United States v. Thomas James Garrett

jurisdictional Garrett’s ruling on Before DISCUSSION ordered brief- court the district challenge, Background A. addi- two and held parties from both ing hearing was The first hearings. tional to 1997, pled guilty 2, Garrett May On 2000, the second 8, May held alien into an undocumented bringing hearing, latter 11, 2000. At May 8 U.S.C. in violation claim, con- rejected Garrett’s court 1997, 23, district 1324(a)(2)(B)(iii). On June to re- jurisdiction have it did cluding that served sentenced Garrett release. supervised release, voke which years two decision held court One 1999. on June to end scheduled adjudication postpone of Garrett’s ment from June 1999—the time of his supervised release violations until after arrest —to June 1999—the day final Garrett was released from his scheduled of supervised release— comported with 18 U.S.C. pretrial constituted detention that was in- power extends the a federal sufficient to toll running super- revoke a defendant’s term of vised release. Accordingly, Garrett’s term release after “any period expired on June reasonably necessary for the of matters arising expiration.” before its 3583(i). 18 U.S.C. The district court 3.The decision to post- sentenced Garrett to nine months custody, pone the execution Garrett’s vio- of

to be by followed years two additional of lation warrant until he was after supervised release. appeal This followed. released did not 8583(i). § violate 18 U.S.C. B. The District Did Court Not Err Revoking Supervised Re- 3583(i) § 18 U.S.C. empowers Title lease court, a district under certain circum stances, supervised revoke term of 1. Standard Review of release after that term has expired. Spe question “Jurisdiction ais of law cifically, 3583(i) 18 U.S.C. provides: subject to de novo review.” United States (i) Delayed Neville, revocation.-The power 992, (9th Cir.1993). F.2d

court to revoke a term supervised 2. Garrett’s Term Supervised Re- release for violation of a condition of 22, Expired On June 1999. supervised release, and to order the de- fendant to serve a imprisonment term of The threshold issue in dispute this and, subject to the limitations in subsec- whether Garrett’s term of supervised (h), tion a further term supervised expired release as 22, scheduled on June release, beyond extends 1999, expiration tolled, or was argued by as gov of the term of supervised any release for ernment, because of 15, his earlier June period reasonably necessary the ad- 1999 arrest and consequent incarceration judication matters arising on charges. if, before its expiration, a A supervised defendant’s term of release warrant or summons has been issued is tolled “during any period which the the basis of an allegation of such a viola- person imprisoned in connection with a tion. Federal, State, conviction for a or local ” 3624(e). crime.... 18 U.S.C. Howev- added). U.S.C. (emphasis 3583® er, we have held “pretrial Thus, detention a district court can revoke a term of does not constitute an ‘imprisonment’ with- release after that term has ex- 3624(e) meaning (1) does pired thus if: a violation or sum- warrant operate not to toll a term of mons was issued before the expired; term release.” United (2) v. Morales-Alejo, the delay between the end (9th Cir.1999). 193 F.3d Here, term of supervised release and the district Garrett plead did not guilty to court’s revocation order is “reasonably charges until 28, 1999, June and was not necessary for of matters sentenced on charges those Septem- until arising before [the expiration.” term’s] Id. ber Therefore, 1999. Garrett’s confine- Both elements were satisfied here. homicides, the United ceration satisfied requirement was The first issued, not but did of Parole States Board of a violation issuance court’s the district The war- Id. execute, warrant. violation on June for Garrett warrant aas officials prison lodged with rant was of Garrett’s predated requested defendant Id. The detainer. day. It by one the warrant so execute that the Board requirement the second —that pa- for his he received imprisonment any is in dis- necessary” —that concurrently with run could role violation gov- that the contends here. Garrett pute 80-81, 97 at Id. his homicide sentences. awaiting his justified ernment the defen- declined The Board S.Ct. execute custody to from state to execute refused request dant’s by the warrant, prejudiced he and that sen- homicide he finished warrant until deprived he delay because sought then The defendant Id. tences. sen- and state federal to serve his chance “dismissal disagree. concurrently. We tences prompt he had been denied ground boils down case Ultimately, this parole revo- pending hearing which awaiting a defendant’s Id. aired.” could be cation issues a violation custody to execute state rejected the defen- Moody in The Court necessary the for “reasonably warrant delay ten-year claim, that the ruling dant’s arising prior matters of adjudication” the of and execution the issuance between super- defendant’s the of the constitutional- warrant parole violation below, explained As release term. vised con- parolee is not a because ly acceptable stems resolving this issue in difficulty the hear- to a revocation stitutionally entitled com- delay the while fact that from the such of the issuance immediately upon ing been repeatedly has by Garrett plained A 86, 97 S.Ct. 274. Id. at a warrant. see, “reasonable,” e.g., United deemed reasoned, the Court hearing, 1225, 1226 Bartholdi, F.2d 453 v. States the after promptly tendered need technically “neces- Cir.1972), (9th it is not executed, a because warrant violation pow- government’s the federal sary” given liberty as a loss not suffer parolee does ad corpus a writ of habeas execute er to into is taken until he violator parole leaving the question thus prosequendum; Id. warrant. violation under custody the delay is such 274; United States see also 87, 97 S.Ct. at necessary.” Cir.2000) (2d 172, Sanchez, 175 225 F.3d v. violation a defendant’s (“[DJelay between the de that argument support of execution and the under permissible in this case lay not, in and does warrant the violation on relies government process due itself, violate a defendant’s Dag Moody v. holding in Supreme Court’s 39 Tippens, rights.”); 274, 50 L.Ed.2d 78, S.Ct. 97 429 U.S. gett, Cir.1994) thirty (5th (finding a 88, 90 F.3d Moody in (1976). Supreme Court The 236 aof the issuance delay between month gov constitutionality of addressed to be its execution warrant the execution ability postpone ernment’s had been defendant justified where defen until a parole violation of a months). thirty during custody custody. from state released dant that held Moreover, Supreme two Court and killed Moody shot defendant prejudiced not been had previous defendant for a parole while individuals Commission the Parole 80, delay 97 the because Moody, U.S. offense. federal retroactively, the grant, power “the incar- had During the 274. S.Ct. equivalent of concurrent sentences and to court issued a violation warrant for a fed- provide for unconditional or conditional probationer re eral who was in custody. upon completion Bartholdi, the subsequent F.2d at Although Moody, sentence.” 429 U.S. at 97 warrant was issued probation- within the 274; S.Ct. see also United States v. ary period, it was not executed until the (6th Throneburg, 87 F.3d Cir. defendant released custody from state 1996) (“[The authority defendant] cites no nearly later, year by which time the proposition that a may original probationary period expired. had affect one’s ability to serve sentences con Id. The defendant Bartholdi argued currently either implicates process due or that “[t]he warrant was not executed and provisions violates the of 18 U.S.C.A. hearing held within a reasonable time.” 3583(i).”). rejected Id. We argument, this holding the execution of the warrant could in Moody Court unambiguously await pending state sen- held that federal is not tences without amounting to an unreason- constitutionally required to writ a defen- Id.; delay. able Parker, see also Barr v. dant out custody and into federal (9th Cir.1971) (“A 453 F.2d war- purposes executing a viola- rant may be executed after the term has tion warrant. Moody, 429 U.S. at expired await the outcome of Furthermore, S.Ct. 274. opinion clari- pending criminal charges and sentences fies that a defendant preju- claim cannot entered thereon without amounting to an dice from a delay such ground delay.”). unreasonable he is unable to serve multiple sen- tences concurrently. Id. Garrett challenges re- banee on by Bartholdi emphasizing the

Given Supreme the position Court’s that differences a between delay “reasonable” rights probationers the parolees in and a “reasonably necessary” delay. In revocation hearings virtually identical, are fleshing distinction, out this Gagnon Garrett rebes v. Scarpelli, 778, 783, 411 U.S. heavily Dworkin, on United States v. S.Ct. (1973), L.Ed.2d 656 the F.Supp.2d (E.D.N.Y.1999). holding in The Moody court is instructive here. The in Dworkin jur- addressed applicability case, whether it had Moody to this howev er, 3565(c) isdiction § under 18 is U.S.C. more to re- attenuated suggested by than voke the probation government the after it had and the district court. expired. 3565(c) The Section absence of a contains lan- right constitutional to a guage prompt parole identical to that embodied in hearing prior to § the permitting of a execution a “reasonably violation warrant does necessary” delay adjudication foreclose the argument that a the defen dant matters possess arising prior such a right to the under the express probation. statutory 3583(i). § Id. at 216. language of Thus, Moody instructive, but not dispos- us, Unlike the case before Dworkin was itive. never or arrested incarcerated for the

The government also emphasizes crime he allegedly our committed while Bartholdi, holding in parole. government F.2d in The in Dworkin which we lent delayed considerable attention to the the execution of Dworkin’s viola- issue of whether postponing the execution tion warrant anticipation in of the issuance probation of a violation'warrant until the of an against indictment both Dworkin and defendant is released from state custody key a against witness him for the same Bartholdi, reasonable. the district government conduct the believed had vio- necessary” “reasonably a delay and Id. able” parole. of Dworkin’s terms the lated ap- ears. We fall on deaf delay does not that asserted government at 215-16. between distinction crucial under the preciate permissible were actions purport to view do not had terms and delays been the two 3563(c) similar because Moody in same. While “reasonable.” as one the courts to be them by other found the govern- clearly the rejected illustrate court and Bartholdi 216. The Id. at of the that none holding delay executing in argument, ment’s was constitutionally per- by government upon was relied warrant cases violation “providing for “reasonable,” statute case under a neither decided missible adju- necessary’ ‘reasonably us— period issue before squarely resolves expi- arose before “reasonably matters that is, delay dicate Focus- Id. probationary 3583(i). term.” ration of how do So necessary” under took government that the the fact ing on necessary” we reconcile more until than Dworkin against no action 3583(i) holdings §in with language alleged of his after it learned years three answer, we and Bartholdi? Moody probation- after his years two We believe, do not intersect. they which time during expired, ary term Moody by established precedent view the incarcerated, never Dworkin was light, guiding not as our Bartholdi held: we upon which merely the canvas as but “necessity” no offers government [T]he picture. interpretive paint our “adju- an bringing about for the of whether Our determination This alleged violation. dication” of 3583(i) by wait violated government instance, which, is not case from state released ing until Garrett was alleged viola- of an learned his term custody to revoke expiration of shortly tion first to ascertain requires us gov- term. Nor probationary contemplated adjudication type to execute unable ernment language 3583(i). that the conclude We imprisoned probationer because the reasonably nec 3583(i) “any period §of — absent state or otherwise in another aris of matters essary for the jurisdiction. from the to the expiration” ing before —refers at 216-17. Id. su the defendant’s adjudication of federal support Gar- language does not This Thus, violations. release pervised the Dworkin. While on reliance rett’s the 3583(i) jurisdiction the § extends Dworkin court by the distinction drawn period of only to the federal a “rea- delay and a “reasonable” between adjudicate pend necessary to reasonably delay applicable necessary” sonably issues. revocation ing supervised not bar, court did the Dworkin the case more next, significantly de- to a delay attributable suggest that “reasonably charges state complex, issue whether on fendant’s incarceration necessary.” of time referenced necessary” period be could never sug- language quoted 3583(i) delays contrary, the attributable encompasses § To on incarceration defendant’s on gests that a incarceration a defendant’s a situation present charges could must determine we Specifically, charges. “reasonably neces- delay would hour statutory this the sands sary.” immediately upon fall begin to glass should term defendant’s of a argument concern- However, Garrett’s alternative, release, in the or supervised a “reason- between ing the differences whether those should sands remain sus- cation hearing clearly fell within pur- pended during the defendant’s incarcera- view of Garrett was held 3583®. tion charges. on state We embrace the custody March, until late 2000. Im- approach latter concluding that once a mediately released, being after govern- supervised release term ex- ment executed the violation warrant and pires, a may, district court in accordance Garrett was taken custody. into One week §with postpone adjudi- the federal later, April appeared Garrett cation of arising matters before the expira- magistrate a federal judge and de- tion of that until after the defendant nied alleged super- violations of his is released from state custody. This hold- vised release. A revocation hearing was ing reflects our purpose belief then scheduled in district court for April 3583(i) was to assure speed reasonable 17, 2000. At hearing, this Garrett voiced adjudication federal after the defendant his concern about the juris- district court’s is in custody; federal it was not to over- diction to revoke his release. Moody rule and Bartholdi The district granted court then par- both contrary A interpretation would be tan- ties approximately two fully weeks to brief tamount holding that the gov- federal issue, and held two additional hearings statutorily ernment is required to writ a 8, 2000, on May May 2000. This defendant out of state bring sequence of events conclusively demon- him before the federal district court for his strates between March revocation hearing. problem The obvious 11, 2000, May was “reasonably with such a conclusion is that 3583® necessary” for the of matters imposes duty no such gov- the federal arising prior to of Garrett’s ernment, nor has court imposed such a supervised release, and thus did not violate duty. Furthermore, we are mindful tenets 3583®. fact that requiring the federal to writ a defendant out of state custody for hearing CONCLUSION prove

could extremely burdensome. While For foregoing reasons, revoca- task of transferring Garrett not tion of have been term is excessively burdensome due to AFFIRMED. his detention in facility a state near the courthouse, federal one can numer- foresee ous situations in which the onus would BERZON, Judge, Circuit dissenting: slight.

be so The majority recognizes that it is not Therefore, the postpone- ” “technically ‘necessary’ for the federal ment of Garrett’s revocation hearing until government to await a defendant’s release his release from custody state did not vio- from state custody adjudica- before federal § late 3583®. tion of the revocation of supervised 4. The delay between release can place. release take Majority Opinion state custody and his rev- Rather, at 447. final government the can issue ocation hearing “reasonably a writ of corpus habeas ad prosequendum necessary” purposes 18 U.S.C. for period for the of time necessary to conduct 8588(i). § a hearing, determine whether violations

The delay between and, so, Garrett’s re occurred if impose the federal lease from and his final revo- sentence for supervised the release viola- moreover, into imports majority, holds, The none- majority charged. tions not 3583(i) simply is something that 3583(i), § § the theless, under 18 U.S.C. automatically power of a additional the end there —an until wait can proceedings delay detention pretrial further to begin custody. to charge in federal is on a the defendant until imprisonment the I read statutory basis for proceedings. the revocation The absence stating explicitly instead, statute, quite as authority particularly is post-term such revoke authority to The court’s view, the statu otherwise: my because in significant, for as extends release supervised a term re supervised governing provisions tory a fair to hold reasonably takes it long as respect peri for in adjust another do revocation, not hearing on adequate than charges other ods of incarceration longer. rise to term giving those U.S.C. simply in See question. were statutory question

If the of a 3624(e) running “unrea (suspending case was § in this to con the defen sensible while sonable,” might it be then enacting v. intended States Congress United imprisoned); clude that is dant cf. (9th 3583(i) applied standard codify the Cir. § Morales-Alejo, 193 F.3d Bartholdi, 453 F.2d 3624(e) ap v. 1999) not § does (holding that cases,1 Cir.1972) (9th and similar conviction). Congress Had until after ply would that case majority’s reliance supposes, simi intended, majority as § not did But understandable. be automatically, post- extend, larly to de “unreasonable general enact simply con period extended revocation in Bartholdi. articulated lay” standard only it either § had tained considerably more Rather, the statute 3624(e) accordingly, or to include § modify specific. 3583(i). 3624(e) §in §to language similar super- statute, the term it amended neither when Under Congress did or itself extended is not § vised in 1994.2 violation. by a close-to-end-of-term tolled provi- reads majority nonetheless the court Rather, only “power it 3583(i)’s 3624(e) into parallel sion that is supervised release to revoke” jurisdic- post-expiration grant of limited “reason- long extended, so as statutory revision tion, justifying this adjudication necessary ably purpose “belief that stating its firm expiration.” arising matters speed 3583(i) reasonable to assure added). 3583(i) the stat- So (emphasis the defendant adjudication after federal “necessary” add the simply not does ute over- not to custody; was it in federal a bench- provides also requirement, but (Maj. Op. at and Bartholdi.” Moody rule delay must measuring what mark for disregard 450.) ordinarily not We do accomplish— necessary” to strength of our on the aof statute words any super- of’ “the namely, have Congress could own belief be- that occurred violations released vised Dahl, 486 Pinter it said. what meant re- of the fore 2063, L.Ed.2d 100 653, 622, 108 S.Ct. U.S. term. Control Crime Violent (9th of the Parker, See 2. 110505 See, 865 453 F.2d e.g., v. Barr 1. 1994, No. Pub.L. Cir.1971); Board Act United States Law Enforcement Shelton (cit- (D.C.Cir.1967) 567, Parole, 103-322, 388 F.2d 108 Stat. 1796. Bartholdi). Barr ed in both (1988); Wells, see also States v. not limit Congress’ authority to credit the 482, 497, policy U.S. 117 S.Ct. spelled considerations by out (1997). Moody dissent, L.Ed.2d 107 legislation to enact accord By adopting therewith. as the Moreover, majority as the initially rec- permissible touchstone for the period of ognizes and forgets, Moody then later delay not all stretches incarceration but a only case concerned with whether the only any period “reasonably necessary for requires constitution that pro- revocation adjudication” an alleged supervised ceedings occur pris- even promptly when violation, Congress, me, it seems to incarcerated, oner is not with it chose—once a term of preferable would be policy as a matter to expired had prefer adjudica- prompt —to provide prompt hearings, when feasi- tion, possible, where over the indefinite ble, even for incarcerated defendants. in awaiting involved the end of (See Maj. 448) (“The Op. at absence of a and all terms of imprisonment. constitutional right prompt ato revocation I recognize 3624(e) that where does hearing prior to the execution of a viola- apply, there can be a delay in the insti- tion warrant does not argu- foreclose the gation of federal revocation proceedings ment that a possess defendant such a until after the end of incarceration, right express under the statutory language be, however long might that because the 3583(i).”). §of in Moody pre- dissent term of release will not end strong sented policy arguments favoring a until then and there is no other limitation contrary approach to hearings: revocation in the statute on timing of revocation uncertainty with pending associated hearings.4 The it, statute as I read charges can adversely affect “efforts to words, permits other delay for incarcera- involve the offender in pro- correctional tion due to a long as conviction as that grams” imprisoned, while 429 U.S. at 94 n. incarceration begins before the termi- (Stevens, J., 97 S.Ct. 274 dissenting) nation of the of supervised (quoting Prisons, Bureau of Policy State- but not if it begins such, thereafter. As (Jan. 7, 1970)), ment 7500.14A while a statutory is certainly scheme tidy long-delayed hearing3 likely it make one. And why Congress chose to make difficult for the defendant to marshal evi- I distinction speculate. can Per- dence relevant to revocation proceed- haps the factors stressed the Moody ings as well as to shift the focus of those dissent were thought greater entitled to proceedings to the defendant’s behavior weight where a defendant gotten had while incarcerated. Moody, 429 U.S. at through his entire term of re- (Stevens, J., 97 S.Ct. 274 dissenting). lease without a second conviction and re- Moody held that these considerations do sulting incarceration than where he had not create a constitutional process due Perhaps not. right to a right to a prompt if hearing revocation prompt hearing thought stronger once defendant is incarcerated. But Moody did subject he was no longer supervi- to court It noting 3. bears although in this case held, appeal Several courts have also hearing applying Moody, revocation delayed only process there is ten no due lengthy delay where incarceration, there is months because be- of the state 3624(e) rule, cause tolling of the unless majority’s under the holding the revocation there is an showing prejudice. of actual See place could take many years after the events Sanchez, United States v. 225 F.3d 175- giving rise to the proceedings. (2d Cir.2000), and cases cited therein. custody over the defendant ing temporary conviction. of his earlier on account sion holding the revocation of purposes is one for case, the distinction Whatever none here. hearings, there was sentencing in the statute— clearer not be that could revocation when the During period fact regarding explicit quite place, Gar- taken could have period proceedings does revocation delayed that custody a few pretrial supervised release rett was the term not extend Ob- courthouse. to revoke the federal of the blocks power but would presence release— taining the defendant’s expired period an arranging are simply that we matter distinction have been is therefore temporary for authorities respect. with state obliged Indeed, the court. in federal attendance in- difficulties practical Whether essentially case has in this government presence arranging for volved respects in no conceded by a incarcerated a defendant court of an undue bur- result of necessary or the statutory meet can sometimes all, at den, only that no burden argues but adjudica- ... necessary for if inconvenience, shown need be or even that need not question is a standard tion” I would is incarcerated. defendant Obviously, the in this case. addressed I proposition, therefore reject any present to be needs defendant respectfully dissent. the de- obtaining hearings, revocation quite times be presence at fendant’s “rea- may at times be itSo

burdensome. adjudication” necessary for the

sonably period wait some

revocation to the defen- custody over obtaining America, STATES UNITED dant. Plaintiff-Appellee, case, only when though, not That is the v. also but when imprisoned, defendant of the out other reasons he or she is ARIAS, aka Ernesto Carlos Carlos jurisdiction, or, in the while jurisdiction, Defendant-Appellant. Queida, for violation arrested yet been has America, as written States United statute supervised release. Plaintiff-Appellant, incarcerated between no distinction draws that, un- I doubt others. defendants and jurisdiction extended the terms der Arias, aka Carlos Ernesto Carlos conferred Defendant-Appellee. Queida, a defen- indefinitely arrest wait could if the defen- 00-50318, on a dant 00-50357. Nos. place and dwelling known in his dant was Appeals, Court majority’s Yet easy to find. therefore Ninth Circuit. §of purpose “the supposition 3583© of federal speed reasonable to assure 11, 2001 May Submitted Argued and in fed- the defendant after 12, 2001 Filed June 450) appears (Maj. Op. custody” eral suggest otherwise. might be event, burden whatever in obtain- in other circumstances

involved

Case Details

Case Name: United States v. Thomas James Garrett

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 11, 2001

Citation: 253 F.3d 443

Docket Number: 00-50303

Court Abbreviation: 9th Cir.