that scheme. Congress designed supervised
release, laid out in 18 U.S.C. § 3583, to be “a form of
postconfinement monitoring overseen by the sentencing
violations under 18 U.S.C. § 3583. This court has appellate
jurisdiction under 28 U.S.C. § 1291.
2
The parties dispute the appropriate standard of review for the
question whether the District Court had jurisdiction under 18
U.S.C. § 3583(i) to revoke Island’s supervised release.
Because we affirm the District Court’s decision on a different
ground, we have no occasion to resolve that dispute.
6
court.” Johnson v. United States, 529 U.S. 694, 696–97 (2000).
“[T]he supervised release term constitutes part of the original
sentence, and the congressional intent is for defendants to serve
their full release term.” United States v. Buchanan, 638 F.3d
448, 455 (4th Cir. 2011). As the Supreme Court has explained,
“Congress intended supervised release to assist individuals in
their transition to community life. Supervised release fulfills
rehabilitative ends,” providing “individuals with
postconfinement assistance” through the supervision of the
court. United States v. Johnson, 529 U.S. 53, 59 (2000). The
court can provide such assistance because, “[w]hile on
supervised release, the offender [is] required to abide by
certain conditions,” Johnson v. United States, 529 U.S. at 697,
such as regularly reporting to a probation officer, pursuing
schooling or work, and refraining from further criminal
activity, see U.S.S.G. § 5D1.3(c); 18 U.S.C. § 3583(d).
Congress authorized supervising courts to revoke supervised
release and order reimprisonment when defendants fail to meet
their release conditions. See id. § 3583(e); Johnson v. United
States, 529 U.S. at 697.
The plain language of the supervised release statutory
provisions is, contrary to the dissent’s suggestion, silent on
how a defendant’s failure to comply with release terms effects
the running of his sentence. See 18 U.S.C. §§ 3583, 3624.
Though those provisions do not expressly provide for tolling
when a defendant absconds from supervision, fugitive tolling
furthers the purposes of the supervised release scheme. See
Staples v. United States, 511 U.S. 600, 605 (1994). When a
defendant under supervised release fails to meet release
conditions by absconding from supervision, a court cannot
effectively oversee his transition to the community. The
majority of Courts of Appeals to address this question have
7
accordingly determined a defendant’s term of supervised
release is tolled during the period he is of “fugitive” status, i.e.,
fails to report and comply with the terms of his postrelease
sentence. See United States v. Barinas, 865 F.3d 99, 106 (2d
Cir. 2017); United States v. Buchanan, 638 F.3d 448, 453–58
(4th Cir. 2011); United States v. Murguia-Oliveros, 421 F.3d
951, 954 (9th Cir. 2005). But see United States v. Hernandez-
Ferrer, 599 F.3d 63, 67–68 (1st Cir. 2010) (declining to adopt
fugitive tolling for supervised release).
The fugitive tolling doctrine reflects two key principles
that align with the purposes of supervised release. First, the
rehabilitative goals of supervised release are served only when
defendants abide by the terms of their supervision—those
goals are not served simply by the passage of time during the
release term. “Mere lapse of time without imprisonment or
other restraint contemplated by the law does not constitute
service of sentence.” Anderson v. Corall, 263 U.S. 192, 196
(1923). A supervising court cannot offer postconfinement
assistance or ensure compliance with the terms of release while
a defendant is truant. See Barinas, 865 F.3d at 107 (reasoning
that measuring a supervised release term “by rote reference to
a calendar” is “inconsistent . . . with Congress’s goals in
requiring supervised release”); Murgia-Oliveros, 421 F.3d at
954 (“A person on supervised release should not receive credit
against his period of supervised release for time that . . . he was
not in fact observing the terms of his supervised release.”).
Second, the fugitive tolling doctrine reflects the settled
principle that defendants are not generally credited for
misdeeds, such as failing to comply with the terms of
supervised release. See Buchanan, 638 F.3d at 452
(recognizing the “general rule that ‘when the service of a
8
sentence is interrupted by conduct of the defendant the time
spent out of custody on his sentence is not counted as time
served thereon’”) (quoting United States v. Luck, 664 F.2d 311,
312 (D.C. Cir. 1981)); United States v. Crane, 979 F.2d 687,
691 (9th Cir. 1992) (explaining the fugitive tolling doctrine
enables courts to avoid “reward[ing] those who flee from
bench warrants and maintain their fugitive status until the
expiration of their original term of supervised release”). As the
Second Circuit noted, the fugitive tolling doctrine corresponds
to a variety of procedural doctrines that prevent rewarding
fugitive defendants for misconduct: fugitive defendants are
barred from invoking statutes of limitations, see 18 U.S.C. §
3290; appeals can be dismissed if defendants abscond, see
Ortega-Rodriguez v. United States, 507 U.S. 234, 239 (1993);
and defendants may not credit toward a term of imprisonment
time when they have escaped from prison, Corall, 263 U.S. at
196. See Barinas, 865 F.3d at 107–08.
Because the fugitive tolling doctrine helps realize the
design and purpose of supervised release, we join the majority
of circuits to have considered the question and recognize a
supervised release term tolls while a defendant is of fugitive
status. A defendant cannot count toward his sentence time
spent out of the court’s supervision as a consequence of his
own doing. At the same time, the defendant’s absence does not
free him to violate the terms of his supervised release without
consequence; the defendant remains responsible for his
violating conduct.3 Fugitive tolling does not lift the conditions
3
As the Fourth Circuit explained:
When a defendant absconds while on supervised
release, his absence precludes the sentencing
court from exercising supervision over him.
9
of a defendant’s supervised release, but instead recognizes the
goals of supervised release are not served when defendants
deliberately fail to follow its conditions.
This conclusion follows readily from our existing law.
We considered the application of tolling doctrines to
supervised release in United States v. Cole, 567 F.3d 110 (3d
Cir. 2009), where we held supervised release would not toll
when a defendant was deported as a condition of supervised
release. We noted deportation is a statutorily-contemplated
condition of supervised release under 18 U.S.C. § 3583(d), and
reasoned “[i]f a defendant is removed and ordered excluded
from the United States as a condition of supervised release,
how can it be that the period of supervised release is tolled
during that period?” Id. at 115. We compared that unsuccessful
deportation tolling argument to 18 U.S.C. § 3624(e), which
expressly provides for tolling of a supervised release period
where “the person is imprisoned in connection with a
Tolling is necessary in that instance to ensure
that, upon being apprehended, the defendant will
be subject to judicial supervision for a complete
term. However, that does not mean that a
defendant who has absconded thereby nullifies
the terms and conditions of the supervised
release order during his flight. Rather, the terms
and conditions remain in effect, and the fugitive-
defendant is not at liberty to embark on a
“holiday” from them. To the extent that this
result may seem harsh, it is the defendant’s own
misconduct which creates it.
Buchanan, 638 F.3d at 458; see also Barinas, 865 F.3d
at 109.
10
conviction for a Federal, State, or local crime” for at least 30
days. That comparison demonstrated Congress had considered
two circumstances in which the defendant would be outside the
court’s supervision—deportation and imprisonment—and
determined how that difference would affect the running of the
supervised release term. In the case of deportation, where the
defendant’s distance from supervision results from Congress’s
design in 18 U.S.C. § 3583(d), the defendant would get credit
for time served; while in the case of imprisonment, where the
defendant’s own actions lead to interruption of the release
term, the release term would toll.
We find unconvincing the reliance of Island and the
dissent on Cole to contend imprisonment is the only context in
which supervised release may be tolled. We found “persuasive
Cole’s argument that the canon of expressio unius est exclusio
alterius suggests that where Congress has explicitly allowed
for tolling only when the defendant is imprisoned on another
charge, it does not intend for district courts to toll supervised
release under any other circumstance.” 567 F.3d at 115. The
First Circuit similarly depended on the expressio unius canon
in rejecting the fugitive tolling doctrine. See Hernández-
Ferrer, 599 F.3d at 68. But as noted, Congress explicitly laid
out how imprisonment and deportation would affect the
running of a supervised release term. We accordingly inferred
in Cole that in addressing deportation and treating it as a
condition of supervised release, Congress determined tolling
should not then apply. But Congress did not address at all
whether tolling principles should apply when a defendant is
fugitive from the court’s supervision.
Indeed, Congress was silent on the question. While the
dissent suggests that silence counsels in favor of proscribing
11
fugitive tolling, we note, as some of our sister Circuits have,
“[t]he normal rule of statutory construction is that if Congress
intends for legislation to change the interpretation of a
judicially created concept” such as the one that a defendant
cannot profit from his misdeeds, “it makes that intent specific.”
Midatlantic Nat. Bank v. New Jersey Dep’t of Env. Protection,
474 U.S. 494, 501 (1986); see Barinas, 865 F.3d at 109 (“[W]e
typically expect a clearer expression of an intention to override
such longstanding precepts as the principle that a fugitive
should not profit by his unlawful or contumacious conduct.”);
Buchanan, 638 F.3d at 456 (“We find no indication to suggest
that Congress considered the issue and intended to preclude the
judicially created doctrine of fugitive tolling in the supervised
release context.”); cf. Young v. United States, 535 U.S. 43, 52
(2002) (drawing “no negative inference from the presence of
an express tolling provision” in one section of the Bankruptcy
Code “and the absence of one in” another section, where the
differing treatment “would be quite reasonable”). Recognizing
tolling only in the single case of imprisonment would in fact,
as our sister Circuits have explained, “impede achievement of
Congress’s stated goals for supervised release.” Barinas, 865
F.3d at 109.
Our reasoning in Cole accords with the premises of
fugitive tolling and reflects the distinction between defendants
who deliberately defy the conditions of supervised release and
those who leave the jurisdiction not on their own but at the
government’s order. Accord Barinas, 865 F.3d at 109–10
(describing the running of a term during deportation as a “far
cry from the circumstances in which [the defendant] was to
remain in the United States for supervision and instead fled, in
violation of the conditions imposed on him”); Buchanan, 638
F.3d at 457 (explaining fugitive tolling is “distinguishable”
12
from the decision not to toll during deportation “because the
fugitive-defendant’s absence arises from his own misconduct.
The same cannot be said about a defendant who has been
removed from the country by government order”). Cole
confirms a defendant cannot profit from his own misdeeds; the
fugitive tolling doctrine reflects that principle.
Finally, the dissent contends 18 U.S.C. § 3583(i)
precludes fugitive tolling. Section 3583(i) reads:
The power of the court to revoke a term of
supervised release for violation of a condition of
supervised release . . . 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 or
summons has been issued on the basis of an
allegation of such a violation.
We have held Ҥ 3583(i) is in fact jurisdictional and thus not
subject to equitable tolling,” United States v. Merlino, 785 F.3d
79, 86 (3d Cir. 2015), but that holding does little to help Island
because fugitive tolling is not based in Section 3583(i)’s
jurisdictional grant. Section 3583(i) concerns the extension of
a court’s jurisdiction, but it is undisputed that a court has
jurisdiction during the defendant’s service of his supervised
release term. We here begin with the question whether Island
in fact served his supervised release term. Because, as we have
explained, a defendant does not serve his term while fugitive,
part of a fugitive defendant’s term remains to be served. During
the remainder of that supervised release term, the district court
correspondingly has jurisdiction. As the Second Circuit has
13
recognized, it is not “§ 3583(i) itself” which “authoriz[es] the
tolling of the supervised-release period based on the
defendant’s fugitive status.” United States v. Barinas, 865 F.3d
99, 109 (2d Cir. 2017). Instead, as discussed, “such tolling is
consistent with the traditional principle that an absconder
should not benefit from his fugitivity and is consistent with
Congress’s sentencing scheme of supervision to facilitate the
defendant’s transition to a law-abiding life in free society.” Id.
B.
For at least the period between the court’s issuance of
the first warrant for violating supervised release in September
2015 and the shooting leading to Island’s apprehension by law
enforcement in June 2016, Island was of fugitive status.4 As
Island’s probation officer timely notified the court and the
government confirmed at the revocation hearing, Island
repeatedly failed to report for scheduled meetings and drug
tests. Island did not respond to the officer’s many attempts at
contact in different media and at different addresses.5 Under
4
To the extent Island suggests the fugitive tolling doctrine
poses administrability problems because the precise date a
defendant becomes fugitive may be difficult to ascertain, such
concerns are overblown—and not at issue in this case. We note
the Ninth Circuit has applied the fugitive tolling doctrine for
decades without noteworthy administrability problems. See
United States v. Ignacio Juarez, 601 F.3d 885, 886 (9th Cir.
2010); Murgia-Oliveros, 421 F.3d at 954.
5
In fact, had Island actually been under the court’s supervision,
the first warrant following technical violations of his
supervised release could have been executed.
14
the fugitive tolling doctrine, Island cannot count those months
spent outside the court’s supervision toward his supervised
release term. Accordingly, when the second warrant for
violation of supervised release issued on June 27, 2016, it fell
well within the tolled term. We therefore need not consider
whether the first warrant endowed the District Court with
jurisdiction over the unrelated later violations alleged in the
second warrant. Because the second warrant was issued within
the supervised release term properly accounting for fugitive
tolling, we will affirm the trial court’s revocation of supervised
release.
15
RENDELL, Circuit Judge, dissenting:
The Majority opinion focuses on the goals of supervised
release and concludes that tolling for fugitives from supervised
release is appropriate. I believe this is incorrect for two
reasons. First, the proper focus should be on the plain language
of 18 U.S.C. § 3583(i), which states that the court has the
power to extend the term of supervised release only when a
warrant is issued prior to the expiration of the term of
supervised release. Second, two precedential opinions of this
court—United States v. Merlino and United States v. Cole—
should lead us to conclude that tolling does not apply. Thus,
tolling does not apply and the District Court was without the
power to extend the term of Island’s supervised release based
upon tolling.
Section 3583(i) grants the court the power to extend
supervised release “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 or summons has been issued on the
basis of an allegation of such a violation.” 18 U.S.C.
§ 3583(i). By its plain language, a court has the power to
adjudicate matters after the expiration of supervised release if
a warrant or summons had been issued before the expiration of
supervised release. There is no dispute that the District Court
here issued the warrant after the technical term of supervised
release expired. When faced with a similar issue we held in
United States v. Merlino that § 3583(i) is “in fact
jurisdictional,” and thus cannot be equitably tolled. 785 F.3d
79, 86 (3d Cir. 2015). I suggest that, in light of the express
statutory directive of § 3583(i) and our opinion in Merlino, the
1
Majority’s holding that “a supervised release term tolls while
a defendant is of fugitive status” is wrong. Maj. Op. at 9.
In addition, Congress did incorporate tolling under 18
U.S.C. § 3624(e) for periods of imprisonment,1 but has not
incorporated tolling for fugitive status. We must determine
whether Congress’ silence regarding tolling for supervised
release is evidence of its intent to preclude or include tolling
for fugitive status. See, e.g., Coffelt v. Fawkes, 765 F.3d 197,
202 (3d Cir. 2014) (quoting Burns v. United States, 501 U.S.
129, 136 (1991)) (considering “textual and contextual
evidence” to resolve congressional silence). The expression of
one exception is often, but not always, evidence of the
exclusion of other exceptions. See Marx v. General Rev.
Corp., 568 U.S. 371, 381 (2013) (“The force of any negative
implication, however, depends on context.”) (citing expressio
unius est exclusio alterius). Expressio unius applies if it is “fair
to suppose that Congress considered the unnamed possibility
and meant to say no to it.” Id. (quoting Barnhart v. Peabody
Coal Co., 537 U.S. 149, 168 (2003)). In essence, if Congress
incorporated an exception to a rule, and in doing so would have
considered other exceptions, but failed to include them, then
we should presume Congress intended to exclude them.
That is the case here. Section 3624 is an express
exception to § 3583. At a minimum, § 3624 is evidence that
Congress considered tolling, and nonetheless only found
1
Section 3624(e) provides: “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).
2
imprisonment to be an adequate justification. More telling is
that, as the First Circuit noted, “the Sentencing Reform Act of
1984, which . . . codified prior case law that provided for tolling
when a probationer was imprisoned for another offense, []
made no similar reincorporation of prior case law” for fugitive
status. United States v. Hernandez-Ferrer, 599 F.3d 63, 68 (1st
Cir. 2010).2 “If Congress had wanted to authorize tolling when
an offender absconds from supervision, we believe that it
would have said so.” Id.
We have reasoned similarly and reached the same
conclusion in the deportation context. In United States v. Cole,
2
Prior case law in the probation context lends further support
to the conclusion that Congress intended § 3583(i)’s warrant
requirement to govern the extension of a term of supervised
release for fugitivity. In United States v. Martin, the Tenth
Circuit addressed a defendant who absconded from federal
supervision for three years, and determined that the period of
supervision “tolled from the time the New Jersey court issued
its violator warrant until the time Martin was returned to
federal supervision after release from the Colorado state
prison.” 786 F.2d 974, 975 (10th Cir. 1986) (emphasis added).
Similarly, in Nicholas v. United States, the Ninth Circuit held
“the five-year probationary period prescribed by section 3651
was extended by operation of law by the amount of time within
the five-year period during which a probationer, in violation of
the terms of his probation, and for whom an arrest warrant has
issued, has voluntarily absented himself from the jurisdiction.”
527 F.2d 1160, 1162 (9th Cir. 1976) (emphasis added). In both
cases, and just like under § 3583(i), the issuance of a valid
warrant was a prerequisite to the court maintaining jurisdiction
for an offender who absconded from supervision.
3
we held that the District Court plainly erred when it ordered
the defendant’s supervised release be tolled during the period
he is removed from the country. 567 F.3d 110, 117 (3d Cir.
2009). The Majority contends that the fugitive tolling doctrine
“follows readily from our existing law,” Maj. Op. at 10, since
“Cole confirms a defendant cannot profit from his own
misdeeds,” Maj. Op. at 13. Far from confirming the fugitive
tolling doctrine, in Cole we reasoned appropriately, and
contrary to the Majority, that if tolling has not been provided
for, it is not authorized: “Congress has provided for an
exception to this rule in only one situation: where the defendant
is imprisoned for more than 30 days for another conviction . . .
the canon of expressio unius est exclusio alterius suggests that
where Congress has explicitly allowed for tolling only when
the defendant is imprisoned on another charge, it does not
intend for district courts to toll supervised release under any
other circumstance.” Cole, 567 F.3d at 114–15. The fact that
tolling for fugitive status, as opposed to tolling for deportation,
is a “traditional principle,” Maj. Op. at 14 (quoting United
States v. Barinas, 865 F.3d 99, 109 (2d Cir. 2017)), makes it
more, not less, likely that it would have been contemplated and
incorporated by Congress.
While the Majority suggests that defendants would
receive a windfall without a tolling provision, the opportunity
to benefit from absconding is small. “If an offender absconds
before the expiration of his supervised release term, he will not
do so with impunity.” Hernandez-Ferrer, 599 F.3d at 69. As
long as the Government issues a warrant before the expiration
of the term of supervised release, it may extend the term of
supervised release “for any period reasonably necessary for the
adjudication of matters arising before its expiration[.]” 18
U.S.C. § 3583(i). And because absconding from supervision
4
is, on its own, grounds to revoke supervision, there is little
excuse for the Government failing to issue a timely warrant in
most circumstances. Although it is possible for an eleventh
hour violation to go unpunished, such a circumstance is rare
“given the ease with which the statute can be satisfied,” United
States v. Janvier, 599 F.3d 264, 268 (2d Cir. 2010), and such
is the nature of jurisdictional statutes. See Dolan v. United
States, 560 U.S. 605, 610 (2010) (describing the prohibition of
a jurisdictional statute as “absolute”). And in such a case, the
only disadvantage to the Government occasioned by adhering
to § 3583(i) is that the new warrant must stand on its own, i.e.,
it is a warrant for a violation of law, not a violation of
supervised release.
The ease and clarity of the current regime of a defined
term of supervised release only makes the decision to permit
tolling for fugitivity more troubling, especially considering the
difficulties associated with defining a “fugitive” in the
supervised release context. Contrary to the Majority’s
assertion, Maj. Op. at 14, n.4, in the Ninth Circuit, district
courts have extended the deadline of supervised release for
“merely [] failing to comply with the terms of supervised
release.” United States v. Ertell, Case No. 1:11-cr-00278-SAB
2016 WL 7491630 at *3 (E.D. Cal. December 29, 2016)
(quoting U.S. v. Murguia-Oliveros, 421 F.3d 951, 953 (9th Cir.
2005)). As a result, the clock may stop and start again when,
for example, a supervisee fails to immediately notify his
supervisor of a change in address, but does so a week later, fails
to show up for a drug test, but calls his supervisor two hours
after the missed appointment, and misses a required Alcoholics
Anonymous meeting, but shows up to the meeting the
following week. The best answer to these complex factual
questions is found in the certainty of the text of the statute: “as
5
long as a warrant or summons issues before the expiration of
the term, an offender who remains a fugitive will still be
subject to the court's jurisdiction once located, and his conduct
while a fugitive will be considered at sentencing.” Hernandez-
Ferrer, 599 F.3d at 69. Instead, the Majority’s judicially
created exception to § 3583(i) transforms a “minimal burden,”
Merlino, 785 F.3d at 85, on the Government into an onerous
task for the courts, and a complicated regime for the supervisee
in attempting to determine the applicable period of tolling, and
thus, when his term of supervised release ends.
* * *
The First Circuit correctly noted that, “[i]n the end, this
dispute boils down to a matter of statutory construction.”
Hernandez-Ferrer, 599 F.3d at 66. Congress chose not to toll
when a person absconds from supervised release, and in the
absence of clear congressional intent, the plain language of §
3583(i) should control. Moreover, requiring the Government
to fulfill the minimal burden of issuing a warrant before the
expiration date is preferable to creating a new amorphous
exception to a strictly jurisdictional statute. Thus, I
respectfully dissent and would vacate the sentencing order and
remand to the District Court for further proceedings.3
3
I can only speculate as to what those proceedings might entail.
There would remain the issue of whether the Court would re-
sentence Island believing that it had jurisdiction over the
violation contained in the June warrant based on the earlier
September warrant issued for factually unrelated violations.
See Maj. Op. at 3–4. I would conclude that it does not have
jurisdiction. See, e.g., United States v. Campbell, 883 F.3d
1148, 1153 (9th Cir. 2018) (concluding an earlier warrant does
6
not provide jurisdiction for factually unrelated violations). Of
course, the Court could then consider whether to sentence
Island for the violations alleged in the September warrant. It is
unclear whether the Court previously did so. The District Court
found that Island had committed those violations but stated that
it chose “not . . . to impose punishment[.]”App. 69. It may have
done so knowing it would impose punishment based on the
later warrant.
7