The opinion of the court was delivered by: Honorable Lawrence J. O'Neill United States District Judge Fresno, California
REQUEST TOLLING OF SUPERVISION
Mr. Marrs appeared before the Court on November 28, 2011, for a Dispositional Hearing. The Court, at the conclusion of the hearing, continued the defendant's supervised release for 14 months, under the same terms and conditions as were previously ordered on April 4, 2001, with an added special condition of supervision to include in-patient drug treatment program to be completed during the remainder of the term of supervised release.
If the Court had revoked the offender's supervised release, the 14 months of supervision would be available; however, since the Court modified the conditions and continued the term of supervised release, by statute, the amount of total time on supervision is limited to 3 years. After further review of the Judgment, it appears that more than the statutorily authorized term of supervised release has been imposed. As stated above, Pursuant to 18 USC 3583(b)(2), for a Class D Felony, the maximum term of supervised release that can be imposed is 3 years.
There is a mechanism for tolling supervision for any time the offender is in custody in connection with a conviction. He has been in custody from September 13, 2010, and should be released on December 9, 2011, when Westcare has indicated they have bed space for him. He is not entitled credit for the supervised release term during these dates. According to our interpretation, the offender has 182 days of supervision remaining. If he is released on December 9, 2011, he should be off supervision on June 7, 2012. Our recommendation is that the Judgment and Commitment simply indicate that the offender shall continue on the previously imposed 3-year term of supervised release.
Also, it is requested that the Court issue an Order of Release effective December 9, 2011, to allow the offender to begin his placement at Westcare.
AGREE: ___XXX____ DISAGREE: ___________
Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE
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