United States v. Demers , 708 F. App'x 526 ( 2018 )

FILED
United States Court of Appeals
Tenth Circuit
January 9, 2018
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-1326
(D.C. No. 1:08-CR-00167-WYD-1)
CORY MICHAEL DEMERS, (D. Colo.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before LUCERO, BALDOCK, and MORITZ, Circuit Judges. **
Defendant Cory Michael Demers appeals the district court’s denial of his
motions to correct an illegal sentence. See 18 U.S.C. § 3742(a)(1). We exercise
jurisdiction under 28 U.S.C. § 1291, and affirm.
I.
The underlying facts are not in dispute. Defendant stands convicted of being
a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In
*
This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. Civ. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
November 2008, the district court sentenced him to 30 months in prison and three
years of supervised release. In June 2010, Defendant was released from federal
custody and began serving a concurrent sentence with the Colorado Department of
Corrections. Near the end of May 2012, the State of Colorado transferred Defendant
to a community corrections center to complete his sentence. On April 9, 2013, the
State released Defendant on parole supervision. On June 24, 2015, Defendant’s
federal probation officer filed a petition alleging violations of his federal supervised
release. Following a revocation hearing on March 31, 2016, the district court found
Defendant had committed six violations of his supervised release and sentenced him
to 18 months in prison. Defendant subsequently filed two unsuccessful motions in
the district court to correct an illegal sentence.
On appeal, Defendant does not challenge the district court’s finding that he
violated the terms of his federal supervised release. Rather, he claims, as he did in
the district court, that his term of federal supervision began in May 2012 when the
State of Colorado placed him in a community corrections center. If Defendant is
correct (which he is not), his term of supervised release had expired before his
probation officer filed the petition to revoke his supervision. Unfortunately for
Defendant, the district court was correct in determining Defendant’s term of federal
supervised release did not commence to run until April 9, 2013, when he was
released from the custody and control of the Colorado community corrections center.
Thus, Defendant’s three-year term of supervised release had not expired when his
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probation officer filed the revocation petition.
II.
We review a district court’s decision to revoke supervision for an abuse of
discretion. United States v. Hammond, 869 F.3d 1153, 1157 (10th Cir. 2017). A
district court abuses its discretion when it relies on an incorrect conclusion of law
or a clearly erroneous finding of fact. Id. Supervision after release is addressed at
18 U.S.C. § 3624(e). Section 3624(e) provides in relevant part: “A term of
supervised release does not run during any period in which a person is imprisoned
in connection with a conviction for Federal, State, or local crime unless the
imprisonment is for a period of less than 30 consecutive days.”
Defendant focuses on where he served out his state prison sentence, i.e., a
community corrections center. But under Colorado law, had defendant left the center
without authorization, he would have been subject to prosecution for escape. “A
defendant serving a sentence at a community corrections facility is in ‘custody’ for
the purposes of the escape statute.” Colorado v. Lanzieri, 25 P.3d 1170, 1172 n.2
(Colo. 2001) (citing Colo. Rev. Stat. § 17-27-106 (2000)). Defendant was not, nor
could he have been, subject to federal supervision while in the custody of, or in other
words imprisoned by, the State of Colorado. Pursuant to Colorado law, he was not
released from state custody until April 9, 2013, the day the State released him on
parole supervision.
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Defendant’s reliance on the Ninth Circuit’s decision in United States v.
Sullivan, 504 F.3d 969 (9th Cir. 2007), is misplaced. In that case, the court held a
defendant’s federal supervised release began when he was transferred from a
Montana state prison to a pre-release center. Importantly, however, the court’s
conclusion was based upon its finding that “Montana’s ‘pre-release centers are part
of a community corrections system which exists as an alternative to imprisonment.’”
Id. at 972 (emphasis in original) (quoting State v. Chandler, 922 P.2d 1164, 1166
(Mont. 1996)). But Colorado law differs from Montana law. Under the former,
Defendant’s placement in the community corrections center did not constitute an
“alternative to imprisonment” and thus his three-year term of federal supervision did
not commence until his release from the center on April 9, 2013.
AFFIRMED. Defendant’s motion for release from custody pending appeal is
DENIED as moot.
Entered for the Court,
Bobby R. Baldock
United States Circuit Judge
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