United States v. Marsh

• Decision Date: 19 July 2016
• Docket Number: No. 12-3086,12-3086
• Citation: 829 F.3d 705
• Parties: United States of America, Appellee v. Brian D. Marsh, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

829 F.3d 705

United States of America, Appellee

v.Brian D. Marsh, Appellant

No. 12-3086

United States Court of Appeals, District of Columbia Circuit.

Argued May 6, 2016

Decided July 19, 2016

Mary E. Davis, appointed by the court, argued the cause and filed the briefs for appellant.

Jay Apperson, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Elizabeth Trosman and Elizabeth H. Danello, Assistant U.S. Attorneys.

Before: Tatel, Srinivasan, and Pillard, Circuit Judges.

Tatel, Circuit Judge:

This case raises the question whether 18 U.S.C. § 3624(e), which provides that “[a] term of supervised release does not run during any period in which [a] person is imprisoned in connection with a conviction for a Federal, State, or local crime,” tolls a supervised-release term during a period of pretrial detention if the defendant is later convicted of the charges on which he is held and receives credit toward his sentence for the time served in pretrial detention. For the reasons set forth below, we hold that it does not.

I.

In 2004, appellant Brian Marsh pled guilty to one count of unlawful possession with intent to distribute 100 grams or more of phencyclidine. Shortly thereafter, the district court sentenced him to 63 months' imprisonment, followed by four years of supervised release. Marsh completed his term of incarceration on May 9, 2008. His term of supervised release was, therefore, set to expire on May 8, 2012.

Roughly nine months prior to that scheduled expiration, on August 11, 2011, Marsh was indicted for several new drug-trafficking offenses. He was arrested six days later, on August 17, and detained pending trial. He ultimately pled guilty to the new charges on June 19, 2012, and, on September 20, a different district judge sentenced him to 150 months' imprisonment, with credit for time served, followed by five years of supervised release.

Marsh's convictions for these later offenses established that he had violated the conditions of his supervised release by engaging in criminal activity. See 18 U.S.C. § 3583(d) (mandating, as a condition of supervised release, that “the defendant not commit another Federal, State, or local crime during the term of supervision”). Thus, on September 21, the day after his sentencing in the second case, the district court that presided over his 2004 conviction held a hearing to address the apparent violation. At the hearing, the court purported to revoke Marsh's supervised-release term and to sentence him to the statutory maximum of 36 months' imprisonment, to run consecutive to the 150 months imposed for the new charges. See Revocation Hr'g Tr. 24 (Sept. 21, 2012); see also 18 U.S.C. § 3583(e)(3).

Marsh now appeals, raising two principal challenges. First, he contends that his supervised-release term ended on May 8, 2012, and that the district court consequently lacked jurisdiction in September 2012 to revoke his term of supervised release and to impose an additional period of incarceration. Second, he contends that even if the district court had jurisdiction, it plainly erred in sentencing him by, among other things, applying an across-the-board policy of imposing the maximum sentence available when a defendant commits a crime while on supervised release. Because we agree with Marsh's first challenge—that the district court lacked jurisdiction to revoke his term of supervised release and to impose a further period of incarceration—we need not address the alleged defects in the district court's sentencing procedures.

II.

As a threshold matter, Marsh contends that, in September 2012, the district court lacked authority to revoke his term of supervised release and to impose an additional period of imprisonment because he was no longer under its supervision. We review that jurisdictional question de novo. See Board of Trustees of Hotel & Restaurant Employees Local 25 v. Madison Hotel, Inc. , 97 F.3d 1479, 1483 (D.C. Cir. 1996) ; see also, e.g. , United States v. Johnson , 581 F.3d 1310, 1311 (11th Cir. 2009) (per curiam) (reviewing a district court's jurisdiction to revoke a supervised-release term de novo).

A.

Both parties agree that, absent tolling, Marsh's supervised-release term was set to expire on May 8, 2012. Both parties also agree that the district court had no authority to act after the expiration of Marsh's supervised-release term because no warrant or summons ever issued with respect to his supervised-release violation. See 18 U.S.C. § 3583(I) (providing that a district court's “power ... to revoke a term of supervised release ... and to order the defendant to serve a term of imprisonment ... 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 ” (emphasis added)).

The question, then, is whether Marsh's supervised-release term was tolled for any reason. The government argues that it was, and that it continued well beyond September 2012, because it was tolled during the thirteen months that Marsh was in pretrial detention for his new drug-trafficking offenses. The government relies on 18 U.S.C. § 3624(e), which provides that “[a] term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period less than 30 consecutive days.” As the government sees it, pretrial detention qualifies as a “period in which the person is imprisoned in connection with a conviction” if the defendant is ultimately convicted of the charges on which he is held and receives credit toward his sentence for the time served in pretrial detention. And because Marsh was later convicted of the charges on which he was held from August 17, 2011, to September 20, 2012, and because he received credit toward his sentence for that time, the government contends that his supervised-release term continued well after September 2012.

Whether section 3624(e) tolls a term of supervised release during a period of pretrial detention where the defendant is ultimately convicted of the charges on which he is held is a matter of first impression in this circuit. Five other circuits have, however, considered the issue and are split.

One circuit—the Ninth—has ruled 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). That court reasoned that the phrase “imprisoned in connection with a conviction” necessarily implies “imprisonment resulting from or otherwise triggered by a criminal conviction”—that is, imprisonment following, not preceding, a conviction. Id. at 1105. It further reasoned that “Congress uses the terms ‘imprisonment’ and ‘detention’ very differently,” and that the former indicates “a penalty or sentence” following a conviction. Id. The court also saw nothing in the statute indicating that Congress intended courts to conduct “backward-looking” tolling analyses. Id. According to the court, moreover, such a backward-looking approach would be “impractical.” Id. The court explained that if section 3624(e) tolls a supervised-release term while a defendant is in pretrial detention so long as he is ultimately convicted of the charges on which he is held and receives credit for time served, then there would be times when courts would be unable to determine whether they retained jurisdiction over defendants because those defendants had served time in pretrial detention but had yet to be acquitted or convicted of the charges on which they were held. Id. at 1105–06.

After the Ninth Circuit ruled, four other circuits—the Fourth, Fifth, Sixth, and Eleventh—reached the opposite conclusion. The first of these to rule, the Sixth Circuit, began its analysis by rejecting the Ninth Circuit's conclusion that the word “imprisoned” necessarily refers to periods of confinement following a conviction. See United States v. Goins , 516 F.3d 416, 422 (6th Cir. 2008). In its view, the plain meaning of “imprisoned” is to be held in confinement by the state irrespective of whether that confinement precedes or follows a conviction. Id. The court further reasoned that the Ninth's Circuit's definition of “imprisoned” would render the phrase “in connection with a conviction” superfluous because “imprisoned” would already connote the existence of a conviction. Id. at 421. Having rejected the Ninth Circuit's analysis, the Sixth Circuit zeroed in on the phrase “in connection with a conviction” and concluded that it “plainly” encompasses periods of pretrial detention where the person is later convicted and receives credit for time served. Id. at 422. Those periods, the court stated, are periods of confinement served “in connection with a conviction.” Id.

While acknowledging that its interpretation would sometimes require a backward-looking tolling analysis to determine whether a supervised-release term continues to run, the Sixth Circuit believed that “nothing in the statute suggests that only forward-looking analysis is appropriate.” Id. Moreover, unlike the Ninth Circuit, it was unconcerned about the potential problems that judges might encounter in trying to ascertain their jurisdiction. Id. at 423. “The only time ... [jurisdictional] indeterminacy would exist,” the court explained, “is when ... [a] defendant is between the period of his pretrial detention and the conclusion of his trial” because after trial the judge would know whether the defendant was convicted of the charges on which he was held and, therefore, whether the pretrial-detention period tolled the defendant's supervised-release term. Id. On those “rare” occasions, the court saw “no reason why the judge who is asked to determine...