United States v. Jacob Okoko

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-12952 April 6, 2004

________________________ THOMAS K. KAHN
CLERK

D. C. Docket No. 96-06171-CR-DTKH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JACOB OKOKO, a.k.a. Gbenga,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(April 6, 2004)

Before TJOFLAT, BARKETT and SILER *, Circuit Judges.

BARKETT, Circuit Judge:

Jacob Okoko, a Nigerian citizen, appeals the denial of his motion to dismiss

*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
the charges of violating his probation. He argues that because his probationary

term expired on July 11, 2000, the district court did not have jurisdiction to find

that he violated his probation in 2002. We agree and reverse.

In 1997, Okoko was convicted under one count for conspiracy to commit

access device fraud in violation of 18 U.S.C. § 1029(a)(1)-(3), (b)(2) and was

sentenced to imprisonment for time served and three years’ supervised release

beginning on July 11, 1997 (the “1997 conviction”).1 In its Probation Order, the

court provided that (1) if Okoko should be deported, the term of supervised release

would be tolled and (2) if Okoko should re-enter the United States, the term of

supervised release would resume. Four months thereafter, Okoko was deported to

Nigeria.

Over four years later in March 2002, Okoko was arrested in the United

States for possession of a fraudulent credit card. He was convicted and sentenced

in September 2002 for illegal reentry after deportation; theft of U.S. mail in

violation of 18 U.S.C. § 1701; and trafficking in and using one or more

unauthorized access devices in violation of 18 U.S.C. §§ 1029(a)(2) & (b)(2). As a

result of these convictions, the probation officer charged Okoko with violating the

1
He was also required to pay $500 in restitution.

2
terms of his supervised release in 1997.2 Okoko moved to dismiss asserting that

his supervised release expired three years from the date of sentencing in 1997,

specifically, on July 11, 2000. Thus, Okoko argued, the district court lacked

jurisdiction. The district court disagreed and denied the motion, revoking his

supervised release in May 2003. Because we find that the district court lacked the

authority to toll Okoko’s term of supervised release while he was out of the

country and thus, lacked jurisdiction to revoke a probation period that had already

expired, we reverse.

DISCUSSION

The sole issue in this appeal is whether a district court has authority to

require that a supervised release period be tolled while a defendant is lawfully

outside the United States.3

Section 3624(e) of the Sentencing Reform Act of 1984, which governs the

procedure for supervised release, provides that:

[a] prisoner whose sentence includes a term of supervised release after
imprisonment shall be released by the Bureau of Prisons to the supervision
of a probation officer who shall, during the term imposed, supervise the

2
Okoko was charged with failing to refrain from violating the law; failing to satisfy court-
ordered restitution; and failing to submit monthly reports during the period of his supervised
release while in the United States.
3
Okoko admitted to violating the terms of his supervised release; therefore, the primary
question on appeal is one of subject matter jurisdiction, a question of law that we review de
novo. See United States v. Najjar, 283 F.3d 1306, 1307 (11th Cir. 2002).

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 person released to the degree warranted by the conditions specified by the
sentencing court. The term of supervised release commences on the day the
person is released from imprisonment . . . .

18 U.S.C. § 3624(e). Although Congress listed specific contexts in which the

supervised release period may be tolled, it did not include the period of time when

a probationer is out of the country. Nor did Congress address this circumstance

under the provisions in the statute that permit the court to impose conditions upon

a period of supervised release.

Tolling of supervised release is addressed under Section 3624(e), in the case

where a probationer is serving another period of imprisonment:

[a] term of supervised release does not run during any period in which the
person is imprisoned in connection with a[nother] 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). Additionally, Congress specifically provided that a violation

of a supervised release period prior to its expiration effectively tolls it:

[t]he power of the court to revoke a term of supervised release for violation
of a condition 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.

18 U.S.C. § 3583(i). These two provisions delineate the only express

circumstances wherein the supervised release period may be tolled.

4
 Likewise, the requirement that a release period be tolled while a probationer

is out of the country is not explicitly listed as a condition that a district court may

impose on a probationer’s supervised release. Appropriate conditions that the

court may consider are listed in section 3583(d). 4 In the case of an alien defendant

subject to deportation, the court may provide as a condition of supervised release

that he or she “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).

Furthermore, although Section 3583(d)(1) also permits the district court to

impose “any other condition it considers to be appropriate,” such an additional

condition must reasonably relate to the factors set forth in 18 U.S.C. § 3553(a)(1)

and (a)(2)(B)-(D). The relevant factors to which conditions of supervised release

must be related are:

(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;

(2) the need for the sentence imposed– . . .

4
18 U.S.C. § 3583(d) expressly allows for conditions requiring the defendant to do or
refrain from doing something such as: prohibition of unlawful possession or use of a controlled
substance; attendance of rehabilitation programs for domestic violence and drug abuse;
registration of change of location; cooperation in collection of DNA samples; submission to drug
testing; or a general prohibition against committing any federal, state, or local crime during the
term of supervision.

5
 (B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant;

(D) to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner.

18 U.S.C. § 3553(a). Additionally, a court may set a special condition if it (1)

involves no greater deprivation of liberty than is reasonably necessary for the

purposes of imposing the sentence, and (2) if it is consistent with any pertinent

policy statements issued by the Sentencing Commission. 18 U.S.C. § 3583(d)(2)-

(3).5

Accordingly, we find nothing in the language of the congressional scheme

for supervised release that expressly permits the condition imposed by the district

court here. To find that such a condition is authorized, we must find that

the tolling of the release period during the time a defendant is out of the country

5
Because United States Sentencing Guideline (“U.S.S.G.”) § 5D1.3 mirrors the language
used in this statute, we consider it together with 18 U.S.C. § 3583(d) in reviewing the district
court’s imposition of a special condition on a supervised release. United States v. Bull, 214 F.3d
1275, 1278 (11th Cir. 2000) (adopting the holding in United States v. Johnson, 998 F.2d 696,
698 (9th Cir. 1993) that “‘we . . . treat 5D1.3 in pari materia [with 18 U.S.C. §§ 3553 and 3583]-
-as a list of factors to guide the district court’s discretion’”). At the time of Okoko’s sentencing
in July 1997, U.S.S.G. § 5D1.3(b) read as follows:

The court may impose other conditions that (1) are reasonably related to the nature and
circumstances of the offense, the history and characteristics of the defendant, and the
purposes of sentencing and (2) involve only such deprivations of liberty or property as
are reasonably necessary to effect the purposes of sentencing. 18 U.S.C. § 3563(b).

6
reasonably relates to the factors set forth in 18 U.S.C. § 3553(a)(1) and

(a)(2)(B)-(D) in order to be considered as “any other condition” that the district

court may impose. Because tolling in this context does not relate to any of these

factors, we do not find that it qualifies as a condition that may be imposed. We

agree with the Second, Fifth and Eighth Circuits, in holding that permission to

impose “any other condition” during a supervised release under § 3583(d) does not

include the tolling of the release upon deportation of an alien defendant. As

reasoned by those Courts, the phrase “any other condition” must be read in the

context of the statute as a whole and was not intended by Congress to provide

“untrammeled discretion.” See United States v. Juan-Manuel, 222 F.3d 480, 487

(8th Cir. 2000); United States v. Balogun, 146 F.3d 141, 146 (2d Cir. 1998); see

also United States v. Quaye, 57 F.3d 447, 449 (5th Cir. 1995); United States v.

Brown, 54 F.3d 234, 239 (5th Cir. 1995).6

First, we are persuaded by the reasoning in the Second and Eighth Circuits

6
But see United States v. Isong, 111 F.3d 428 (6th Cir.1997) (holding that the tolling of a
supervised release during deportation may qualify as a special condition on the release under 18
U.S.C. § 3583(d) and U.S.S.G. § 5D1.3). The government also cites United States v. Biyaga, 9
F.3d 204 (1st Cir.1993), as supporting the district court’s decision to deny Okoko’s motion to
dismiss. The Biyaga court did comment that the sentencing practice of the district court in that
case of suspending the supervised release of an illegal alien from the time the defendant is
deported until, and if, he returns to the United States, indicates a “reasonable concern.”
However, this statement is not the central holding of the case. Rather, the court held that the
defendant’s false statements to the sentencing judge purporting that he was an American citizen
rather than an illegal alien, were material and obstructed justice.

7
that the imposition of a condition under § 3583(d) references “requirements that

the defendant do or refrain from doing specified acts.” Balogun, 146 F.3d at 145.7

Therefore, tolling, which relates to the timing of the supervised release rather than

the conduct of the defendant, should not be viewed as a “condition” of the release

because it relates to something beyond the control of the defendant and is

substantively different from all of the other conditions expressly provided for

under § 3583(d) and the Sentencing Guidelines. Id.8

Second, the specific authorization to surrender an alien defendant for

deportation with the requirement that he or she remain outside of the United States

as a condition of supervised release under § 3583(d) “logically precludes” the

tolling of a release while the alien defendant is outside of the country. Juan-

Manuel, 222 F.3d at 487. “[A] supervised release order cannot simultaneously be

suspended and actively in effect.” Id. In other words, “Congress could not have

intended to allow a defendant to be excluded from the United States as a condition

of supervised release while, at the same time, allow all conditions of supervised

7
The single explicit condition that does not directly require or prohibit particular conduct
by the defendant relates to deportation, where Congress has provided that “if 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). However, even
under this condition, “we view the principal thrust . . . as the constraint imposed on the conduct
of the defendant, i.e., that he stay out.” Balogun, 146 F.3d at 145.
8
The same observation applies to the standard and special conditions for supervised
release as set forth in § 5D1.3 of the Sentencing Guidelines incorporating § 3583(d). Id. at 146.

8
release to be suspended for the duration of that exclusion.” Id.

Third, as noted above, Congress has expressly provided for the tolling of a

supervised release in two other sections of the Sentencing Reform Act,9 suggesting

that it did not intend for tolling during a period of deportation to be imposed by the

court as a condition of supervised release under § 3583(d). Juan-Manuel, 222 F.3d

at 488. In none of the specific contexts wherein Congress has granted the court

authority to toll a supervised release such as during reincarceration for another

crime or because of the probationer’s violation of the terms of his or her release, is

deportation or exclusion from the United States included. Thus, “we decline to

infer that the difference in treatment of the continuity of the supervised-release

term with respect to reincarceration and deportation/exclusion was simply an

oversight . . . .” Balogun, 146 F.3d at 146.

Finally, supervised release is to commence immediately upon an alien

defendant’s release from imprisonment. Thus, its tolling during deportation as a

condition of the release would circumvent the policy underlying that provision.

See 18 U.S.C. § 3624(e) (“The term of supervised release commences on the day

the person is released from imprisonment . . .”). Congress’s intent under this rule

was to support the “primary goal” of supervised release “to ease the defendant’s

9
See 18 U.S.C. §§ 3583(i), 3624(e).

9
transition into the community after the service of a long prison term for a

particularly serious offense, or to provide rehabilitation to a defendant who has

spent a fairly short period in prison . . . but still needs supervision and training

programs after release.” S. Rep. 98-225 at 124 (1984) reprinted in 1984

U.S.C.C.A.N. at 3307. W e find that the goal of easing transition back into

everyday life would be thwarted and supervised release would become superfluous

if the release were tolled while an alien defendant was deported outside of the

United States and then reinstated years or even decades after the original

imprisonment.

Based on the foregoing, we REVERSE the district court’s revocation of

Okoko’s term of supervised release for lack of jurisdiction and vacate the court’s

sentence against Okoko of an additional six months imprisonment followed by two

years of supervised release.

REVERSED and REMANDED for further proceedings consistent herewith.

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