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holding that a period of supervised release is not tolled during the time a defendant is outside of the United States as a result of deportation
Summary of this case from Brika v. U.S.Opinion
No. 05-5824.
Argued: March 7, 2007.
Decided and Filed: June 21, 2007.
Appeal from the United States District Court for the Middle District of Tennessee, Robert L. Echols, J.
ARGUED: Ronald C. Small, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Byron M. Jones, United States Attorney, Nashville, Tennessee, for Appellee. ON BRIEF: Ronald C. Small, Jennifer N. Coffin, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Byron M. Jones, United States Attorney, Nashville, Tennessee, for Appellee.
Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, MOORE, COLE, CLAY, GILMAN, GIBBQNS, ROGERS, SUTTON, COOK, McKEAGUE, and GRIFFIN, Circuit Judges.
OPINION
We reheard this case en banc to resolve the narrow question of whether the practice of tolling a period of supervised release for a deported offender is authorized by the sentencing statutes. Defendant-Appellant Carlos Alberto Ossa-Gallegos ("Ossa-Gallegos") appealed his sentence arguing, inter alia, that the district court did not have the authority to toll the period of supervised release while he was outside the jurisdiction of the United States as the result of deportation.
A panel of this court, constrained by our earlier opinion in United States v. Isong, 111 F.3d 428 (6th Cir.), cert. denied, 522 U.S. 883, 118 S.Ct. 212, 139 L.Ed.2d 147 (1997), was obliged to affirm the district court's decision to toll the period of supervised release. United States v. Ossa-Gallegos, 453 F.3d 371, 376-77 (6th Cir.2006) (citing Salmi v. Sec'y of Health Human Servs., 774 F.2d 685, 689 (6th Cir.1985) ("A panel of this [c]ourt cannot overrule the decision of another panel. The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this [c]ourt sitting en banc overrules the prior decision.")).
For the reasons set forth in Parts H.B and II.C of the panel opinion written by Judge Gilman (attached at Appendix A), we conclude that there was no constitutional error with respect to the district court's classification of Ossa-Gallegos's prior felony as violent, and that the district court's sentence was procedurally and substantively reasonable. Ossa-Gallegos, 453 F.3d at 374-76. However, because we overrule Isong, and hold both that tolling is not a "condition" under 18 U.S.C. § 3583(d), and that the statutory scheme evidences Congress's intent that the period of supervised release would not be tolled while the defendant is outside the United States as the result of deportation, we VACATE the judgment of the district court and REMAND the case for resentencing with instructions that the remand be limited to setting forth lawful conditions of supervised release.
I. BACKGROUND
Ossa-Gallegos pleaded guilty to a one-count indictment charging him with illegal reentry by a previously deported aggravated felon, a violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). Joint Appendix ("J.A.") at 278 (J. at 1). The district court sentenced Ossa-Gallegos to thirty-three months of imprisonment, two years of supervised release, and a $100.00 special assessment. At issue in this case is one of the special conditions of supervised release imposed by the district court. The special condition provided that if Ossa-Gallegos were deported
the Defendant shall not reenter the United States without the express permission of the United States Attorney General. The term of supervised release shall be tolled while the Defendant remains outside the jurisdiction of the United States. Within 24 hours of returning to the United States, the Defendant shall report in person to the nearest U.S. Probation Office. Any undischarged term of supervised release shall not recommence unless the Defendant is available for supervision.
J.A. at 281 (J. at 4).
On appeal to a panel of this court, Ossa-Gallegos challenged the district court's authority to toll the period of supervised release while he remained outside the jurisdiction of the United States. While acknowledging that the panel was bound by our earlier precedent in United States v. Isong, 111 F.3d 428 (6th Cir.1997), Ossa-Gallegos urged us to reconsider our previous position via en banc review. Ossa-Gallegos, 453 F.3d at 376. Citing Isong, the panel affirmed the district court's decision to toll supervised release, and we subsequently vacated the panel opinion and granted en banc review. Like the original panel, we have jurisdiction over this appeal pursuant to both 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
II. ANALYSIS
We review de novo this pure legal question regarding sentencing. United States v. Graham, 327 F.3d 460, 464 (6th Cir.2003). An examination of the language and structure of the sentencing statutes leads us to conclude that district courts are not authorized to toll the period of supervised release while the defendant is deported and outside the United States. First, tolling is not a "condition" of supervised release under 18 U.S.C. § 3583(d). Second, the statutory scheme evidences Congress's intent that the period of supervised release not be tolled while the defendant is deported and outside the United States.
A. Tolling Is Not a "Condition" of Supervised Release Under 18 U.S.C. § 3583(d).
Congress has authorized district courts to include supervised release as part of a defendant's sentence, even in the case where the statute violated does not mandate a term of supervised release. 18 U.S.C. § 3583(a). In addition to specific, enumerated conditions that the district court must impose as part of supervised release, 18 U.S.C. § 3583(d) provides that "[t]he court may order, as a further condition of supervised release . . . any other condition it considers to be appropriate," if the condition is reasonably related to the factors set forth in 18 U.S.C. § 3553(a)(1) and (a)(2)(B)-(D), "involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in" 18 U.S.C. § 3553(a)(2)(B)-(D), and "is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. [§] 994(a)." 18 U.S.C. § 3583(d).
These factors are as follows: consideration of "the nature and circumstances of the offense and the history and characteristics of the defendant"; consideration of "afford[ing] adequate deterrence to criminal conduct": consideration of "protect[ing] the public from further crimes of the defendant"; and consideration of "providing] 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)(1), (a)(2)(B)-(D).
Because § 3583(d) only authorizes district courts to order "conditions" of supervised release, the crux of our inquiry is whether tolling is properly understood as a "condition" of supervised release. If tolling is not a "condition," then district courts have no authority to issue tolling orders under § 3583(d). As all parties agree that § 3583(d) is the only provision under which the district courts may claim the authority to issue such orders, if district courts do not have authority under § 3583(d), then they have no authority to issue tolling orders.
Isong never addressed this question, but rather, the majority in Isong implicitly presumed tolling was a "condition" and then analyzed whether tolling was reasonably related to the § 3553(a) factors. Isong, 111 F.3d at 431. The term "condition" is not defined in the statute itself, but two canons of construction assist us in our endeavor: first, "the meaning of an undefined term may be deduced from nearby words under noscitur a sociis"; and second, "undefined terms are construed in accordance with their ordinary and natural meanings." Limited, Inc. v. Comm'r, 286 F.3d 324, 333 (6th Cir.2002).
1. Noscitur A Sociis
Most of the enumerated conditions in § 3583(d) refer to mandatory conditions of supervised release. The district court must order the following: "that the defendant not commit another Federal, State, or local crime during the term of supervision"; that the defendant comply with requests for DNA collection when authorized by law; that the defendant not unlawfully possess or use a controlled substance; and that the defendant submit to drug testing within fifteen days of commencing supervised release and to at least two drug tests thereafter. § 3583(d). However, the court may "ameliorate or suspend" this last condition if testing is not available within a fifty-mile radius of the defendant's residence. See id. (referring to 18 U.S.C. § 3563(a)(4)).
Certain mandatory conditions are also required under § 3583(d) when the defendant has committed a particular crime. If the defendant is a first-time domestic-violence offender, the court must order that the defendant attend an offender-rehabilitation program if such a program exists within a fifty-mile radius of the defendant's residence. § 3583(d). If the defendant's crime requires compliance with the Sex Offender Registration and Notification Act, then the court must order, as a condition of supervised release, that the defendant comply with the Act's requirements. Id.
Several discretionary conditions are listed under § 3583(d). District courts may add these conditions to a defendant's sentence so long as they are reasonably related to the factors set forth in 18 U.S.C. § 3653(a)(1) and (a)(2)(B)-(D), do not deprive the defendant of any more liberty than is reasonably necessary for the purposes of § 3553(a)(2)(B)-(D), and are consistent with pertinent policy statements. § 3583(d). Most of these enumerated, discretionary conditions are incorporated by reference to the statute governing conditions of probation. 18 U.S.C. § 3563(b)(1)-(b)(10), and (b)(12)-(b)(20). All of these potential conditions involve deeds which the defendant must perform or refrain from performing, such as participating in community service or refraining from associating with specific persons. 18 U.S.C. § 3563(b)(12), (b)(6) In addition, § 3583(d) enumerates two other discretionary conditions. First, if the defendant is an alien and subject to deportation, the court may order, as a condition of supervised release, "that he [or she] be deported and remain outside the United States, and may order that he [or she] be delivered to a duly authorized immigration official for such deportation." Id. Second, the court is permitted to order that a defendant who is required to register under the Sex Offender Registration and Notification Act must submit to multiple types of searches by law enforcement and probation officers. Id.
The court must revoke supervised release and sentence the defendant to imprisonment if a defendant violates certain conditions of supervised release which are listed in § 3583(g). If the defendant violates a condition that is not enumerated in § 3583(g), the district court still has discretion to revoke supervised release and sentence the defendant to imprisonment. 18 U.S.C. § 3583(e)(3). Therefore, violating any term of supervised release could result in revocation of supervised release and in imprisonment.
2. Definitions of "Condition" and "Tolling"
"Condition" has several dictionary definitions, one of which is pertinent to our inquiry: "a circumstance indispensable to some result; prerequisite; that on which something else is contingent; conditions of acceptance." RANDOM HOUSE WEBSTER'S UNABRIDGED DICTIONARY 425 (2d ed.2001). Id. Turning to the conditions enumerated in § 3583(d), we believe that Congress clearly utilized this definition — prerequisites or conditions of acceptance — when referring to the "conditions" of supervised release. The right to supervised release is contingent upon the defendant's compliance with the enumerated conditions. If the defendant violates certain conditions, revocation of supervised release is automatic; violation of other conditions only triggers the court's power to exercise discretion to revoke supervised release. But all of these conditions are contingencies upon which the right to continue on supervised release depends.
The government argues that the discretionary condition that the defendant be deported and remain outside the United States is not a contingency upon which the right to continue on supervised release depends. See § 3583(d). We disagree because "the principal thrust of this `condition' [i]s the requirement that the defendant `remain outside the United States'; the requirement that [t]he [defendant] be deported is merely the necessary precursor to the constraint imposed on the conduct of the defendant, i.e., that he [or she] stay out." United States v. Balogun, 146 F.3d 141, 145 (2d Cir.1998). See also United States v. Okoko, 365 F.3d 962, 966 n. 7 (11th Cir.2004) (adopting Balogun's reasoning); United States v. Juan-Manuel, 222 F.3d 480, 487 (8th Cir.2000) (same).
"`[W]e presume that Congress does not employ the same word to convey different meanings within the same statute.'" United States v. Juan-Manuel, 222 F.3d 480, 487 (8th Cir.2000) (quoting United States v. Balogun, 146 F.3d 141, 145 (2d Cir.1998)). Because we conclude that Congress meant "that on which something else is contingent" when it enumerated "conditions" in § 3583(d), we likewise conclude that Congress meant "that on which something else is contingent" when it authorized district courts under § 3583(d) to order "any other condition [they] consider appropriate."
In contrast to the conditions enumerated in § 3583(d), "tolling" is not a contingency of supervised release. Black's Law Dictionary defines "toll" as "to stop the running of; to abate toll the limitations period." BLACK'S LAW DICTIONARY 1525 (8th ed.2004). With respect to the supervised-release statute, tolling is best understood as "relat[ing] to the timing of the supervised release." United States v. Okoko, 365 F.3d 962, 966 (11th Cir.2004). We believe that the continuation of supervised release is not contingent on tolling; rather, tolling describes the existing state of supervised release — that is, whether or not the period of supervised release is running.
"Tolling" is not a "condition" in the sense in which the term is used in § 3583(d), and therefore, courts do not have authority under § 3583(d) to issue special "conditions" of supervised release which toll the period for which deported aliens are subject to supervised release. Because § 3583(d) is the only statute from which district courts could conceivably claim their authority to issue orders tolling the period of supervised release while defendants are outside the United States pursuant to deportation, our holding today means that district courts have no authority to issue such orders.
The three other circuits that have deter rained that tolling is not a "condition" under § 3583(d) base their decision on the conclusion that a "condition of supervised release' is something over which the defendant has some degree of control, something which the defendant has to do or refrain from doing. See Okoko, 365 F.3d at 966; Juan-Manuel, 222 F.3d at 487; Balogun, 146 F.3d at 146. While we agree with our sister circuits' conclusion that tolling is not a "condition," and believe that their reasoning is sound, we base our conclusion on a more commonly understood definition of the word "condition." The question, in our view, is not whether the defendant has control over taking or not taking a certain action, but rather, whether the right to supervised release is contingent upon taking or not taking that action.
Concerns were raised at oral argument about the impact of this conclusion. If a district court may not toll the period of supervised release, then a term of supervised release continues while the alien is living abroad. The worry is that many conditions of supervised release may be difficult or impossible for the deported defendant to comply with while the defendant is living abroad. If the defendant is unable to comply with these conditions while abroad, the defendant violates the terms of supervised release for something which is outside his or her control. This, of course, offends basic notions of fairness. Fortunately, the statute is structured so that such a problem is avoidable. None of the mandatory conditions of supervised release enumerated in § 3583(d) necessarily requires physical presence in the United States. For example, a defendant need not be present in the United States in order to comply with the requirement that he or she refrain from using or possessing controlled substances. Of those mandatory conditions which could require presence in the United States, such as participation in drug testing, the district court is required to order participation only if such testing exists within a fifty-mile radius of the defendant's residence. § 3583(d). Thus, there is nothing inherent in the mandatory conditions listed in § 3583(d) which would force defendants to violate supervised release simply by virtue of the fact that they live abroad. As to the discretionary conditions of supervised release, we expect that district courts will use common sense in crafting discretionary conditions so that a defendant facing deportation is reasonably able to comply with the conditions while residing outside the United States.
B. The Statutory Scheme Evidences Congress's Intent That the Period of Supervised Release Would Not Be Tolled While the Defendant Was Deported and Residing Outside the United States
Our holding today is also based on the statutory structure. To start, the law is clear that "[t]he term of supervised release commences on the day the person is released from imprisonment. . . ." 18 U.S.C. § 3624(e). The only instance where Congress has explicitly provided for tolling the period of supervised release is when "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." Id.
We also note that § 3624 differs from the statute governing the running of a term of probation. 18 U.S.C. § 3564(a). The probation statute states that "[a] term of probation commences on the day that the sentence of probation is imposed, unless otherwise ordered by the court." Id. (emphasis added). "This section adds further support to the proposition that Congress is well aware of how to vest district courts with discretion over the running of various time periods." Isong, 111 F.3d at 432 n. 1 (Moore, J., dissenting).
According to the Eleventh and Eighth Circuits there are two instances where Congress explicitly provides for tolling. Okoko, 365 F.3d at 964-65; Juan-Manuel, 222 F.3d at 488. In addition to cases of reincarceration, these circuits interpret 18 U.S.C. § 3583(i) as a tolling provision:
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 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). Section 3583G) extends the time period in which the government may pursue a revocation proceeding against a defendant who allegedly violated the terms of his or her supervised release, but for whom the period of supervised release has expired. We do not view § 3583(i) as 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.
As the Isong dissent pointed out, in keeping with the canon of expressio unius est exclusio alterius (the expression of one thing is the exclusion of another), the fact that Congress explicitly allows for tolling only when a defendant is imprisoned indicates that Congress does not intend for district courts to toll the period of supervised release under any other circumstance. Isong, 111 F.3d at 431-32 (Moore, J., dissenting). See also Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) (relying on the canon).
The panel majority in Isong recognized this canon and its applicability in the case before it, but determined that because an unserved period of supervised release does not defer deportation, supervised release would be "meaningless" when the defendant is not within the United States. Isong, 111 F.3d at 431. The tolling order, according to the Isong panel majority, was "an appropriate way to make supervised release meaningful for defendants who are going to be deported" and reside outside the United States. Id. We infer from the panel majority's reasoning that it was attempting to make sense of an idea which, to it, sounded nonsensical: the idea that a deportee is on supervised release while outside the jurisdiction of the United States.
Language in § 3583(d), however, evidences that Congress was not uncomfortable with such an arrangement. The statute provides that a district court may impose a special condition of supervised release deporting the alien defendant and requiring the defendant to remain outside the United States. Id. When a defendant is ordered "to leave and remain outside the United States as a condition of his [or her] supervised release, it stretches reason to conclude that [a] district court could suspend [the] term of supervised release during this time." Isong, 111 F.3d at 433 (Moore, J., dissenting). This would create an incoherent situation where "time [would] stand still while various conditions of supervised release continue to operate upon a defendant." Id. See also United States v. Juan-Manuel, 222 F.3d at 487 ("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 release to be suspended for the duration of that exclusion."); Okoko, 365 F.3d at 966 (adopting this reasoning).
We recognize that another statute already prohibits a deported alien convicted of a felony from reentering the United States without permission of the Attorney General, so that a district court need not include this special condition authorized by § 3583(d) in order to provide that a deported alien must remain outside the United States. See 8 U.S.C. § 1326(a). But the fact that § 3583(d) makes the special condition of supervised release available to district courts indicates that Congress envisioned the period of supervised release to be running during the period for which the deported defendant is outside the jurisdiction of the United States.
Because the panel majority in Isong rejected the canon of expressio unius est exclusio alterius in order to reconcile a situation which we now conclude was in no need of reconciliation, we return to the question of whether Congress's explicit reference to tolling in only one instance evidences its intent that this was the sole instance when tolling the period of supervised release is authorized. Since the Isong decision, every other circuit court examining this question has adopted the reasoning articulated in the Isong dissent. Okoko, 365 F.3d at 967; Juan-Manuel, 222 F.3d at 487-88; Balogun, 146 F.3d at 146. The now-prevailing position "decline[s] 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." Okoko, 365 F.3d at 967 (quoting Balogun, 146 F.3d at 146). Upon reconsideration of this point, we join the prevailing position; we conclude that if Congress had wanted to authorize tolling the period of supervised release while a defendant was outside the jurisdiction of the United States as the result of deportation, it would have expressly indicated this in the statute. Because Congress did not so indicate, we conclude that it is impermissible under § 3583(d) for district courts to toll the period of supervised release on the basis of a defendant's absence from the United States.
The parties raised a number of policy-based arguments in support of their respective positions. These arguments centered around whether the goals of supervised release are better realized through tolling and whether tolling provides an unjustified administrative burden on the United States Probation Office. We think it best to leave the resolution of these policy questions to Congress. If Congress determines that the goals of supervised release are better realized by giving district courts discretion to issue these types of tolling orders, then Congress is free to amend the legislation to provide district courts this authority.
III. CONCLUSION
We acknowledge that § 3583(d) gives district courts latitude in creating additional conditions of supervised release beyond those enumerated in the statute. However, because tolling is not a "condition," and because tolling is inconsistent with the overall statutory scheme providing for supervised release, we conclude that a district court may not issue an order tolling the period of supervised release as a special condition of supervised release pursuant to § 3583(d). Accordingly, we VACATE the judgment of the district court and REMAND the case for resentencing with instructions that the remand be limited to setting forth lawful conditions of supervised release consistent with this opinion.