U.S. v. Ossa-Gallegos

• Decision Date: 21 June 2007
• Docket Number: No. 05-5824.,05-5824.
• Citation: 491 F.3d 537
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlos Alberto OSSA-GALLEGOS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

491 F.3d 537

UNITED STATES of America, Plaintiff-Appellee, v. Carlos Alberto OSSA-GALLEGOS, Defendant-Appellant.

No. 05-5824.

United States Court of Appeals, Sixth Circuit.

Argued: March 7, 2007.

Decided and Filed: June 21, 2007.

ARGUED: Ronald C. Small, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Byron M. Jones, United States Attorney, Nashville, Tennessee, for Appellee. ON BRIEF: Ronald C. Small, Jennifer N. Coffin, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Byron M. Jones, United States Attorney, Nashville, Tennessee, for Appellee.

Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, and GRIFFIN, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

We reheard this case en banc to resolve the narrow question of whether the practice of tolling a period of supervised release for a deported offender is authorized by the sentencing statutes. Defendant-Appellant Carlos Alberto Ossa-Gallegos ("Ossa-Gallegos") appealed his sentence arguing, inter alia, that the district court did not have the authority to toll the period of supervised release while he was outside the jurisdiction of the United States as the result of deportation.

A panel of this court, constrained by our earlier opinion in United States v. Isong, 111 F.3d 428 (6th Cir.), cert. denied, 522 U.S. 883, 118 S.Ct. 212, 139 L.Ed.2d 147 (1997), was obliged to affirm the district court's decision to toll the period of supervised release. United States v. Ossa-Gallegos, 453 F.3d 371, 376-77 (6th Cir. 2006) (citing Salmi v. Sec'y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.1985) ("A panel of this [c]ourt cannot overrule the decision of another panel. The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this [c]ourt sitting en banc overrules the prior decision.")).

For the reasons set forth in Parts II.B and II.C of the panel opinion written by Judge Gilman (attached at Appendix A), we conclude that there was no constitutional error with respect to the district court's classification of Ossa-Gallegos's prior felony as violent, and that the district court's sentence was procedurally and substantively reasonable. Ossa-Gallegos, 453 F.3d at 374-76. However, because we overrule Isong, and hold both that tolling is not a "condition" under 18 U.S.C § 3583(d), and that the statutory scheme evidences Congress's intent that the period of supervised release would not be tolled while the defendant is outside the United States as the result of deportation, we VACATE the judgment of the district court and REMAND the case for resentencing with instructions that the remand be limited to setting forth lawful conditions of supervised release.

I. BACKGROUND

Ossa-Gallegos pleaded guilty to a one-count indictment charging him with illegal reentry by a previously deported aggravated felon, a violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). Joint Appendix ("J.A.") at 278 (J. at 1). The district court sentenced Ossa-Gallegos to thirty-three months of imprisonment, two years of supervised release, and a $100.00 special assessment. At issue in this case is one of the special conditions of supervised release imposed by the district court. The special condition provided that if Ossa-Gallegos were deported

the Defendant shall not reenter the United States without the express permission of the United States Attorney General. The term of supervised release shall be tolled while the Defendant remains outside the jurisdiction of the United States. Within 24 hours of returning to the United States, the Defendant shall report in person to the nearest U.S. Probation Office. Any undischarged term of supervised release shall not recommence unless the Defendant is available for supervision.

J.A. at 281 (J. at 4).

On appeal to a panel of this court, Ossa-Gallegos challenged the district court's authority to toll the period of supervised release while he remained outside the jurisdiction of the United States. While acknowledging that the panel was bound by our earlier precedent in United States v. Isong, 111 F.3d 428 (6th Cir.1997), Ossa-Gallegos urged us to reconsider our previous position via en banc review. Ossa-Gallegos, 453 F.3d at 376. Citing Isong, the panel affirmed the district court's decision to toll supervised release, and we subsequently vacated the panel opinion and granted en banc review. Like the original panel, we have jurisdiction over this appeal pursuant to both 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

II. ANALYSIS

We review de novo this pure legal question regarding sentencing. United States v. Graham, 327 F.3d 460, 464 (6th Cir. 2003). An examination of the language and structure of the sentencing statutes leads us to conclude that district courts are not authorized to toll the period of supervised release while the defendant is deported and outside the United States. First, tolling is not a "condition" of supervised release under 18 U.S.C. § 3583(d). Second, the statutory scheme evidences Congress's intent that the period of supervised release not be tolled while the defendant is deported and outside the United States.

A. Tolling Is Not a "Condition" of Supervised Release Under 18 U.S.C. § 3583(d).

Congress has authorized district courts to include supervised release as part of a defendant's sentence, even in the case where the statute violated does not mandate a term of supervised release. 18 U.S.C. § 3583(a). In addition to specific, enumerated conditions that the district court must impose as part of supervised release, 18 U.S.C. § 3583(d) provides that "[t]he court may order, as a further condition of supervised release . . . any other condition it considers to be appropriate," if the condition is reasonably related to the factors set forth in 18 U.S.C. § 3553(a)(1) and (a)(2)(B)-(D),¹ "involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in" 18 U.S.C. § 3553(a)(2)(B)-(D), and "is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. [§ ] 994(a)." 18 U.S.C. § 3583(d).

Because § 3583(d) only authorizes district courts to order "conditions" of supervised release, the crux of our inquiry is whether tolling is properly understood as a "condition" of supervised release. If tolling is not a "condition," then district courts have no authority to issue tolling orders under § 3583(d). As all parties agree that § 3583(d) is the only provision under which the district courts may claim the authority to issue such orders, if district courts do not have authority under § 3583(d), then they have no authority to issue tolling orders.

Isong never addressed this question, but rather, the majority in Isong implicitly presumed tolling was a "condition" and then analyzed whether tolling was reasonably related to the § 3553(a) factors. Isong, 111 F.3d at 431. The term "condition" is not defined in the statute itself, but two canons of construction assist us in our endeavor: first, "the meaning of an undefined term may be deduced from nearby words under noscitur a sociis"; and second, "undefined terms are construed in accordance with their ordinary and natural meanings." Limited, Inc. v. Comm'r, 286 F.3d 324, 333 (6th Cir.2002).

1. Noscitur A Sociis

Most of the enumerated conditions in § 3583(d) refer to mandatory conditions of supervised release. The district court must order the following: "that the defendant not commit another Federal, State, or local crime during the term of supervision"; that the defendant comply with requests for DNA collection when authorized by law; that the defendant not unlawfully possess or use a controlled substance; and that the defendant submit to drug testing within fifteen days of commencing supervised release and to at least two drug tests thereafter. § 3583(d). However, the court may "ameliorate[] or suspend[]" this last condition if testing is not available within a fifty-mile radius of the defendant's residence. See id. (referring to 18 U.S.C. § 3563(a)(4)).

Certain mandatory conditions are also required under § 3583(d) when the defendant has committed a particular crime. If the defendant is a first-time domestic-violence offender, the court must order that the defendant attend an offender-rehabilitation program if such a program exists within a fifty-mile radius of the defendant's residence. § 3583(d). If the defendant's crime requires compliance with the Sex Offender Registration and Notification Act, then the court must order, as a condition of supervised release, that the defendant comply with the Act's requirements. Id.

Several discretionary conditions are listed under § 3583(d). District courts may add these conditions to a defendant's sentence so long as they are reasonably related to the factors set forth in 18 U.S.C § 3553(a)(1) and (a)(2)(B)-(D), do not deprive the defendant of any more liberty than is reasonably necessary for the purposes of § 3553(a)(2)(B)-(D), and are consistent with pertinent policy statements. § 3583(d). Most of these enumerated, discretionary conditions are incorporated by reference to the statute governing conditions of probation. 18 U.S.C. § 3563(b)(1)(b)(10), and (b)(12)-(b)(20). All of these potential conditions involve deeds which the defendant must perform or refrain from performing, such as participating in community service or refraining from associating with specific persons. 18 U.S.C. § 3563(b)(12), (b)(6). In addition, § 3583(d) enumerates two other discretionary conditions. First, if the defendant is an alien and subject to deportation, the court may order, as a condition of supervised release, "that he [or she] be deported and remain outside the United States, and may order that he [or she] be delivered to a duly authorized immigration official for such...