United States v. Hernandez-Ferrer

United States Court of Appeals
For the First Circuit

No. 09-1100

UNITED STATES OF AMERICA,

Appellee,

v.

BERNARDO HERNÁNDEZ-FERRER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Torruella, Selya and Lipez, Circuit Judges.

Thomas J. Trebilcock-Horan, with whom Joseph C. Laws, Jr.,
Federal Public Defender, and Patricia A. Garrity, Assistant Federal
Public Defender, were on brief, for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney (Appellate Chief),
were on brief, for appellee.

March 19, 2010
 SELYA, Circuit Judge. This appeal poses a question of

first impression in this circuit: Does a district court have

authority to revoke a term of supervised release based on conduct

occurring after the scheduled expiration date of the term, where

the offender has absconded prior to the expiration date and is not

apprehended until some time after committing the alleged violation?

Concluding, as we do, that there can be no tolling of the period of

supervised release on the basis of fugitive status, we answer this

question in the negative. Consequently, we vacate the judgment

below and, in the bargain, part company with the only other court

of appeals to have addressed this question.

I. BACKGROUND

The facts are straightforward. In 2000, a federal grand

jury sitting in the District of Puerto Rico indicted defendant-

appellant Bernardo Hernández-Ferrer. Early the next year, the

appellant pleaded guilty to a charge of conspiracy to distribute

narcotics. See 21 U.S.C. §§ 841(a)(1), 846. On May 25, 2001, the

district court sentenced him to thirty-three months in prison, to

be followed by a three-year term of supervised release.

The appellant served his prison sentence and began

serving his supervised release term on January 10, 2003. Thus, the

term was set to expire on January 10, 2006.1

1
In the district court, the appellant asserted that the
scheduled expiration date was January 9, 2006. In his appellate
brief, he suggests that January 10, not January 9, would under

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 On September 26, 2005, the probation department, by

motion, notified the district court that the appellant had

committed Grade C violations of the conditions of his supervised

release, USSG §7B1.1(a)(3), during and after the summer of 2005.

The probation department requested the issuance of both an arrest

warrant and an order to show cause why the appellant's supervised

release should not be revoked. The motion explained that the

appellant had not submitted his monthly supervision reports for a

number of months; that he had failed to appear for three scheduled

office appointments; and that he had neglected to notify the

probation department of changes in his employment and residence.

The motion papers added that the appellant's whereabouts were

unknown.

The district court issued an order to show cause on

September 29, 2005, and an arrest warrant some two weeks

thereafter. A show-cause hearing was scheduled but then cancelled

because the arrest warrant had not been served.

On January 11, 2006, one day after the nominal expiration

date of the appellant's supervised release term, Puerto Rico police

officers caught the appellant distributing heroin and arrested him

for that conduct. He subsequently entered a guilty plea to the new

ordinary circumstances have been the last day of the term. Because
this one-day discrepancy makes no difference to the outcome here,
we assume an expiration date of January 10.

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charges in a local court. On May 23, 2006, that court sentenced

him to five years' imprisonment.

Meanwhile, the dormant federal proceeding returned to

life. On May 4, 2006, the probation department filed a

supplemental motion informing the district court of the appellant's

January 11, 2006, drug crime, which constituted a Grade A violation

of his supervised release conditions. See id. §7B1.1(a)(1); see

also 18 U.S.C. § 3583(d) (mandating, as a condition of supervised

release, that the offender not commit a crime during the term of

supervision). The appellant responded on January 26, 2007. After

some procedural skirmishing (including the denial of the

appellant's motion to dismiss for want of jurisdiction), the court

convened a final revocation hearing.

At the hearing, the appellant acknowledged that the court

had jurisdiction to consider revoking his supervised release based

on the Grade C violations described in the probation department's

original motion but maintained that the court lacked similar

authority with respect to the alleged Grade A violation because the

latter had occurred after the expiration of his supervised release

term. He also asked the court to reconsider its denial of his

earlier motion to dismiss that charge.

The court denied the motion for reconsideration, holding

that the probation department's original motion and the arrest

warrant issued pursuant thereto had "interrupted" the term of

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supervised release, such that the term was "still alive" when the

appellant committed the alleged Grade A violation. The court then

revoked the appellant's supervised release; calculated an advisory

sentencing range based on the more serious Grade A violation, see

USSG §7B1.1(b); and imposed a within-the-range sentence of twenty-

one months in prison. This timely appeal ensued.

II. ANALYSIS

Whether a district court has authority to revoke a term

of supervised release is a question of law and, thus, engenders de

novo review. United States v. Goins, 516 F.3d 416, 419 (6th Cir.

2008). We proceed accordingly.

A. The Legal Landscape.

The touchstone of our inquiry is 18 U.S.C. § 3583.

Pursuant to that statute, a district court may revoke an offender's

supervised release and order him to serve additional jail time upon

a finding that the offender has violated one or more conditions of

his supervised release. See id. § 3583(e)(3). At times, the

revocation hearing may not be held until after the scheduled

expiration of the supervised release term. In those instances, the

district court's authority is governed by a specific delayed-

revocation provision, which states in pertinent part:

The 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

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 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.

Id. § 3583(i).

Once a court revokes an offender's supervised release, it

must sentence the violator. To aid in this endeavor, the United

States Sentencing Commission has promulgated a table of recommended

sentencing ranges. See USSG §7B1.4. These ranges and the other

policy statements contained in Chapter 7 of the Guidelines Manual

are advisory.2 In the last analysis, the district courts, subject

to the usual preconditions of reasonableness and the like, have

broad discretion to impose sentences within the statutory limits

limned in 18 U.S.C. § 3583(e)(3). See United States v. Jackson, 549

F.3d 1115, 1116 n.2 (7th Cir. 2008).

B. Plain Language.

In the case at hand, the appellant concedes that the

district court had authority to revoke his supervised release based

on the Grade C violations that occurred in 2005. But the district

court did not hinge the revocation and sentence on those violations

alone; rather, it acted upon the later-occurring Grade A violation.

Seizing upon this choice, the appellant argues that the court did

2
These ranges and other policy statements were explicitly
denominated as advisory even before the Supreme Court's landmark
decision in United States v. Booker, 543 U.S. 220, 259 (2005). See
United States v. Work, 409 F.3d 484, 492 (1st Cir. 2005).

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not have authority to revoke his supervised release on that basis

because the underlying conduct — the local drug crime — occurred

after the expiration of his supervised release term. In his view,

jurisdiction under the delayed-revocation provision is restricted

to violations for which, before the expiration of a term, a summons

or warrant has issued. The government demurs.

In the end, this dispute boils down to a matter of

statutory construction. Consequently, we must start with the text

of the relevant statute. See Kholi v. Wall, 582 F.3d 147, 152 (1st

Cir. 2009). By its plain language, section 3583(i) extends the

district court's jurisdiction beyond the stated expiration of a term

of supervised release. But that extension operates only in a

particular set of circumstances: "for the adjudication of matters

arising before its expiration if, before its expiration, a warrant

or summons has been issued." Here, however, the local drug crime

(the gravamen of the alleged Grade A violation) took place after the

appellant's supervised release term had expired. Thus, it does not

come within the plain language of the statute.

The district court apparently thought that the earlier

issuance of a warrant for other violations occurring before the

expiration of the supervised release term paved the way for

jurisdiction over the Grade A violation. This proposition is

untenable. Cf. United States v. Naranjo, 259 F.3d 379, 383 (5th

Cir. 2001) (holding that section 3583(i) permits revocation based

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on any violation "committed during [the] supervised-release-term,"

even if contained in a petition for revocation filed after

expiration of the term, as long as a warrant or summons has issued

during that term on the basis of another violation (emphasis in

original)). There is simply no jurisprudential foundation for the

idea that a timely warrant for one violation operates to preserve

jurisdiction for later violations occurring after the expiration of

the supervised release term. That is not the law.

C. Availability of Tolling.

In an effort to snatch victory from the jaws of defeat,

the government urges us to hold that a term of supervised release

is tolled during any period in which an offender has absconded from

supervision. Specifically, it contends that the appellant became

a fugitive when he failed in the summer of 2005 to keep the

probation department apprised of his whereabouts and, thus, the

running of his term of supervised release was tolled during the

period that he was missing; that is, until his arrest by Puerto

Rico police officers on January 11, 2006. From that point forward,

the government adds, his term of supervised release was tolled

under 18 U.S.C. § 3624(e) due to his imprisonment for the new

crime. Hence, the supervised release term had not expired either

when the appellant committed the new drug crime or when the

probation department filed the supplemental motion in which it

notified the district court of that crime.

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 The government is correct that imprisonment lasting for

at least thirty days, in connection with a different offense, tolls

the running of a supervised release term. 18 U.S.C. § 3624(e). In

this instance, however, the appellant was not detained for the new

crime until after the scheduled expiration date of his supervised

release term had come and gone. Thus, the question reduces to

whether his fugitive status prior to his commission of that crime

tolled the term of supervised release beforehand (such that his

term did not expire as scheduled on January 10, 2006). It is to

this question that we now turn.

The only court of appeals to have addressed this

question — the Ninth Circuit — has found merit in the government's

position. See United States v. Delamora, 451 F.3d 977, 978 (9th

Cir. 2006); United States v. Murguia-Oliveros, 421 F.3d 951, 952

(9th Cir. 2005); United States v. Crane, 979 F.2d 687, 691 (9th

Cir. 1992). We are not so sanguine.

Assuming, without deciding, that the appellant was a

fugitive,3 we nonetheless reject the government's asseveration that

an offender's fugitive status tolls the running of a term of

supervised release. We explain our reasoning below.

3
It is not clear whether the appellant can be said to have
been a fugitive. See, e.g., Murguia-Oliveros, 421 F.3d at 953-54
(defining "fugitive" for this purpose as one who "abscond[s] from
serving the terms of [] supervised release" by "depart[ing] the
place [in which the offender] was authorized by the terms of his
release to be," and "fail[ing] to contact his probation officer as
required").

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 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 provision 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 significant. See

Russello v. United States, 464 U.S. 16, 23 (1983); Trenkler v.

United States, 268 F.3d 16, 23 (1st Cir. 2001). The maxim

"expressio unius est exclusio alterius" — which translates roughly

as "the expression of one thing is the exclusion of other things"

— is a venerable canon of statutory construction, see, e.g., United

States v. Reccko, 151 F.3d 29, 34 (1st Cir. 1998), and that maxim

is directly applicable here.

We find additional guidance in the case law. Although

no other court of appeals has passed upon the Ninth Circuit's use

of fugitive status as a trigger for tolling in supervised release

cases, several courts of appeals have addressed an analogous

question involving deported offenders. These courts, citing the

expressio unius maxim, have ruled that the pertinent statutes do

not authorize tolling a term of supervised release during the

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period in which an offender is absent by reason of his deportation.

See, e.g., United States v. Cole, 567 F.3d 110, 114-15 (3d Cir.

2009); United States v. Ossa-Gallegos, 491 F.3d 537, 543 (6th Cir.

2007) (en banc); United States v. Okoko, 365 F.3d 962, 967 (11th

Cir. 2004); United States v. Juan-Manuel, 222 F.3d 480, 487-88 (8th

Cir. 2000); United States v. Balogun, 146 F.3d 141, 146-47 (2d Cir.

1998). We think that when Congress explicitly allows for tolling

in a particular circumstance, there is a strong presumption that

Congress did not intend to allow tolling in other circumstances.

Here, the government has pointed to nothing that would suffice to

rebut this strong presumption. We conclude, therefore, that the

fact that Congress provided for tolling a period of supervised

release only when an offender is imprisoned for a different crime4

is a decisive argument 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.

4
We note that the Eleventh Circuit reads section 3583(i) as
an additional tolling provision. See Okoko, 365 F.3d at 964-65.
This runs counter to the clear weight of authority, which holds
that, unlike section 3624(e), section 3583(i) is not a tolling
provision "because tolling requires an actual suspension of the
running of the period of supervised release, and under § 3583(i)
there is no suspension, but rather an extension of the period
during which the government may pursue violations of supervised
release." Ossa-Gallegos, 491 F.3d at 543 n.5; accord Cole, 567
F.3d at 114 n.3; United States v. Jordan, 572 F.3d 446, 448 (8th
Cir. 2009). We therefore reject the Eleventh Circuit's view.

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 Early case law, which provided for tolling in the

probationary context, offers little support for the government's

position. Those cases allowed tolling of a term of probation while

an offender was not actually under probationary supervision because

he had either absconded or gone to prison for another offense.

See, e.g., United States v. Fisher, 895 F.2d 208, 212 (5th Cir.

1990); United States v. Martin, 786 F.2d 974, 975 (10th Cir. 1986);

Nicholas v. United States, 527 F.2d 1160, 1162 (9th Cir. 1976).

But these cases are distinguishable by reason of the passage of the

Sentencing Reform Act of 1984, Pub. L. No. 98-473, tit. II, ch. II,

98 Stat. 1987 (effective Nov. 1, 1987), which eliminated parole and

some forms of probation in favor of a new supervised release

regime. In establishing the modified probation paradigm, Congress

codified prior case law that provided for tolling when a

probationer was imprisoned for another offense, see 18 U.S.C.

§ 3564(b); see also S. Rep. No. 98-225, at 100-01 (1983), reprinted

in 1984 U.S.C.C.A.N. 3182, 3283-84, but made no similar

reincorporation of prior case law providing for tolling during

periods when offenders were in fugitive status. Congress followed

precisely the same pattern in the new supervised release regime,

allowing tolling for imprisonment but eschewing it for fugitive

status. See 18 U.S.C. § 3624(e). In light of the preexisting case

law, the only rational conclusion that we can draw from this

selective codification of prior case law is that Congress intended

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a term of supervised release to be tolled only by reason of

immurement.

The government's final argument traces its origins to

the Ninth Circuit. That court has warned that if fugitive status

does not toll the running of a term of supervised release, that

lack of tolling "would reward those who flee from bench warrants

and maintain their fugitive status until the expiration of their

original term of supervised release." Murguia-Oliveros, 421 F.3d

at 953 (quoting Crane, 979 F.2d at 691). This warning cannot

withstand scrutiny.

If an offender absconds before the expiration of his

supervised release term, he will not do so with impunity. After

all, the statute allows for the passage of a period of time,

following the expiration of a term of supervised release, which is

"reasonably necessary" to adjudicate matters arising before

expiration. 18 U.S.C. § 3583(i). This period would include the

time that the offender, by his own contrivance, cannot be haled

into court. Thus, 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 jurisdiction once located, and his

conduct while a fugitive will be considered at sentencing. See

infra Part II(D). It follows that a judicially contrived tolling

mechanism is not necessary to deter offenders from absconding.

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 D. Further Proceedings.

Our holding that the district court lacked authority to

revoke the appellant's supervised release based on the alleged

Grade A violation does not end our odyssey. The record makes

manifest that the district court still retained authority to revoke

the appellant's supervised release on account of the earlier Grade

C violations. Given this circumstance, remand is appropriate to

allow the district court to decide whether to revoke the

appellant's supervised release based solely on the Grade C

violations and, if so, to impose a condign sentence.5

Let us be perfectly clear. The fact that the January

11, 2006, drug crime cannot itself be deemed a supervised release

violation does not mean that it is immaterial for present purposes.

When a district court revokes a term of supervised release, the

sentencing court must consider certain enumerated factors in

imposing a sentence. See 18 U.S.C. § 3583(e). We think that, in

mulling these factors, the court may take into account an

offender's conduct between the time of the violation underlying the

revocation and the time of sentencing. See United States v.

Kreitinger, 576 F.3d 500, 504-05 (8th Cir. 2009); cf. USSG §7B1.4,

comment. (n.2) (explaining that "an upward departure [from the

5
Remand is especially desirable in this case because the
district court calculated the advisory sentencing range based on
the Grade A violation and imposed a sentence at the high end of
that range.

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applicable range of imprisonment in the Revocation Table] may be

warranted when a defendant, subsequent to the federal sentence

resulting in supervision, has been sentenced for an offense that is

not the basis of the violation proceeding"). 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 consideration mandated by

section 3583(e). See United States v. Simtob, 485 F.3d 1058, 1062

(9th Cir. 2007) ("The history of the violator, when combined with

the violator's most recent criminal offenses, and particularly when

similar to the past transgressions, is indicative of the violator's

propensity for recidivism and inability to integrate peacefully

into a community.").

III. CONCLUSION

We need go no further. For the reasons elucidated

above, we reject the government's view that a supervised release

term is tolled while an offender is in fugitive status.

Consequently, the appellant's supervised release term expired on

January 10, 2006. Because the alleged Grade A violation did not

arise until after that date, the district court lacked authority to

revoke the appellant's supervised release on that basis. Hence, we

vacate the judgment and remand the case to the district court for

further proceedings consistent with this opinion.

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Vacated and remanded.

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