United States v. Roy Flores-Sierras

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5147
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROY FLORES-SIERRAS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:10-cr-00102-HCM-TEM-1)
Submitted: May 24, 2011 Decided: June 22, 2011
Before SHEDD and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Richard J.
Colgan, Assistant Federal Public Defender, Caroline S. Platt,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Scott W.
Putney, Assistant United States Attorney, Newport News,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roy Flores-Sierras pled guilty to a one-count
indictment charging him with illegal reentry into the United
States following deportation in violation of 8 U.S.C. § 1326(a)
(2006) and was sentenced to three months’ imprisonment and one
year of supervised release, with the condition that he serve the
period of supervised release “if he returns to the country,
legally or illegally, with the usual terms.” The court further
ordered that upon completion of the term of imprisonment,
Flores-Sierras is to be surrendered to immigration authorities
for deportation. On appeal, Flores-Sierras argues that the
district court lacked the authority to delay the start of his
supervised release. We agree and accordingly vacate his
sentence and remand the case for further proceedings. *
Supervised release is governed by 18 U.S.C. § 3583(2006), which provides that a court, “in imposing a sentence
. . . may include as a part of the sentence a requirement that
the defendant be placed on a term of supervised release after
imprisonment.” 18 U.S.C. § 3583(a). A court imposing a term of
supervised release is directed to examine specified sentencing
factors set forth in 18 U.S.C. § 3553(a) (2006) in determining
*
Flores-Sierras does not challenge his conviction on
appeal.
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the length of the term. 18 U.S.C. § 3583(c). Courts are also
permitted to impose conditions on supervised release, including
the condition that the defendant not commit any crimes during
the term of supervised release. 18 U.S.C. § 3583(d). Section
3583(d) further permits a sentencing court to impose “any
condition” as “a further condition to supervised release,” so
long as the condition meets certain criteria, including that the
condition is “reasonably related” to the specified § 3553(a)
factors, involves “no greater deprivation of liberty than is
reasonably necessary,” and is consistent with the Sentencing
Commission’s policy statements. 18 U.S.C. § 3583(d)(1)-(3).
Section 3583(d) also provides that “[i]f an alien defendant is
subject to deportation, the court may provide, as a condition of
supervised release, that he be deported and remain outside the
United States, and may order that he be delivered to a duly
authorized immigration official for such deportation.” 18
U.S.C. § 3583(d).
In addition to § 3583, 18 U.S.C. § 3624(e) (2006)
supplies the statutory definition for when a term of supervised
release begins: “The term of supervised release commences on the
day the person is released from imprisonment.” 18 U.S.C.
§ 3624(e). The statute provides for the tolling of supervised
release in a single circumstance — when the defendant is
imprisoned on an unrelated crime for more than thirty days. Id.3
On appeal, Flores-Sierras argues that, under the plain language
of § 3624(e), the district court lacked the authority to delay
the start of his supervised release in the event he is deported
following his incarceration. Flores-Sierras notes that his
position has the support of the five circuit courts that have
addressed the issue. See United States v. Cole, 567 F.3d 110(3d Cir. 2009); United States v. Ossa-Gallegos, 491 F.3d 537(6th Cir. 2007) (en banc); United States v. Okoko, 365 F.3d 962(11th Cir. 2004); United States v. Juan-Manuel, 222 F.3d 480(8th Cir. 2000); United States v. Balogun, 146 F.3d 141 (2d Cir.
1998). The Government agrees with Flores-Sierras that the
district court lacked the authority to delay the start of his
supervised release.
This appeal raises a question of statutory
interpretation. “When interpreting statutes we start with the
plain language.” U.S. Dep’t of Labor v. N.C. Growers Ass’n, 377
F.3d 345, 350 (4th Cir. 2004). In interpreting the plain
language of a statute, we give the terms their “ordinary,
contemporary, common meaning, absent an indication Congress
intended it to bear some different import.” North Carolina ex
rel. Cooper v. Tenn. Valley Auth., 515 F.3d 344, 351 (4th Cir.
2008) (alterations and internal quotation marks omitted).
In this case, the plain language of § 3624(e) clearly
provides that supervised release starts “on the day” the
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defendant is released from prison. The statute provides for
tolling only when the defendant is otherwise incarcerated, and
“the fact that Congress explicitly allows for tolling only when
a defendant is imprisoned indicates that Congress does not
intend for district courts to toll the period of supervised
release under any other circumstance.” Ossa-Gallegos, 491 F.3d
at 543. In contrast, in the case of probation, Congress has
provided for tolling mechanisms. See 18 U.S.C. § 3564(a) (“A
term of probation commences on the day that the sentence of
probation is imposed, unless otherwise ordered by the court.”).
In addition, we note that an opposite position would
result in certain inconsistencies. One condition of supervised
release is that Flores-Sierras refrain from reentering the
United States if deported. But if his supervised release does
not begin until he reenters the United States, this condition is
a nullity. As the Third Circuit explained, “[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?” Cole, 567
F.3d at 115 .
Finally, while § 3583 does permit the district court
to impose conditions on supervised release, “‘tolling’ is not a
‘condition’ in the sense in which the term is used in
§ 3583(d).” Ossa-Gallegos, 491 F.3d at 542. “[C]onditions”
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within § 3583 “are contingencies upon which the right to
continue on supervised release depends,” and “the continuation
of supervised release is not contingent on tolling; rather,
tolling describes the existing state of supervised release —
that is, whether or not the period of supervised release is
running.” Id.
We conclude that the district court’s order runs afoul
of § 3624(e) because Flores-Sierras’ supervised release will not
necessarily “commence on the day” his term of imprisonment ends.
Accordingly, we vacate Flores-Sierras’ sentence and remand for
further proceedings consistent with this opinion. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED
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