Appeal from the United States District Court for the Central District of California. George H. King, District Judge, Presiding. D.C. No. 2:89-cr-00381-GHK-1.
Argued and Submitted February 5, 2010 -- Pasadena, California.
Before: Mary M. Schroeder, Raymond C. Fisher and N. Randy Smith, Circuit Judges.
Manuel Ignacio Juarez appeals the district court's judgment revoking his supervised release and sentencing him to eighteen months in prison. Juarez contends the district court lacked jurisdiction to revoke his supervised release because his term of supervision expired before the district court either entered the order of revocation or issued a bench warrant that could have extended the court's jurisdiction to do so under 18 U.S.C. § 3583(i). The district court determined that it had jurisdiction to revoke Juarez's supervised release because his term of supervision was tolled during the period of time he was at large, after he absconded from supervision by changing his residence and not reporting it to his probation officer as required by the conditions of his supervised release. We hold that the district court did have jurisdiction and affirm in a published opinion to clarify that fugitive tolling of a defendant's term of supervised release begins when the defendant becomes a fugitive, not at the later time when a warrant is issued for his apprehension.
The facts of this case are important to our resolution of the jurisdictional question. Juarez pled guilty to bank robbery in 1989. The district court sentenced him to forty-six months in prison, to be followed by three years of supervised release. Under the conditions of Juarez's supervised release, he was required to notify his probation officer within seventy-two hours of any change in residence, and he was prohibited from possessing drugs or drug paraphernalia or committing any further crimes.
On August 26, 1992, the Bureau of Prisons released Juarez into the custody of the Immigration and Naturalization Service ("INS") for deportation, and the Probation Office placed his case on "inactive" status. When the INS deported Juarez to Mexico, his supervised release was scheduled to terminate on August 25, 1995.
Sometime after his deportation, however, Juarez illegally reentered the United States. He did not inform his probation officer that he had reentered or that he had changed residences. On August 31, 1993, he applied for and received a California driver's license under a false name. The license stated his residence to be at an address in Riverside, California.
In November 1994, California law enforcement authorities arrested Juarez for possession of drug paraphernalia. Juarez identified himself using the false name on his driver's license and was released the same day. Juarez was again arrested by state authorities on June 23, 1995, and charged with two separate counts of robbery. This time, he remained in state custody pending resolution of the charges. Juarez eventually pled guilty to both robbery charges, and on October 4, 1996, he was sentenced to a cumulative term of fifteen years in state prison.
Juarez's illegal re-entry and his two arrests all occurred before his supervised release was scheduled to terminate. Under 18 U.S.C. § 3583(i), the district court's authority to revoke a term of supervised release "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." Accordingly, Juarez's probation officer applied to the district court in July 1995 for a bench warrant authorizing Juarez's arrest for violating the conditions of his supervised release by illegally reentering the United States, by using drugs, and by failing to report his whereabouts to his probation officer. That warrant application was filed within the term of supervised release, but was not supported by an affidavit or any sworn facts. The district court issued a bench warrant on July 17, 1995, but it was not immediately executed because Juarez by that time was in state custody pending the resolution of the two robbery charges.
In November 2004, this court decided United States v. Vargas-Amaya, 389 F.3d 901 (9th Cir. 2004). We held that a district court's jurisdiction to revoke supervised release can be extended beyond the term of supervision under § 3583(i) on the basis of a warrant issued during the term of supervision, but "only if the warrant was issued 'upon probable cause, supported by Oath or affirmation,' as required by the Fourth Amendment." Id. at 907. When Juarez's probation officer recognized that the initial warrant issued by the district court for Juarez's arrest did not comply with Vargas-Amaya, he applied for a new warrant. This time, he included a sworn statement of facts in support of the application and alleged two new violations of Juarez's release conditions, on account of Juarez's two robbery convictions. On May 3, 2005, the ...