United States v. 2006-06-21 | 05-50589 | USA VDE LA MORA | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 05-50589
Plaintiff-Appellant, D.C. No.
v. CR-87-00119-RMT-  01JOSE DELAMORA,
Defendant-Appellee. OPINION

Appeal from the United States District Court
for the Central District of California
Robert M. Takasugi, District Judge, Presiding
Argued and Submitted
May 5, 2006—Pasadena, California
Filed June 22, 2006
Before: Donald P. Lay,* Barry G. Silverman, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Silverman
*The Honorable Donald P. Lay, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
6957

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COUNSEL
Debra Wong Yang, United States Attorney; Thomas P.
O’Brien, Assistant United States Attorney, Chief, Criminal
Division; Michael J. Raphael, Assistant United States Attor-
ney, Deputy Chief, Criminal Appeals Section, Los Angeles,
California.
6960 UNITED STATES v. DELAMORA

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Maria E. Stratton, Federal Public Defender; Davina T. Chen,
Deputy Federal Public Defender, Los Angeles, California.
OPINION
SILVERMAN, Circuit Judge:
We hold today that a defendant’s term of supervised release
is tolled from the time that he absconds from supervision until
the time he is found by federal authorities. Accordingly, the
district court in this case had jurisdiction to conduct revoca-
tion proceedings because a sworn petition to revoke was filed
before the term of supervised release, as tolled, had expired.
I. FACTS AND PROCEDURAL BACKGROUND
In April 1987, Jose Delamora was convicted on all counts
of a nine-count indictment relating to his participation in a
cocaine trafficking ring. Delamora’s conviction occurred dur-
ing the “window period” between the effective date of two
federal statutes that govern post-confinement monitoring of
drug offenders. Before the Anti-Drug Abuse Act of 1986,
some drug offenders, like Delamora, were eligible for parole,
but would have to serve an additional term of “special parole”
following their incarceration. See Gozlon-Peretz v. United
States, 498 U.S. 395, 397-99 (1991). The Anti-Drug Abuse
Act replaced special parole with supervised release, see Pub.
L. No. 99-570, §§ 1002(2), 1004, 100 Stat. 3207 (1986) (codi-
fied as amended at 21 U.S.C. § 841(b)(1)(A)), but did not dis-
turb drug offenders’ eligibility for parole. The Sentencing
Reform Act, effective November 1, 1987, after Delamora’s
conviction, abolished probation and all forms of parole and
imposed a unified system of supervised release for all federal
crimes. See Pub. L. No. 98-473, tit. II, § 212(a)(2), 98 Stat.
1837 (1984) (codified as amended at 18 U.S.C. § 3583).1
1The Sentencing Reform Act was passed before the Anti-Drug Abuse
Act, but it did not become effective until one year after the Anti-Drug
Abuse Act took effect.
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The district court sentenced Delamora to 10 years’ impris-
onment, and ordered that Delamora was parole-eligible upon
serving one-third of his 10-year sentence. In accordance with
the Anti-Drug Abuse Act, it also ordered that Delamora was
to serve eight years of supervised release.
Delamora was released on parole on November 14, 1990.
He was discharged from parole on May 17, 1996. On Febru-
ary 20, 1998, his probation officer filed an unsworn petition
in the district court, alleging that Delamora had violated the
conditions of his supervised release by not reporting to him
since December 1997 and by not submitting monthly reports
since November 1997. The probation officer also alleged that
the INS, which possessed a Warrant of Deportation for
Delamora, could not locate Delamora at his residence or
workplace, and that Delamora told him that he was planning
to return to Mexico permanently. On February 23, 1998, the
district court issued a warrant for Delamora’s arrest.
Delamora, however, did not permanently return to Mexico.
On April 20, 2000, he applied for a California driver’s license
under the name “Joe Macias.” Five years later, on February
8, 2005, police in Gardena, California arrested him on suspi-
cion of drug possession. Delamora was released, but on
March 8, 2005, the Gardena police discovered Delamora’s
true identity. On March 28, 2005, the Gardena police also
charged Delamora with making false statements to the Cali-
fornia Motor Vehicles Division.
That same day, a United States Probation Officer filed a
petition for revocation of Delamora’s supervised release, this
time based on a sworn declaration. Specifically, the Probation
Officer averred that he had “reviewed the Court file [and] the
attached Petition dated February 20, 1998,” and that “the
statements contained in the petition [we]re true and correct to
the best of [his] knowledge.” The district court issued another
warrant for Delamora’s arrest, and on April 21, 2005, one day
after his arrest, Delamora appeared before the district court.
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The district court dismissed the petition. It relied on our
decision in United States v. Vargas-Amaya, 389 F.3d 901 (9th
Cir. 2004), in which we held that jurisdiction to revoke super-
vised release can extend beyond the term of supervision only
if a warrant supported by affirmation was issued during the
initial term. Id. at 907. The district court concluded that it
lacked jurisdiction, reasoning that Delamora’s supervised
release term expired on May 16, 2004, eight years after he
was discharged from parole and ten months before the Gov-
ernment filed its sworn petition.
The Government timely appealed.
II. ANALYSIS
[1] The district court correctly concluded that, under
Vargas-Amaya, the February 23, 1998 bench warrant —
which was based on unsworn allegations — did not preserve
its jurisdiction. The March 28, 2005 warrant was based on
sworn allegations, but it was issued well after Delamora’s
supervised release term would have expired in the absence of
tolling. Thus, the district court had jurisdiction to revoke
Delamora’s supervision release only if tolling prevented his
supervised release term from expiring.
After the district court dismissed the Government’s peti-
tion, we decided United States v. Murguia-Oliveros, 421 F.3d
951 (9th Cir. 2005). Murguia-Oliveros was convicted of ille-
gal reentry after deportation, and after his release from prison,
he absconded from supervision. Id. at 952. Before his super-
vised release term was set to expire in September 2004, he
was arrested on unrelated charges, which prompted his proba-
tion officer to instruct him to report. Id. Murguia-Oliveros
never did contact his probation officer, and in January 2004,
the district court issued a bench warrant supported by
unsworn allegations. Id. Murguia-Oliveros was arrested in
November 2004, two months after his supervised release term
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was set to expire. Id. at 953. The district court assumed juris-
diction and revoked supervised release. Id.
[2] We affirmed. We concluded that Murguia-Oliveros was
a “fugitive” because he “effectively absconded from serving
the terms of his supervised release” by reentering the United
States and not contacting his probation officer. Id. at 954
(relying on United States v. Crane, 979 F.2d 687, 691 (9th
Cir. 1992) (tolling is appropriate where defendant was a “fu-
gitive” because he stopped serving the conditions of his
supervised release by leaving the community treatment center
where he was ordered to serve his term)). We then concluded
that Murguia-Oliveros’s supervised release term was tolled
for eight months, from issuance of the bench warrant in Janu-
ary 2004 to September 2004, when his term was set to expire.
Id. at 955 (“Murguia-Oliveros was a fugitive for purposes of
supervised release at least from the time the government
obtained a warrant for his arrest, in January of 2004, until the
time the supervised release would have expired, absent a vio-
lation, in September of 2004.”). Thus, the district court prop-
erly assumed jurisdiction because Murguia-Oliveros was
arrested in November 2004, “well within the tolling period.”
Id.
[3] Delamora argues that Murguia-Oliveros permits tolling
of his supervised release term only from the date the arrest
warrant was issued until the date his term would have expired
absent a violation, regardless of the fact that he absconded
from supervision. We reject that argument. Tolling of a super-
vised release term extends the date the term is set to expire so
long as the defendant remains a fugitive. “To hold otherwise
here would reward those who flee from bench warrants and
maintain their fugitive status until the expiration of their origi-
nal term of supervised release.” Crane, 979 F.2d at 691.2 As
2In Crane, the defendant’s term of supervision was set to expire on May
2, 1991, but he was a fugitive from September 1990 to December 1990,
and was incarcerated on unrelated state charges from December 1990 to
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we recognized in Murguia-Oliveros, “[t]olling is necessary to
prevent this result.” 421 F.3d at 954.
[4] Delamora became a fugitive when he stopped reporting
to his probation officer and absconded from supervision.
Under Murguia-Oliveros, the start of Delamora’s flight,
which corresponds with the February 23, 1998 bench warrant,
commenced the tolling of his supervised release term. On that
date, he had 265 days of supervision remaining before his
term would have otherwise expired on November 14, 1998,
because his supervised release term began when he was
released from prison on November 14, 1990.3 Delamora was
brought into federal custody on April 20, 2005, at which point
the clock began running again. Delamora’s supervised release
term, then, did not actually expire until December 10, 2005,
or 265 days from April 20, 2005. Because the Probation
Department filed its petition to revoke supervised release on
March 28, 2005, the district court had jurisdiction.
Delamora argues that by tolling his supervised release term
for more than seven years, we are affording invalid warrants
May 9, 1991. 979 F.2d at 691. Even though his original term had expired,
we held that the term of supervised release was tolled for the period of his
fugitive status, and that the district court retained jurisdiction to revoke
supervised release. Id.
3We join the Third, Fifth and Tenth Circuits in deciding that, for defen-
dants sentenced during the “window period” between passage of the Anti-
Drug Abuse Act and the effective date of the Sentencing Reform Act, the
term of supervised release begins on the day they are released from
imprisonment, not the day their parole period ends. See United States v.
Cook, 329 F.3d 335, 338 (3d Cir. 2003); United States v. Lynch, 114 F.3d
61, 63-64 (5th Cir. 1997); United States v. Reider, 103 F.3d 99, 101-02
(10th Cir. 1996). In doing so, we follow the clear direction of Congress,
see 18 U.S.C. § 3624(e) (“The term of supervised release commences on
the day the person is released from imprisonment . . . .”), and the Supreme
Court’s guidance that we look to the Sentencing Reform Act when inter-
preting “supervised release” imposed pursuant to the Anti-Drug Abuse
Act. Gozlon-Peretz, 498 U.S. at 407-08.
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(i.e., those based on unsworn allegations) more force than
valid warrants. Not so. What tolls the time is Delamora’s fugi-
tive status, not the invalid warrant. In this case, Delamora’s
status as an absconder happens to coincide with the date of
the unsworn petition as it did in Murguia-Oliveros, and often
might.
[5] Finally, we disagree with Delamora that the district
court lacked authority under the Anti-Drug Abuse Act to
revoke his supervised release. Although the Anti-Drug Abuse
Act does not expressly provide for revocation, such authority
is necessarily implied in the district court’s authority to
impose supervised release in the first place. See Pub. L. 99-
570, 100 Stat. 3207 (codified at 21 U.S.C. § 841(b)(1)). We
do not believe that Congress would have authorized a system
of post-confinement monitoring in an exercise of futility.
[6] Moreover, the Supreme Court has said that the term
“supervised release” in the Anti-Drug Abuse Act should be
interpreted with reference to the Sentencing Reform Act. See
Gozlon-Peretz, 498 U.S. at 408 (“The reasonable assumption
is that when Congress adopted the ADAA and used the term
‘supervised release’ it knew of the full definition in the exist-
ing Sentencing Reform Act and legislated with reference to
it.”). Thus, because the Sentencing Reform Act grants revoca-
tion authority to the district court, we conclude that the dis-
trict court has the same authority when adjudicating violations
of supervised release under the Anti-Drug Abuse Act.
[7] For the same reason, we reject Delamora’s argument
that applying the revocation provision would violate the Ex
Post Facto Clause. The revocation provision, 18 U.S.C.
§ 3583(e), was part of the “full definition” of supervised
release that the Anti-Drug Abuse Act incorporated by refer-
ence. Id. Since supervised release may be imposed against
those convicted during the “window period” without trigger-
ing constitutional concerns, see id. at 407-09, revocation for
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violating the terms of supervised release is also constitution-
ally permissible.
CONCLUSION
For the reasons set forth above, we reverse the district
court’s order dismissing the petition for revocation, and
remand to the district court for further proceedings.
REVERSED.
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