U.S. v. Buchanan

• Citation: 638 F.3d 448
• Decision Date: 13 April 2011
• Docket Number: No. 09–4834.,09–4834.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.William BUCHANAN, a/k/a Kenneth Parker, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

638 F.3d 448

UNITED STATES of America, Plaintiff–Appellee,

v.William BUCHANAN, a/k/a Kenneth Parker, Defendant–Appellant.

No. 09–4834.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 10, 2010.Decided: April 13, 2011.

ARGUED: Patrick L. Bryant, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. Joseph V. Moreno, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Kevin R. Brehm, Assistant Federal Public Defender, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee.Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.Affirmed by published opinion. Judge SHEDD wrote the opinion, in which Judge WILKINSON and Judge DUNCAN joined.

OPINION

SHEDD, Circuit Judge:

While on federal supervised release, William Buchanan absconded and remained a fugitive for approximately 13 years. After Buchanan was apprehended the district court found that he had committed multiple supervised release violations from the time he absconded until he was retaken; consequently, it revoked his supervised release and sentenced him to separate concurrent custody terms of 48 months, 36 months, and 27 months. Buchanan now appeals the revocation order in part, and the 36– and 27–month sentences, arguing that the court lacked jurisdiction to adjudicate the violations associated with those sentences because they were not charged in a warrant or summons before the scheduled expiration of his supervised release term. The court rejected this argument, concluding that the supervised release term was tolled while Buchanan was a fugitive. United States v. Buchanan, 632 F.Supp.2d 554 (E.D.Va.2009). Because we agree with the court's conclusion, we affirm.

I

In 1991, Buchanan pled guilty in the Eastern District of Virginia to one count of conspiracy to distribute 50 grams or more of crack cocaine. The district court sentenced him to a 120–month term of imprisonment, which it subsequently reduced to 30 months on the government's substantial assistance motion. The court also imposed a five-year supervised release term.

In March 1993, Buchanan was released from federal custody, and his supervised release term commenced. Because he was an Ohio resident, his immediate supervision was transferred to the United States Probation Office in the Northern District of Ohio. However, jurisdiction over his supervision was maintained by the United States Probation Office in the Eastern District of Virginia. Therefore, Buchanan had a probation officer in Ohio to whom he was required to report, as well as a probation officer in Virginia who monitored his supervision. Buchanan's supervised release term was scheduled to end in March 1998.

In May 1994, Buchanan was indicted in Ohio on state drug trafficking charges. He was released on bond, but in February 1995 he failed to appear for trial in state court, resulting in the issuance of a state arrest warrant. Buchanan's last personal contact with his Ohio probation officer occurred in January 1995. Shortly thereafter, the Ohio probation officer determined that Buchanan had absconded from federal supervision.

In April 1995, the Virginia probation officer submitted to the district court a “Petition on Probation and Supervised Release” (the “Petition”), alleging that Buchanan violated the terms and conditions of his supervised release by incurring a new criminal charge in Ohio, by failing to report to his Ohio probation officer as directed, and by failing to notify his Ohio probation officer within 72 hours of any change in residence or employment. Consequently, the court issued an arrest warrant, which remained outstanding until December 2008, when Buchanan was located and arrested in Georgia.

In February 2009, an addendum to the Petition was filed alleging that during the time he was a fugitive Buchanan had violated the terms and conditions of his supervised release in several respects. Specifically, this addendum alleges that (1) in September 1996, Buchanan was arrested in Alabama for marijuana trafficking; (2) in March 2005, he was arrested in Missouri for ( inter alia ) possession of a controlled substance and unlawful use of a weapon; (3) in January 2008, he was arrested in Georgia for driving under the influence; and (4) in December 2008, he was arrested in Georgia for entering an auto or other motor vehicle with intent to commit a theft or felony, and financial transaction card fraud. In March 2009, a second addendum to the Petition was filed, alleging that in 2008 Buchanan violated the terms and conditions of his supervised release by committing the crime of identity theft in Georgia. Buchanan avoided federal detection for these arrests by using various aliases.

Upon his return to the Eastern District of Virginia, Buchanan conceded that the Petition (setting forth the 1995 charges) was properly before the district court, but he moved to dismiss the two addenda, contending that the court lacked jurisdiction over them because his scheduled supervised release term expired in March 1998, and the addenda were not filed until 2009. He argued that the supervised release statutes provide only two ways in which the release term may be adjusted or the court can exercise control over the defendant outside that period. The first way is codified in 18 U.S.C. § 3624(e), which allows for a supervised release term to be tolled during any period in which the defendant is imprisoned for 30 days or more in connection with another crime. The second is codified in 18 U.S.C. § 3583(i), which authorizes a district court to exercise authority over a defendant after the scheduled expiration of the supervised release term for a reasonable period to adjudicate a matter arising before the expiration of the term if a warrant or summons for that matter is issued during the term.¹ Reading these statutes in light of the canon “ expressio unius est exclusio alterius ”—Buchanan contended that the court was not authorized to adjudicate the violations set forth in the addenda because no warrant or summons issued for them during the supervised release term.

The district court denied the motion, holding that Buchanan's supervised release term was tolled while he was a fugitive. The court concluded that the supervised release statutes do not address the issue of fugitive tolling and that its application is consistent with the congressional purpose of supervised release and the law relating to fugitives generally. On the merits of the violations, the court found Buchanan guilty on the 1995 charges that he failed to appear in Ohio state court for the drug trafficking indictment and failed to maintain contact with his probation officer, the 1996 Alabama drug trafficking charge, and the 2008 Georgia identity theft charge. The court imposed concurrent sentences of 48 months, 36 months, and 27 months, respectively, and dismissed the remaining alleged violations.

II

On appeal, Buchanan reiterates the statutory argument he made below, contending that the district court erred by denying his motion to dismiss the addenda.² Stated simply, the issue before us is whether a sentencing court is authorized to revoke a term of supervised release after the scheduled expiration date of the release term for conduct that (a) occurs while the defendant has absconded from supervision and (b) is not brought to the court's attention until after the term's scheduled expiration date when the defendant is apprehended. This is a matter of law that we review de novo. See Ide, 624 F.3d at 668.

A.

We begin with an overview of the pertinent aspects of the supervised release system. In the Sentencing Reform Act of 1984, “Congress eliminated most forms of parole in favor of supervised release, a form of postconfinement monitoring overseen by the sentencing court, rather than the Parole Commission.” Johnson v. United States, 529 U.S. 694, 696–97, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000). Supervised release is similar to parole in essential respects, United States v. Pierce, 75 F.3d 173, 177 (4th Cir.1996), but “Congress designed supervised release as the successor to parole ... because it believed that the parole system provided inadequate supervision,” United States v. Armstrong, 187 F.3d 392, 394 (4th Cir.1999).

Supervised release “is not a punishment in lieu of incarceration.” United States v. Granderson, 511 U.S. 39, 50, 114 S.Ct. 1259, 127 L.Ed.2d 611 (1994). Rather, it “is a unique method of post-confinement supervision,” Gozlon–Peretz v. United States, 498 U.S. 395, 407, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991), that “fulfills rehabilitative ends, distinct from those served by incarceration,” United States v. Johnson, 529 U.S. 53, 59, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000). “The congressional policy in providing for a term of supervised release after incarceration is to improve the odds of a successful transition from the prison to liberty,” Johnson v. United States, 529 U.S. at 708–09, 120 S.Ct. 1795, and “Congress has manifested an intent to require full service of supervised release for rehabilitative purposes,” United States v. Bowe, 309 F.3d 234, 240 (4th Cir.2002).

The maximum length of a supervised release term varies according to the severity of the initial offense. See 18 U.S.C. §§ 3583(a), (b). The term commences on the day the defendant “is released from imprisonment and runs concurrently with any Federal, State, or local term of probation or supervised release or parole for another offense to which the person is subject or becomes subject during the term of supervised release,” but it does not run ( i.e., is tolled) during any period in which the defendant “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).

A defendant who is on...