United States v. Island

• Decision Date: 26 February 2019
• Docket Number: No. 17-3826,17-3826
• Citation: 916 F.3d 249
• Parties: UNITED STATES of America v. Donte ISLAND, a/k/a Norman Tomas, a/k/a Norman Thomas Donte Island, Appellant
• Court: U.S. Court of Appeals — Third Circuit

916 F.3d 249

UNITED STATES of America

v.Donte ISLAND, a/k/a Norman Tomas, a/k/a Norman Thomas Donte Island, Appellant

No. 17-3826

United States Court of Appeals, Third Circuit.

Argued: November 6, 2018

Filed: February 26, 2019

OPINION OF THE COURT

SCIRICA, Circuit Judge

In this appeal, we determine whether a defendant can count toward the service of his supervised release term a period of time he is fugitive, that is, absent from the court’s supervision. The statutory provisions governing supervised release do not contain plain language—or indeed any language—that expressly resolves that question. But, as the majority of Courts of Appeals to address the question have concluded, a defendant does not in fact serve his supervised release term while he deliberately absconds from the court’s supervision. Accordingly, a defendant’s supervised release term tolls while he is of fugitive status.

Defendant Donte Island appealed to challenge the District Court’s order revoking his supervised release and sentencing him to a term of imprisonment. Island primarily contended that under 18 U.S.C. § 3583(i) the Court’s jurisdiction terminated at the end of his three-year supervised release term. Island asserted the Court accordingly lacked authority to revoke his release based on his involvement in a police officer shooting first raised to the court a few days after those three years had passed. The government maintained the Court had jurisdiction to revoke Island’s supervised release for the officer shooting violation based on an earlier-issued warrant for unrelated violations. We have no occasion to resolve that jurisdictional dispute, however, because we join the majority of Circuits that have addressed the issue to hold Island’s supervised release term tolled while he was fugitive from the court’s supervision. As a result of that tolling, Island’s term of supervised release had not yet expired when the later warrant was issued. Because the District Court therefore had jurisdiction over the second warrant and underlying petition of violation, we will affirm.

I.

Following a jury trial in 2004, the District Court sentenced Island to 110 months' imprisonment and 3 years' supervised release for possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1). Island commenced that three-year supervised release term on June 26, 2013, and it was scheduled to end on June 25, 2016.

Island completed the first two years of his release term without incident, but on September 18, 2015, Island’s probation officer filed a petition of violation. The petition alleged Island had breached the terms of his release by committing several technical, i.e. , noncriminal or minor, violations, such as failing to notify his probation officer of a changed address and failing several drug tests. The petition noted that "[m]ore troublesome" among the violations was Island’s failure to report to his probation officer. App’x 34. The officer relayed that Island "ceased reporting as instructed" on July 17, 2015, after which his "whereabouts [were] unknown." App’x 34, 28. The petition chronicled over half a dozen attempts to contact Island in the coming months, none of which were successful. Island failed to report for a scheduled meeting, then did not respond to phone calls, voicemails, letters, or emails sent to him at several possible numbers and addresses. The Court issued a warrant on the basis of that petition the day it was filed, but that warrant remained outstanding.

On June 27, 2016—just over three years after Island’s supervised release term had begun—the probation office filed a second petition of violation, styled as an "[a]mended" version of the first. App’x 35. The Court again issued a warrant the same day, now based on a new violation. The second petition alleged Island had committed a serious violation of the terms of his release on June 21—just under three years after Island’s supervised release term had begun—by firing a weapon at two police officers, hitting one. Island was arrested and taken into custody by Delaware County authorities that day. The District Court held a teleconference with the government and Island’s counsel soon after receiving the petition, and the parties then agreed to delay a hearing on both petitions of violation until after the disposition of Island’s Delaware County charges. Island was convicted in July 2017 of attempted murder and other charges, then sentenced in the Court of Common Pleas of Delaware County, Pennsylvania to 33 to 100 years' imprisonment.

The District Court held a supervised release revocation hearing on December 13, 2017. The government sought the statutory maximum revocation term of 24 months' imprisonment; at the hearing, it stressed the severity of the officer shooting underlying the second violation petition. The government further emphasized Island "wasn't within hours of completing his sentence on this.... He was 11 months a fugitive, right, so it’s not like he committed the crime on the 11th hour." App’x 57–58. In response, Island emphasized he would already be serving 33 to 100 years in prison and argued "it would be excessive and unnecessary based on the practical realities of his case" to also enforce a revocation term of imprisonment. App’x 62. The court imposed the government’s recommended revocation sentence of 24 months, to run consecutively after Island’s state sentence, on the basis of only the second violation petition. Island now appeals.¹

II.

Island asserts on appeal that the District Court lacked jurisdiction under 18 U.S.C. § 3583(i) to revoke his supervised release because the warrant underlying revocation—based on the shooting—was untimely issued after the three-year calendar on his supervised release term had run. The government responds that the earlier warrant for unrelated technical violations endowed the District Court with ongoing jurisdiction, but also contends the warrant was timely because Island’s three-year supervised release term was tolled while he was of fugitive status. We may "affirm on any ground supported by the record," United States v. Mussare , 405 F.3d 161, 168 (3d Cir. 2005),² and we will here affirm on the basis that fugitive tolling of Island’s supervised release term rendered the second warrant timely.

A.

We begin with an overview of the purpose of the supervised release scheme before turning to how fugitive tolling supports that scheme. Congress designed supervised release, laid out in 18 U.S.C. § 3583, to be "a form of postconfinement monitoring overseen by the sentencing court." Johnson v. United States , 529 U.S. 694, 696–97, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000). "[T]he supervised release term constitutes part of the original sentence, and the congressional intent is for defendants to serve their full release term." United States v. Buchanan , 638 F.3d 448, 455 (4th Cir. 2011). As the Supreme Court has explained, "Congress intended supervised release to assist individuals in their transition to community life. Supervised release fulfills rehabilitative ends," providing "individuals with postconfinement assistance" through the supervision of the court. United States v. Johnson , 529 U.S. 53, 59, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000). The court can provide such assistance because, "[w]hile on supervised release, the offender [is] required to abide by certain conditions," Johnson v. United States , 529 U.S. at 697, 120 S.Ct. 1795, such as regularly reporting to a probation officer, pursuing schooling or work, and refraining from further criminal activity, see U.S.S.G. § 5D1.3(c) ; 18 U.S.C. § 3583(d). Congress authorized supervising courts to revoke supervised release and order reimprisonment when defendants fail to meet their release conditions. See id. § 3583(e) ; Johnson v. United States , 529 U.S. at 697, 120 S.Ct. 1795.

The plain language of the supervised release statutory provisions is, contrary to the dissent’s suggestion, silent on how a defendant’s failure to comply with release terms effects the running of his sentence. See 18 U.S.C. §§ 3583, 3624. Though those provisions do not expressly provide for tolling when a defendant absconds from supervision, fugitive tolling furthers the purposes of the supervised release scheme. See Staples v. United States , 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). When a defendant under supervised release fails to meet release conditions by absconding from supervision, a court cannot effectively oversee his transition to the community. The majority of Courts of Appeals to address this question have accordingly determined a defendant’s term of supervised release is tolled during the period he is of "fugitive" status, i.e. , fails to report and comply with the terms of his postrelease sentence. See United States v. Barinas , 865 F.3d 99, 106 (2d Cir. 2017) ; United States v. Buchanan , 638 F.3d 448, 453–58 (4th Cir. 2011) ; United States v. Murguia-Oliveros , 421 F.3d 951, 954 (9th Cir. 2005). But see United States v. Hernandez-Ferrer , 599 F.3d 63, 67–68 (1st Cir. 2010) (declining to adopt fugitive tolling for supervised release).

The fugitive tolling doctrine reflects two key principles that align with the purposes of supervised release. First , the rehabilitative goals of supervised release are served only when defendants abide by the terms of their supervision—those goals are not served simply by the passage of time during the release term. "Mere lapse of time without imprisonment or other restraint contemplated by the law does not constitute service of sentence." Anderson v. Corall , 263 U.S. 193, 196, 44 S.Ct. 43, 68 L.Ed. 247 (1923). A supervising court cannot offer postconfinement assistance or ensure compliance with the terms of release while a defendant is truant. See Barinas , 865 F.3d at 107 (reasoning that measuring a supervised release term "by rote reference to a calendar" is "inconsistent ... with Congress's goals in requiring supervised release"); Murguia-Oliveros , 421...