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Supervised Release and Linguistics– trial court’s erroneous revocation of supervised release and imposition of a term of incarceration is vacated for lack of jurisdiction: United States v. Marsh, _ F.3d _ (D.C. Circuit, No. 12-3096, July 19, 2016)

A unanimous panel of the D.C. Circuit (Tatel, Srinivasan and Pillard, JJ), found error and vacated for lack of jurisdiction a 36- month term of imprisonment imposed on an appellants who had violated his conditions of supervised release by committing another felony offense.

One would hope that Brian Marsh, who had completed his 63-month sentence for drug dealing and was on a four year term of supervised release, would have stayed out of trouble. Alas, that was not to be: nine months before his supervised release was to end, Mr. Marsh was indicted, arrested, and detained for new trafficking offenses. He pled guilty to those charges and was sentenced – in both instances after his original term of supervised release had expired. That new term brought Mr. Marsh a 150-month term and another five years of supervised release.

Doubtless displeased with Mr. Marsh’s misadventures, the Government successfully petitioned for revocation of his earlier supervised release. The trial judge who presided over Marsh’s first case agreed. Mr. Marsh thus found himself tagged with an additional 36 months of imprisonment, to commence after serving the new charges. (The 36-months was the statutory maximum under 18 U.S.C. § 3583(e)(3).)

On appeal, Marsh argued, inter alia, that the trial judge had erred in revoking his supervised release and in imposing the consecutive sentence. The Court of Appeals agreed with Marsh that the trial judge had lacked jurisdiction to do that because his term of supervised release had expired before he pled guilty.

Writing for the panel, Circuit Judge Tatel first defined the standard of review as de novo. (Slip Op. at 3-4) (citing United States v. Johnson, 581 F.3d 1310, 1311 (11th Cir. 2009)). Next came the issue of tolling, for the parties agreed that, absent tolling, Marsh’s supervised-release term was set to expire on May 8, 2012. Marsh and the Government also agreed 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. (Slip Op. at 4) (citing 18 U.S.C. § 3583(i)). The Government argued that tolling existed it was tolled during the thirteen months that Marsh was in pretrial detention for his new drug-trafficking offenses. (Slip Op. at 4-5. It relied on 18 U.S.C. § 3624(c)), which states 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.” In other words, under the Government’s theory, Marsh’s pretrial detention on the new charges triggered a tolling period and allowed the later revocation of his first period of supervised release and the later, consecutive sentence to 36 months.

Pointing out that the issue of whether pretrial detention equated with imprisonment was a matter of first impression in the D.C. Circuit and that other Circuits have reached differing interpretations, Judge Tatel entered the linguistics thicket. After carefully canvassing the several circuit opinions, (Slip Op. at 5-7), Judge Tatel concluded that “[S]ection 3624(e) does not toll supervised-release terms during periods of pretrial detention,” albeit for reasons that differed from those adopted by the Ninth Circuit, which ruled in United States v. Morales-Alejo, 193 F.3d 1102, 1106 (9th Cir. 1999),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.” (Slip Op. at 8).

The linguistics issue, Judge Tatel explained, turned on something else – the word “is.” “Critically, the statute 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 . . . .” 18 U.S.C. § 3624(e) (emphasis added).” (Slip Op. at 8-9) (emphasis original). In other words, “[b]y phrasing the statute in the present tense, Congress has foreclosed the type of backward-looking tolling analysis that the [other] circuits allow.” (Id.) The reason is that “[w]hen a person is held in pretrial detention, one cannot say that the person ‘is imprisoned in connection with a conviction for a Federal, State, or local crime’ for an obvious reason: he has yet to be convicted.” (Id. at 8-9). Because the statute is phrased in the present tense, it should not be read looking backwards, absent some contextual ambiguity. Finding no such ambiguity, and applying the rules of construction suggested by consulting the so-called Dictionary Act, 1 U.S.C. § 1, and commonsense the panel found Marsh’s revocation and consecutive term of imprisonment to have been imposed illegally by a court acting outside of its jurisdiction. (Slip Op. at 9-11).

A redux from a recent blog: one of the Davis & Davis “tag team” (this time Mary E.) has saved a client from an unduly lengthy term of incarceration.

–Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit.