USA v. Penaloza et al

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

UNITED STATES OF AMERICA

v.

NARBEL SOLARIO PENALOZA (1)
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§
§
§
§

NO. 4:11-CR-00006-ALM-BD

SEALED

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
A probation officer petitioned the court for revocation of Narbel Solario Penaloza’s supervised
release. Dkt. 1946 (sealed). The court will recommend that the petition be dismissed for want of
jurisdiction.
BACKGROUND
Narbel Solario Penaloza was sentenced to a term of imprisonment, followed by five years of
supervised release, in 2012. Dkt. 1354 at 1–3. His term of supervised release commenced in January
2018. Dkt. 1946 at 1 (sealed).
One year later, a probation officer petitioned the court for a warrant, alleging that Solario
Penaloza had violated conditions of his supervised release by illegally reentering the United States.
Dkt. 1946 (sealed). Although the court promptly issued the warrant, Dkt. 1948 (sealed), no docket
entry reflects when it was executed.
Solario Penaloza was, however, eventually brought before the court for an initial appearance
on the revocation petition. That happened on May 9, 2025—more than six years after the arrest
warrant issued. Minute Entry for May 9, 2025. A final revocation hearing was held before me a
couple of weeks later. Minute Entry for May 23, 2025. At the hearing, Solario Penaloza pled true
to all of the petition’s allegations.
Because neither party could explain the delay between the 2019 petition and the 2025 hearing,
the court continued the hearing and requested jurisdictional briefing. Dkt. 2021. In response, the
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parties filed a joint advisory stating that Solario Penaloza was administratively removed from the
United States on January 25, 2018, returned on January 5, 2019, was quickly convicted in the
Southern District of Texas for illegal reentry (leading to the warrant in this matter, Doc. 1948), and
was removed again on January 7, 2019. Dkt. 2024 at 2 (sealed).
The advisory attached Solario Penaloza’s immigration records, which provided some
additional information about his 2018 and 2019 removals, along with records of earlier events.
Dkt. 2024-1 (sealed). But neither the records nor the advisory shed any light on what happened
between 2019 and 2025. Nevertheless, the parties told the court that it “should have jurisdiction
in this matter” because “the Fifth Circuit recently has joined other circuits that favor the
application of the fugitive tolling doctrine for deported defendants.” Dkt. 2024 at 1 (sealed).
LAW
To prevent rewarding flight, fugitive status tolls certain deadlines. See 18 U.S.C. § 3290
(stating that “[n]o statute of limitations shall extend to any person fleeing from justice”); Anderson
v. Corall, 263 U.S. 193, 196 (1923) (tolling service of sentence); United States v. Mullins, 562 F.2d
999, 1000 (5th Cir. 1977) (tolling the ten-year limitation under Federal Rule of Evidence 609(b),
which governs impeachment by evidence of a criminal conviction); cf. Glover v. Johnson, 831 F.2d
99, 101 (5th Cir. 1987) (declining to toll a limitations period applicable to a suit brought under 42
U.S.C. § 1983 because doing so would reward a fugitive for his escape). Several circuits have
applied that principle, known as the fugitive-tolling doctrine, in the context of supervised release.
United States v. Island, 916 F.3d 249, 252–56 (3d Cir. 2019); United States v. Barinas, 865 F.3d 99,
107–10 (2d Cir. 2017); United States v. Buchanan, 638 F.3d 448, 451–58 (4th Cir. 2011); United
States v. Murguia-Oliveros, 421 F.3d 951, 953–55 (9th Cir. 2005).
After a false start five years ago, United States v. Cartagena-Lopez, 979 F.3d 356, 363 (2020),
reh’g granted, opinion withdrawn and appeal dismissed as moot, No. 20-40122, 2020 WL 13837259
(Nov. 19, 2020), the Fifth Circuit joined their ranks last month, United States v. Swick, 137 F.4th
336, 344 (2025). In so doing, it explained that “it is the Government’s burden, as the party invoking
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the district court’s jurisdiction, to establish the facts necessary to support fugitive tolling.” Id. at
345. After weighing the parties’ arguments about what facts need to be established, the court
concluded that “knowledge of the obligation [to report to the probation office for supervision] and
intent to evade it are required.” Id.
DISCUSSION
Solario Penaloza’s term of supervised release was set to expire January 11, 2023, Dkt. 1946 at 1
(sealed), and his deportation did not stop the clock from ticking, see United States v. Brown, 54 F.3d
234, 238 (5th Cir. 1995) (explaining that “a term of supervised release does not terminate after a
defendant is deported”); see also United States v. Heredia-Holguin, 823 F.3d 337, 341–42 (5th Cir.
2016) (en banc) (in finding that deportation did not render a defendant’s appeal of his term of
supervised release moot, noting that “even in Mexico, [the defendant was] still subject to at least
some of the conditions imposed,” such as the condition that he not enter the United States
illegally). But based on Swick, the parties assert that the fugitive-tolling doctrine stopped the clock,
preserving the court’s jurisdiction over the revocation petition. The government bears, and has
not satisfied, its burden on that point.
The 2012 judgment states that, “[i]n the event [Solario Penaloza] is not deported, or for any
reason re-enters the country after having been deported, [he] shall comply with all conditions of
supervised release, to include reporting to the nearest U.S. Probation Office within 72 hours of
release by immigration officials or re-entry into the country.” Dkt. 1354 at 4; Dkt. 2024-1 at 26
(sealed); see also Dkt. 1862 at 1 (August 4, 2015, order reducing the length of Solario Penaloza’s
sentence but confirming that the 2012 judgment’s reporting provision remained in effect). The
record does not reflect Solario Penaloza’s receipt of that document or contain a signed
acknowledgement of the conditions of his supervised release, and the government has not
produced a transcript of the sentencing hearing reflecting that the court orally informed Solario
Penaloza of the reporting condition.
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Even assuming, however, that the court could properly infer Solario Penaloza’s knowledge of
his obligation to report, the end result would not change because the government has identified no
evidence of his “intent to evade” that obligation. Swick, 137 F.4th at 345. That means it has not
met its burden to “invoke[e] the district court’s jurisdiction” by “establish[ing] the facts necessary
to support fugitive tolling.” Id. at 344. Just showing that fugitive tolling now applies in this context
in the abstract, see Dkt. 2024 at 2–5 (sealed), is insufficient, Swick, 137 F.4th at 344–45; see United
States v. Standefer, No. 95-50043, 1996 WL 46805, at *2–3 (5th Cir. Jan. 15, 1996).
At the May 23, 2025, revocation hearing and in its follow-up order, Dkt. 2021, the court
mentioned Swick and several other authorities that might be relevant to the jurisdictional question.
The order pointed the parties to United States v. Reaves, No. 4:20-CR-00385-SDJ-BD, 2025 WL
926464 (E.D. Tex. Mar. 10, 2025), which cited, among other things, 18 U.S.C. § 3583(i) (extending
the court’s jurisdiction to revoke supervised release “for any period reasonably necessary for the
adjudication of matters arising before” the expiration of a supervised-release term) and 18 U.S.C.
§ 3624(e) (tolling the term of supervised release for periods of incarceration). Although the joint
advisory also cite d those authorities, Dkt. 2024 at 2–5 (sealed), the government does not explain
how they might support jurisdiction here. So once again, the government has failed to meet its
burden. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (noting that “it is
to be presumed that a cause lies outside [a federal court’s] limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting jurisdiction”) (cited in Swick, 137 F.4th at
345); see also United States v. Reaves, No. 4:20-CR-00385-SDJ-BD, 2025 WL 1717659 (E.D. Tex.
June 20, 2025) (addressing timeliness under 18 U.S.C. § 3583(i)).
RECOMMENDATION
It is RECOMMENDED that the petition to revoke Solario Penaloza’s supervised release,
Dkt. 1946 (sealed), be DISMISSED WITHOUT PREJUDICE for want of jurisdiction.
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* * *
Within 14 days after service of this report, any party may serve and file written objections to
the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C).
A party is entitled to a de novo review by the district court of the findings and conclusions
contained in this report only if specific objections are made. Id. § 636(b)(1). Failure to timely file
written objections to any proposed findings, conclusions, and recommendations contained in this
report will bar an aggrieved party from appellate review of those factual findings and legal
conclusions accepted by the district court, except on grounds of plain error, provided that the party
has been served with notice that such consequences will result from a failure to object. Id.; Thomas
v. Arn, 474 U.S. 140, 155 (1985); Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1417 (5th Cir.
1996) (en banc), superseded by statute on other grounds; 28 U.S.C. § 636(b)(1) (extending the time to
file objections from 10 to 14 days).

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