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U.S. v. Wing

United States Court of Appeals, Ninth Circuit
Oct 18, 2010
400 F. App'x 187 (9th Cir. 2010)

Opinion

No. 09-30413.

Argued and Submitted October 5, 2010.

Filed October 18, 2010.

Kris Allen McLean, Esquire, USMI-Office of the U.S. Attorney, Missoula, MT, for Plaintiff-Appellee.

John Rhodes, Esquire, FDMT-Federal Defenders of Montana, Missoula, MT, for Defendant-Appellant.

Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding. D.C. No. 9:01-cr-00037-DWM-1.

Before: THOMAS and M. SMITH, Circuit Judges, and HOGAN, District Judge.

The Honorable Michael R. Hogan, United States District Judge for the District of Oregon, sitting by designation.


MEMORANDUM

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Michelle Wing argues on appeal that the district court lacked jurisdiction to revoke her term of supervised release because the term had not yet commenced. The record facially supports her claim: her new period of supervised release appears to have been scheduled to commence after the district court hearing. See 18 U.S.C. § 3624(e) ("The term of supervised release commences on the day the person is released from imprisonment . . ."); United States v. Johnson, 529 U.S. 53, 57, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000) (holding that a supervised release term does not commence until an individual "is released from imprisonment"); United States v. Malandrini, 177 F.3d 771, 774 (9th Cir. 1999).

As Wing concedes, this argument was not presented to the district court. However, because the argument implicates the court's jurisdiction, Wing is not precluded from raising it on appeal. United States v. Powell, 24 F.3d 28, 30 (9th Cir. 1994). Because the district court has not had the opportunity to consider the argument, we are without benefit of the district court's analysis on the issue, or its analysis on the extent to which the revocation pertained (or could pertain) to Wing's first period of supervised release. See Johnson v. United States, 529 U.S. 694, 704-13, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000) (noting that when a court "revokes" a supervised release term under Section 3583(e), that term "continues to have some effect"); see also 18 U.S.C. § 3583(h), (i). We would benefit from the district court's views, and it would be unfair to the district court for us to decide this case without giving it the opportunity consider the questions in the first instance. Therefore, we remand the case to the district court for consideration of the issues raised in the appeal.

REMANDED.


Summaries of

U.S. v. Wing

United States Court of Appeals, Ninth Circuit
Oct 18, 2010
400 F. App'x 187 (9th Cir. 2010)
Case details for

U.S. v. Wing

Case Details

Full title:UNITED STATES of America, Plaintiff-Appellee, v. Michelle WING…

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 18, 2010

Citations

400 F. App'x 187 (9th Cir. 2010)