The opinion of the court was delivered by: Hon. Roger T. BenitezUnited States District Judge
ORDER DENYING DEFENDANT'S MOTION TO DISMISS PETITION FOR WARRANT OR SUMMONS
Now before the Court is Defendant Rene Madrigal-Gaytan's ("Defendant") Motion to Dismiss the Petition for Warrant or Summons (filed July 16, 2012). The motion to dismiss is denied.
Defendant was convicted of bringing in an illegal alien without presentation in violation of
8 U.S.C. § 1324(a)(2)(B)(iii). A United States District Judge for the Southern District of California sentenced Defendant to 18 months in custody followed by three years of supervised release. Defendant began his supervised release on April 21, 2000.
On October 31, 2002, a United States Probation Officer filed a Petition for Warrant or Summons for Offender under Supervision ("Petition") to cite the Defendant to appear before the Court. The petition alleged that on August 12, 2002, Defendant admitted to a Central District of California U.S. Probation Officer violations of the conditions of Defendant's supervised release by committing three federal offenses: 8 U.S.C. § 1325(a) (improper entry by alien); 18 U.S.C. § 911
(falsely claiming United States citizenship); and 18 U.S.C. § 1001 (fraudulently claiming a Social Security number belonging to another). The Petition was signed but not sworn under oath. On November 2, 2002, the United States District Court for the Southern District of California issued a summons ordering Defendant to appear for a supervised release revocation hearing on December 2, 2002. Defendant did not appear for the revocation hearing. On December 5, 2002, the Court issued a bench warrant for Defendant's failure to appear. These events took place before Defendant's term of supervised release was to expire on April 20, 2003.
Ten years later, on February 20, 2012, California state police officers arrested Defendant for assault with a deadly weapon in the Central District of California. On March 8, 2012, Defendant pled guilty to Assault with Deadly Weapon, not Firearm, 245(a)(1) CPC. On April 20, 2012, the U.S. Marshals Service arrested Defendant on the warrant issued by the Southern District of California. On the same day, a United States Magistrate Judge ordered Defendant be removed to the Southern District and detained pending further revocation proceedings. On May 11, 2012, Defendant made his initial appearance in the Southern District on the order to show cause and entered a denial to the allegations. A U.S. Probation Officer filed a sworn amended petition on July 2, 2012, and the Court ordered that the Petition be amended on July 3, 2012. On July 16, 2012, Defendant filed the instant Motion to Dismiss Petition for Warrant or Summons.
II. TOLLING THE TIME FOR SUPERVISED RELEASE REVOCATION
By statute, the district court's jurisdiction to revoke a term of supervised release can be extended beyond the term of supervision if a warrant or summons alleging a violation of a condition of supervised release issues during the term of supervision. See 18 U.S.C. § 3583(i).*fn1
The district court's authority to revoke supervised release may also be extended by the fugitive tolling doctrine. See United States v. Murguia-Oliveros, 421 F.3d 951, 952-53 (9th Cir. 2005).
Defendant has moved to dismiss the allegation of supervised release violation claiming the Court lost jurisdiction because Defendant's term of supervised release has expired. Defendant alleges that the 2002 Petition was not sworn and did not establish probable cause, therefore, the summons is ...