United States v. Buchanan

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 09-4834
WILLIAM BUCHANAN, a/k/a Kenneth
Parker,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, Senior District Judge.
(1:91-cr-00062-TSE-1)

Argued: December 10, 2010

Decided: April 13, 2011

Before WILKINSON, SHEDD, and DUNCAN,
Circuit Judges.

Affirmed by published opinion. Judge Shedd wrote the opin-
ion, in which Judge Wilkinson and Judge Duncan joined.

COUNSEL

ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.
Joseph V. Moreno, UNITED STATES DEPARTMENT OF
2 UNITED STATES v. BUCHANAN
JUSTICE, Washington, D.C., for Appellee. ON BRIEF:
Michael S. Nachmanoff, Federal Public Defender, Kevin R.
Brehm, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Alex-
andria, Virginia, for Appellee.

OPINION

SHEDD, Circuit Judge:

While on federal supervised release, William Buchanan
absconded and remained a fugitive for approximately 13
years. After Buchanan was apprehended the district court
found that he had committed multiple supervised release vio-
lations from the time he absconded until he was retaken; con-
sequently, it revoked his supervised release and sentenced
him to separate concurrent custody terms of 48 months, 36
months, and 27 months. Buchanan now appeals the revocation
order in part, and the 36- and 27-month sentences, arguing
that the court lacked jurisdiction to adjudicate the violations
associated with those sentences because they were not
charged in a warrant or summons before the scheduled expira-
tion of his supervised release term. The court rejected this
argument, concluding that the supervised release term was
tolled while Buchanan was a fugitive. United States v.
Buchanan, 632 F. Supp.2d 554 (E.D.Va. 2009). Because we
agree with the court’s conclusion, we affirm.

I

In 1991, Buchanan pled guilty in the Eastern District of
Virginia to one count of conspiracy to distribute 50 grams or
more of crack cocaine. The district court sentenced him to a
120-month term of imprisonment, which it subsequently
reduced to 30 months on the government’s substantial assis-
 UNITED STATES v. BUCHANAN 3
tance motion. The court also imposed a five-year supervised
release term.

In March 1993, Buchanan was released from federal cus-
tody, and his supervised release term commenced. Because he
was an Ohio resident, his immediate supervision was trans-
ferred to the United States Probation Office in the Northern
District of Ohio. However, jurisdiction over his supervision
was maintained by the United States Probation Office in the
Eastern District of Virginia. Therefore, Buchanan had a pro-
bation officer in Ohio to whom he was required to report, as
well as a probation officer in Virginia who monitored his
supervision. Buchanan’s supervised release term was sched-
uled to end in March 1998.

In May 1994, Buchanan was indicted in Ohio on state drug
trafficking charges. He was released on bond, but in February
1995 he failed to appear for trial in state court, resulting in the
issuance of a state arrest warrant. Buchanan’s last personal
contact with his Ohio probation officer occurred in January
1995. Shortly thereafter, the Ohio probation officer deter-
mined that Buchanan had absconded from federal supervision.

In April 1995, the Virginia probation officer submitted to
the district court a "Petition on Probation and Supervised
Release" (the "Petition"), alleging that Buchanan violated the
terms and conditions of his supervised release by incurring a
new criminal charge in Ohio, by failing to report to his Ohio
probation officer as directed, and by failing to notify his Ohio
probation officer within 72 hours of any change in residence
or employment. Consequently, the court issued an arrest war-
rant, which remained outstanding until December 2008, when
Buchanan was located and arrested in Georgia.

In February 2009, an addendum to the Petition was filed
alleging that during the time he was a fugitive Buchanan had
violated the terms and conditions of his supervised release in
several respects. Specifically, this addendum alleges that (1)
4 UNITED STATES v. BUCHANAN
in September 1996, Buchanan was arrested in Alabama for
marijuana trafficking; (2) in March 2005, he was arrested in
Missouri for (inter alia) possession of a controlled substance
and unlawful use of a weapon; (3) in January 2008, he was
arrested in Georgia for driving under the influence; and (4) in
December 2008, he was arrested in Georgia for entering an
auto or other motor vehicle with intent to commit a theft or
felony, and financial transaction card fraud. In March 2009,
a second addendum to the Petition was filed, alleging that in
2008 Buchanan violated the terms and conditions of his
supervised release by committing the crime of identity theft
in Georgia. Buchanan avoided federal detection for these
arrests by using various aliases.

Upon his return to the Eastern District of Virginia,
Buchanan conceded that the Petition (setting forth the 1995
charges) was properly before the district court, but he moved
to dismiss the two addenda, contending that the court lacked
jurisdiction over them because his scheduled supervised
release term expired in March 1998, and the addenda were not
filed until 2009. He argued that the supervised release statutes
provide only two ways in which the release term may be
adjusted or the court can exercise control over the defendant
outside that period. The first way is codified in 18 U.S.C.
§ 3624(e), which allows for a supervised release term to be
tolled during any period in which the defendant is imprisoned
for 30 days or more in connection with another crime. The
second is codified in 18 U.S.C. § 3583(i), which authorizes a
district court to exercise authority over a defendant after the
scheduled expiration of the supervised release term for a rea-
sonable period to adjudicate a matter arising before the expi-
ration of the term if a warrant or summons for that matter is
issued during the term.1 Reading these statutes in light of the
1
When applicable, § 3624(e) stops the running of the supervised release
period and is thus a tolling provision. See United States v. Ide, 624 F.3d
666 (4th Cir. 2010). However, § 3583(i) "does not stop the running of the
supervised release period; rather, it extends the district court’s power to
revoke beyond the supervised release period in certain circumstances."
United States v. Jordan, 572 F.3d 446, 448 (8th Cir. 2009).
 UNITED STATES v. BUCHANAN 5
canon "expressio unius est exclusio alterius" – Buchanan con-
tended that the court was not authorized to adjudicate the vio-
lations set forth in the addenda because no warrant or
summons issued for them during the supervised release term.

The district court denied the motion, holding that Buchan-
an’s supervised release term was tolled while he was a fugi-
tive. The court concluded that the supervised release statutes
do not address the issue of fugitive tolling and that its applica-
tion is consistent with the congressional purpose of supervised
release and the law relating to fugitives generally. On the
merits of the violations, the court found Buchanan guilty on
the 1995 charges that he failed to appear in Ohio state court
for the drug trafficking indictment and failed to maintain con-
tact with his probation officer, the 1996 Alabama drug traf-
ficking charge, and the 2008 Georgia identity theft charge.
The court imposed concurrent sentences of 48 months, 36
months, and 27 months, respectively, and dismissed the
remaining alleged violations.

II

On appeal, Buchanan reiterates the statutory argument he
made below, contending that the district court erred by deny-
ing his motion to dismiss the addenda.2 Stated simply, the
issue before us is whether a sentencing court is authorized to
revoke a term of supervised release after the scheduled expi-
ration date of the release term for conduct that (a) occurs
while the defendant has absconded from supervision and (b)
2
Buchanan does not challenge either the district court’s findings that he
committed the conduct underlying the violations or its authority to impose
the 48-month sentence. Therefore, regardless of our decision, he will be
subject to the 48-month sentence. Because that sentence is concurrent to
the others, the "concurrent sentence doctrine" is potentially applicable in
this case; however, we exercise our discretion to decide the appeal on the
merits. See Benton v. Maryland, 395 U.S. 784 (1969) (discussing doc-
trine); United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980)
(same).
6 UNITED STATES v. BUCHANAN
is not brought to the court’s attention until after the term’s
scheduled expiration date when the defendant is apprehended.
This is a matter of law that we review de novo. See Ide, 624
F.3d at 668.

A.

We begin with an overview of the pertinent aspects of the
supervised release system. In the Sentencing Reform Act of
1984, "Congress eliminated most forms of parole in favor of
supervised release, a form of postconfinement monitoring
overseen by the sentencing court, rather than the Parole Com-
mission." Johnson v. United States, 529 U.S. 694, 696-97
(2000). Supervised release is similar to parole in essential
respects, United States v. Pierce, 75 F.3d 173, 177 (4th Cir.
1996), but "Congress designed supervised release as the suc-
cessor to parole . . . because it believed that the parole system
provided inadequate supervision," United States v. Armstrong,
187 F.3d 392, 394 (4th Cir. 1999).

Supervised release "is not a punishment in lieu of incarcer-
ation." United States v. Granderson, 511 U.S. 39, 50 (1994).
Rather, it "is a unique method of post-confinement supervi-
sion," Gozlon-Peretz v. United States, 498 U.S. 395, 407
(1991), that "fulfills rehabilitative ends, distinct from those
served by incarceration," United States v. Johnson, 529 U.S.
53, 59 (2000). "The congressional policy in providing for a
term of supervised release after incarceration is to improve
the odds of a successful transition from the prison to liberty,"
Johnson v. United States, 529 U.S. at 708-09, and "Congress
has manifested an intent to require full service of supervised
release for rehabilitative purposes," United States v. Bowe,
309 F.3d 234, 240 (4th Cir. 2002).

The maximum length of a supervised release term varies
according to the severity of the initial offense. See 18 U.S.C.
§§ 3583(a), (b). The term commences on the day the defen-
dant "is released from imprisonment and runs concurrently
 UNITED STATES v. BUCHANAN 7
with any Federal, State, or local term of probation or super-
vised release or parole for another offense to which the person
is subject or becomes subject during the term of supervised
release," but it does not run (i.e., is tolled) during any period
in which the defendant "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." 18 U.S.C. § 3624(e).

A defendant who is on supervised release must abide by
certain mandatory and discretionary terms and conditions, see
18 U.S.C. § 3583(d), which constitute "a substantial imposi-
tion on [his] liberty," United States v. Maxwell, 285 F.3d 336,
342 (4th Cir. 2002). If the defendant violates a term or condi-
tion of release, the sentencing court may (and in some
instances must) revoke the supervised release and require him
"to serve in prison all or part of the term of supervised release
authorized by statute for the offense that resulted in such term
of supervised release without credit for time previously served
on postrelease supervision," subject to certain statutory limits.
18 U.S.C. § 3583(e)(3). "[T]he term of supervised release, the
revocation of that term, and any additional term of imprison-
ment imposed for violating the terms of the supervised release
are all part of the original sentence." United States v. Evans,
159 F.3d 908, 913 (4th Cir. 1998).

Apart from the tolling provision of § 3624(e), the super-
vised release statutes were initially silent regarding whether a
sentencing court could revoke supervised release after the
scheduled expiration of the release term. In the face of this
silence, many courts "recognized that unless a court retains
some authority to punish violations of supervised release after
the expiration of the term, violations of the conditions of
release (which can include serious misconduct) that occur late
in the term of supervised release would go unpunished."
United States v. Janvier, 599 F.3d 264, 265-66 (2d Cir. 2010).
Reasoning "that Congress could not have intended such
unfortunate results," these courts held that "[s]o long as some
8 UNITED STATES v. BUCHANAN
triggering event had occurred during the term of release, . . .
a court would retain jurisdiction over the releasee for the time
necessary to adjudicate the charge." Id. at 266.

We were presented with this issue in United States v. Bar-
ton, 26 F.3d 490 (4th Cir. 1994). There, we held that "courts
retain jurisdiction to hold hearings related to revocation of
supervised release for a reasonable period after the term of
release expires when a petition charging a violation of the
conditions of supervised release is filed during the period of
supervised release." Id. at 491. We found that the plain lan-
guage of § 3583(e)(3), which provides for revocation, com-
pelled this result because that section incorporates the Federal
Rules of Criminal Procedure that are applicable to supervised
release revocation, and one such rule provided for a revoca-
tion hearing "within a reasonable time." As we explained: "If
a petition is filed near the end of the supervisory period, the
only logical construction of ‘within a reasonable time’ is that
a hearing may be held shortly after the supervisory period
expires." 26 F.3d at 491-92. We rejected the defendant’s argu-
ment that "because a tolling provision is included in 18 U.S.C.
§ 3565, which governs revocation of probation, but is not
included in . . . § 3583, Congress did not intend for the district
court’s jurisdiction to continue beyond the term of supervised
release." 26 F.3d at 492 (footnote omitted).

In 1994, Congress enacted § 3583(i), which is titled "De-
layed revocation," to "make explicit the authority of courts to
revoke supervised release after expiration of the release term.
. . ." Janvier, 599 F.3d at 266. Section 3583(i) provides that
the sentencing court’s power to revoke supervised release
"extends beyond the expiration of the term of supervised
release for any period reasonably necessary for the adjudica-
tion of matters arising before its expiration if, before its expi-
ration, a warrant or summons has been issued on the basis of
an allegation of such a violation."
 UNITED STATES v. BUCHANAN 9
B.

The supervised release statutes do not address the issue of
fugitive tolling, and we have not previously addressed it in the
supervised release context. However, we alluded to the doc-
trine in the analogous context of probation revocation in
United States v. Workman, 617 F.2d 48 (4th Cir. 1980), stat-
ing that "a probationer [cannot] obtain credit against the [pro-
bation] period for any period of time during which he was not,
in fact, under probationary supervision by virtue of his own
wrongful act." Id. at 51. Our holding in Workman is consistent
with the general rule that "when the service of a sentence is
interrupted by conduct of the defendant the time spent out of
custody on his sentence is not counted as time served
thereon." United States v. Luck, 664 F.2d 311, 312 (D.C. Cir.
1981); see also Theriault v. Peek, 406 F.2d 117, 117 (5th Cir.
1968) ("Escape from prison interrupts service, and the time
elapsing between escape and retaking contribute[s] nothing to
the service of the sentence.").3

The Supreme Court applied this general rule in the parole
context in Anderson v. Corall, 263 U.S. 193 (1923). There,
the defendant was paroled in February 1916 after serving part
of his three-year federal criminal sentence. While on parole,
he was convicted of a state crime, and in October 1916 he was
confined in state prison for three years. After the defendant
3
There is a strong federal policy disfavoring fugitives in analogous cir-
cumstances. This policy arises from the "[d]eeply rooted" maxim "that no
man may take advantage of his own wrong." Glus v. Brooklyn East. Dist.
Term., 359 U.S. 231, 232 (1959). See, e.g., 18 U.S.C. § 3290 ("No statute
of limitations shall extend to any person fleeing from justice."); Jaffe v.
Accredited Sur. & Cas. Co., 294 F.3d 584 (4th Cir. 2002) (discussing the
fugitive disentitlement doctrine); United States v. Kosko, 870 F.2d 162,
164 (4th Cir. 1989) (in affirming the denial of a continuance motion for
a defendant who had absconded during pretrial proceedings, we stated that
"to have granted him the continuance . . . which he sought would have
been to reward him for his misconduct in violating the conditions of his
release and remaining a fugitive from justice").
10 UNITED STATES v. BUCHANAN
was released from state prison in December 1919, he was
retaken into federal custody, and shortly thereafter the parole
board revoked his parole. The defendant then sought habeas
relief, arguing that his three-year federal sentence had ended
in March 1917 while he was in state prison. The defendant
prevailed in the lower courts, but the Supreme Court reversed.

The Court began its analysis by observing that "[m]ere
lapse of time without imprisonment or other restraint contem-
plated by the law does not constitute service of sentence.
Escape from prison interrupts service, and the time elapsing
between escape and retaking will not be taken into account or
allowed as a part of the term." Id. at 196. The Court then
noted that parole does not "suspend service or operate to
shorten the term," and "[w]hile on parole the convict is bound
to remain in the legal custody and under the control of the
warden until the expiration of the term, less allowance, if any,
for good conduct." Id. Given this framework, the Court stated
that although parole is "an amelioration of punishment, it is
in legal effect imprisonment." Id. Applying these principles to
the facts of the case, the Court concluded:

Corall’s violation of the parole, evidenced by the
warden’s warrant and his conviction, sentence to and
confinement in the [state] penitentiary, interrupted
his service under the sentence here in question, and
was in legal effect on the same plane as an escape
from the custody and control of the warden. His sta-
tus and rights were analogous to those of an escaped
convict. The term of his sentence had not expired in
October, 1916, when . . . he was convicted of
another crime and sentenced to the [state] peniten-
tiary. Then – if not earlier – he ceased to be in the
legal custody and under the control of the warden of
the [federal] penitentiary, as required by section 3 of
the act and the terms of the parole authorized
thereby. His claim that his term expired in 1917
before he was retaken and while he was serving sen-
 UNITED STATES v. BUCHANAN 11
tence [in state prison] cannot be sustained, and we
hold that it had not expired in January, 1920, at the
time of the action of the board.

Id. at 196-97.4

C.

The First and the Ninth Circuits appear to be the only other
circuit courts to have considered the question of fugitive toll-
ing in the supervised release context. Those courts have
reached different conclusions.

Consistent with the general rule discussed above, the Ninth
Circuit applies tolling in the supervised release context when
a defendant has absconded, explaining that the fugitive tolling
doctrine rests on the principle that a person on supervised
release "should not receive credit against his period of super-
vised release for time that, by virtue of his own wrongful act,
he was not in fact observing the terms of his supervised
release." United States v. Murguia-Oliveros, 421 F.3d 951,
954 (9th Cir. 2005). In the Ninth Circuit’s view, a contrary
ruling "would reward those who flee from bench warrants and
4
Similarly, in Zerbst v. Kidwell, 304 U.S. 359 (1938), the defendants,
while on federal parole, committed federal crimes for which they were
convicted and sentenced. After serving their second sentences, the defen-
dants were held in custody pursuant to a parole violation warrant. Eventu-
ally, their habeas proceedings reached the Supreme Court, which held that
not only had the defendants forfeited the privileges of parole, but since
they were "no longer in either actual or constructive custody under [their]
first sentence, service under the second sentence cannot be credited to the
first without doing violence to the plain intent and purpose of the statutes
providing for a parole system." Id. at 361. Notably, the Court stated: "It
is not reasonable to assume that Congress intended that a parolee whose
conduct measures up to parole standards should remain under control of
the board until expiration of the term of his sentence, but that misconduct
of a parole violator could result in reducing the time during which the
board has control over him to a period less than his original sentence." Id.
at 363.
12 UNITED STATES v. BUCHANAN
maintain their fugitive status until the expiration of their origi-
nal term of supervised release." United States v. Crane, 979
F.2d 687, 691 (9th Cir. 1992). Applying this rule, the Ninth
Circuit holds that "[f]ugitive tolling begins when the defen-
dant absconds from supervision — making it impossible for
the Probation Office to supervise his actions — and ends
when federal authorities are capable of resuming supervi-
sion." United States v. Ignacio Juarez, 601 F.3d 885, 890 (9th
Cir. 2010).

The First Circuit has rejected the Ninth Circuit’s view,
holding that "there can be no tolling of the period of super-
vised release on the basis of fugitive status." United States v.
Hernandez-Ferrer, 599 F.3d 63, 64 (1st Cir. 2010). In reach-
ing this conclusion, the court primarily relied on the plain lan-
guage of § 3624(e) (the "delayed revocation" provision). As
it explained:

To begin, the statutory provisions touching upon
supervised release neither expressly require nor
expressly permit tolling during the interval when an
offender is in fugitive status. The only tolling provi-
sion that Congress saw fit to enact is contained in 18
U.S.C. § 3624(e), which tolls the running of a term
of supervised release during any period in which an
offender is imprisoned for thirty days or more in
connection with a different crime. The absence of an
express tolling provision for fugitive status, coupled
with the presence of an express tolling provision that
encompasses other circumstances, is highly signifi-
cant. The maxim "expressio unius est exclusio
alterius" – which translates roughly as "the expres-
sion of one thing is the exclusion of other things" –
is a venerable canon of statutory construction, and
that maxim is directly applicable here.

599 F.3d at 67-68 (citations omitted).
 UNITED STATES v. BUCHANAN 13
Bolstering its conclusion, the First Circuit noted that sev-
eral courts citing the expressio unius canon have ruled that the
supervised release statutes do not authorize tolling a term of
supervised release during the period that a defendant is absent
from the country because of deportation. In light of this
authority, the court observed:

[T]he fact that Congress provided for tolling a period
of supervised release only when an offender is
imprisoned for a different crime is a decisive argu-
ment for the proposition that Congress did not intend
to toll a period of supervised release for any other
reason (including an offender’s fugitive status). If
Congress had wanted to authorize tolling when an
offender absconds from supervision, we believe that
it would have said so.

Id. at 68 (footnote omitted).5

The First Circuit also expressly disagreed with the Ninth
Circuit’s determination that failure to apply fugitive tolling
rewards a defendant who absconds and remains a fugitive
until his supervised release term expires. The court pointed to
§ 3583(i) and stated that "as long as a warrant or summons
issues before the expiration of the term, an offender who
remains a fugitive will still be subject to the court’s jurisdic-
tion once located, and his conduct while a fugitive will be
considered at sentencing. It follows that a judicially contrived
tolling mechanism is not necessary to deter offenders from
absconding." 599 F.3d at 69 (citation omitted).

Factually, Hernandez-Ferrer is similar to the instant case
because the district court had before it two violations: one that
5
Additionally, the First Circuit found that in light of certain caselaw that
predated the Sentencing Reform Act, Congress’ codification of a tolling
provision only for terms of imprisonment indicates that Congress did not
intend for any other tolling provision to apply.
14 UNITED STATES v. BUCHANAN
was concededly within the scheduled supervised release term
and one that occurred after the term’s scheduled expiration
date. Although the First Circuit held that fugitive tolling could
not operate to permit the court to revoke supervised release
based on the latter violation, it also held that the court could
consider the conduct underlying that violation when sentenc-
ing the defendant for the prior violation. As it explained:
"Crimes committed by an offender between the occurrence of
a supervised release violation and sentencing for that violation
are relevant in weighing the need for deterrence — a key con-
sideration mandated by section 3583(e)." Id.6

D.

Having considered the foregoing authorities, we agree with
the district court and the Ninth Circuit and hold that a term of
supervised release is tolled when a defendant absconds from
supervision. As noted, the supervised release term constitutes
part of the original criminal sentence, and the congressional
intent is for defendants to serve their full release term. Just as
an escaped prisoner or parole violator is not credited for time
during which they are not in compliance with their criminal
sentence, a fugitive from supervised release should not be so
credited. A contrary holding would not only thwart congres-
sional intent but also potentially reward an absconder for his
misconduct. See generally United States v. Johnson, 138 F.3d
115, 119 (4th Cir. 1998) (noting that "Congress never
intended . . . for sentencing to become a hyper-technical exer-
cise devoid of common sense").7
6
Notwithstanding the First Circuit’s criticism, the Ninth Circuit contin-
ues to apply fugitive tolling in the supervised release context. See United
States v. Watson, 633 F.3d 929 (9th Cir. 2011).
7
We disagree with the First Circuit’s statement that tolling is unneces-
sary to avoid allowing a defendant to benefit from absconding. That state-
ment may have merit in cases where a petition or summons is filed before
the expiration of the supervised release term, in which case the § 3583(i)
delayed revocation provision would extend the sentencing court’s author-
 UNITED STATES v. BUCHANAN 15
It is true that Congress has created a supervised release toll-
ing provision in only one instance — § 3624(e). As noted,
Buchanan and the First Circuit rely on the expressio unius
canon and point to § 3624(e) as evidencing congressional
intent to preclude fugitive tolling of the supervised release
term. We find the expressio unius canon to be unavailing. See
generally Chickasaw Nation v. United States, 534 U.S. 84, 94
(2001) (noting that statutory canons "are not mandatory rules"
and that "other circumstances evidencing congressional intent
can overcome their force"). Section 3624(e)’s tolling provi-
sion appears to be based on the fact that a defendant who is
imprisoned for more than 30 days is not, while imprisoned,
under the supervision contemplated by the supervised release
statutes. To effectuate its intent to require service of the full
supervised release term, Congress determined that tolling in
that instance is necessary. See United States v. Jackson, 426
F.3d 301, 305 (5th Cir. 2005) ("Shortening the period of
supervised release reduces the amount of time a former pris-
oner is monitored by the system and undermines the rehabili-
tative goals Congress pursued in enacting § 3624. While
Jackson was in prison, purposefully kept out of the commu-
nity, his probation officer could not supervise him; it was
impossible for his probation officer to assist him in returning
to the community.").

We do not believe that Congress’ decision to address super-
vised release tolling only in the imprisonment context answers
the question of whether fugitive tolling is applicable. As the
Supreme Court has made clear, congressional silence on an
issue is not always indicative of congressional intent, see, e.g.,

ity beyond the scheduled expiration date. However, it does not take into
account a case where a defendant absconds late in the release term and his
absence is not detected in time for a warrant or summons to be issued
before the term expires. Without issuance of such a warrant or summons,
that defendant would be beyond the sentencing court’s authority under the
First Circuit’s holding, and he would have thus avoided with impunity
serving the full supervised release term.
16 UNITED STATES v. BUCHANAN
Staples v. United States, 511 U.S. 600, 605 (1994), and courts
should "not read the enumeration of one case to exclude
another unless it is fair to suppose that Congress considered
the unnamed possibility and meant to say no to it," Barnhart
v. Peabody Coal Co., 537 U.S. 149, 168 (2003).8 Moreover,
"the normal rule of statutory construction is that if Congress
intends for legislation to change the interpretation of a judi-
cially created concept, it makes that intent specific." Midlan-
tic Nat’l Bk. v. N.J. Dept. of Env. Prot., 474 U.S. 494, 501
(1986). We find no indication to suggest that Congress con-
sidered the issue and intended to preclude the judicially cre-
ated doctrine of fugitive tolling in the supervised release
context. See Young v. United States, 535 U.S. 43, 52 (2002)
(rejecting the argument that the presence of a tolling provision
in one bankruptcy statute, and the absence of such a provision
in another bankruptcy statute, compels the conclusion that
Congress intended to preclude tolling under the latter statute);
Barton, 26 F.3d at 492 (rejecting the argument that "because
a tolling provision is included in 18 U.S.C. § 3565, which
governs revocation of probation, but is not included in . . .
§ 3583, Congress did not intend for the district court’s juris-
diction to continue beyond the term of supervised release."
(footnote omitted)).

We are aware that in United States v. Johnson, the Supreme
Court addressed § 3624(e) and stated: "When Congress pro-
vides exceptions in a statute, it does not follow that courts
have authority to create others. The proper inference, and the
one we adopt here, is that Congress considered the issue of
exceptions and, in the end, limited the statute to the ones set
forth." 529 U.S. at 58. However, read in context, that state-
ment does not preclude fugitive tolling. In that case, two of
the defendant’s multiple convictions had been vacated, which
led to his serving too much time in prison. As a consequence,
8
As the 11th Circuit has explained, congressional silence can be inter-
preted in a variety of ways. Tug Allie-B, Inc. v. United States, 273 F.3d
936, 945 (11th Cir. 2001).
 UNITED STATES v. BUCHANAN 17
the defendant argued that his supervised release term should
have commenced at the time he was supposed to have been
released from prison rather than when he was actually
released. In other words, he contended that his supervised
release term ran concurrently with the excess period during
which he was imprisoned. Relying on the plain language of
§ 3624(e), the Court rejected this argument. The Court noted
that § 3624(e) allows for concurrent counting in certain cir-
cumstances, none of which was applicable.9 It is clear from
the context that the Court’s statement regarding the limitation
of exceptions in § 3624(e) is directed at concurrent counting,
and the Court was not addressing whether Congress meant to
preclude alternate forms of tolling.

We also recognize that several circuit courts have held that
tolling a term of supervised release during a defendant’s
absence from the United States because of an immigration
removal order is impermissible. However, we agree with the
district court that fugitive tolling is distinguishable because
the fugitive-defendant’s absence arises from his own miscon-
duct. The same cannot be said about a defendant who has
been removed from the country by government order.

E.

When applicable, tolling operates to "stop the clock." See
United States v. Ibarra, 502 U.S. 1, 4 n.2 (1991) ("Principles
of equitable tolling usually dictate that when a time bar has
been suspended and then begins to run again upon a later
event, the time remaining on the clock is calculated by sub-
tracting from the full limitations period whatever time ran
before the clock was stopped."). This point is made clear in
9
One of the concurrent provisions is set forth in the tolling sentence of
§ 3624(e). Specifically, that provision allows for supervised release to run
concurrently with a term of imprisonment of less than 30 consecutive
days. If the term of imprisonment is 30 days or more, then the supervised
release term is tolled.
18 UNITED STATES v. BUCHANAN
§ 3624(e), which specifies that the term "does not run" while
the defendant is imprisoned for another crime for 30 or more
consecutive days. Thus, when a defendant absconds from
supervised release, his supervised release "clock" stops, and
it resumes when federal authorities are capable of resuming
supervision.

Buchanan contends that, as applied in this case, tolling
effectively operates to do more than stop the clock. He argues
that tolling extends his term beyond five years because the
district court revoked his release and sentenced him not only
for the 1995 violations relating to his flight from supervision,
but also for conduct that occurred during the 13-year period
in which he was a fugitive. We are unpersuaded.

When a defendant absconds while on supervised release,
his absence precludes the sentencing court from exercising
supervision over him. Tolling is necessary in that instance to
ensure that, upon being apprehended, the defendant will be
subject to judicial supervision for a complete term. However,
that does not mean that a defendant who has absconded
thereby nullifies the terms and conditions of the supervised
release order during his flight. Rather, the terms and condi-
tions remain in effect, and the fugitive-defendant is not at lib-
erty to embark on a "holiday" from them. To the extent that
this result may seem harsh, it is the defendant’s own miscon-
duct which creates it.

III

Buchanan absconded from his five-year supervised release
term in 1995, which was the second year of the term, and he
was not brought back under the district court’s supervision
until late 2008. His supervised release term was tolled during
the 13 years he was a fugitive, and it recommenced when the
court was able to exercise supervision over him. Because he
had approximately three years remaining on his supervised
release term, the court had the authority to revoke his super-
 UNITED STATES v. BUCHANAN 19
vised release for the violations set forth in the addenda.
Accordingly, we affirm the order of revocation and the con-
current sentences imposed thereto.

AFFIRMED