FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50666
Plaintiff-Appellee, D.C. No.
v. 2:96-cr-00115-
KENNETH EDWARD WATSON, JR., RSWL-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, Senior District Judge, Presiding
Submitted November 4, 2010*
Pasadena, California
Filed February 23, 2011
Before: Johnnie B. Rawlinson and Milan D. Smith, Jr.,
Circuit Judges, and Robert C. Jones, District Judge.**
Opinion by Judge Milan D. Smith, Jr.
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Robert C. Jones, United States District Judge for the
District of Nevada, sitting by designation.
2821
UNITED STATES v. WATSON 2823
COUNSEL
Ami Sheth, Assistant United States Attorney, Los Angeles,
California, for the plaintiff-appellee.
Michael Tanaka, Deputy Federal Public Defender, Los Ange-
les, California, for the defendant-appellant.
OPINION
M. SMITH, Circuit Judge:
Kenneth Edward Watson, Jr., appeals the district court’s
decision revoking his supervised release and sentencing him
to three years in prison. Watson, whose original term of
supervision was to expire in 1997, concedes that he became
a fugitive from federal supervision in October 1995, when he
failed to notify his probation officer of his change in residence
and stopped submitting required monthly reports. He argues,
however, that his eleven arrests by state authorities in Minne-
sota between 1996 and 2007 marked the end of his fugitive
status. Absent fugitive tolling, he contends, his term of super-
vision ended long before federal authorities arrested him in
2824 UNITED STATES v. WATSON
2009, and the district court was without jurisdiction to revoke
his supervised release.
We hold that Watson’s arrests by state authorities neither
support an inference that federal authorities had actual knowl-
edge of his presence nor impute constructive knowledge to
them. Watson’s term of supervision therefore was tolled until
federal authorities arrested him in 2009. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 11, 1989, Watson pleaded guilty in the Northern
District of West Virginia to possession with intent to distrib-
ute cocaine, 21 U.S.C. § 841(a)(1), and was sentenced to
sixty-three months in prison, followed by a four-year term of
supervised release. His term of supervised release began on
September 3, 1993, and was set to expire on September 2,
1997. As a condition of his supervised release, Watson was
required to notify his probation officer within seventy-two
hours of any change in residence, and to submit written
monthly reports.
On January 29, 1996, U.S. Probation Officer Ronald J.
McPherson requested that the district court transfer jurisdic-
tion over Watson’s supervision to the Central District of Cali-
fornia and issue a warrant for Watson’s arrest. Officer
McPherson’s unsworn petition alleged that Watson had vio-
lated his supervised release by failing to notify his probation
officer of his change of residence or to submit monthly
reports after October 1995. On February 6, 1996, the district
court granted the transfer request, signed the petition, and
issued a bench warrant for Watson’s arrest.
On May 5, 2005, U.S. Probation Officer Graciela Gudino,
née Corral, submitted a sworn declaration reaffirming the
petition and requesting a new bench warrant. Officer
Gudino’s declaration explained that under our intervening
decision in United States v. Vargas-Amaya, 389 F.3d 901 (9th
UNITED STATES v. WATSON 2825
Cir. 2004), the previous warrant was invalid because it was
not supported by a sworn affidavit. The district court issued
a new bench warrant, and on September 18, 2009, federal
authorities arrested Watson in McAllen, Texas.
At the preliminary revocation hearing, Watson denied the
allegations in the petition, and the district court set the matter
for an evidentiary hearing. While preparing for that hearing,
Officer Gudino learned that Watson had been arrested for
state crimes in Minnesota eleven times between 1996 and
2007 and that there were three outstanding state warrants for
his arrest.
At the evidentiary hearing, Watson testified that he moved
to Minnesota sometime in 1995. He stated that he talked to a
person at the probation office in California about his plan to
move to Minnesota, although he did not know if he talked to
a probation officer or a receptionist, and claimed he was told
to call the probation office in Minnesota after his relocation.
He also asserted that the person “didn’t tell me that I didn’t
have permission” to move. Watson claimed that he called the
Minnesota probation office several times, but was told that the
office did not have his file, and that Watson should call the
California probation office, which he did not do.
Defense counsel argued that Watson was not on fugitive
status, that his term of supervised release had expired, and
that the district court had no jurisdiction to revoke his super-
vised release. The court rejected that argument, revoking Wat-
son’s supervised release and sentencing him to three years in
prison. Watson timely appealed.
DISCUSSION
We have jurisdiction under 28 U.S.C. § 1291. On de novo
review, United States v. Ignacio Juarez, 601 F.3d 885, 888
(9th Cir. 2010) (per curiam), we hold that Watson’s fugitive
status tolled the term of supervised release, and that the dis-
2826 UNITED STATES v. WATSON
trict court had jurisdiction to revoke the release and sentence
Watson to prison.
The district court’s authority to revoke a term of supervised
release “extends beyond the expiration of the term of super-
vised release for any period reasonably necessary for the adju-
dication 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.” 18 U.S.C. § 3583(i). In
Vargas-Amaya, we held that such a warrant must be “issued
‘upon probable cause, supported by Oath or affirmation,’ as
required by the Fourth Amendment.” 389 F.3d at 907 (quot-
ing U.S. Const. amend. IV). Here, the first warrant was issued
before Watson’s term of supervised release was set to expire,
but because it was not supported by an affidavit or sworn
facts, it could not extend the term of supervision under 18
U.S.C. § 3583(i). Officer Gudino submitted a new warrant
application, supported by a sworn declaration, on May 5,
2005, after Watson’s term of release was set to expire.
[1] A defendant’s term of supervised release is tolled,
however, when he is in “fugitive status.” United States v.
Crane, 979 F.2d 687, 691 (9th Cir. 1992). A defendant is in
fugitive status when he fails to comply with the terms of his
supervised release. United States v. Murguia-Oliveros, 421
F.3d 951, 953 (9th Cir. 2005). The fugitive tolling doctrine
rests on the principle that “[a] person on supervised release
should not receive credit against his period of supervised
release for time [when], by virtue of his own wrongful act, he
was not in fact observing the terms of his supervised release.”
Id. at 954. Where fugitive tolling applies, “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 authori-
ties.” United States v. Delamora, 451 F.3d 977, 978 (9th Cir.
2006); see also Ignacio Juarez, 601 F.3d at 890 (“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
UNITED STATES v. WATSON 2827
resuming supervision.”). “[F]ugitive tolling of a defendant’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.” Ignacio Juarez, 601 F.3d at 886.
Watson concedes that he became a fugitive when he failed
to notify his probation officer of his change of residence and
stopped submitting monthly reports, in October 1995. The
question here is whether Watson’s fugitive status ended when
federal authorities arrested him in 2009, or whether, as Wat-
son contends, his eleven arrests in Minnesota between 1996
and 2007 support an inference that he was “found by federal
authorities,” Delamora, 451 F.3d at 978, or that federal
authorities had constructive knowledge of his presence, well
before that time.
[2] The record supports no such inference. No evidence
suggests that federal authorities had actual knowledge of Wat-
son’s presence in Minnesota; rather, Officer Gudino testified
that she learned about his state convictions only while prepar-
ing for the December 17, 2009, evidentiary hearing. Watson’s
arrests in Minnesota brought him into contact only with state
authorities, and his Minnesota convictions were exclusively
for state crimes. Nor do Watson’s arrests by state authorities
justify imputing constructive knowledge to federal authorities.
In support of that contention, Watson cites United States v.
Gomez, 38 F.3d 1031, 1037-38 (8th Cir. 1994), where the
Eighth Circuit held that the defendant’s conviction for illegal
entry into the United States was barred by the five-year statute
of limitations because he had provided fingerprints to a fed-
eral agency more than five years before he was charged, giv-
ing the federal government constructive knowledge of his
presence. In Gomez, however, the constructive knowledge
imputed to the federal government was based on the defen-
dant’s contacts with federal law enforcement authorities. In
contrast, Watson’s contacts were exclusively with state
authorities, and nothing in the record indicates that federal
authorities had possession of, or access to, information about
2828 UNITED STATES v. WATSON
his state arrests. Accord Delamora, 451 F.3d at 979-81 (con-
cluding that the defendant’s fugitive status ended when he
was taken into federal custody, although California state
authorities had arrested him on suspicion of drug possession
and learned of his true identity earlier).
[3] Accordingly, Watson’s period of supervised release
was tolled until “federal authorities [were] capable of resum-
ing supervision,” Ignacio Juarez, 601 F.3d at 890, that is,
until his September 18, 2009, arrest by federal authorities. We
therefore hold that the district court had jurisdiction to revoke
his period of supervised release, and to impose a three-year
prison sentence.
AFFIRMED.