United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 6, 2016 Decided July 19, 2016
No. 12-3086
UNITED STATES OF AMERICA,
APPELLEE
v.
BRIAN D. MARSH,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:03-cr-00423-1)
Mary E. Davis, appointed by the court, argued the cause
and filed the briefs for appellant.
Jay Apperson, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Elizabeth Trosman
and Elizabeth H. Danello, Assistant U.S. Attorneys.
Before: TATEL, SRINIVASAN, and PILLARD, Circuit
Judges.
Opinion for the Court filed by Circuit Judge TATEL.
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TATEL, Circuit Judge: This case raises the question
whether 18 U.S.C. § 3624(e), which provides that “[a] term of
supervised release does not run during any period in which [a]
person is imprisoned in connection with a conviction for a
Federal, State, or local crime,” tolls a supervised-release term
during a period of pretrial detention if the defendant is later
convicted of the charges on which he is held and receives
credit toward his sentence for the time served in pretrial
detention. For the reasons set forth below, we hold that it does
not.
I.
In 2004, appellant Brian Marsh pled guilty to one count
of unlawful possession with intent to distribute 100 grams or
more of phencyclidine. Shortly thereafter, the district court
sentenced him to 63 months’ imprisonment, followed by four
years of supervised release. Marsh completed his term of
incarceration on May 9, 2008. His term of supervised release
was, therefore, set to expire on May 8, 2012.
Roughly nine months prior to that scheduled expiration,
on August 11, 2011, Marsh was indicted for several new
drug-trafficking offenses. He was arrested six days later, on
August 17, and detained pending trial. He ultimately pled
guilty to the new charges on June 19, 2012, and, on
September 20, a different district judge sentenced him to 150
months’ imprisonment, with credit for time served, followed
by five years of supervised release.
Marsh’s convictions for these later offenses established
that he had violated the conditions of his supervised release
by engaging in criminal activity. See 18 U.S.C. § 3583(d)
(mandating, as a condition of supervised release, that “the
defendant not commit another Federal, State, or local crime
during the term of supervision”). Thus, on September 21, the
3
day after his sentencing in the second case, the district court
that presided over his 2004 conviction held a hearing to
address the apparent violation. At the hearing, the court
purported to revoke Marsh’s supervised-release term and to
sentence him to the statutory maximum of 36 months’
imprisonment, to run consecutive to the 150 months imposed
for the new charges. See Revocation Hr’g Tr. 24 (Sept. 21,
2012); see also 18 U.S.C. § 3583(e)(3).
Marsh now appeals, raising two principal challenges.
First, he contends that his supervised-release term ended on
May 8, 2012, and that the district court consequently lacked
jurisdiction in September 2012 to revoke his term of
supervised release and to impose an additional period of
incarceration. Second, he contends that even if the district
court had jurisdiction, it plainly erred in sentencing him by,
among other things, applying an across-the-board policy of
imposing the maximum sentence available when a defendant
commits a crime while on supervised release. Because we
agree with Marsh’s first challenge—that the district court
lacked jurisdiction to revoke his term of supervised release
and to impose a further period of incarceration—we need not
address the alleged defects in the district court’s sentencing
procedures.
II.
As a threshold matter, Marsh contends that, in September
2012, the district court lacked authority to revoke his term of
supervised release and to impose an additional period of
imprisonment because he was no longer under its supervision.
We review that jurisdictional question de novo. See Board of
Trustees of Hotel & Restaurant Employees Local 25 v.
Madison Hotel, Inc., 97 F.3d 1479, 1483 (D.C. Cir. 1996); see
also, e.g., United States v. Johnson, 581 F.3d 1310, 1311
4
(11th Cir. 2009) (per curiam) (reviewing a district court’s
jurisdiction to revoke a supervised-release term de novo).
A.
Both parties agree that, absent tolling, Marsh’s
supervised-release term was set to expire on May 8, 2012.
Both parties also agree that the district court had no authority
to act after the expiration of Marsh’s supervised-release term
because no warrant or summons ever issued with respect to
his supervised-release violation. See 18 U.S.C. § 3583(i)
(providing that a district court’s “power . . . to revoke a term
of supervised release . . . and to order the defendant to serve a
term of imprisonment . . . extends beyond the expiration of
the term of supervised release for any period reasonably
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 violation”
(emphasis added)).
The question, then, is whether Marsh’s supervised-
release term was tolled for any reason. The government
argues that it was, and that it continued well beyond
September 2012, because it was tolled during the thirteen
months that Marsh was in pretrial detention for his new drug-
trafficking offenses. The government relies on 18 U.S.C.
§ 3624(e), which provides that “[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
less than 30 consecutive days.” As the government sees it,
pretrial detention qualifies as a “period in which the person is
imprisoned in connection with a conviction” if the defendant
is ultimately convicted of the charges on which he is held and
receives credit toward his sentence for the time served in
pretrial detention. And because Marsh was later convicted of
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the charges on which he was held from August 17, 2011, to
September 20, 2012, and because he received credit toward
his sentence for that time, the government contends that his
supervised-release term continued well after September 2012.
Whether section 3624(e) tolls a term of supervised
release during a period of pretrial detention where the
defendant is ultimately convicted of the charges on which he
is held is a matter of first impression in this circuit. Five other
circuits have, however, considered the issue and are split.
One circuit—the Ninth—has ruled that “pretrial detention
does not constitute an ‘imprisonment’ within the meaning of
§ 3624(e) and thus does not operate to toll a term of
supervised release.” United States v. Morales-Alejo, 193 F.3d
1102, 1106 (9th Cir. 1999). That court reasoned that the
phrase “imprisoned in connection with a conviction”
necessarily implies “imprisonment resulting from or
otherwise triggered by a criminal conviction”—that is,
imprisonment following, not preceding, a conviction. Id. at
1105. It further reasoned that “Congress uses the terms
‘imprisonment’ and ‘detention’ very differently,” and that the
former indicates “a penalty or sentence” following a
conviction. Id. The court also saw nothing in the statute
indicating that Congress intended courts to conduct
“backward-looking” tolling analyses. Id. According to the
court, moreover, such a backward-looking approach would be
“impractical.” Id. The court explained that if section 3624(e)
tolls a supervised-release term while a defendant is in pretrial
detention so long as he is ultimately convicted of the charges
on which he is held and receives credit for time served, then
there would be times when courts would be unable to
determine whether they retained jurisdiction over defendants
because those defendants had served time in pretrial detention
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but had yet to be acquitted or convicted of the charges on
which they were held. Id. at 1105–06.
After the Ninth Circuit ruled, four other circuits—the
Fourth, Fifth, Sixth, and Eleventh—reached the opposite
conclusion. The first of these to rule, the Sixth Circuit, began
its analysis by rejecting the Ninth Circuit’s conclusion that the
word “imprisoned” necessarily refers to periods of
confinement following a conviction. See United States v.
Goins, 516 F.3d 416, 422 (6th Cir. 2008). In its view, the
plain meaning of “imprisoned” is to be held in confinement
by the state irrespective of whether that confinement precedes
or follows a conviction. Id. The court further reasoned that the
Ninth’s Circuit’s definition of “imprisoned” would render the
phrase “in connection with a conviction” superfluous because
“imprisoned” would already connote the existence of a
conviction. Id. at 421. Having rejected the Ninth Circuit’s
analysis, the Sixth Circuit zeroed in on the phrase “in
connection with a conviction” and concluded that it “plainly”
encompasses periods of pretrial detention where the person is
later convicted and receives credit for time served. Id. at 422.
Those periods, the court stated, are periods of confinement
served “in connection with a conviction.” Id.
While acknowledging that its interpretation would
sometimes require a backward-looking tolling analysis to
determine whether a supervised-release term continues to run,
the Sixth Circuit believed that “nothing in the statute suggests
that only forward-looking analysis is appropriate.” Id.
Moreover, unlike the Ninth Circuit, it was unconcerned about
the potential problems that judges might encounter in trying
to ascertain their jurisdiction. Id. at 423. “The only time . . .
[jurisdictional] indeterminacy would exist,” the court
explained, “is when . . . [a] defendant is between the period of
his pretrial detention and the conclusion of his trial” because
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after trial the judge would know whether the defendant was
convicted of the charges on which he was held and, therefore,
whether the pretrial-detention period tolled the defendant’s
supervised-release term. Id. On those “rare” occasions, the
court saw “no reason why the judge who is asked to
determine jurisdiction . . . could not continue the proceedings
until a conviction or an acquittal is rendered in the other
case.” Id. at 424.
Shortly after the Sixth Circuit ruled, the Fourth, Fifth,
and Eleventh circuits followed suit. See United States v. Ide,
624 F.3d 666, 667 (4th Cir. 2010); United States v. Molina-
Gazca, 571 F.3d 470, 471 (5th Cir. 2009); Johnson, 581 F.3d
at 1311–13. They generally agreed with the Sixth Circuit’s
reasoning, including its assessment that the phrase
“imprisoned in connection with a conviction” makes no
temporal distinctions between pre- and postconviction periods
of confinement. See Ide, 624 F.3d at 670; Molina-Gazca, 571
F.3d at 473–74. The Fourth and Fifth circuits also reinforced
the idea that the term “imprisoned” does not necessarily imply
a period of confinement following a conviction, pointing out
that Congress has used the term to refer to pretrial detention
in at least one other statute. Ide, 624 F.3d at 670; Molina-
Gazca, 571 F.3d at 474; see also 18 U.S.C. § 3041 (providing
that, prior to trial, offenders may be “arrested and imprisoned
or released as provided in chapter 207 of this title” (emphasis
added)). The Fourth Circuit additionally stressed its view that
the phrase “during any period” indicates Congress’s intent to
toll supervised-release terms during all periods of
confinement—“both before and after a conviction”—so long
as those periods are ultimately connected to a conviction, and
that a contrary interpretation of the statute would “nullify the
word ‘any.’” Ide, 624 F.3d at 669.
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B.
We begin our own inquiry into section 3624(e)’s
meaning by examining its text. See Schindler Elevator Corp.
v. United States ex rel. Kirk, 563 U.S. 401, 407–10 (2011);
United States v. Cordova, 806 F.3d 1085, 1098 (D.C. Cir.
2015) (per curiam). If the text is clear, we must enforce the
statute as written. Schindler Elevator Corp., 563 U.S. at 412;
Cordova, 806 F.3d at 1098.
After carefully reviewing the statutory language, we
conclude, as did the Ninth Circuit, that section 3624(e) does
not toll supervised-release terms during periods of pretrial
detention—though we reach that conclusion for different
reasons than those articulated by the Ninth Circuit and
advocated by Marsh. Notably, we do not rely on the phrase
“imprisoned in connection with a conviction” to conclude that
supervised-release terms are tolled only during periods of
incarceration “resulting from or otherwise triggered by”
criminal convictions. Morales-Alejo, 193 F.3d at 1105;
Appellant’s Br. 11–12. Nor do we rely on the statute’s use of
the word “imprisoned” as opposed to “detained.” See
Morales-Alejo, 193 F.3d at 1105; Appellant’s Br. 12. Instead,
our conclusion rests on a word that our sister circuits and the
parties have appeared to ignore—the word “is.”
Critically, the statute provides that “[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 . . . .” 18 U.S.C. § 3624(e)
(emphasis added). By phrasing the statute in the present tense,
Congress has foreclosed the type of backward-looking tolling
analysis that the Fourth, Fifth, Sixth, and Eleventh circuits
allow. When a person is held in pretrial detention, one cannot
say that the person “is imprisoned in connection with a
conviction for a Federal, State, or local crime” for an obvious
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reason: he has yet to be convicted. To be sure, if the person is
later convicted and receives credit for time served, it might be
appropriate to say that the person was imprisoned or has been
imprisoned “in connection with a conviction.” But Congress
did not phrase the statute in the past or present perfect tense; it
framed it in the present.
Congress’s use of the present tense matters. Both the
Supreme Court and this court have frequently looked to verb
tense to ascertain the meaning of statutes. See, e.g., Carr v.
United States, 560 U.S. 438, 447–49 (2010) (relying on
Congress’s use of the present as opposed to the past or present
perfect tense to conclude that a statute should be given a
“forward-looking construction”); United States v. Wilson, 503
U.S. 329, 333 (1992) (“Congress’ use of a verb tense is
significant in construing statutes.”); Sherley v. Sebelius, 644
F.3d 388, 394 (D.C. Cir. 2011) (“The use of the present tense
in a statute strongly suggests it does not extend to past
actions.”). “The Dictionary Act also ascribes significance to
verb tense.” Carr, 560 U.S. at 448. It provides that “[i]n
determining the meaning of any Act of Congress, unless the
context indicates otherwise[,] . . . words used in the present
tense include the future as well as the present.” 1 U.S.C. § 1.
“By implication, then, the Dictionary Act instructs that the
present tense generally does not include the past.” Carr, 560
U.S. at 448.
Of course, as the Dictionary Act states, if something in
the context of section 3624(e) suggested that Congress
intended a backward-looking tolling analysis, then the use of
the present tense might not be dispositive. But nothing about
the statute’s context so indicates. Consequently, we believe
that Congress’s use of the present tense makes clear that the
question whether a term of supervised release is tolled during
a period of imprisonment is to be answered by looking at
10
present circumstances, i.e., by looking at whether the
defendant’s imprisonment is, at the time, connected to a
conviction, rather than by looking retroactively at whether the
period of imprisonment can be characterized as having been
served in connection with a conviction.
Significantly, this interpretation gives effect to each word
in the statute and avoids the kind of surplusage that concerned
the Fourth and Fifth circuits. See Lamie v. U.S. Trustee, 540
U.S. 526, 536 (2004) (recognizing courts’ general “preference
for avoiding surplusage constructions”). The phrase “in
connection with a conviction” clarifies that the statute does
not toll a term of supervised release any time the person “is
imprisoned” or confined by the state, but rather only during
those periods in which the person’s imprisonment is triggered
by a conviction. The phrase “during any period” clarifies that
a term of supervised release is tolled not only during the
period of imprisonment initially imposed upon conviction, but
also any additional period of imprisonment flowing from a
conviction, such as a period imposed for a supervised-release
violation.
The interpretation we adopt also makes the most sense.
As the Ninth Circuit observed, under the contrary
interpretation, situations may arise in which district courts
will be unable to determine whether they retain jurisdiction
over defendants who had been under their supervision
because it remains to be seen whether those defendants will
be convicted of charges on which they were held in pretrial
detention and, hence, whether their terms of supervised
release will extend beyond their initial expiry dates. See
Morales-Alejo, 193 F.3d at 1105–06. The idea that the statute
would lead to such situations strikes us as rather odd. For one
thing, we are unaware of any other area of the law in which
district-court jurisdiction is similarly contingent on future
11
events, and the government was unable to point us to any at
oral argument. For another, such situations appear rather
unfair to defendants, who would have no idea whether they
continue to be subject to court supervision. We doubt
Congress intended to create such situations.
Finally, we note that if the system functions as Congress
intended, tolling generally would be unnecessary for a district
court to preserve its jurisdiction to revoke a defendant’s
supervised-release term in circumstances like those in this
case. Under section 3583(i), a district court may address a
supervised-release violation after the end of a supervised-
release term if a warrant or summons issues prior to that
term’s expiration. 18 U.S.C. § 3583(i). That process—not
followed here—provides fair notice to the defendant and
certainty for all.
III.
For the foregoing reasons, we conclude that the district
court was without jurisdiction. Accordingly, we vacate the
order revoking Marsh’s supervised-release term and
sentencing him to 36 months’ imprisonment.
So ordered.