United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 20, 2005
_______________________ Charles R. Fulbruge III
Clerk
No. 04-30887
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENJAMIN DUANE JACKSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
Before DAVIS, JONES, and GARZA, Circuit Judges.
PER CURIAM:
This case presents an issue of first impression: whether
incarceration for a parole violation that was later held
unconstitutional by a state court tolls the defendant’s period of
supervised release under 18 U.S.C. § 3624. Defendant-Appellant
Benjamin Duane Jackson (“Jackson”) appeals the district court’s
judgment holding that his prior incarceration tolled his supervised
release and thereby extended the period he must submit to super-
vised release. We AFFIRM.
BACKGROUND
On April 25, 1995, Jackson was convicted of armed robbery
in a Louisiana court and sentenced to five years’ imprisonment. He
was released on parole on December 26, 1996, and his parole was to
expire on September 8, 1999.
In August 1999, approximately one month before his parole
was to expire, Jackson was arrested in the Southern District of
Mississippi and charged with conspiracy to distribute marijuana and
use of a communication facility to facilitate conspiracy to distri-
bute marijuana. After his arrest, Jackson immediately contacted
his parole agent, and the parole agent was present at Jackson’s
first appearance in federal court. At that time, a parole viola-
tion warrant was issued for Jackson, but neither Jackson nor
federal authorities were notified of its issuance. Jackson
subsequently pleaded guilty to one count of conspiracy to
distribute marijuana. On June 16, 2000, the Southern District of
Mississippi sentenced Jackson to twenty months’ imprisonment and
three years’ supervised release.
Jackson was released from prison and began his period of
supervised release on January 17, 2001. The supervised release was
to end on January 16, 2004. On May 7, 2002, Jackson’s supervised
release was transferred to the Middle District of Louisiana.
In early 2002, Jackson was arrested in Louisiana on
charges that were later dismissed. On June 7, 2002, while those
charges were pending, Louisiana revoked Jackson’s parole on the
basis of his federal drug conviction, and Jackson was returned to
the State Department of Corrections to serve the thirty-two months
remaining on his armed robbery sentence.
2
Jackson filed a state habeas corpus petition arguing that
his parole revocation violated his due process rights under
Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593 (1972), because
he was not given a prerevocation hearing in a timely manner after
his arrest in August 1999. After holding two hearings, the
Commissioner for the state court recommended that the state court
grant Jackson’s petition. The Commissioner found that Jackson’s
due process rights had been violated because he was not given a
timely prerevocation hearing. Alternatively, the Commissioner
recommended that Jackson be given credit for time served while he
was serving his federal sentence and while he was at liberty prior
to his parole revocation. On January 9, 2003, the state court
adopted the Commissioner’s recommendation and explicitly ordered
that Jackson be given credit for the time he served in federal
custody and while he was at liberty. R. 21. Jackson was released
from state custody on January 17, 2003.
A petition for the revocation of Jackson’s supervised
release was filed in the District Court for the Middle District of
Louisiana on March 23, 2004, over two months after Jackson’s
supervised release was originally set to expire. The petition
alleged that Jackson committed five violations of his supervised
release: (1) use of marijuana; (2) failure to make scheduled
payments on his fine; (3) failure to submit a monthly report to his
probation officer; (4) failure to follow the instructions of his
probation officer; and (5) failure to complete a substance abuse
3
treatment program ordered by his probation officer. Some of the
allegations regarding the use of marijuana and the failure to make
payments on his fine occurred prior to the original expiration date
of his supervised release, and the remaining alleged violations
occurred after that date.
At the hearing on the petition to revoke Jackson’s super-
vised release, Jackson argued that the petition should be denied
because it was not issued until after his supervised release
expired on January 16, 2004. The Government asserted that
Jackson’s supervised release period was tolled while he was
incarcerated for the parole revocation from June 7, 2002, until
January 17, 2003, and that his supervised release, therefore,
expired on August 26, 2004, making the revocation petition timely.
In response, Jackson maintained that his supervised release period
was not tolled by his incarceration because his incarceration was
found to be in violation of his due process rights. Jackson
further argued that the petition should be denied because he was
not given written notice that his supervised release period had
been tolled and because the tolling was not alleged in the
petition.
At the hearing, Jackson admitted to violating the terms
of his supervised release after January 16, 2004, but stated that
he thought that his supervised release ended on that date. He
admitted that his parole officer told him orally that his
supervised release had been tolled, but stated that he did not
4
believe this because he was given no documentation of the tolling.
Jackson testified that he went to the appropriate judge’s chambers
and asked whether his supervised release had been tolled, and that
someone there told him that she was unaware of the tolling, and
that she would write him a letter if there were any changes to his
supervised release. Jackson stated that he never received a letter
stating that his supervised release had changed, so he thought that
it expired on January 16, 2004, as originally scheduled.
At the conclusion of the hearing, the district court
found that Jackson had violated the terms of his supervised release
as alleged in the revocation petition, and the court ordered the
parties to file briefs on the issue whether Jackson’s supervised
release was tolled by his incarceration following his parole
revocation. In his brief, Jackson argued that his incarceration
did not toll his supervised release because unconstitutional
incarceration, like an unconstitutional statute, is void. Jackson
additionally asserted that, pursuant to the state court ruling
giving him credit for the time he served in federal prison and
while at liberty, his sentence for the armed robbery offense
expired in April 2002. Therefore, he contended that his sentence
had expired by the time his parole was revoked on July 7, 2002,
making his incarceration not related to a conviction and tolling of
his supervised release improper under 18 U.S.C. § 3624(e). The
Government asserted that the state court did not find that the
revocation of Jackson’s parole was unconstitutional and that even
5
if it did, the incarceration still tolled his supervised release
pursuant to § 3624(e) because Jackson’s initial armed robbery
conviction was not overturned.
The district court determined that the state court had
ruled that although Jackson’s parole revocation was unconstitu-
tional, his incarceration for the parole revocation nevertheless
tolled his supervised release. Accordingly, the district court
granted the petition to revoke Jackson’s supervised release. The
district court sentenced Jackson to 105 days’ imprisonment (time
served), up to six months at a halfway house at the discretion of
his probation officer, and twenty-five months’ supervised release.
Jackson filed a timely appeal.1
DISCUSSION
The sole issue before us is whether the district court
had jurisdiction to revoke Jackson’s supervised release.2 Jackson
contends that his imprisonment did not toll the term of his
supervised release because his parole revocation was held
unconstitutional by the state court. Jackson asserts that because
1
Jackson initially filed his notice of appeal more than ten days but
less than thirty days after the judgment was entered, so this court remanded the
case to the district court to determine whether the untimely filing of the notice
of appeal was the result of excusable neglect or good cause (entitling Jackson
to an extension of time under FED. R. APP. P. 4(b)(4)). United States v. Jackson,
No. 04-30887 (5th Cir. Oct. 5, 2004) (per curiam). The district court granted
Jackson the extension of time, making his notice of appeal timely. See FED. R.
APP. P. 4(b)(4).
2
For the first time in his reply brief, Jackson argues that he was
entitled to written notice of the tolling of the term of his supervised release
under 18 U.S.C. § 3583(f). Arguments raised for the first time in a reply brief,
even by pro se litigants such as Jackson, are waived. See Knighten v.
Commissioner, 702 F.2d 59, 60 n.1 (5th Cir. 1983).
6
the state court ruled that his parole ended in April 2002, and his
parole was not revoked until June 7, 2002, his incarceration could
not have been related to his armed robbery conviction and,
therefore, could not have tolled his term of supervised release.
We review the district court’s jurisdiction to revoke a
defendant’s supervised release de novo.3 United States v. Jimenez-
Martinez, 179 F.3d 980, 981 (5th Cir. 1999). A district court has
jurisdiction to revoke a defendant’s supervised release during the
term of supervised release, or within a reasonable time after the
term of supervised release has expired if a summons or warrant
regarding a supervised release violation was issued prior to the
expiration of the term of supervised release. 18 U.S.C. § 3583(i).
The revocation warrant was issued on March 23, 2004, and Jackson’s
supervised release was revoked on June 25, 2004. Thus, unless
Jackson’s period of supervised release was tolled during his
imprisonment, the district court lacked jurisdiction to revoke
Jackson’s supervised release.
We begin our analysis with the plain text of the statute,
see Doe v. KPMG, LLP, 398 F.3d 686, 688 (5th Cir. 2005), which
states:
The term of supervised release commences on the day the
person is released from imprisonment and runs concur-
3
Our review in this case is de novo because Jackson challenges the
district court’s jurisdiction to adjudicate the petition to revoke his supervised
release; Jackson does not make a discrete challenge to the district court’s
ultimate conclusion. Cf. United States v. Jeanes, 150 F.3d 483, 485 (5th Cir.
1998) (reviewing the district court’s decision not to reduce the defendant’s
supervised release for abuse of discretion).
7
rently with any Federal, State, or local term of pro-
bation or supervised release or parole for another
offense to which the person is subject or becomes subject
during the term of supervised release. 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 of less than 30
consecutive days. . . .
18 U.S.C. § 3624(e) (emphasis added). The first part of the
emphasized sentence indicates that the period of supervised release
does not run during imprisonment; the statute states no exceptions.
Additionally, the “period” of imprisonment during which the
supervised release term is tolled is connected to “a conviction for
a Federal, State, or local crime.” Although Jackson was put back
in prison through an unconstitutional parole revocation hearing,
the conviction for which his sentence existed in the first place —
commission of the Louisiana armed robbery offense — was valid and
is not contested by Jackson here. The statutory text is
unambiguous; Jackson’s period of supervised release was properly
tolled during his imprisonment and thus the district court properly
had jurisdiction to rule on the petition to revoke Jackson’s
supervised release.
The Supreme Court’s treatment of the same statute in
United States v. Johnson, 529 U.S. 53, 120 S. Ct. 1114 (2000),
informs our analysis here. In Johnson, the defendant was initially
sentenced to 171 months’ imprisonment and a mandatory period of
three years’ supervised release. Intervening caselaw in Johnson’s
favor resulted in one of his convictions being vacated, which
8
reduced his sentence to fifty-one months. Because Johnson had
already served more than fifty-one months, he was immediately
released. Johnson then sought a reduction in his supervised
release term for the extra time he served in prison. The Supreme
Court held that Johnson was not entitled to any reduction in his
period of supervised release because § 3624(e) explicitly states
that a term of supervised release does not commence until the
defendant “is released from imprisonment.” Johnson, 529 U.S. at
57, 120 S. Ct. at 117 (quoting § 3624(e)); accord Jeanes, 150 F.3d
at 485 (arriving at a similar conclusion in a pre-Johnson case).
Additionally, the Court noted that its reading of the statute
“accords with the statute’s purpose and design. The objectives of
supervised release would be unfulfilled if excess prison time were
to offset and reduce terms of supervised release.” Johnson, 529
U.S. at 59, 120 S. Ct. at 1118. Supervised Release serves a
rehabilitative role “distinct from those served by incarceration”
by helping defendants transition back into the community. Id. As
we have noted before, “supervised release . . . serves a broader,
societal purpose by reducing recidivism.” Jeanes, 150 F.3d at 485;
see also Gozlon-Peretz v. United States, 498 U.S. 395, 407, 111
S. Ct. 840, 848 (1991) (“Supervised release is a unique method of
postconfinement supervision invented by Congress for a series of
sentencing reforms.”).
The district court’s result in this case similarly
supports, but is not dependent upon, the policy aims of supervised
9
release. Shortening the period of supervised release reduces the
amount of time a former prisoner is monitored by the system and
undermines the rehabilitative goals Congress pursued in enacting
§ 3624. While Jackson was in prison, purposefully kept out of the
community, his probation officer could not supervise him; it was
impossible for his probation officer to assist him in returning to
the community. Although Jackson’s case is in some ways
distinguishable from Johnson because the state gave Jackson credit
for the time served in prison,4 this difference is insufficient to
remove Jackson’s case beyond the plain text of the statute, or to
divorce it from the policy aims of § 3624.
CONCLUSION
In light of the plain meaning of the statute and the
Supreme Court’s pronouncements on similar challenges, the judgment
of the district court is AFFIRMED.
4
Johnson was convicted of federal offenses and thus his appeal stemmed
from a challenge to the federal district court’s refusal to give him credit for
his time served to reduce his period of supervised release. Johnson, 529 U.S.
at 55; 120 S. Ct. at 1116-17.
10