United States v. Michelle Wing

Summarize
Check Treatment

Related Cases

                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 18 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 09-30413

              Plaintiff - Appellee,              D.C. No. 9:01-cr-00037-DWM-1

  v.
                                                 MEMORANDUM *
MICHELLE WING,

              Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding

                       Argued and Submitted October 5, 2010
                               Seattle, Washington

Before: THOMAS and M. SMITH, Circuit Judges, and HOGAN, District Judge.**

       Michelle Wing argues on appeal that the district court lacked jurisdiction to

revoke her term of supervised release because the term had not yet commenced.

The record facially supports her claim: her new period of supervised release

appears to have been scheduled to commence after the district court hearing. See

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Michael R. Hogan, United States District Judge for the
District of Oregon, sitting by designation.
18 U.S.C. § 3624(e) (“The term of supervised release commences on the day the

person is released from imprisonment . . .”); United States v. Johnson, 529 U.S. 53,

57 (2000) (holding that a supervised release term does not commence until an

individual “is released from imprisonment”); United States v. Malandrini, 177 F.3d

771, 774 (9th Cir. 1999).

      As Wing concedes, this argument was not presented to the district court.

However, because the argument implicates the court’s jurisdiction, Wing is not

precluded from raising it on appeal. United States v. Powell, 24 F.3d 28, 30 (9th

Cir.1994). Because the district court has not had the opportunity to consider the

argument, we are without benefit of the district court’s analysis on the issue, or its

analysis on the extent to which the revocation pertained (or could pertain) to

Wing’s first period of supervised release. See Johnson v. United States, 529 U.S.

694, 704-13 (2000) (noting that when a court “revokes” a supervised release term

under Section 3583(e), that term “continues to have some effect”); see also 18

U.S.C. § 3583(h), (i). We would benefit from the district court’s views, and it

would be unfair to the district court for us to decide this case without giving it the

opportunity consider the questions in the first instance. Therefore, we remand the

case to the district court for consideration of the issues raised in the appeal.

      REMANDED.


                                            2