United States v. Miller ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-30481
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00264-BLW
RICHARD MILLER,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, District Judge, Presiding
Argued and Submitted
August 6, 2008—Seattle, Washington
Filed November 7, 2008
Before: Harry Pregerson, William C. Canby, Jr., and
John T. Noonan, Circuit Judges.
Opinion by Judge Pregerson
15291
UNITED STATES v. MILLER 15293
COUNSEL
Nicolas V. Vieth, Federal Defender Services of Idaho, for the
defendant-appellant.
Thomas E. Moss, United States Attorney; Michelle R. Mal-
lard, Assistant United States Attorney, United States Attor-
ney’s Office, for plaintiff-appellee.
15294 UNITED STATES v. MILLER
OPINION
PREGERSON, Circuit Judge:
I. Introduction
A. Background
Richard Miller appeals the district court’s denial of his
“Motion to Dismiss Revocation Petition and Request for
Immediate Release from Custody” (“Motion to Dismiss”).
Relying primarily on United States v. Sullivan, 504 F.3d 969(9th Cir. 2007), Miller argues that the district court lacked
jurisdiction to revoke his supervised release and sentence him
because, according to Miller, at the time the violation
occurred, his supervised release term had ended.
We affirm the district court’s conclusion that Sullivan does
not apply here. Unlike the defendant in Sullivan, Miller was
transferred to the Bannock County Jail Work Release Program1
(hereinafter “Bannock County Jail” or “Work Release Pro-
gram”) while still serving his federal sentence. This transfer
occurred pursuant to 18 U.S.C. § 3624(c), under which Miller
remained “imprisoned” and under the custody of the Bureau
of Prisons (“BOP”) until his release from Bannock County
Jail. 18 U.S.C. § 3624(c) (2008), amended by Pub. L. 110-
117, Title V, § 505, Jan. 7, 2008, 121 Stat. 2542.2 Sullivan, by
contrast, involved a state prisoner in Montana who, while
serving a state sentence, was transferred to a Montana state
pre-release center.
We agree with the district court that the time that Miller
1
Such pre-release programs are also commonly referred to as halfway
houses, community corrections centers, work release programs and resi-
dential reentry centers.
2
All references herein to this statute are to the version of 18 U.S.C.
§ 3624 effective January 7, 2008 to April 8, 2008.
UNITED STATES v. MILLER 15295
spent at Bannock County Jail constituted “imprisonment,” and
not, as Miller contends, supervised release. Miller’s super-
vised release term therefore did not commence until his
release from the Bannock County Jail Work Release Program.
Accordingly, the district court did have jurisdiction to revoke
Miller’s supervised release and sentence him to fourteen
months imprisonment and twenty-one months of supervised
release. We therefore AFFIRM the district court’s denial of
Miller’s Motion to Dismiss.
B. Facts
In September 2002, Richard Miller was charged in Utah
with possession of ammunition by a convicted felon in viola-
tion of 18 U.S.C. § 922(g)(1).3 On January 31, 2003, Miller
entered a guilty plea and was sentenced to thirty months in
custody and three years of supervised release. On March 27,
2003, Miller entered the Federal Correctional Institution in
Florence, Colorado to begin his prison sentence.
Approximately fifteen months into his thirty-month sen-
tence, on June 22, 2004, Miller was transferred to the Ban-
nock County Jail Work Release Program in Pocatello, Idaho.
Miller’s transfer was pursuant to 18 U.S.C. § 3624(c), which
requires the Bureau of Prisons to provide for a pre-release
program where practicable during the last six months of a per-
son’s incarceration. United States v. Miller, 2007 WL
4261929, at *1 (D. Idaho Nov. 30, 2007). During his incarcer-
ation at Bannock County Jail, Miller was required to “go
directly to [his] place of employment and[,] at the end of each
workday, return directly to the jail following work.” And, dur-
ing his incarceration, Miller was required to attend counseling
sessions, receive treatment, and make nominal “subsistence
3
Miller was stopped for a minor traffic infraction: driving without regis-
tration or a driver’s license. Officers also found certain drug paraphernalia
consistent with the sale or distribution of methamphetamine and ammuni-
tion.
15296 UNITED STATES v. MILLER
payments” to Bannock County for sustenance and for his
housing.
Under the terms of the Work Release Program, Miller
remained under the custody of the BOP while he was incar-
cerated at Bannock County Jail. Miller was also required to
follow and abide by all rules set forth by Bannock County Jail
and the Bureau of Prisons. The Work Release Program’s
terms stated that “willful failure to return to [Miller’s] place
of confinement at the time specified by the jail officials”
could be considered an “escape” or an “absconding.”
Miller remained at Bannock County Jail until October 6,
2004, when he sustained a work-related injury to his hand.
The injury prevented Miller from continuing his job. As a
result, Miller was placed on house arrest beginning October
6, 2004 and ending December 17, 2004.4 The following day,
December 18, 2004, pursuant to 18 U.S.C. § 3205, the Utah
Federal District Court transferred jurisdiction from the Dis-
trict of Utah to the District of Idaho. The order, entitled
“Transfer of Jurisdiction,” also stated that Miller’s three-year
supervised release term was set to commence on December
18, 2004 and terminate on December 17, 2007.
On August 4-5, 2007, Miller was stopped for a traffic viola-
tion. The officers determined that Miller was under the influ-
ence of drugs and then seized 2.2 grams of methamphetamine
and various drug paraphernalia from Miller’s vehicle. Miller
admitted to and tested positive for methamphetamine use. On
August 7, 2007, the government filed a petition alleging that
Miller had violated the terms of his supervised release (“First
Supervised Release Petition”). On September 11, 2007, the
district court sentenced Miller to one month imprisonment
4
Miller’s placement on house arrest after his injury was consistent with
18 U.S.C. § 3624(c)(2), which authorizes the Bureau of Prisons to “place
a prisoner in home confinement” for a limited period of time. 18 U.S.C.
§ 3624(c)(2).
UNITED STATES v. MILLER 15297
with credit for time served and thirty-five months of addi-
tional supervised release.
Approximately two months later, on October 18-19, 2007,
Miller tested positive for methamphetamine use and was
charged with associating with persons engaged in criminal
activities, failing to submit for a mandatory drug test, and
operating a motor vehicle. On October 30, 2007, the govern-
ment filed a second petition (“Second Supervised Release
Petition”) alleging that Miller violated his supervised release
terms.
On November 19, 2007, Miller moved to dismiss the gov-
ernment’s Second Supervised Release Petition for lack of
jurisdiction. The Idaho Federal District Court denied Miller’s
motion and his timely appeal is before us.
II. Discussion
A. The Parties’ Contentions
Miller asserts that the district court lacked jurisdiction to
revoke his supervised release and sentence him to an addi-
tional fourteen months imprisonment and twenty-one months
of supervised release. Specifically, Miller argues that the
Idaho Federal District Court erred in finding that his three-
year supervision period commenced on December 18, 2004,
the date that Miller was released from Bannock County Jail.
Instead, Miller argues, his three-year supervised release
period began on June 22, 2004, the date that he was trans-
ferred to Bannock County Jail, and ended on June 21, 2007.
In short, Miller’s theory is this: time spent in a pre-release
center such as Bannock County Jail does not, under any cir-
cumstances, constitute “imprisonment” under § 3624(c).
Rather, Miller contends, time spent in a pre-release center
constitutes supervised release. Miller relies on Sullivan for
this proposition. Miller argues that Sullivan requires us to
15298 UNITED STATES v. MILLER
conclude that his supervised release term commenced on the
date that he was transferred to the Bannock County Jail Work
Release Program, despite the fact that the transfer occurred
while Miller was still serving his federal sentence. Therefore,
Miller contends, the Idaho Federal District Court lacked juris-
diction to revoke his supervised release and sentence him for
his August and October 2007 supervised release violations,
because, as Miller argues, his supervised release term ended
on June 21, 2007.
The government contends—and we agree—that Sullivan,
which involved a state prisoner serving a state sentence, does
not apply here. Miller’s confinement as a federal prisoner
serving a federal sentence at Bannock County Jail did consti-
tute “imprisonment;” the time that he spent in the Bannock
County Jail Work Release Program was not part of Miller’s
supervised release term. According to the government—and,
as the district court concluded—Miller’s three-year super-
vised release term commenced on December 18, 2004, the
date that he was released from Bannock County Jail, and
ended three years later on December 17, 2007. Therefore, the
district court did have jurisdiction to revoke Miller’s super-
vised release and sentence him for the August and October
2007 violations.
B. Analysis
1. Statutory Scheme
[1] Section 3621 of Title 18 of the United States Code pro-
vides:
(a) Commitment to custody of Bureau of Prisons.
—A person who has been sentenced to a term of
imprisonment . . . shall be committed to the custody
of the [BOP] until the expiration of the term
imposed, or until earlier released for satisfactory
behavior pursuant to the provisions of section 3624.
UNITED STATES v. MILLER 15299
(b) Place of imprisonment.—The Bureau of Pris-
ons shall designate the place of the prisoner’s impris-
onment. The [BOP] may designate any available
penal or correctional facility that meets minimum
standards . . . established by the [BOP], whether
maintained by the Federal Government or otherwise
and whether within or without the judicial district in
which the person was convicted, that the [BOP]
determines to be appropriate and suitable . . . .
18 U.S.C. § 3621 (2008), amended by Pub. L. No. 109-248,
Title VI, § 622, July 27, 2006, 120 Stat. 634.5 Section 3621
gives the BOP considerable discretion in assigning a person
to a particular facility—whether or not that facility is main-
tained by the federal government—for purposes of serving a
term of imprisonment. Regardless of where the BOP elects to
transfer a person, she or he remains under BOP custody until
the prescribed term of “imprisonment” expires.
[2] As the district court underscored, the BOP’s authority
is made explicit, and the effect of such a placement is plainly
stated in § 3624(c) and (e), which provide, in pertinent part:
(c) Pre-release custody.—The Bureau of Prisons
shall, to the extent practicable, assure that a prisoner
serving a term of imprisonment spends a reasonable
part, not to exceed six months, of the last 10 per cen-
tum of the term to be served under conditions that
will afford the prisoner a reasonable opportunity to
adjust to and prepare for the prisoner’s re-entry into
the community.
...
5
All references herein to this statute are to the version of § 3621 that
was effective July 27, 2006 to April 8, 2008.
15300 UNITED STATES v. MILLER
(e) Supervision after release.—A prisoner whose
sentence includes a term of supervised release after
imprisonment shall be released by the [BOP] to the
supervision of a probation officer who shall, during
the term imposed, supervise the person released to
the degree warranted by the conditions specified by
the sentencing court. The term of supervised release
commences on the day the person is released from
imprisonment . . . .
§ 3624 (emphasis added). Read together, Sections 3621(b)
and 3624(c) give the BOP explicit authority to “designate the
place of the prisoner’s imprisonment,” § 3621(b), and
“spend[ ] a reasonable part . . . of the [term of imprisonment]
to be served [in] conditions that . . . prepare for the prisoner’s
reentry into the community.” § 3624(c).
2. United States v. Sullivan
[3] Relying exclusively on United States v. Sullivan, Miller
urges us to conclude that his transfer to Bannock County Jail
on June 22, 2004, just fifteen months into his thirty-month
sentence, marked the beginning of his federal supervised
release term. But we agree with the district court that “context
provides important distinctions” and that “Sullivan’s holding
is applicable only to substantially similar factual circum-
stances.” Miller, at *3. Unlike Miller—who was serving a fed-
eral sentence at the time of his transfer to the Work Release
Program—the defendant in Sullivan was serving a state sen-
tence when transferred to a Montana state pre-release center.
The two cases are substantially different.
Sullivan involved a defendant who was concurrently serv-
ing three sentences: (1) a federal sentence of eighteen months
followed by three years of supervised release; (2) a five-year
state sentence; and (3) a twenty-year state sentence with ten
years suspended. 504 F.3d at 970. The Sullivan court noted
that “all of Sullivan’s time in custody, other than in a Pre-
UNITED STATES v. MILLER 15301
Release Center, tolled his term of supervised release.” Id. At
the time of his transfer to the Montana state pre-release cen-
ter, Sullivan had completed the federal portion of the three
concurrent sentences.6 504 F.3d at 970.
[4] Sullivan argued that his supervised release began on the
day he was transferred to the Montana state pre-release cen-
ter. To support his argument, Sullivan relied primarily on
§ 3624(e), which states that “supervised release commences
on the day [that a] person is released from imprisonment.” In
Sullivan, the government disagreed, arguing that Sullivan’s
supervised release commenced only upon his release from the
Montana state pre-release center. The crucial issue before the
Sullivan court was whether Sullivan’s detention in the Mon-
tana state pre-release center constituted “imprisonment” under
§ 3624(e). Sullivan, 504 F.3d at 971.
[5] To determine “the type of confinement that controls
commencement and tolling of supervised release time,” our
court focused on the definition of the term “imprisonment” as
it is used in § 3624(e). Sullivan, 504 F.3d at 971. The Sullivan
court stated:
The Supreme Court has held that detention at a com-
6
Even though Sullivan’s factual findings are not before us, Miller argues
that the district court erred in distinguishing Sullivan by erroneously rely-
ing on the fact that Sullivan had completed his federal sentence—and was
therefore serving his two state sentences—at the time of his transfer to the
Montana state pre-release center. Petr.’s Br. 4, n.2.
The district court addressed Miller’s concern and resolved the issue,
noting that, “although [it is] unclear from the decision [in Sullivan, Sulli-
van’s] brief states that after discharging his federal sentence, he was
released on state parole.” Miller, at *2, n.3. That is to say that when Sulli-
van was later imprisoned on a state parole violation, Sullivan had already
completed his federal sentence. 504 F.3d at 970. On that basis, Judge Win-
mill properly distinguished Sullivan who, unlike Miller, was transferred to
the Montana state pre-release center only after Sullivan’s federal sentence
had ended. We agree with the district court’s cogent analysis.
15302 UNITED STATES v. MILLER
munity treatment center, where the defendant is not
subject to the control of the Bureau of Prisons, is not
“imprisonment” and therefore cannot be credited
against a defendant’s prison sentence.
Id. (citing Reno v. Koray, 515 U.S. 50, 59 (1995)) (emphasis
added). Because Sullivan was serving a state sentence—and
therefore was no longer under BOP custody at the time of his
transfer to the Montana state pre-release center—the time that
he spent there did not constitute “imprisonment” under
§ 3624(e). Therefore, the Sullivan court held, the time that
Sullivan spent in the Montana state pre-release center—a
period of time which commenced while Sullivan was serving
a state sentence—did not constitute “imprisonment” under
§ 3624(e). 504 F.3d 969. Sullivan’s supervised release term
commenced on the date that he was transferred to the Mon-
tana state pre-release center.
[6] Miller overlooks the critical distinction between the
case at hand and Sullivan. Whereas Sullivan was transferred
to the Montana state pre-release center while serving a state
sentence, Miller was transferred to the Bannock County Jail
Work Release Program during, and as part of, his federal sen-
tence and pursuant to the mandate of § 3624(c), which defines
the pre-release component as part of the term of imprisonment.7
§ 3624(c). Unlike Miller, Sullivan was not under BOP cus-
7
The district court adequately articulated Miller’s erroneous reliance on
Sullivan:
At first blush, it would appear that Sullivan stands for the propo-
sition that pre-release programs are not imprisonment in any con-
text. However, context provides important distinctions and
reveals that Sullivan’s holding is applicable only to substantially
similar factual circumstances; i.e., where an individual has com-
pleted his federal sentence but is still serving a concurrent state
sentence and is sent to a state pre-release center. Here, [Miller]
was placed in pre-release custody at the end of his federal sen-
tence.
Miller, at *3 (emphasis added).
UNITED STATES v. MILLER 15303
tody when he was transferred to the Montana state pre-release
program. Miller, at *2. Because Miller remained under BOP
custody while he was at Bannock County Jail, his supervised
release did not—and could not—commence until he was
released from the Work Release Program.
III. Conclusion
The district court properly held that Sullivan does not apply
here. Unlike Miller, the defendant in Sullivan had already
completed his federal sentence and was no longer under BOP
custody at the time that he was transferred to the Montana
state pre-release center. See also Rivera v. Clark, 2008 WL
340653, at *5 (N.D. Cal. Feb. 5, 2008) (reasoning that
§ 3624(c) and 3624(e) “clearly contemplates that when an
inmate is transferred from a federal prison to a federal [pre-
release center], he or she remains ‘imprisoned’ ”);8 see also
United States v. Regen, 551 F. Supp. 2d 963 (C.D. Cal. 2008)
(holding that defendant’s “confinement in [a pre-release cen-
ter] was still part of his term of federal imprisonment
[because], unlike in Sullivan, it was a form of detention that
was ‘subject to the control of the Bureau of Prisons.’ ” (quot-
ing Sullivan, 504 F.3d at 971)). The Bannock County Jail
Work Release Program was part of Miller’s term of imprison-
ment. His transfer to Bannock County Jail, which occurred
pursuant to the BOP’s authority as outlined in § 3624(c), did
not constitute the beginning of Miller’s supervised release
term.
For the reasons discussed above, we AFFIRM the district
8
Rivera further contemplated the logical fallacy that would result if we
were to read Sullivan the way that Miller does: an inmate’s supervised
release term would begin upon her or his transfer to a pre-release center
and “the inmate would never complete [her or his] term of imprisonment.”
Rivera, 2008 WL 340653, at *5.
15304 UNITED STATES v. MILLER
court’s denial of Miller’s Motion to Dismiss.
AFFIRMED.