The opinion of the court was delivered by: Tashima, Circuit Judge:
Appeal from the United States District Court for the Eastern District of Washington Edward F. Shea, District Judge, Presiding DC No. CR 11-0044 EFS
Argued and Submitted April 10, 2012-Seattle, Washington
Before: Dorothy W. Nelson, A. Wallace Tashima, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Tashima;
Dissent by Judge Callahan
The government appeals the district court's dismissal of an indictment charging Anthony Edyle Burke with escape from custody in violation of 18 U.S.C. § 751(a). The district court concluded that Burke was not in "custody" within the meaning of § 751(a) when he left the residential re-entry center where he was residing as a condition of his supervised release. We agree and affirm.
In 2008, Burke pleaded guilty to a violation of 18 U.S.C. § 922(g)(4) and was sentenced to 37 months in prison, followed by 3 years of supervised release. Upon his release from the custody of the Bureau of Prisons ("BOP"), Burke violated the terms of his supervised release when he failed to report to his probation officer to commence a 180-day stay in a residential re-entry center. After a revocation hearing, Burke was sentenced to be incarcerated for another 7 months and 21 days, followed by a 28-month term of supervised release. Burke's conditions of supervised release ordered:
Defendant shall reside in a residential re-entry center for a period up to 180 days. This placement may include a pre-release component, day reporting and home confinement (with or without electronic monitoring but not to include GPS) at the direction of the CCM and USPO. Defendant shall abide by the rules and requirements of the facility, Defendant shall remain at the facility until said 180 days has been completed.
Burke completed his prison term and commenced supervised release on March 19, 2010. In compliance with the conditions of his supervised release, he began residing at the Spokane Residential Re-entry Center ("SRRC").
On April 27, 2010, Burke checked out of SRRC and failed to return. As a result, SRRC reported him to his probation officer as an "absconder." The next day, state authorities arrested Burke in Montana. Burke was returned to Washington to appear for his supervised release violations. On March 22, 2011, the grand jury returned an indictment charging Burke with escape from custody in violation of § 751(a).
Burke moved to dismiss the indictment, arguing that he was not in "custody" within the meaning of § 751(a). The government opposed the motion. The district court reviewed the conditions of Burke's supervised release, including the rules and restrictions set forth in SRRC's resident handbook, and granted the motion. It explained:
[SRRC] is part of supervised release in this case. It is a court order after imprisonment is served and the person is no longer in custody, designed specifically in a case like Mr. Burke . . . to provide him with a transition from custody to the community in a way that enables him to make a smooth transition, since he is essentially homeless; and that was the driving or motivating factor in the Court's imposition of this term - that Mr. [Burke] had nothing and nowhere to go. And this simply gave him the opportunity ...