United States v. Garrett

• Citation: 253 F.3d 443
• Decision Date: 11 June 2001
• Docket Number: PLAINTIFF-APPELLEE,DEFENDANT-APPELLANT,No. 00-50303,00-50303
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,, v. THOMAS JAMES GARRETT,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 443

253 F.3d 443 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. THOMAS JAMES GARRETT, DEFENDANT-APPELLANT.

No. 00-50303

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted January 11, 2001

Filed June 11, 2001

[Copyrighted Material Omitted]

Todd W. Burns, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

Christopher P. Tenorio, United States Attorney Office, San Diego, California, for the plaintiff-appellee.

Mark Rehe, United States Attorney Office, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California Barry T. Moskowitz, District Judge, Presiding. D.C. No. CR-97-01115-BTM

Before: Stephen S. Trott, Sidney R. Thomas, and Marsha S. Berzon, Circuit Judges.

Trott, Circuit Judge

Appellant Thomas James Garrett, Jr., appeals the revocation of his supervised release by the United States District Court for the Southern District of California ("the district court"), and the district court's imposition of an additional nine months incarceration, followed by two more years of supervised release. Garrett challenges the district court's jurisdiction to revoke his supervised release on the ground that there was no reasonable necessity for the approximately ten-month delay between the expiration of his supervised release term and the district court's revocation of his supervised release. We have jurisdiction pursuant to 28 U.S.C.§ 1291, and AFFIRM the district court.

DISCUSSION

A. Background

On May 2, 1997, Garrett pled guilty to bringing an undocumented alien into the United States in violation of 8 U.S.C. § 1324(a)(2)(B)(iii). On June 23, 1997, Garrett was sentenced to time served and two years of supervised release, which was scheduled to end on June 22, 1999. One condition of Garrett's supervised release was that he notify his probation officer of any arrest.

On June 15, 1999, Garrett was arrested and placed into California state custody for burglary, forgery, and making a false financial statement. Garrett failed to notify his probation officer of this arrest. Subsequently, on June 21, 1999 -- one day before the expiration of Garrett's supervised release term --the district court issued a supervised release violation warrant ("violation warrant") for Garrett's arrest and signed an order to show cause why Garrett's supervised release should not be revoked.

On June 28, 1999, Garrett pled guilty to grand theft and burglary in state court and was sentenced to sixteen months in state custody. Immediately upon Garrett's release from state custody in late March, 2000, the outstanding federal warrant for Garrett's arrest was executed, and he was taken into federal custody.

Garrett appeared before Federal Magistrate Judge Porter on April 7, 2000, and denied the alleged violations of his supervised release. On April 17, 2000, Garrett appeared before Federal District Judge Moskowitz for his revocation hearing and argued that the district court lacked jurisdiction to revoke his term of supervised release because it had expired nearly nine months earlier on June 22, 1999.

Before ruling on Garrett's jurisdictional challenge, the district court ordered briefing from both parties and held two additional hearings. The first hearing was held on May 8, 2000, and the second on May 11, 2000. At the latter hearing, the district court rejected Garrett's claim, concluding that it did have jurisdiction to revoke Garrett's supervised release. The court held that the government's decision to postpone the adjudication of Garrett's supervised release violations until after Garrett was released from state custody comported with 18 U.S.C. § 3583(i), which extends the power of a federal court to revoke a defendant's term of supervised release after its expiration for "any period reasonably necessary for the adjudication of matters arising before its expiration." 18 U.S.C. § 3583(i). The district court sentenced Garrett to nine months custody, to be followed by two additional years of supervised release. This appeal followed.

B. The District Court Did Not Err In Revoking Garrett's Supervised Release

1. Standard of Review

"Jurisdiction is a question of law subject to de novo review." United States v. Neville, 985 F.2d 992, 994 (9th Cir. 1993).

2. Garrett's Term of Supervised Release Expired On June 22, 1999.

The threshold issue in this dispute is whether Garrett's term of supervised release expired as scheduled on June 22, 1999, or was tolled, as argued by the government, because of his earlier June 15, 1999 arrest and consequent incarceration on state charges.

A defendant's term of supervised release is tolled"during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime . . . ." 18 U.S.C. § 3624(e). However, we have held that"pretrial detention does not constitute an `imprisonment' within the meaning of § 3624(e) and thus does not operate to toll a term of supervised release." United States v. Morales-Alejo, 193 F.3d 1102, 1106 (9th Cir. 1999). Here, Garrett did not plead guilty to the state charges until June 28, 1999, and was not sentenced on those charges until September 8, 1999. Therefore, Garrett's confinement from June 15, 1999 -- the time of his arrest --to June 22, 1999 -- the final day of his scheduled term of supervised release -- constituted pretrial detention that was insufficient to toll the running of his supervised release. Accordingly, Garrett's term of supervised release expired on June 22, 1999.

3. The government's decision to postpone the execution of Garrett's violation warrant until after he was released from state custody did not violate 18 U.S.C. § 3583(i).

Title 18 U.S.C. § 3583(i) empowers a district court, under certain circumstances, to revoke a term of supervised release after that term has expired. Specifically, 18 U.S.C. § 3583(i) provides:

(i) Delayed revocation.--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 of imprisonment and, subject to the limitations in subsection (h), a further term of supervised release, 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.

18 U.S.C. § 3583(i) (emphasis added). Thus, a district court can revoke a term of supervised release after that term has expired if: (1) a violation warrant or summons was issued before the term expired; and (2) the delay between the end of the term of supervised release and the district court's revocation order is "reasonably necessary for the adjudication of matters arising before [the term's] expiration." Id. Both elements were satisfied here.

The first requirement was satisfied by the district court's issuance of a violation warrant for Garrett on June 21, 1999, which predated the expiration of Garrett's term of supervised release by one day. It is the second requirement --that the delay be "reasonably necessary" -- that is in dispute here. Garrett contends that the government was not justified in awaiting his release from state custody to execute the warrant, and that he was prejudiced by the delay because he was deprived of any chance to serve his federal and state sentences concurrently. We disagree.

Ultimately, this case boils down to whether awaiting a defendant's release from state custody to execute a violation warrant is "reasonably necessary for the adjudication" of matters arising prior to the expiration of the defendant's supervised release term. As explained below, the difficulty in resolving this issue stems from the fact that while the delay complained of by Garrett has repeatedly been deemed"reasonable," see, e.g., United States v. Bartholdi, 453 F.2d 1225, 1226 (9th Cir. 1972), it is not technically "necessary" given the federal government's power to execute a writ of habeas corpus ad prosequendum; thus leaving the question of whether such a delay is "reasonably necessary."

In support of its argument that the delay in this case was permissible under § 3583(i), the government relies on the Supreme Court's holding in Moody v. Daggett, 429 U.S. 78 (1976). The Supreme Court in Moody addressed the constitutionality of the government's ability to postpone the execution of a parole violation warrant until a defendant is released from state custody. The defendant in Moody shot and killed two individuals while on parole for a previous federal offense. Moody, 429 U.S. at 80. During the defendant's incarceration for the homicides, the United States Board of Parole issued, but did not execute, a violation warrant. Id. The warrant was lodged with prison officials as a detainer. Id. The defendant requested that the Board execute the warrant so that any imprisonment he received for his parole violation could run concurrently with his homicide sentences. Id. at 80-81. The Board declined the defendant's request and refused to execute the warrant until he finished his homicide sentences. Id. The defendant then sought "dismissal of the violation warrant on the ground that he had been denied a prompt hearing at which the pending parole revocation issues could be aired. " Id.

The Court in Moody rejected the defendant's claim, ruling that the ten-year delay between the issuance and execution of the parole violation warrant was constitutionally acceptable because a parolee is not constitutionally entitled to a revocation hearing immediately upon the issuance of such a warrant. Id. at 86. A revocation hearing, the Court reasoned, need only be tendered promptly after the violation warrant is executed, because a parolee does not suffer a loss of liberty as a parole violator until h...