United States v. Marc Turner

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 11-10038
Plaintiff-Appellee, D.C. No.
v.  2:00-cr-00547-
MARC CHRISTOPHER TURNER, GEB-GGH-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted
March 14, 2012—Berkeley, California
Filed August 7, 2012
Before: John T. Noonan, M. Margaret McKeown, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge McKeown;
Dissent by Judge M. Smith
8879
8882 UNITED STATES v. TURNER
COUNSEL
Benjamin David Galloway, Federal Public Defender’s Office,
Sacramento, California, for defendant-appellant Marc Chris-
topher Turner.
Richard A. Friedman (argued), United States Department of
Justice, Criminal Division, Washington, D.C., for plaintiff-
appellee the United States.
Camil A. Skipper, United States Office of the U.S. Attorney,
Sacramento, California, for plaintiff-appellee the United
States.
OPINION
McKEOWN, Circuit Judge:
The Adam Walsh Child Protection and Safety Act (the
“Adam Walsh Act” or the “Act”) sets up a process for civil
commitment of “sexually dangerous persons.” This appeal
raises the question of whether a civil detention under the Act
constitutes a term of imprisonment that both precludes and
tolls the commencement of a supervised release term of a sex
offender who has completed his incarceration for a criminal
conviction.
Following the expiration of his criminal sentence, Marc
Christopher Turner was detained under the Adam Walsh
Act’s stay-of-release provision, which automatically stays
UNITED STATES v. TURNER 8883
release until completion of protective procedures under the
Act. 18 U.S.C. § 4248(a). Under normal circumstances, Tur-
ner’s term of supervised release would have commenced upon
release from imprisonment. In any event, the supervised
release term is tolled only “during any period in which the
person is imprisoned in connection with a conviction . . . .”
18 U.S.C. § 3624(e). Though Turner received no hearing dur-
ing the entire four and a half year stay period and was
detained only pursuant to a civil statute, the government
would have us hold that Turner was imprisoned in connection
with a criminal conviction, thus tolling the commencement of
his term of supervised release. Resolution of this question
requires us to consider the interplay among three different
statutory schemes: 18 U.S.C. § 4248 (the stay-of-release pro-
vision of the Adam Walsh Act); 18 U.S.C. § 3624(a) (the def-
inition of term of imprisonment); and 18 U.S.C. § 3624(e)
(the supervised release statute).1 We conclude that detention
pending the outcome of a civil commitment hearing pursuant
to § 4248 does not constitute “imprisonment,” and that Tur-
ner’s term of supervised release was not tolled during his civil
detention. The government and the dissent each offer a differ-
ent construction of the intersection of the statutes, underscor-
ing why, at a minimum, the rule of lenity also tips in Turner’s
favor.
BACKGROUND
Turner pleaded guilty to two counts of distributing visual
depictions of minors engaged in sexually explicit conduct in
violation of § 2252(a)(2). He was sentenced to 46 months in
prison and a 36-month term of supervised release. Turner was
incarcerated in the Federal Correctional Institution in Butner,
North Carolina (“FCI Butner”). Upon completion of his
prison sentence, Turner was released.
1
Unless otherwise indicated, all subsequent statutory citations are to
Title 18 of the United States Code.
8884 UNITED STATES v. TURNER
Three years later, Turner admitted that he had violated con-
ditions of his supervised release, and on June 29, 2007, the
district court sentenced him to eight months in prison and a
22-month term of supervised release. Turner again served his
prison sentence at FCI Butner. Due to good time credits, his
prison sentence expired on September 7, 2007.
Prison records confirm Turner’s good time credit release at
noon on September 7, 2007. Two minutes later, he was admit-
ted for “Adam Walsh Act Review.” On that same day, the
government filed a “Certification of a Sexually Dangerous
Person” against Turner in the United States District Court for
the Eastern District of North Carolina. See 18 U.S.C.
§ 4248(a). Turner received an assignment of “A-Pre WA,”
meaning that he was being detained pursuant to the Walsh
Act’s stay-of-release provision. See 18 U.S.C. § 4248(a). Tur-
ner remained in civil detention for over four years at FCI But-
ner pending his civil commitment hearing, which was not held
until February 2012. At no point after noon on September 7,
2007, was Turner in custody pursuant to a criminal sentence.
On May 17, 2010, while in detention, Turner filed a motion
to terminate his term of supervised release on the ground that
the term had run during his civil detention under § 4248. The
district court denied the motion.
Almost five years after the expiration of Turner’s prison
sentence, on February 27, 2012, the district court in North
Carolina held a bench trial to determine whether Turner
should be civilly committed. On March 9, 2012, the court
entered judgment in favor of Turner, finding that the govern-
ment failed to prove by clear and convincing evidence that, as
a result of a serious mental illness, abnormality or disorder,
Turner would have serious difficulty refraining from sexually
violent conduct or child molestation if released. The court
ordered the United States to release Turner. United States v.
Turner, No. 5:07-HC-2167-D-JG, 2012 WL 965985, at *2
(E.D.N.C. March 9, 2012).
UNITED STATES v. TURNER 8885
ANALYSIS
I. STATUTORY BACKGROUND
“The starting point in interpreting a statute is its language,
for if the intent of Congress is clear, that is the end of the mat-
ter.” Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409
(1993) (internal quotation marks and other marks omitted).
We thus begin our de novo review with the relevant statutes.
See United States v. Cabaccang, 332 F.3d 622, 624-25 (9th
Cir. 2003) (en banc).
A. 18 U.S.C. §§ 4247 & 4248—THE ADAM WALSH ACT
[1] Congress enacted the Adam Walsh Act in 2006. Adam
Walsh Child Protection and Safety Act of 2006, Pub. L. No.
109-248, §§ 1-707, 120 Stat. 587, 587-650 (2006). Title III of
the Act, codified at §§ 4247-48, establishes a procedure for
civil commitment of “sexually dangerous persons” who either
are in the custody of the Bureau of Prisons, have been deter-
mined mentally incompetent to stand trial and committed to
the custody of the Attorney General, or have had criminal
charges dismissed on the basis of a mental illness. § 4248(a).
The civil commitment provisions “authorize[ ] the Depart-
ment of Justice to detain a mentally ill, sexually dangerous
federal prisoner beyond the date the prisoner would otherwise
be released.” United States v. Comstock, 130 S. Ct. 1949,
1954 (2010).
To initiate civil commitment proceedings, the government
must file a petition in the federal district court for the district
in which the individual is confined. § 4248(a). The petition,
which may be filed by the Attorney General, the Director of
the Bureau of Prisons, or a designee of either official, must
include a certification that the individual to be committed
qualifies as a “sexually dangerous person.” Id.; see also
United States v. Shields, 649 F.3d 78, 81 (1st Cir. 2011). A
person is considered to be a “sexually dangerous person”
8886 UNITED STATES v. TURNER
within the meaning of the Act if that individual has previously
“engaged or attempted to engage in sexually violent conduct
or child molestation” and “is sexually dangerous to others,”
defined as someone who (1) “suffers from a serious mental
illness, abnormality, or disorder” and (2) “as a result of” that
mental illness, abnormality, or disorder “would have serious
difficulty in refraining from sexually violent conduct or child
molestation if released.” § 4247(a)(5)-(6). “When [a Certifica-
tion of a Sexually Dangerous Person] is filed, the statute auto-
matically stays the individual’s release from prison, thereby
giving the Government an opportunity to prove its claims at
a hearing through psychiatric (or other) evidence.” Comstock,
130 S. Ct. at 1954 (citations omitted). The relevant section,
entitled “Civil commitment of a sexually dangerous person,”
provides in pertinent part: “A certificate filed under this sub-
section shall stay the release of the person pending comple-
tion of procedures contained in this section.” § 4248(a).
Although the Adam Walsh Act alters the normal procedures
for the release of a prisoner, § 4248(a) contains no reference
to a prisoner’s term of imprisonment. The Act simply autho-
rizes detention beyond the ordinary release date.
B. 18 U.S.C. § 3624(a) — TERM OF IMPRISONMENT
[2] Pursuant to § 3624(a), “[a] prisoner shall be released by
the Bureau of Prisons on the date of the expiration of the pris-
oner’s term of imprisonment . . . .” This language dovetails
with § 3621(a), which provides that “[a] person who has been
sentenced to a term of imprisonment . . . shall be committed
to the custody of the Bureau of Prisons until the expiration of
the term imposed . . . .” (emphasis added). As used in
§ 3624(a), “term of imprisonment” refers to the sentence
imposed by the sentencing judge. See Barber v. Thomas, 130
S. Ct. 2499, 2506 (2010). Under normal circumstances, a pris-
oner is released from the Bureau of Prisons’ custody “on the
date of the expiration of the prisoner’s term of imprisonment,
less any time credited . . . .” § 3624(a) (emphasis added).
UNITED STATES v. TURNER 8887
C. 18 U.S.C. § 3624(e) — SUPERVISED RELEASE
In imposing a term of imprisonment for a felony or misde-
meanor, a court “may include as a part of the sentence a
requirement that the defendant be placed on a term of super-
vised release after imprisonment . . . .” § 3583(a). “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 specified by the sentencing
court.” § 3624(e). A term of supervised release “commences
on the day the person is released from imprisonment.” Id.
(emphasis added). However, the commencement of super-
vised release is subject to the tolling provisions of the statute.
Tolling of a term of supervised release is also governed by
§ 3624(e), which provides in relevant part: “A term of super-
vised release does not run during any period in which the per-
son 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.” Id. (emphasis
added). As we explained in United States v. Morales-Alejo,
“[a] plain reading of this language suggests that there must be
an imprisonment resulting from or otherwise triggered by a
criminal conviction.” 193 F.3d 1102, 1105 (9th Cir. 1999);
see also United States v. Garcia-Rodriguez, 640 F.3d 129,
133 (5th Cir. 2011) (“any other term of imprisonment must be
‘in connection with a [separate] conviction’ for a ‘crime’ if
such imprisonment is to toll the term of supervised release”
(alteration in original)).
II. CIVIL DETENTION UNDER THE ADAM WALSH ACT DOES
NOT TOLL SUPERVISED RELEASE
[3] The issue in this appeal, although one of first impres-
sion, is a narrow one. The chronology of events is telling as
to Turner’s status and how his situation fits within the statu-
8888 UNITED STATES v. TURNER
tory schemes. There is no dispute that prior to 12:00 p.m. on
September 7, 2007, Turner was “imprisoned in connection
with a conviction,” and that his term of supervised release
was tolled during this period of imprisonment. See § 3624(e).
Further the government states that civil commitment under the
Act is not imprisonment and, therefore, does not operate to
toll a term of supervised release. Had Turner been civilly
committed, his supervised release term would have proceeded
to run, according to the government’s logic. However,
because the government did not meet its burden to show that
Turner was a “sexually dangerous person,” he was never civ-
illy committed under the Act. Thus, the dispute focuses solely
on whether Turner’s term of supervised release was tolled
during the interim period between the end of his imprison-
ment “in connection with a conviction” on September 7,
2007, and the positive resolution of his civil commitment
hearing on February 27, 2012.
[4] We conclude that, during the almost five years Turner
was kept in limbo awaiting his civil commitment hearing, he
was not “imprisoned in connection with a conviction for a . . .
crime,” which is required to toll the commencement of super-
vised release under § 3624(e). See Morales-Alejo, 193 F.3d at
1104-05. The dissent’s mantra that “[w]hat never begins can-
not end” simply begs the question. Dissent at 8898. Here, the
commencement of supervised release and the stay were virtu-
ally simultaneous. And under the facts, Turner completed his
imprisonment but his release was stayed. The dissent
acknowledges that the outcome it supports “does not seem
fair.” Dissent at 8900. We agree. We also acknowledge that
it may seem odd to conclude that Turner’s supervised release
could run while civilly detained, but the government concedes
as much under at least one scenario and the statutes support
our reading.
The government’s position on tolling is instructive.
According to the government’s brief,
UNITED STATES v. TURNER 8889
Civil commitment is not imprisonment, therefore
Section 4248 civil commitment does not toll super-
vised release; during the period of civil commitment
(i.e., once the defendant is released from imprison-
ment), supervised release does run. A different anal-
ysis applies, however, if the defendant’s release is
stayed pending resolution of his civil commitment
hearing.
The government acknowledges that a civil commitment under
the Act does not toll the start of supervised release. Under this
approach, had the system expeditiously provided Turner a
hearing and then ordered civil commitment, his supervised
release would have run during the commitment period. But
the government now takes the anomalous posture that during
the almost five years it took to determine that Turner should
not be civilly committed, his supervised release term was, in
effect, stayed.
[5] Neither the statutory text nor common sense supports
this bifurcated approach. The statute makes no distinction
between pre- and post-civil commitment hearing detainees.
The stay-of-release provision relates to all of the procedures
and proceedings in a comprehensive civil commitment statute.
The provision states, “A certificate filed under this subsection
shall stay the release of the person pending completion of pro-
cedures contained in this section.” 18 U.S.C. § 4248(a)
(emphasis added). Notably, the “procedures” referenced by
the stay provision are not limited to the ultimate determina-
tion that further commitment is warranted. Instead, the civil
commitment procedures commence with the government’s
initial certification but continue through the civil commitment
hearing and, for a committed individual, are not completed
until a court determines by a preponderance of evidence that
the individual is no longer a “sexually dangerous person” and
may be discharged. See § 4248(a), (c), (e).
A review of the procedural steps illustrates how the stay
provision takes effect throughout § 4248 and does not dis-
8890 UNITED STATES v. TURNER
solve after the commitment hearing. The path between issu-
ance of the certification and release is paved with multiple
procedural and substantive determinations. Following filing
of the certification, the section states that “[t]he court shall
order a hearing to determine whether the person is a sexually
dangerous person.” § 4248(a). The hearing is governed by the
procedures set out in § 4247(d). See § 4248(c). The next
benchmark is whether “the court finds by clear and convinc-
ing evidence that the person is a sexually dangerous person.”
§ 4248(d). If not, then the person is released, as was the case
with Turner. If the finding is made, the individual is released
to a state for “custody, care, and treatment,” or if a state does
not accept responsibility, then the Attorney General places the
person in a suitable facility. Id. Ultimately, if the director of
the facility where the individual is placed determines that the
individual will not be sexually dangerous to others if released,
then there may be another hearing “to determine whether he
should be released.” § 4248(e). Each of these steps is part of
the referenced “procedures.”
[6] The stay of release equally applies to persons awaiting
an initial commitment hearing as to persons committed and
hoping for a positive discharge hearing. The false dichotomy
offered by the government belies textual and practical sense.
Preliminary to civil commitment, the defendant is held only
because of the Adam Walsh Act—a civil statute. The tolling
effect on a supervised release term should be no different. The
only common sense interpretation of § 4248(a) is that the
Adam Walsh Act precludes the release of a person deemed
“sexually dangerous” into society until a court has ultimately
resolved that he is not or is no longer a danger to others. Had
Congress intended the stay-of-release provision to include
only persons awaiting a hearing, the reading the government
advances, it would have said “pending the first commitment
hearing” instead of making the stay applicable to all of the
“procedures” in § 4248.2
2
An alternate reading would also ignore the broad reach of the statute.
Subsection (a) applies to “a person who is in the custody of the Bureau
UNITED STATES v. TURNER 8891
Apart from the plain meaning of the statute, a contrary
interpretation of § 4248 would also contradict the express lan-
guage of § 3624(e). “Section 3624(e) focuses our analysis on
the words ‘imprisonment’ and ‘imprisoned’ to describe the
type of confinement that controls commencement and tolling
of supervised release time.” United States v. Sullivan, 504
F.3d 969, 971 (9th Cir. 2007). The plain language of the stat-
ute “suggests that there must be an imprisonment resulting
from or otherwise triggered by a criminal conviction.”
Morales-Alejo, 193 F.3d at 1105. In this regard, the civil
nature of Turner’s detention is determinative. See Comstock,
130 S. Ct. at 1954 (characterizing § 4248 as a “civil-
commitment statute”); cf. Jones v. Blanas, 393 F.3d 918, 932
(9th Cir. 2004) (“an individual detained under civil process—
like an individual accused but not convicted of a crime—
cannot be subjected to conditions that ‘amount to punish-
ment.’ ” (quoting Bell v. Wolfish, 441 U.S. 520, 536 (1979))).
Turner’s continued confinement was not the result of any
criminal sentence imposed by a court and exceeded, by many
years, what would have been permissible at the time he was
sentenced. See § 3583(e)(3) (stating that a defendant whose
term of supervised release is revoked “may not be required to
serve on any such revocation more than . . . 2 years in prison
if such offense is a class C or D felony . . . .”).
The Supreme Court’s decision in United States v. Johnson,
529 U.S. 53 (2000), does not resolve the issue we now face—
of Prisons, or who has been committed to the custody of the Attorney
General pursuant to section 4241(d), or against whom all criminal charges
have been dismissed solely for reasons relating to the mental condition of
the person.” § 4248(a). All of these individuals are subject to the subsec-
tion’s stay-of-release provision even though they cannot all be classified
as serving a “term of imprisonment.” In fact, individuals “against whom
all criminal charges have been dismissed solely for reasons relating to the
mental condition of the person” have not been convicted of a crime. Id.
The broad applicability of the statute belies the argument that Congress
intended the stay-of-release provision to extend a “term of imprisonment”
and somehow toll the commencement of supervised release.
8892 UNITED STATES v. TURNER
whether supervised release may be tolled when an individual
is detained only in a civil capacity. Johnson dealt with a
defendant who, at all times during his incarceration, was “im-
prisoned in connection with a conviction for a . . . crime.” See
id. at 54-55. Johnson initially received a prison sentence of
171 months’ imprisonment, consisting of three concurrent 51-
month sentences for his convictions for possession with intent
to distribute and felon possession of a firearm, to be followed
by two consecutive 60-month terms for his convictions for
use of a firearm in connection with a drug trafficking crime.
Id. Later, Johnson’s convictions for use of a firearm in con-
nection with a drug trafficking crime were vacated and the
district judge modified his sentence to 51 months. Id. at 55.
Because Johnson had already served more than 51 months by
the time the convictions were vacated, he argued that he was
entitled to a reduction in his term of supervised release
because “the excess prison time should be credited to the
supervised release term, reducing its length.” Id. at 54.
The Court in Johnson rejected this argument, holding that
§ 3624(e) “does not reduce the length of a supervised release
term by reason of excess time served in prison” because it
“directs that a supervised release term does not commence
until an individual ‘is released from imprisonment.’ ” Id. at
60, 57. Although there is language in Johnson suggesting that
supervised release can never begin when an individual
remains in the custody of the Bureau of Prisons, this language
must be read against the backdrop of the facts of that case.
See id. at 57 (“Supervised release does not run while an indi-
vidual remains in the custody of the Bureau of Prisons.”); id.
(“the ordinary, commonsense meaning of release is to be
freed from confinement”). Unlike Turner, Johnson had not yet
completed his prison sentence. Rather, during the entire dura-
tion of Johnson’s incarceration, he was “imprisoned in con-
nection with a conviction” for a crime. See § 3624(e). Johnson
remained in the custody of the Bureau of Prisons solely
because of a criminal sentence.
UNITED STATES v. TURNER 8893
[7] That is not the case with Turner. Johnson does not
address the situation in which a person who has completed a
prison sentence is then placed in civil detention, even if the
civil detention happens to be overseen by the Bureau of Pris-
ons. As demonstrated by the Bureau of Prisons’ inmate his-
tory log, Turner was released from criminal custody at noon
on September 7, 2007. Upon release from criminal custody,
Turner received a completely different inmate classification—
a civil detainee classification based on his Walsh Act deten-
tion. Notably, the government agrees that “[Turner’s] post-
sentence detention does not constitute any part of his criminal
sentence.” Thus, any detention following the expiration of
Turner’s criminal sentence was civil in nature. “Civil status
means civil status . . . .” Jones, 393 F.3d at 933. By definition,
civil status does not mean “imprisoned in connection with a
conviction.”3
[8] In determining whether a particular detention consti-
tutes “imprisonment” for the purposes of § 3624(e), our cases
have made it clear that custody of the Bureau of Prisons does
not determine whether someone is imprisoned; instead, we
3
As a policy consideration, the dissent focuses on the goals of super-
vised release and concludes that post-sentence civil detention does not toll
a supervised release term. However, the government had every opportu-
nity to ensure Turner received treatment and rehabilitative services during
the four and a half years it delayed in providing him with a civil commit-
ment hearing. FCI Butner, where Turner has been continuously held, “op-
erates the [Bureau of Prisons’] Commitment and Treatment Program,
which holds certified, post-sentence persons and civilly committed sex
offenders who are transferred to Butner for treatment.” U.S. DEP’T OF
JUSTICE, FEDERAL BUREAU OF PRISONS, STATE OF THE BUREAU 2009, at 30,
available at http://www.bop.gov/news/PDFs/sob09.pdf. Any failure to
provide Turner with the appropriate treatment lays at the feet of the gov-
ernment and is hardly a basis to convert a civil statute into one that extends
a prisoner’s criminal term of imprisonment. The realities of confinement
—Turner was at FCI Butner pending potential commitment and might
well have been placed there had he been committed—underscores why the
government’s position is internally inconsistent. In either case, Turner
would not be serving a criminal sentence.
8894 UNITED STATES v. TURNER
have focused on the nature of the custody. In Morales-Alejo,
we clarified that pretrial detention does not constitute “impris-
onment” within the meaning of § 3624(e) and thus does not
operate to toll a term of supervised release. 193 F.3d at 1106.
Like Turner, a pretrial detainee is in the custody of the Bureau
of Prisons, but is not “imprisoned in connection with a convic-
tion.”4 Later, in Sullivan, we reaffirmed our holding in
Morales-Alejo, concluding that detention at a community
treatment center not subject to Bureau of Prisons control does
not toll supervised release. 504 F.3d at 970. But see United
States v. Miller, 547 F.3d 1207, 1208 (9th Cir. 2008) (distin-
guishing Sullivan by clarifying that detention at a work
release program tolls supervised release when the detention is
part of the term of imprisonment). Detention pursuant to
§ 4248 pending a civil commitment hearing after a defen-
dant’s term of imprisonment has expired does not fit the defi-
nition of a person “imprisoned in connection with a
conviction.” Johnson does not command a different analysis,
as the entirety of the custody at issue in that case was criminal
in nature.
To hold otherwise and consider § 4248’s “stay-of-release”
provision as extending Turner’s term of imprisonment raises
serious constitutional questions. See Almendarez-Torres v.
United States, 523 U.S. 224, 237 (1998) (“A statute must be
construed, if fairly possible, so as to avoid not only the con-
clusion that it is unconstitutional but also grave doubts upon
4
Under the dissent’s reading, all custody is equivalent, whether it is civil
or criminal. This analysis fails to take account that “imprisoned” and “in
custody” are not equivalent. For example, the Bureau of Prisons considers
individuals committed under § 4241(d)—who are also subject to the
Walsh Act stay-of-release provision—to be pretrial inmates. See U.S. DEP’T
OF JUSTICE, FEDERAL BUREAU OF PRISONS, PROGRAM STATEMENT 7331.04,
§ 551.101(a)(2) (Jan. 31, 2003) (“An inmate committed under Title 18
U.S.C. Sections 4241(b) and (d) . . . is considered to be a pretrial inmate
. . . .”); see also id. § 551.101(a) (“For purposes of this rule, ‘pretrial
inmate’ means a person who is legally detained but for whom the Bureau
of Prisons has not received notification of conviction.”).
UNITED STATES v. TURNER 8895
that score.” (internal quotation marks omitted)). Section 4248
requires no hearing prior to the government’s certification—
on its belief—that a prisoner is a “sexually dangerous person”
and provides no time limit in which a civil commitment hear-
ing must be held after a certification has been issued. If this
pre-commitment detention, which requires no judicial deter-
mination and minimal procedural safeguards, constitutes
imprisonment, then the constitutionality of the Act is open to
question. See Stogner v. California, 539 U.S. 607, 612 (2003)
(including among ex post facto laws “[e]very law that
changes the punishment, and inflicts a greater punishment,
than the law annexed to the crime, when committed” (quoting
Calder v. Bull, 3 U.S. 386, 390 (1798))); Foucha v. Louisi-
ana, 504 U.S. 71, 86 (1992) (holding that “the State must
establish insanity and dangerousness by clear and convincing
evidence in order to confine an insane convict beyond his
criminal sentence, when the basis for his original confinement
no longer exists”); Hill v. United States ex rel. Wampler, 298
U.S. 460, 464 (1936) (“The only sentence known to the law
is the sentence of judgement entered upon the records of the
court.”). In essence, though the district court imposed a term
of imprisonment of eight months and could not have imposed
a term longer than two years, adopting the government’s posi-
tion would mean that an extension of Turner’s term of impris-
onment by four and a half years beyond that imposed by the
district court is within the bounds of congressional authority
in passing a civil confinement statute. Congress certainly did
not express any intention to reach such a result.
[9] Finally, the rule of lenity cuts in Turner’s favor. We
recognize that the rule does not generally apply to a civil stat-
ute. However, the stay provision of the Act directly implicates
Turner’s supervised release, which is part and parcel of his
criminal sentence. Implementation of the civil statute
requires, in the case of a prisoner whose sentence includes
supervised release, interpretation and application of the crimi-
nal statutes. The intertwining of the Act with the criminal pro-
visions at issue is sufficient to invoke the rule of lenity. Cf.
8896 UNITED STATES v. TURNER
Leslie Salt Co. v. United States, 55 F.3d 1388, 1398 (9th Cir.
1995) (“The rule of lenity has not been limited to criminal
statutes, particularly when the civil sanctions in question are
punitive in character.” (citing United States v. Thomp-
son/Center Arms Co., 504 U.S. 505, 518 n.10 (1992))); Sash
v. Zenk, 439 F.3d 61, 63-64 (2d Cir. 2006) (noting that stat-
utes may be “criminal” for some purposes but not for others).
To the extent that this constellation of statutes “fail[s] to
establish that the Government’s position is unambiguously
correct—we . . . resolve the ambiguity in [Turner’s] favor.”
Cabaccang, 332 F.3d at 635 (quotation marks omitted). After
considering the text, structure, history and purpose of the stat-
ute, we are left with “a grievous ambiguity or uncertainty in
the statute.” Barber, 130 S. Ct. at 2508-09 (internal quotation
marks omitted).
[10] The ambiguity in the statute is particularly highlighted
when contrasting the two separate interpretations offered by
the government and the dissent. The dissent claims that super-
vised released never commenced so there is nothing to stay
while the government claims the stay kicks in upon certifica-
tion but is somehow lifted once commitment is ordered. Both
of these approaches cannot be correct nor can they be squared
with our interpretation which endeavors to reconcile all three
of the relevant statutes. See id. (recognizing that “the rule of
lenity only applies if, after considering text, structure, history,
and purpose, there remains a grievous ambiguity or uncer-
tainty in the statute such that the Court must simply guess as
to what Congress intended.” (internal quotation marks and
citation omitted). In passing the Adam Walsh Act, Congress
apparently did not affirmatively consider the effect of
§ 3624(e), the supervised release statute. In the same vein,
Congress made no effort to amend that provision. Rewriting
the statute is beyond our province; to the extent Congress
intended to treat the limbo period between expiration of a sen-
tence and imposition of a civil commitment as a “sexually
dangerous person” as tolling supervised release, the fix is a
legislative one.
UNITED STATES v. TURNER 8897
For the above reasons, Turner’s detention under § 4248
after his sentence expired does not amount to imprisonment
“in connection with a conviction” within the meaning of
§ 3624(e). Accordingly, Turner’s term of supervised release
was not tolled while he remained in custody after his sentence
expired, and his term of supervised release ended on July 7,
2009.
REVERSED.
M. SMITH, Circuit Judge, dissenting:
The majority holds that supervised release may begin and
end before a person is released from prison. Because the
Supreme Court has squarely held otherwise, and the majori-
ty’s conclusion defies both common sense and the reasoning
of binding precedent, I respectfully dissent. See United States
v. Johnson, 529 U.S. 53, 57 (2000) (“Supervised release does
not run while an individual remains in the custody of the
Bureau of Prisons.”) (emphasis added).
As an initial matter, the majority misconstrues the issue
here. The question is not, as the majority contends, whether
a term of supervised release was tolled. The issue is whether
a term of supervised release began when an individual was
not free to leave a prison. I would hold that binding authority
dictates that supervised release cannot begin until one is phys-
ically released from prison.
The commencement and tolling provisions of 18 U.S.C.
§ 3624(e) are distinct. They “work in different ways” and
contain different statutory requirements. See 18 U.S.C.
§ 3624(e); Tobey v. United States, 794 F. Supp. 2d 594, 600
(D. Md. 2011). Unlike the tolling provision, the commence-
ment provision does not contain any requirement that impris-
onment be “in connection with a conviction.” Compare id.8898 UNITED STATES v. TURNER
(“The term of supervised release commences on the day the
person is released from imprisonment . . . .”), with id. (“A
term of supervised release does not run during any period in
which the person is imprisoned in connection with a convic-
tion for a Federal, State, or local crime unless the imprison-
ment is for a period of less than 30 consecutive days.”). Thus,
under the commencement provision, a person’s term of super-
vised release cannot begin until he or she is allowed physi-
cally to leave a prison. See id. What never begins cannot end.
Whether the physical confinement is imposed pursuant to a
sentence or otherwise in connection with a conviction is irrel-
evant; the purpose of and reasons for the prisoner’s confine-
ment do not matter. Id. It is the fact of physical confinement
that controls. See id. This critical difference between
§ 3624(e)’s tolling and commencement provisions eludes the
majority. The majority simply ignores § 3624(e)’s clear com-
mand in the commencement provision that a term of super-
vised release can neither begin nor end while an individual
physically remains in the Bureau of Prisons’s custody. See
Johnson, 529 U.S. at 57.
According to the majority, Defendant-Appellant Marc
Christopher Turner’s (Turner) term of supervised release ran
while he was still physically in prison. No evidence suggests
that he was free to leave, or that he physically left the prem-
ises of the prison. Rather than releasing Turner, Plaintiff-
Appellee United States of America (the Government) filed a
“Certification of a Sexually Dangerous Person” under 18
U.S.C. § 4248(a) the day Turner’s sentence was set to expire.
The filing of this certification automatically and indefinitely
stayed Turner’s release from prison. See 18 U.S.C. § 4248(a)
(“A certificate filed under this subsection shall stay the
release of the person pending completion of procedures con-
tained in this section.”); United States v. Comstock, 130 S. Ct.
1949, 1954 (2010) (“When such a certification is filed, the
statute automatically stays the individual’s release from
prison, thereby giving the Government an opportunity to
prove its claims at a hearing through psychiatric (or other)
UNITED STATES v. TURNER 8899
evidence.”) (internal citations omitted). Therefore, even
though Turner completed his sentence, he was not allowed to
leave prison. At all relevant times, he remained in the custody
of the Bureau of Prisons (BOP).
In Johnson, the Supreme Court interpreted 18 U.S.C.
§ 3624(e), the statute controlling when a term of supervised
release begins. See Johnson, 529 U.S. at 57. Under § 3624(e),
a “term of supervised release commences on the day the per-
son is released from imprisonment . . . .” 18 U.S.C. § 3624(e).
In construing the meaning of “released from imprisonment,”
the Supreme Court clarified that the question is not whether
a person’s sentence ends, but whether a person is physically
released from confinement. See Johnson, 529 U.S. at 57(defining “release” in the context of imprisonment as “mean[-
ing] ‘[t]o loosen or destroy the force of; to remove the obliga-
tion or effect of; hence to alleviate or remove; . . . [t]o let
loose again; to set free from restraint, confinement, or servi-
tude; to set at liberty; to let go.’ ”). Because “the ordinary,
commonsense meaning of release is to be freed from confine-
ment,” a person may not be released while still imprisoned.
Id. Further emphasizing that physical freedom from confine-
ment is required for a person’s term of supervised release to
begin, the Supreme Court explained that supervised release
does not begin while a person remains in the BOP’s custody.
See id. The Court also explained that other language in
§ 3624(e) supported its construction, such as the phrase “on
the day the person is released” in the second sentence of
§ 3624(e) “suggest[ing] a strict temporal interpretation, not
some fictitious or constructive earlier time.” Id. Accordingly,
a person’s term of supervised release does not commence, as
a matter of law, once a person completes his lawful term of
imprisonment. See id. at 58.
Under Johnson, Turner’s term of supervised release could
not have begun while he was awaiting a civil commitment
hearing because he was not physically freed from confine-
ment. See id. at 57. To say that Turner was “released” for pur-
8900 UNITED STATES v. TURNER
poses of his supervised release beginning while he physically
remained in prison “diminishes the concept the word [‘re-
lease’] intends to convey.” Id. It also treats the completion of
a sentence and release from imprisonment as interchangeable,
despite the Supreme Court’s admonition that we not do so.
See id. at 58-59.
It is true that the Supreme Court in Johnson interpreted
§ 3624(e) before the Adam Walsh Child Protection and Safety
Act of 2006 (Adam Walsh Act), Pub. L. No. 109-248, 120
Stat. 587 became law. The Adam Walsh Act is the genesis of
the current version of 18 U.S.C. § 4248(a), which automati-
cally stays an individual’s release from prison when the Gov-
ernment certifies to a federal district judge that a prisoner has
engaged in sexually violent activity or child molestation in the
past, and that he suffers from a mental illness making him
dangerous to others. See Comstock, 130 S. Ct. at 1954. A pris-
oner may not be released until a hearing at which the Govern-
ment has an opportunity to prove its claims. See id. Thus, the
Adam Walsh Act requires an individual to remain physically
confined in prison despite completing his or her sentence.
Working in tandem, the Adam Walsh Act and the Supreme
Court’s interpretation of § 3624(e) in Johnson produce an
admittedly disquieting result: a person’s term of imprison-
ment may end without him or her being freed from confine-
ment, thereby preventing the commencement of a term of
supervised release. I agree that this result, at first glance, does
not seem fair. It arguably raises serious constitutional con-
cerns, as the majority argues, and could not have been fore-
seen when the Supreme Court decided Johnson. Nevertheless,
it is not within our authority to rewrite the law, as interpreted
by the Supreme Court, as we see fit, however laudable our
policy concerns. The Supreme Court upheld Congress’s
power under the Constitution to enact the Adam Walsh Act in
Comstock, and has never revised its construction of § 3624(e)
in Johnson. See id. at 1965; Johnson, 529 U.S. at 57. Until the
Supreme Court alters its construction of § 3624(e) so as to
UNITED STATES v. TURNER 8901
allow a person’s term of supervised release to begin while he
or she physically remains in prison, Johnson remains binding
authority. See Thurston Motor Lines, Inc. v. Jordan K. Rand,
Ltd., 460 U.S. 533, 535 (1983) (“Needless to say, only this
Court may overrule one of its precedents.”); United States v.
Qualls, 172 F.3d 1136, 1138 (9th Cir. 1999) (en banc) (recog-
nizing the Supreme Court’s interpretation of the federal felon-
in-possession statute as binding); Khan v. State Oil Co., 93
F.3d 1358, 1363 (7th Cir. 1996), vacated, 522 U.S. 3 (1997)
(stating that a Supreme Court decision should be overruled,
but following it, and noting that “the Supreme Court has told
the lower federal courts, in increasingly emphatic, even stri-
dent, terms, not to anticipate an overruling of a decision by
the Court; we are to leave the overruling to the Court itself.”).
The majority’s attempts to distinguish Johnson fail. The
fact that the Supreme Court was presented with different facts
in Johnson is simply irrelevant. Johnson interpreted a statute;
the Supreme Court never stated or implied that its interpreta-
tion of § 3624(e) would be different under another set of facts,
or that it was limited to the peculiar facts arising in that case.
See Johnson, 529 U.S. at 57 (stating without qualification that
“the ordinary, commonsense meaning of release is to be freed
from confinement” and “[s]upervised release does not run
while an individual remains in the custody of the Bureau of
Prisons”). Moreover, the Supreme Court has “held that the
meaning of words in a statute cannot change with the statute’s
application.” United States v. Santos, 553 U.S. 507, 522
(2008) (plurality opinion). “To hold otherwise ‘would render
every statute a chameleon,’ and ‘would establish within our
jurisprudence . . . the dangerous principle that judges can give
the same statutory text different meanings in different
cases.’ ” Id. at 522-23 (citation omitted). Thus, the majority’s
attempt to limit the Supreme Court’s construction of
§ 3624(e) to “the backdrop of the facts of [Johnson]” does
precisely what the Supreme Court has admonished courts not
to do: give statutory text different meanings in different cases,
thus establishing a useful tool for lower courts to evade the
8902 UNITED STATES v. TURNER
Supreme Court’s binding interpretations of statutes. See id.
We should not take this step the Supreme Court has clearly
enjoined. See id.
The majority also misreads Johnson. Contrary to the major-
ity’s interpretation, the Supreme Court was quite clear that a
term of supervised release may not begin while a person phys-
ically remains in prison. See id. (defining the meaning of “re-
lease” in the context of imprisonment as requiring freedom
from confinement). As the Supreme Court noted, “To say
respondent was released while still imprisoned diminishes the
concept the word intends to convey.” Id. Yet the majority
holds that Turner was “released” for the purpose of determin-
ing the commencement of his term of supervised release even
though he remained in prison. Thus, the majority adopts an
interpretation of a statute that the Supreme Court has
expressly rejected.
United States v. Morales-Alejo, 193 F.3d 1102 (9th Cir.
1999) does not help Turner or the majority. In Morales-Alejo,
we considered whether pretrial detention operated to toll a
term of supervised release under the tolling provision in 18
U.S.C. § 3624(e), which provides for tolling “during any
period in which the person is imprisoned in connection with
a conviction . . . unless the imprisonment is for a period of
less than 30 consecutive days.” Id. at 1103 (emphasis added).
The present case, in contrast, concerns the commencement
provision, a separate provision in § 3624(e) controlling when
a term of supervised release commences, not whether it is
tolled. See 18 U.S.C. § 3624(e) (“The term of supervised
release commences on the day the person is released from
imprisonment . . . .”). Of critical importance, the separate pro-
vision at issue in this case does not require that imprisonment
be “in connection with a conviction.” See id. Under the plain
language of § 3624(e), any imprisonment, regardless of
whether it is imposed in connection with a conviction, pre-
vents supervised release from beginning. See id. Thus, the
holding in Morales-Alejo is wholly divorced from the issue in
UNITED STATES v. TURNER 8903
this case. See Tobey, 794 F. Supp. 2d at 600-01 (explaining
in further detail why Morales-Alejo does not address the issue
in this case and noting that “[b]ecause the Ninth Circuit’s
decision concerns the tolling effect of a period of confine-
ment, rather than the effect of confinement on the commence-
ment of supervised release, the case is inapposite”). Even if
Morales-Alejo were relevant to the commencement of a
supervised release term, it predates Johnson and has been
overruled to the extent it is inconsistent with Johnson.1 See
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en
banc). Thus, Johnson remains controlling law in this case.2
1
It is also worth noting that every other circuit that has reached the same
issue has rejected Morales-Alejo. See, e.g., United States v. Ide, 624 F.3d
666, 668-69 (4th Cir. 2010) (listing circuits that have rejected Morales-
Alejo and joining the Fifth, Sixth, and Eleventh Circuits in holding “that
a defendant’s term of supervised release is tolled while the defendant is
held in pretrial detention on charges for which he is later convicted”).
2
United States v. Sullivan, 504 F.3d 969 (9th Cir. 2007) is not to the
contrary. In that case, the critical question was whether a person’s deten-
tion at a Montana community pre-release center tolled his term of super-
vised release. See 504 F.3d at 970. Sullivan is also distinguishable because
in that case the detention occurred at a pre-release center with different
features from imprisonment, whereas in this case the Government filed a
certificate “stay[ing] the release of the person” from the Bureau of Pris-
ons’s custody, thereby prolonging his confinement in prison. See 18
U.S.C. § 4248(a); Sullivan, 504 F.3d at 972. Furthermore, in Sullivan, the
court noted that pre-release centers in Montana were intended to be a reha-
bilitative alternative to imprisonment and that the defendant was “not sub-
ject to the control of the Bureau of Prisons.” See Sullivan, 504 F.3d at 971-
72. In contrast, the purpose of prolonging a person’s confinement under
§ 4248(a) is “to protect the public from federal prisoners who suffer from
‘a serious mental illness, abnormality, or disorder’ and who, if released,
would have ‘serious difficulty in refraining from sexually violent conduct
or child molestation.’ ” Comstock, 130 S. Ct. at 1969 (Alito, J., concur-
ring); see also Comstock, 130 S. Ct. at 1974 (Thomas, J., dissenting);
United States v. Timms, 664 F.3d 436, 449 (4th Cir. 2012). Thus, the goals
of the Adam Walsh Act are much more similar to the purposes of impris-
onment than to the rehabilitative goals of pre-release centers. See 18
U.S.C. § 4248(a).
8904 UNITED STATES v. TURNER
For good reason, an overwhelming majority of courts pre-
sented with the issue in this case have held that a term of
supervised release may not begin while a person remains in
prison awaiting a civil commitment hearing under the Adam
Walsh Act. See, e.g., United States v. Revland, No. 02-CR-
4025-DEO-1, 2011 WL 6780868, at *1-2 (N.D. Iowa Dec. 27,
2011); Tobey, 794 F. Supp. 2d at 601; United States v. Fran-
cis, No. 03-166-KSF, 2011 WL 1642571, at *3 (E.D. Ky.
May 2, 2011); United States v. Combe, No. 1:04-CR-51 TS,
2011 WL 976892, at *2 (D. Utah Mar. 18, 2011); United
States v. Bolander, No. 01-CR-2864-L, 2010 WL 5342202, at
*2-3 (S.D. Cal. Dec. 21, 2010); United States v. Wilkinson,
No. 1:CR-93-158, 2010 WL 598609, at *5 (M.D. Pa. Feb. 17,
2010). But see United States v. Brown, No. 3:04-cr-00119
JWS, 2011 WL 1831627, at *4 (D. Alaska May 12, 2011).
The fact that the majority here adopts a position almost unani-
mously rejected by federal courts that have reached the issue
reflects the shortcomings of the majority’s reasoning and con-
clusion. If the past is any guide to the future, it seems likely
that most circuit courts, and perhaps our own court, sitting en
banc, will also reject the majority’s position when presented
with the issue in this case.
The majority also errs by ascribing any significance to my
disagreement with the Government’s contention that super-
vised release runs during a period of civil commitment. “A
stipulation of law is not binding upon an appellate court,” and
“[w]e are not bound by a party’s erroneous view of the law.”
Avila v. INS, 731 F.2d 616, 620 (9th Cir. 1984) (citations
omitted). There is “no reason why we should make . . . an
erroneous decision, because the applicable law was not
insisted upon by one of the parties.” Id. at 621 (citation omit-
ted). Lawyers are advocates for their clients’ interests, not
arbiters of a statute’s meaning. Thus, the fact that the Govern-
ment misstated the law in its answering brief is irrelevant. It
should not hinder our task of giving democratically-enacted
“texts their fair meaning.” Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 3 (2012).
UNITED STATES v. TURNER 8905
Moreover, as the Supreme Court unanimously held, “[t]he
plainness or ambiguity of statutory language is determined by
reference to the language itself, the specific context in which
that language is used, and the broader context of the statute
as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341
(1997). There is simply no basis for considering the difference
between a dissent and a party’s interpretation as evidence that
a statute is ambiguous.
The majority’s rule of lenity analysis fares no better. It mis-
states both the role played by the rule of lenity in a court’s
interpretation of a statute and the circumstances in which the
rule of lenity may even be considered. According to the
majority, “the rule of lenity cuts in Turner’s favor” because
I construe § 3624(e) differently from the Government. This is
an erroneous statement of law. “Lenity cannot be invoked
merely because a different reading of the statute is possible.”
United States v. Pearson, 321 F.3d 790, 791 (9th Cir. 2003).
Contrary to the majority opinion’s contentions, the rule of len-
ity does not apply whenever a court is not convinced that the
Government’s position is unambiguously correct. The
Supreme Court recently repudiated this very argument,
explaining that “the rule of lenity only applies if, after consid-
ering text, structure, history, and purpose, there remains a
‘grievous ambiguity or uncertainty in the statute,’ such that
the Court must simply ‘guess as to what Congress intend-
ed[.]’ ” Barber v. Thomas, 130 S. Ct. 2499, 2508-09 (2010)
(citations omitted). The rule of lenity may remain inapplicable
even where a court is not “perfectly certain that [it] ha[s]
divined Congress’ intentions as to [a] particular situation.”
Beecham v. United States, 511 U.S. 368, 374 (1994). The
majority fails to overcome the fact that the Supreme Court
defined the meaning of § 3624(e) in Johnson. Because the
meaning of the statute is clear, and Supreme Court precedent
squarely controls, there is no ambiguity and the rule of lenity
does not apply here. See Nat’l Org. for Women, Inc. v.
Scheidler, 510 U.S. 249, 262 (1994) (stating that “the rule of
lenity applies only when an ambiguity is present”); United
8906 UNITED STATES v. TURNER
States v. Gonzalez, 407 F.3d 118, 124 (2d Cir. 2005) (“[T]he
rule of lenity is not a catch-all maxim that resolves all dis-
putes in the defendant’s favor—a sort of [judicial] ‘tie goes to
the runner.’ ”).
The policy consequences of the majority opinion are trou-
bling. The majority’s conclusion defeats the purpose of super-
vised release. The Supreme Court explained: “Congress
intended supervised release to assist individuals in their tran-
sition to community life. Supervised release fulfills rehabilita-
tive ends, distinct from those served by incarceration.”
Johnson, 529 U.S. at 59 (emphasis added). To find that Tur-
ner’s term of supervised release expired while he physically
remained in prison removes a source of assistance he might
have received in living a productive life outside of prison.
This result does him no favors. It may even increase his risk
of recidivism. See United States v. Hanrahan, 508 F.3d 962,
971 (10th Cir. 2007) (“It is well-established that the purpose
of supervised release is to provide enough supervision to pre-
vent recidivism on the part of the offender.”); Marcus T. Boc-
caccini, Daniel C. Murrie, Jennifer D. Caperton & Samuel W.
Hawes, Field Validity of the Static-99 and MNSOST-R Among
Sex Offenders Evaluated for Civil Commitment as Sexually
Violent Predators, 15 Psychol. Pub. Pol’y & L. 278, 307
(2009) (discussing “findings suggest[ing] that mandatory
supervision may be an effective mechanism for reducing reof-
fending”). Thus, the majority’s conclusion may have the
effect of denying supervised release services precisely when
they are most needed: when an individual adjusts to life out-
side of prison.
Lastly, the majority overlooks the heightened importance of
stare decisis in cases involving statutory interpretation. Even
if Johnson was wrongly decided and it were our prerogative
to overrule it, stare decisis strongly favors maintaining the
Supreme Court’s interpretation of 18 U.S.C. § 3624(e) in
Johnson. See Ill. Brick Co. v. Illinois, 431 U.S. 720, 736
(1977 ) (“[C]onsiderations of stare decisis weigh heavily in
UNITED STATES v. TURNER 8907
the area of statutory construction, where Congress is free to
change this Court’s interpretation of its legislation.”); see also
Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S.
877, 899 (2007) (stating that “[s]tare decisis reflects a policy
judgment that in most matters it is more important that the
applicable rule of law be settled than that it be settled right”
and “concerns about maintaining settled law are strong when
the question is one of statutory interpretation”) (citations
omitted). Once the Supreme Court has construed a statute,
“stability is the rule,” and the Court will not depart from it
absent a compelling justification. 14 Penn Plaza LLC v. Pyett,
556 U.S. 247, 280 (2009) (Souter, J., dissenting). Yet the
majority not only lacks a good reason for departing from
Johnson, it attempts, sub silentio, to usurp the Supreme
Court’s prerogative to overrule its own cases.
In sum, the majority errs by treating the completion of a
sentence and release from imprisonment for supervised
release purposes as interchangeable. The Supreme Court
could not have been more clear in rejecting this view. See
Johnson, 529 U.S. at 58-59 (“All concede respondent’s term
of imprisonment should have ended earlier than it did. It does
not follow, however, that the term of supervised release com-
menced, as a matter of law, once he completed serving his
lawful sentences. It 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.”)
(emphasis added). Therefore, I would follow Johnson and
hold that Turner’s term of supervised release could not begin
while he physically remained in prison.
I respectfully dissent.