UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4551
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LUIS ANGEL GONZALES, a/k/a Luis Angel Gonzales Sanchez,
a/k/a Angel Gonzales, a/k/a Juis Angel Gonzales-Sanchez,
a/k/a Luis Angelgo Sanchez, a/k/a Luis Angel Sanchez,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr.,
Senior District Judge. (2:09-cr-00178-HCM-FBS-1)
Submitted: February 15, 2011 Decided: March 18, 2011
Before SHEDD and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Richard J.
Colgan, Assistant Federal Public Defender, Caroline S. Platt,
Research and Writing Attorney, Norfolk, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, Randy Stoker,
Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Luis Angel Gonzales pled guilty to a one-count
indictment charging him with illegal reentry into the United
States following deportation in violation of 8 U.S.C. § 1326(a)
(2006), and was sentenced to eight months’ imprisonment and one
year of supervised release, with the condition that “his period
of supervised release shall not commence until he surrenders to
the probation officer to begin serving that period, which is to
say, he’s not going to be serving supervised release while he’s
deported and outside of the United States.” The court further
ordered that upon completion of the term of imprisonment,
Gonzales is to be surrendered to immigration authorities for
deportation. On appeal, Gonzales argues that the district court
lacked the authority to delay the start of his supervised
release. We agree and, accordingly, affirm Gonzales’
conviction, vacate his sentence, and remand the case for further
proceedings. *
Supervised release is governed by 18 U.S.C. § 3583
(2006), which provides that a court, “in imposing a sentence
. . . may include as a part of the sentence a requirement that
the defendant be placed on a term of supervised release after
imprisonment.” 18 U.S.C. § 3583(a). A court imposing a term of
*
Gonzales does not challenge his conviction on appeal.
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supervised release is directed to examine specified sentencing
factors set forth in 18 U.S.C. § 3553(a) (2006) in determining
the length of the term. 18 U.S.C. § 3583(c). Courts are also
permitted to impose conditions on supervised release, including
the condition that the defendant not commit any crimes during
the term of supervised release. 18 U.S.C. § 3583(d). Section
3583(d) further permits a sentencing court to impose “any
condition” as “a further condition to supervised release,” so
long as the condition meets certain criteria, including that the
condition is “reasonably related” to the specified § 3553(a)
factors, involves “no greater deprivation of liberty than is
reasonably necessary,” and is consistent with the Sentencing
Commission’s policy statements. 18 U.S.C. § 3583(d)(1)-(3).
Section 3583(d) also provides that “[i]f an alien defendant is
subject to deportation, the court may provide, as a condition of
supervised release, that he be deported and remain outside the
United States, and may order that he be delivered to a duly
authorized immigration official for such deportation.” 18
U.S.C. § 3583(d).
In addition to § 3583, 18 U.S.C. § 3624(e) (2006)
supplies the statutory definition for when a term of supervised
release begins: “The term of supervised release commences on the
day the person is released from imprisonment.” 18 U.S.C.
§ 3624(e). The statute provides for the tolling of supervised
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release in a single circumstance—when the defendant is
imprisoned on an unrelated crime for more than thirty days. Id.
On appeal, Gonzales argues that, under the plain language of
§ 3624(e), the district court lacked the authority to delay the
start of his supervised release in the event he is deported
following his incarceration. Gonzales notes that his position
has the support of the five circuit courts that have addressed
the issue. See United States v. Cole, 567 F.3d 110 (3d Cir.
2009); United States v. Ossa-Gallegos, 491 F.3d 537 (6th Cir.
2007) (en banc); United States v. Okoko, 365 F.3d 962 (11th Cir.
2004); United States v. Juan-Manuel, 222 F.3d 480 (8th Cir.
2000); United States v. Balogun, 146 F.3d 141 (2d Cir. 1998).
The Government agrees with Gonzales that the district court
lacked the authority to delay the start of his supervised
release.
This appeal raises a question of statutory
interpretation. “When interpreting statutes we start with the
plain language.” U.S. Dep’t of Labor v. N.C. Growers Ass’n, 377
F.3d 345, 350 (4th Cir. 2004). In interpreting the plain
language of a statute, we give the terms their “ordinary,
contemporary, common meaning, absent an indication Congress
intended it to bear some different import.” North Carolina ex
rel. Cooper v. Tenn. Valley Auth., 515 F.3d 344, 351 (4th Cir.
2008) (alterations and internal quotation marks omitted).
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In this case, the plain language of § 3624(e) clearly
provides that supervised release starts “on the day” the
defendant is released from prison. The statute provides for
tolling only when the defendant is otherwise incarcerated, and
“the fact that Congress explicitly allows for tolling only when
a defendant is imprisoned indicates that Congress does not
intend for district courts to toll the period of supervised
release under any other circumstance.” Ossa-Gallegos, 491 F.3d
at 543. In contrast, in the case of probation, Congress has
provided for tolling mechanisms. See 18 U.S.C. § 3564(a) (“A
term of probation commences on the day that the sentence of
probation is imposed, unless otherwise ordered by the court.”).
In addition, we note that an opposite position would
result in certain inconsistencies. As the Third Circuit
explained, “a defendant charged with illegal reentry . . . may
be ordered to leave and stay outside of the United States as a
condition of his supervised release. If a defendant is removed
and ordered excluded from the United States as a condition of
supervised release, how can it be that the period of supervised
release is tolled during that period?” Cole, 567 F.3d at 115
(citations omitted).
Finally, while § 3583 does permit the district court
to impose conditions on supervised release, “‘tolling’ is not a
‘condition’ in the sense in which the term is used in
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§ 3583(d).” Ossa-Gallegos, 491 F.3d at 542. “[C]onditions”
within § 3583 “are contingencies upon which the right to
continue on supervised release depends,” and “the continuation
of supervised release is not contingent on tolling; rather,
tolling describes the existing state of supervised release—that
is, whether or not the period of supervised release is running.”
Id.
We conclude that the district court’s order runs afoul
of § 3624(e) because Gonzales’ supervised release will not
necessarily “commence on the day” his term of imprisonment ends.
Accordingly, although we affirm Gonzales’ conviction, we vacate
his sentence and remand for further proceedings consistent with
this opinion. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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