FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50323
Plaintiff-Appellee, D.C. No.
v. 2:89-cr-00381-
MANUEL IGNACIO JUAREZ, GHK-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Argued and Submitted
February 5, 2010—Pasadena, California
Filed April 8, 2010
Before: Mary M. Schroeder, Raymond C. Fisher and
N. Randy Smith, Circuit Judges.
Per Curiam Opinion
5325
UNITED STATES v. JUAREZ 5327
COUNSEL
Amber D. Garza and Michael J. Raphael (argued), Los Ange-
les, California, for plaintiff-appellee United States of Amer-
ica.
Gia Kim, Los Angeles, California, for defendant-appellant
Manuel Ignacio Juarez.
OPINION
PER CURIAM:
Manuel Ignacio Juarez appeals the district court’s judgment
revoking his supervised release and sentencing him to eigh-
teen months in prison. Juarez contends the district court
lacked jurisdiction to revoke his supervised release because
his term of supervision expired before the district court either
entered the order of revocation or issued a bench warrant that
could have extended the court’s jurisdiction to do so under 18
U.S.C. § 3583(i). The district court determined that it had
jurisdiction to revoke Juarez’s supervised release because his
5328 UNITED STATES v. JUAREZ
term of supervision was tolled during the period of time he
was at large, after he absconded from supervision by changing
his residence and not reporting it to his probation officer as
required by the conditions of his supervised release. We hold
that the district court did have jurisdiction and affirm in a
published opinion to clarify that fugitive tolling of a defen-
dant’s term of supervised release begins when the defendant
becomes a fugitive, not at the later time when a warrant is
issued for his apprehension.
BACKGROUND
The facts of this case are important to our resolution of the
jurisdictional question. Juarez pled guilty to bank robbery in
1989. The district court sentenced him to forty-six months in
prison, to be followed by three years of supervised release.
Under the conditions of Juarez’s supervised release, he was
required to notify his probation officer within seventy-two
hours of any change in residence, and he was prohibited from
possessing drugs or drug paraphernalia or committing any fur-
ther crimes.
On August 26, 1992, the Bureau of Prisons released Juarez
into the custody of the Immigration and Naturalization Ser-
vice (“INS”) for deportation, and the Probation Office placed
his case on “inactive” status. When the INS deported Juarez
to Mexico, his supervised release was scheduled to terminate
on August 25, 1995.
Sometime after his deportation, however, Juarez illegally
reentered the United States. He did not inform his probation
officer that he had reentered or that he had changed resi-
dences. On August 31, 1993, he applied for and received a
California driver’s license under a false name. The license
stated his residence to be at an address in Riverside, Califor-
nia.
In November 1994, California law enforcement authorities
arrested Juarez for possession of drug paraphernalia. Juarez
UNITED STATES v. JUAREZ 5329
identified himself using the false name on his driver’s license
and was released the same day. Juarez was again arrested by
state authorities on June 23, 1995, and charged with two sepa-
rate counts of robbery. This time, he remained in state custody
pending resolution of the charges. Juarez eventually pled
guilty to both robbery charges, and on October 4, 1996, he
was sentenced to a cumulative term of fifteen years in state
prison.
Juarez’s illegal reentry and his two arrests all occurred
before his supervised release was scheduled to terminate.
Under 18 U.S.C. § 3583(i), the district court’s authority to
revoke a term of supervised release “extends beyond the expi-
ration of the term of supervised release for any period reason-
ably 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 viola-
tion.” Accordingly, Juarez’s probation officer applied to the
district court in July 1995 for a bench warrant authorizing
Juarez’s arrest for violating the conditions of his supervised
release by illegally reentering the United States, by using
drugs, and by failing to report his whereabouts to his proba-
tion officer. That warrant application was filed within the
term of supervised release, but was not supported by an affi-
davit or any sworn facts. The district court issued a bench
warrant on July 17, 1995, but it was not immediately executed
because Juarez by that time was in state custody pending the
resolution of the two robbery charges.
In November 2004, this court decided United States v.
Vargas-Amaya, 389 F.3d 901 (9th Cir. 2004). We held that a
district court’s jurisdiction to revoke supervised release can be
extended beyond the term of supervision under § 3583(i) on
the basis of a warrant issued during the term of supervision,
but “only if the warrant was issued ‘upon probable cause, sup-
ported by Oath or affirmation,’ as required by the Fourth
Amendment.” Id. at 907. When Juarez’s probation officer rec-
ognized that the initial warrant issued by the district court for
5330 UNITED STATES v. JUAREZ
Juarez’s arrest did not comply with Vargas-Amaya, he applied
for a new warrant. This time, he included a sworn statement
of facts in support of the application and alleged two new vio-
lations of Juarez’s release conditions, on account of Juarez’s
two robbery convictions. On May 3, 2005, the district court
issued a new bench warrant for Juarez’s arrest. This warrant
also could not be immediately executed, however, because
Juarez was still serving his state prison sentences for the rob-
bery convictions.
Almost four years later, on February 10, 2009, Juarez was
paroled from state prison and transferred to federal custody
pursuant to the 2005 bench warrant. He promptly moved to
dismiss the petition to revoke his supervised release. He
argued that because the 2005 warrant had been issued nearly
ten years after his original term of supervision was to expire,
the district court lacked jurisdiction to revoke his supervised
release under 18 U.S.C. § 3583(i).
The district court denied Juarez’s motion. The court ruled
that his fugitive status tolled the term of supervised release for
close to two years, and that because the term as tolled by fugi-
tive status was again tolled by reason of his state prison sen-
tences, the court had jurisdiction to revoke his supervised
release. The district court explained its reasoning as follows.
First, when Juarez applied for a California driver’s license
on August 31, 1993, he effectively admitted he had changed
his residence from Mexico to Riverside, California. Juarez did
not report this change in residence to the Probation Office
within seventy-two hours as required by the conditions of his
supervised release. Therefore, the district court found that
Juarez had absconded from supervision and become a fugitive
“on or about August 31, 1993, or within 72 hours thereof.”
This is because Juarez’s reentry into the United States trig-
gered reinstatement of the terms of his supervision, which
Juarez then violated “in such a way as to disable the probation
officer from knowing his whereabouts and being able to begin
UNITED STATES v. JUAREZ 5331
supervision.” Thus, because Juarez was a fugitive until his
arrest on June 23, 1995, the running of his term of supervised
release was tolled for nearly two years.
Second, on October 3, 1996, during the extended period of
supervised release, Juarez’s term of supervision was again
tolled as a result of his incarceration for his two robbery con-
victions. See 18 U.S.C. § 3624(e) (“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
of less than 30 consecutive days.”). Because the May 2005
bench warrant was issued while Juarez was still serving his
prison sentences for the two robbery convictions, and thus
before the extended term of supervised release expired, the
district court held it had jurisdiction to revoke Juarez’s term
of supervised release under § 3583(i).
On June 8, 2009, Juarez admitted to the violations of
release conditions alleged by the government. The court
revoked his supervised release on July 15, 2009, and sen-
tenced him to eighteen months in prison. Juarez timely
appealed the district court’s judgment to this court. He con-
tends that the district court lacked jurisdiction to revoke his
supervised release because its term was not tolled by his
nearly two-year status as a fugitive and had therefore expired.
We have jurisdiction pursuant to 28 U.S.C. § 1291.
DISCUSSION
We review de novo whether the district court had jurisdic-
tion to revoke a term of supervised release. United States v.
Sullivan, 504 F.3d 969, 971 (9th Cir. 2007). The fugitive toll-
ing issue is an issue of law, and there are no factual disputes
as to when the dispositive events occurred in this case.
Juarez argues that our case law establishes that fugitive
tolling cannot begin until the government has information
5332 UNITED STATES v. JUAREZ
concerning a defendant’s whereabouts and obtains an arrest
warrant. In this case that occurred in July 1995, so the term,
Juarez asserts, was not tolled during the first two years he was
actually a fugitive. There is no question that the term can be
tolled during the years Juarez was incarcerated for the two
robbery convictions, see 18 U.S.C. § 3624(e), but unless it
was first tolled during the two years that he was a fugitive, the
district court lacked jurisdiction. This is because the term of
supervision would have expired before his incarceration.
The district court held, however, that Juarez’s fugitive sta-
tus began in 1993, when we know he had become a fugitive
from supervision. We agree with the district court, because
we conclude that our case law establishes that fugitive tolling
begins with fugitive status and not when the government is
able to secure a warrant. This is apparent from a careful
review of our cases.
We first recognized that a defendant’s term of supervised
release is tolled for fugitive status in United States v. Crane,
979 F.2d 687, 691 (9th Cir. 1992). In that case, the defendant
absconded from a community treatment center where he was
serving a one-year term of supervised release. Id. at 688. The
defendant’s probation officer immediately filed a petition for
revocation of supervised release, and the district court issued
a warrant for the defendant’s arrest. Id. Three months later,
state law enforcement authorities arrested the defendant and
held him in state custody until after his term of supervised
release would have expired, absent tolling. Id. at 688, 691.
We held that the district court retained jurisdiction to revoke
the defendant’s supervised release because his term of super-
vision was tolled for the three months he remained a fugitive
after leaving the community treatment center. Id. at 691.
In United States v. Murguia-Oliveros, 421 F.3d 951, 953-
54 (9th Cir. 2005), we reaffirmed our holding in Crane and
clarified that a defendant becomes a fugitive for purposes of
tolling when he absconds from his supervised release. The
UNITED STATES v. JUAREZ 5333
defendant in Murguia-Oliveros violated the conditions of his
supervised release by reentering the United States after being
deported and not reporting to his probation officer. Id. at 952.
The probation officer later learned of the defendant’s reentry
and sent a letter to his last-known address instructing him to
report. Id. When the defendant failed to report, the district
court issued a bench warrant for his arrest, but it was not
based on any sworn statement of fact. Id. Ten months after the
warrant issued and approximately two months after his term
of supervised release would normally have expired, the defen-
dant was arrested and the district court revoked his supervised
release. Id. at 953. We held that the district court had jurisdic-
tion because the defendant was a fugitive from supervised
release “at least from the time the government obtained a war-
rant for his arrest . . . until the time the supervised release
would have expired, absent a violation”—a period of eight
months. Id. at 955. Because this eight-month period of tolling
was more than sufficient to extend the term beyond the time
when the court revoked the defendant’s supervised release,
we did not have to decide whether tolling actually began with
the defendant’s initial failure to report to his probation officer.
[1] Building on these precedents, however, we said clearly
in United States v. Delamora, 451 F.3d 977, 978 (9th Cir.
2006), that “a defendant’s term of supervised release is tolled
from the time that he absconds from supervision until the time
he is found by federal authorities.” In that case, the defen-
dant’s probation officer filed an unsworn petition in the dis-
trict court alleging the defendant had violated the conditions
of his supervised release by not reporting to the probation
officer for two months and not submitting monthly reports for
three months. Id. at 979. The probation officer also asserted
that the defendant could not be located. Id. The district court
issued a warrant for the defendant’s arrest. Id. More than
seven years later, the district court issued a second warrant,
this time based on sworn facts, and the defendant was arrested
within a month. Id. Because the second warrant was not
issued until after the defendant’s term of supervision was
5334 UNITED STATES v. JUAREZ
originally scheduled to expire, the district court ultimately
dismissed the petition for lack of jurisdiction. Id.
[2] On appeal, however, we reversed, holding that the dis-
trict court had jurisdiction to revoke the defendant’s super-
vised release because the defendant’s fugitive status had
tolled the running of his term of supervision, so that the term
extended beyond the original expiration date. Id. at 979-81. In
so holding, we rejected the defendant’s argument that
Murguia-Oliveros permitted tolling of a defendant’s term of
supervised release only from the date an arrest warrant issues
until the date the defendant’s term would expire absent a vio-
lation. Id. at 980. We explained in Delamora that “[t]olling of
a supervised release term extends the date the term is set to
expire so long as the defendant remains a fugitive.” Id. Thus,
we stated that the defendant in Delamora “became a fugitive
when he stopped reporting to his probation officer and
absconded from supervision,” and that “the start of [the defen-
dant’s] flight . . . commenced the tolling of his supervised
release term.” Id. Once the defendant was arrested and
brought into federal custody, tolling ceased and “the clock
began running again.” Id. at 980-81. Accordingly, we held
that “[w]hat tolls the time is [the defendant’s] fugitive status,
not the [bench] warrant.” Id. at 981.
Although our holding in Delamora was clear, we appar-
ently actually calculated the number of days to be tolled from
the date of the issuance of the initial bench warrant. Id. at 980.
Juarez thus focuses only upon that and argues that tolling
should not begin in his case until the July 1995 bench warrant
was issued, thus in effect claiming that the term of supervised
release continued to run during the time in which he was a
fugitive. His argument is contrary to our holding in Delam-
ora.
[3] A close reading of Delamora reveals that we used the
bench warrant as the starting point for tolling because it was
the earliest ascertainable date when we knew the defendant
UNITED STATES v. JUAREZ 5335
had become a fugitive. We said: “Delamora’s status as an
absconder happens to coincide with the date of the unsworn
petition as it did in Murguia-Oliveros, and often might.” Id.
at 981. Thus, because the only known date to start the defen-
dant’s flight in Delamora, as in Murguia-Oliveros, corre-
sponded with the issuance of the first bench warrant, we
calculated the tolling period as beginning on that date. Id. at
980. But this does not mean, as Juarez tries to argue, that in
a case in which we know that the defendant was a fugitive at
an earlier date, we must still hold that the defendant’s term of
supervised release continues to run and is not tolled until a
bench warrant is issued. Such a result would run counter to
one of the primary principles on which the fugitive tolling
doctrine rests: “[a] person on supervised release should not
receive credit against his period of supervised release for time
that, by virtue of his own wrongful act, he [has absconded
from] supervised release.” Murguia-Oliveros, 421 F.3d at
954.
[4] Fugitive tolling begins when the defendant absconds
from supervision—making it impossible for the Probation
Office to supervise his actions—and ends when federal
authorities are capable of resuming supervision. See Delam-
ora, 451 F.3d at 978 (“[A] defendant’s term of supervised
release is tolled from the time that he absconds from supervi-
sion until the time he is found by federal authorities.”). In this
case, Juarez absconded from supervision when he moved to
the United States and failed to advise the Probation Office of
his whereabouts. We know that he was residing in the United
States no later than August 31, 1993, and that he failed to
report his change of address to the Probation Office within 72
hours. Thus, tolling began at the latest on September 3, 1993.
Fugitive tolling ended on June 23, 1995, when Juarez was
arrested by California law enforcement authorities and federal
authorities became aware of his whereabouts. This tolling,
coupled with the undisputed tolling during his prison terms,
extended Juarez’s term of supervised release by more than
fourteen years, so that his term of supervision would not have
5336 UNITED STATES v. JUAREZ
expired until October 21, 2009. The district court correctly
ruled it had jurisdiction to revoke the supervised release well
before that date.
AFFIRMED.