U.S. v. Murguia-Oliveros

• Decision Date: 29 August 2005
• Docket Number: No. 04-50612.,04-50612.
• Citation: 421 F.3d 951
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Margarito MURGUIA-OLIVEROS, a/k/a Margarito Oliveros Murguia, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

421 F.3d 951

UNITED STATES of America, Plaintiff-Appellee, v. Margarito MURGUIA-OLIVEROS, a/k/a Margarito Oliveros Murguia, Defendant-Appellant.

No. 04-50612.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 2005.

Filed August 29, 2005.

Elizabeth A. Newman, Deputy Federal Public Defender, Los Angeles, CA, for the appellant.

Michael J. Raphael, Assistant U.S. Attorney, Los Angeles, CA, for the appellee.

Appeal from the United States District Court for the Central District of California; Manuel L. Real, District Judge, Presiding. D.C. No. CR-96-00735-R.

Before: SCHROEDER, Chief Judge, PREGERSON and TROTT, Circuit Judges.

SCHROEDER, Chief Judge.

Margarito Murguia-Oliveros appeals the district court judgment revoking his supervised release and sentencing him to eight months in prison. Murguia-Oliveros claims that the district court lacked jurisdiction to revoke his supervised release because the supervised release term expired before his arrest and revocation hearing. He was arrested pursuant to a warrant based on facts that were not sworn. We have held that under these circumstances, a revocation of supervised release must occur during the term of supervised release. See United States v. Vargas-Amaya, 389 F.3d 901, 907 (9th Cir.2004). We hold that the district court had jurisdiction, because during the term of Murguia-Oliveros's supervised release he absconded and became a fugitive for a period that tolled the term of supervised release, so that it was still running at the time of the arrest and revocation hearing.

BACKGROUND

The facts are important. Murguia-Oliveros was originally convicted of illegal reentry after deportation in 1996. He was sentenced to a term of imprisonment followed by deportation and three years of supervised release. On September 14, 2001, after serving the term of imprisonment, he was released from custody and deported from the United States. His three-year term of supervised release thus began on that date and was set to expire on September 14, 2004. Under the terms of his supervised release, he was prohibited from reentering the United States illegally after he was deported, and he was required to report to the United States Probation Office within 72 hours of any reentry.

Murguia-Oliveros did reenter the United States during his term of supervised release, for he was arrested on unrelated charges in San Diego in October of 2003. When his probation officer subsequently learned of that arrest, he sent Murguia-Oliveros a letter via certified mail to his last known address, instructing him to report. Murguia-Oliveros failed to report and did not make any contact with the probation officer. The district court issued a bench warrant in January of 2004 for Murguia-Oliveros's arrest for violation of his supervised release. The warrant was not based on any affidavit or sworn facts.

Under the terms of the applicable statute, a released defendant can be arrested without a warrant during the period of supervised release for violating the terms of that supervised release. 18 U.S.C. § 3606. The statute provides that:

If there is probable cause to believe that a ... person on supervised release has violated a condition of his ... release, he may be arrested, and, upon arrest, shall be taken without unnecessary delay before the court having jurisdiction over him. A probation officer may make such an arrest whenever the ... releasee is found, and may make the arrest without a warrant.

Id. During the period of supervised release, the district court has jurisdiction to revoke the period of supervised release if the district court finds by a preponderance of the evidence that the defendant violated the terms of that supervised release. 18 U.S.C. § 3583(e)(3).

After the period of supervised release has expired, however, the district court can revoke the term of supervised release only if a warrant based on sworn facts was issued within the supervised release period. 18 U.S.C. § 3583(i); Vargas-Amaya, 389 F.3d at 907. There was no such warrant in this case. The existence of probable cause is not disputed.

Murguia-Oliveros was actually arrested in November of 2004, nearly two months after the term of supervised release was originally set to expire. The district court revoked Murguia-Oliveros's term of supervised release and sentenced him to a term of imprisonment in December of 2004.

The issue in this case therefore is whether Murguia-Oliveros's term of supervised release was still running at the time of his arrest and revocation hearing. The district court held that it was. The district court concluded that Murguia-Oliveros was in violation of the conditions of supervised release for a period of time that tolled the running of the term of supervised release, because his status was equivalent to that of a fugitive. Murguia-Oliveros appeals.

DISCUSSION

The statutory provisions regarding supervised release do not expressly provide for tolling during fugitive status. See 18 U.S.C. § 3624. In United States v. Crane, 979 F.2d 687, 691 (9th Cir.1992), however, we held that specific statutory language is not required to toll the term of supervised release while a defendant is in "fugitive status." We held that the defendant's term of supervised release was tolled while he was a fugitive, because "[t]o hold otherwise here would reward those who flee from bench warrants and maintain their fugitive status until the expiration of their original term of supervised release." Id.

We publish this opinion to clarify what constitutes "fugitive status" for purposes of tolling a term of supervised release. Murguia-Oliveros argues that he could not become a fugitive merely by failing to comply with the terms of his supervised release. We disagree.

The leading case is Crane, where the defendant had been sentenced to one year in custody, followed by one year of supervised release at a community treatment center. 979 F.2d at 688. After serving four and a half months of his supervised release at the treatment center, the defendant left, or "absconded." Id. The district court issued a bench warrant for his arrest. Id. By the time the defendant was taken into federal custody for violating his supervised release, his original period of supervised release had expired. Id. The defendant therefore argued that the district court no longer had jurisdiction over him. We held that the defendant's term of supervised release was tolled while he was in "fugitive status." Id. at 691. He had stopped serving the terms of supervised release by leaving the place where he was supposed to serve it.

Murguia-Oliveros engaged in similar conduct. He departed the place he was authorized by the terms of his release to be. The terms of his release authorized him to be outside the United States, but he entered the United States, where he was not authorized to be, and failed to contact his probation officer as required. In so doing, Murguia-Oliveros clearly violated the terms of his supervised release. Murguia-Oliveros was then ordered by his probation officer to report, but did not do so. We therefore hold that Murguia-Oliveros became a fugitive because he effectively absconded from serving the terms of his supervised release.

In arguing he was not a fugitive from his supervised release, Murguia-Oliveros relies on authority dealing with...