U.S.A v. Hernandez-ferrer

• Decision Date: 19 March 2010
• Docket Number: No. 09-1100.,09-1100.
• Citation: 599 F.3d 63
• Parties: UNITED STATES of America, Appellee, V. Bernardo HERNANDEZ-FERRER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

599 F.3d 63

UNITED STATES of America, Appellee, V. Bernardo HERNANDEZ-FERRER, Defendant, Appellant.

No. 09-1100.

United States Court of Appeals First Circuit.

Heard: March 4, 2010

Decided: March 19, 2010.

Thomas J. Trebilcock-Horan, with whom Joseph C. Laws, Jr., Federal Public Defender, and Patricia A. Garrity, Assistant Federal Public Defender, were on brief, for appellant.

Thomas F. Klumper, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney and Nelson Perez-Sosa, Assistant United States Attorney (Appellate Chief), were on brief, for appellee.

Before TORRUELLA, SELYA and LIPEZ, Circuit Judges.

SELYA, Circuit Judge.

This appeal poses a question of first impression in this circuit: Does a district court have authority to revoke a term of supervised release based on conduct occurring after the scheduled expiration date of the term, where the offender has absconded prior to the expiration date and is not apprehended until some time after committing the alleged violation? Concluding as we do, that there can be no tolling of the period of supervised release on the basis of fugitive status, we answer this question in the negative. Consequently we vacate the judgment below and, in the bargain, part company with the only other court of appeals to have addressed this question.

I. BACKGROUND

The facts are straightforward. In 2000 a federal grand jury sitting in the District of Puerto Rico indicted defendant-appellant Bernardo Hernandez-Ferrer. Early the next year, the appellant pleaded guilty to a charge of conspiracy to distribute narcotics. See 21 U.S.C. §§ 841(a)(1), 846. On May 25, 2001, the district court sentenced him to thirty-three months in prison, to be followed by a three-year term of supervised release.

The appellant served his prison sentence and began serving his supervised release term on January 10, 2003. Thus, the term was set to expire on January 10, 2006.¹

On September 26, 2005, the probation department, by motion, notified the district court that the appellant had committed Grade C violations of the conditions of his supervised release, USSG § 7Bl.l(a)(3) during and after the summer of 2005. The probation department requested the issuance of both an arrest warrant and an order to show cause why the appellant's supervised release should not be revoked. The motion explained that the appellant had not submitted his monthly supervision reports for a number of months; that he had failed to appear for three scheduledoffice appointments; and that he had neglected to notify the probation department of changes in his employment and residence. The motion papers added that the appellant's whereabouts were unknown.

The district court issued an order to show cause on September 29, 2005, and an arrest warrant some two weeks thereafter. A show-cause hearing was scheduled but then cancelled because the arrest warrant had not been served.

On January 11, 2006, one day after the nominal expiration date of the appellant's supervised release term, Puerto Rico police officers caught the appellant distributing heroin and arrested him for that conduct. He subsequently entered a guilty plea to the new charges in a local court. On May 23, 2006, that court sentenced him to five years' imprisonment.

Meanwhile, the dormant federal proceeding returned to life. On May 4, 2006, the probation department filed a supplemental motion informing the district court of the appellant's January 11, 2006, drug crime, which constituted a Grade A violation of his supervised release conditions. See id. § 7Bl.l(a)(l); see also 18 U.S.C. § 3583(d) (mandating, as a condition of supervised release, that the offender not commit a crime during the term of supervision). The appellant responded on January 26, 2007. After some procedural skirmishing (including the denial of the appellant's motion to dismiss for want of jurisdiction), the court convened a final revocation hearing.

At the hearing, the appellant acknowledged that the court had jurisdiction to consider revoking his supervised release based on the Grade C violations described in the probation department's original motion but maintained that the court lacked similar authority with respect to the alleged Grade A violation because the latter had occurred after the expiration of his supervised release term. He also asked the court to reconsider its denial of his earlier motion to dismiss that charge.

The court denied the motion for reconsideration, holding that the probation department's original motion and the arrest warrant issued pursuant thereto had "interrupted" the term of supervised release, such that the term was "still alive" when the appellant committed the alleged Grade A violation. The court then revoked the appellant's supervised release; calculated an advisory sentencing range based on the more serious Grade A violation, see USSG § 7Bl.l(b); and imposed a within-therange sentence of twenty-one months in prison. This timely appeal ensued.

II. ANALYSIS

Whether a district court has authority to revoke a term of supervised release is a question of law and, thus engenders de novo review. United States v. Goins, 516 F.3d 416, 419 (6th Cir.2008). We proceed accordingly.

A. The Legal Landscape.

The touchstone of our inquiry is 18 U.S.C. § 3583. Pursuant to that statute, a district court may revoke an offender's supervised release and order him to serve additional jail time upon a finding that the offender has violated one or more conditions of his supervised release. See id. § 3583(e)(3). At times, the revocation hearing may not be held until after the scheduled expiration of the supervised release term. In those instances, the district court's authority is governed by a specific delayed-revocation provision, which states in pertinent part:

The power of the court to revoke a term of supervised release for violation of a condition of supervised release, and to order the defendant to serve a term ofimprisonment... extends beyond the expiration of the term of supervised release for any period reasonably necessary for the adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.

Id. § 3583(i).

Once a court revokes an offender's supervised release, it must sentence the violator. To aid in this endeavor, the United States Sentencing Commission has promulgated a table of recommended sentencing ranges. See USSG § 7B1.4. These ranges and the other policy statements contained in Chapter 7 of the Guidelines Manual are advisory.² In the last analysis, the district courts, subject to the usual preconditions of reasonableness and the like, have broad discretion to impose sentences within the statutory limits limned in 18 U.S.C. § 3583(e)(3). See United States v. Jackson, 549 F.3d 1115, 1116 n. 2 (7th Cir.2008).

B. Plain Language.

In the case at hand, the appellant concedes that the district court had authority to revoke his supervised release based on the Grade C violations that occurred in 2005. But the district court did not hinge the revocation and sentence on those violations alone; rather, it acted upon the lateroccurring Grade A violation. Seizing upon this choice, the appellant argues that the court did not have authority to revoke his supervised release on that basis because the underlying conduct—the local drug crime—occurred after the expiration of his supervised release term. In his view, jurisdiction under the delayed-revocation provision is restricted to violations for which, before the expiration of a term, a summons or warrant has issued. The government demurs.

In the end, this dispute boils down to a matter of statutory construction. Consequently, we must start with the text of the relevant statute. See Kholi v. Wall, 582 F.3d 147, 152 (1st Cir.2009). By its plain language, section 3583(i) extends the district court's jurisdiction beyond the stated expiration of a term of supervised release. But that extension operates only in a particular set of circumstances: "for the adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has been issued." Here, however, the local drug crime (the gravamen of the alleged Grade A violation) took place after the appellant's supervised release term had expired. Thus, it does not come within the plain language of the statute.

The district court apparently thought that the earlier issuance of a warrant for other violations occurring before the expiration of the supervised release term paved the way for jurisdiction over the Grade A violation. This proposition is untenable. Cf. United States v. Naranjo, 259 F.3d 379, 383 (5th Cir.2001) (holding that section 3583(i) permits revocation based on any violation "committed during [the] supervised-release-term, " even if contained in a petition for revocation filed after expiration of the term, as long as a warrant or summons has issued during that term on the basis of another violation (emphasis in original)). There is simply no jurisprudential foundation for the idea that a timely warrant for one violation operates to preserve jurisdiction for later violationsoccurring after the expiration of the supervised release term. That is not the law.

C. Availability of Tolling.

In an effort to snatch victory from the jaws of defeat, the government urges us to hold that a term of supervised release is tolled during any period in which an offender has absconded from supervision. Specifically, it contends that the appellant became a fugitive when he failed in the summer of 2005 to keep the probation department apprised of his whereabouts and, thus, the running of his term of supervised release was tolled during the period that he was missing; that is, until his arrest by Puerto Rico police officers on January 11, 2006. From that point forward, the government adds, his term of supervised release was tolled under 18...