United States v. Gabriel Garcia-Ocampo

FILED
NOT FOR PUBLICATION JUN 07 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50043
Plaintiff - Appellee, D.C. No. 3:99-cr-00606-GT-1
v.
MEMORANDUM *
GABRIEL HUMBERTO GARCIA-
OCAMPO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Senior U.S. District Judge, Presiding
Submitted June 7, 2013 **
San Francisco, California
Before: TALLMAN and N.R. SMITH, Circuit Judges, and BURGESS, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9 th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Timothy M. Burgess, United States District Judge for
the District of Alaska, sitting by designation.
Gabriel Humberto Garcia-Ocampo appeals the district court’s revocation of
his supervised release and his resulting twenty-one month prison sentence. On
appeal, Garcia-Ocampo claims that the district court improperly applied the
fugitive tolling doctrine to extend his supervised release term, initially scheduled to
end on September 6, 2007, until July 22, 2010. Garcia-Ocampo contends that this
extension was in error because the government was capable of resuming
supervision during this time period. We have jurisdiction pursuant to 28 U.S.C. §
1291 and 18 U.S.C. § 3742, and we affirm.
The fugitive tolling doctrine applies to extend a defendant’s supervised
release term, adding additional time to account for any period when the defendant
was in “fugitive status.” United States v. Watson, 633 F.3d 929, 931 (9th Cir.
2011). “A defendant is in fugitive status when he fails to comply with the terms of
his supervised release.” Id. Garcia-Ocampo concedes that he became a fugitive on
or before August 15, 2007, when he violated his supervised release conditions by
reentering the United States after being deported and failing to report to his
probation officer within twenty-four hours of reentry.
However, Garcia-Ocampo contends that his status as a fugitive ended on
August 29, 2007, when the San Diego probation officer received a Criminal
History Report from the Chicago Police Department that listed Garcia-Ocampo’s
2
last known residential address in Illinois. Garcia-Ocampo had apparently been
released from custody in Chicago before a bench warrant could be obtained from a
federal judge in San Diego. Once “federal authorities are capable of resuming
supervision,” fugitive tolling ends and a defendant’s supervised release term may
not be extended further. United States v. Ignacio Juarez, 601 F.3d 885, 890 (9th
Cir. 2010); see also United States v. Delamora, 451 F.3d 977, 978 (9th Cir. 2006)
(“[A] defendant’s term of supervised release is tolled from the time that he
absconds from supervision until the time he is found by federal authorities.”).
The probation officer’s receipt of Garcia-Ocampo’s last known Illinois
address does not compel the conclusion that federal authorities were capable of
resuming supervision. Although there is no evidence that the probation officer
provided the deputy marshal with Garcia-Ocampo’s last known address, the deputy
marshal assigned to execute the federal arrest warrant independently contacted the
arresting officer at the Chicago Police Department. The information conveyed to
the deputy marshal in this conversation suggested that the last known address listed
in the report was invalid. Information provided by the arresting officer,
corroborated by the deputy marshal’s inability to locate Garcia-Ocampo during his
subsequent searches of federal databases, indicated that Garcia-Ocampo was
actually homeless during the time period between the issuance and execution of the
3
arrest warrant. As a result, in a declaration submitted to the district court, the
deputy marshal stated that:
Even if [he] was made aware of the residential address listed on the
Arrest Report, since Garcia-Ocampo was indicated to most likely be
homeless by the arresting Officer, [he] likely would not have requested
a Deputy United States Marshal from Chicago check for Garcia-Ocampo
at that address unless some other evidence corroborated his likely
presence there.
The deputy marshal expended reasonable efforts to locate Garcia-Ocampo,
which were unsuccessful, prior to his later arrest in Illinois and, as the district court
found, “there [wa]s no evidence in the record that Mr. Garcia was living [at the
listed residence] . . during the time in question.” Garcia-Ocampo’s continuing
“wrongful act[ions],” which effectively resulted in him “flee[ing] from bench
warrants and maintain[ing] [his] . . . fugitive status until the expiration of [his] . . .
original term of supervised release,” are to blame for any delay in effectuating his
ultimate arrest in 2010. United States v. Murguia-Oliveros, 421 F.3d 951, 953–54
(9th Cir. 2005) (internal quotation marks omitted). As a result, we conclude that
federal authorities were incapable of resuming supervision until Garcia-Ocampo
was again arrested on June 30, 2010, two years and nine months after his
supervised release term was originally scheduled to have expired. The district
4
court correctly held it had jurisdiction to revoke Garcia-Ocampo’s supervised
release and to impose a twenty-one month prison sentence.
AFFIRMED.
5