United States v. Hares Ahmadzai , 723 F.3d 1089 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 12-50389
Plaintiff-Appellee,
D.C. No.
v. 8:04-cr-00190-
JVS-1
HARES AJMAL AHMADZAI, AKA
Ajmal Hakim Ahmadzai,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted June 7, 2013*
Pasadena, California
Filed July 25, 2013
Before: Ronald M. Gould and N. Randy Smith,
Circuit Judges, and Miranda Du, District Judge.**
Opinion by Judge Du
*
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
**
The Honorable Miranda Du, District Judge for the U.S. District Court
for the District of Nevada, sitting by designation.
2 UNITED STATES V . AHMADZAI
SUMMARY***
Criminal Law
Affirming a judgment revoking supervised release, the
panel held that a term of supervised release is automatically
tolled during a period of state custody without a judicial
tolling order.
COUNSEL
Robison D. Harley, Jr., Santa Ana, California, for Defendant-
Appellant.
Dennise Willet and Andrew Stolper, Assistant United States
Attorneys, United States Attorney’s Office, Santa Ana,
California, for Plaintiff-Appellee.
OPINION
DU, District Judge:
This appeal raises the question of whether a term of
supervised release is automatically tolled during a period of
state custody without a judicial tolling order. Because we
answer that it does, we affirm.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V . AHMADZAI 3
I. BACKGROUND
Appellant Hares Ajmal Ahmadzai was convicted on June
2, 2008, for violating 18 U.S.C. § 1425(a) and § 1542, which
prohibit unlawfully attempting to procure citizenship and
making false statements in a passport application. He was
sentenced to 51 months in the custody of the Bureau of
Prisons (“BOP”) followed by three years of supervised
release. On February 6, 2009, Ahmadzai was released from
BOP custody, but was held in immigration custody until May
18, 2009, when he reported for supervision. However, while
on supervised release, Ahmadzai was placed in state custody
for a period of over six months, from October 5, 2009 to
April 17, 2010. In the absence of tolling, his term of
supervision would have expired on February 6, 2012; with
tolling, the term would have expired on August 19, 2012.
On June 15, 2012, the district court approved a Petition on
Probation and Supervised Release (“the Petition”), which
alleged seven violations of release conditions and was
supported by a sworn statement, and issued a bench warrant
for Ahmadzai to be taken into custody. In the subsequent
revocation hearing, Ahmadzai claimed that the approximately
six-month period he spent in state custody did not toll his
supervision absent a judicial tolling order. As a result, he
argued his period of supervised release expired in February
2012, and the district court was without jurisdiction to revoke
his supervision. In rejecting this argument, the district court
reasoned that state custody automatically tolled Ahmadzai’s
supervised release term without any court intervention. The
district court revoked his supervision and imposed two years
of supervised release on August 22, 2012, three days after the
term of supervision was to expire.
4 UNITED STATES V . AHMADZAI
Ahmadzai timely appealed. This Court has jurisdiction
over this appeal pursuant to 18 U.S.C. § 3742(a).
II. STANDARD OF REVIEW
Whether a district court has jurisdiction to revoke a term
of supervised release is reviewed de novo. United States v.
Ignacio Juarez, 601 F.3d 885, 888 (9th Cir. 2010).
III. DISCUSSION
A.
A district court’s authority to impose supervised release
is governed by 18 U.S.C. § 3583. The statute empowers the
trial judge to impose supervised release, limits the terms of
supervised release relative to the categorization of the
underlying criminal offense, outlines the factors that a court
must weigh in imposing such a term, and mandates a number
of conditions that must be placed on a defendant during her
release term. See 18 U.S.C. §§ 3583(a)–(d). The statute also
regulates a court’s authority to modify or revoke a supervised
release term. See id. at §§ 3583(e), (g)–(i). A court may
revoke a term of supervised release after the term expires
provided that a valid warrant or summons was issued during
the term based on a violation of any supervised release
condition. Id. at § 3583(i). Terms of supervised release are
tolled during any period of imprisonment longer than 30 days
in connection with a conviction. 18 U.S.C. § 3624(e).
Ahmadzai argues that notwithstanding the tolling
provision of § 3624(e), which he concedes precludes the
running of his supervised release period during his state
custody, § 3583(i) requires a court to issue a warrant within
UNITED STATES V . AHMADZAI 5
the original supervised period. In the absence of a court
order, Ahmadzai argues, the tolling provision of § 3624(e) is
inoperative.
B.
“The starting point for our interpretation of a statute is
always its language.” United States v. Olander, 572 F.3d
764, 768 (9th Cir. 2009) (quoting Tahara v. Matson
Terminals, Inc., 511 F.3d 950, 953 (9th Cir. 2007)). The
“first step in interpreting a statute is to determine whether the
language at issue has a plain and unambiguous meaning with
regard to the particular dispute in the case.” Robinson v.
Shell Oil Co., 519 U.S. 337, 340 (1997). “The plainness or
ambiguity of statutory language is determined by reference to
the language itself, the specific context in which that
language is used, and the broader context of the statute as a
whole.” Id. at 341.
The plain and unambiguous language of § 3624(e)
supports the district court’s judgment. The statute provides
that “[a] term of supervised release does not run during any
period in which the person is imprisoned in connection with
a conviction for a Federal, State, or local crime unless the
imprisonment is for a period of less than 30 consecutive
days.” 18 U.S.C. § 3624(e). It does not reference § 3583(i)
or mention any requirement for a judicial tolling order, nor
does it condition running of the supervised release period on
any judicial action. Instead, § 3624(e) mandates that any
period of supervised release imposed by a district court does
not run during periods of imprisonment. See United States v.
Schmidt, 99 F.3d 315, 319 (9th Cir. 1996) (holding that “the
rather clear language of section 3624(e)” tolls supervised
release), overruled on other grounds as recognized by United
6 UNITED STATES V . AHMADZAI
States v. Palomba, 182 F.3d 1121, 1123 (9th Cir. 1999);
United States v. Jackson, 426 F.3d 301, 305 (5th Cir. 2005)
(recognizing as “unambiguous” § 3624(e)’s requirement that
periods of state incarceration in connection with a conviction
automatically toll supervised release terms).
Ahmadzai seeks to apply the statutes in reverse, arguing
that the warrant or summons requirement of § 3583(i) must
be complied with before a supervision term tolls under
§ 3624(e). But such a construction of these two provisions
would produce an awkward outcome. Subsection 3583(i),
entitled “Delayed revocation,” authorizes a revocation of
supervised release “beyond the expiration of the term of
supervised release” only “if, before its expiration, a warrant
or summons has been issued” because of a violation of the
conditions of supervision. Here, “the term of supervised
release” must be understood not as the originally imposed
term before tolling, but as the total term after it has been
automatically tolled. This is because the language of
§ 3624(e) unequivocally tolls supervision during any period
of imprisonment, as explained above. Otherwise, delayed
revocation would be permissible only for violating a
supervised release condition during the original supervision
term, and not for violating a condition during the time added
to the original term by a purportedly required tolling order.
That would result in a bifurcated application of § 3583(i)
unsupported by its text. The more sensible approach is to
understand delayed revocation under § 3583(i) as permitting
revocation after the full period of supervision, not including
any § 3624(e) tolling period. See Schmidt, 99 F.3d at 318
(holding that “the conditions of section 3583(i) apply only
when the revocation of supervised release occurs after the
term of supervised release has expired” that tolled
UNITED STATES V . AHMADZAI 7
automatically during a period of concurrent incarceration in
connection with another conviction).
This Circuit previously addressed the issue of automatic
tolling under § 3624(e) in Schmidt. On April 12, 1990,
Schmidt was convicted for conspiracy to impede and impair
the Internal Revenue Service and received a 33-month prison
term to be followed by a three-year term of supervised
release. Id. at 316. This prison term expired on June 25,
1992. Id. On September 6, 1990, Schmidt was convicted for
a related offense and sentenced to four years in jail, to be
followed by a five-year probation term. Id. This second
prison term expired on April 20, 1993. Id. On November 8,
1994, Schmidt’s probation officer filed a petition for warrant
or summons for alleged supervised release violations. The
district court concluded on August 29, 1995, that Schmidt
violated the terms of his supervised release. Id. at 317. On
October 3, 1995, the district court revoked Schmidt’s term of
supervised release and imposed a prison term of one year and
one day. Id.
Like Ahmadzai, Schmidt challenged the revocation,
arguing that no warrant or summons was issued prior to the
expiration of his supervised release term, thereby depriving
the district court of jurisdiction to revoke his supervised
release pursuant to 18 U.S.C. § 3583(i). Schmidt, 99 F.3d at
318. This court disagreed, holding that although Schmidt’s
first prison term ended, he was still incarcerated for the crime
in the second case between the 1992 expiration of his first
prison term and the April 1993 expiration of his second
prison term. Id. Since “the rather clear language of section
3624(e)” automatically tolls during incarceration arising out
of a conviction, § 3583(i) applies only after the entire
extended term of supervised release ends. Id. at 318–19.
8 UNITED STATES V . AHMADZAI
This court rejected Schmidt’s attempt to count his prison term
in the second case toward the supervised release term in his
first case, unequivocally holding that “whenever a person is
imprisoned for one crime, a term of supervised release for
another crime does not run, regardless of any other
circumstances.” Id. at 319. This holding controls here.
Ahmadzai’s period of imprisonment in state custody did not
toll his supervised release term. As a result, it was due to
expire on August 19, 2012. Subsection 3583(i) thus
authorized the district court to revoke Ahmadzai’s supervised
release term based on the bench warrant signed on June 15,
2012.
Indeed, the fugitive tolling doctrine provides an analogous
framework that cuts against Ahmadzai’s position: a term of
fugitive status, like that of state custody, automatically tolls
a period of supervised release without requiring a judicial
tolling order. See Ignacio Juarez, 601 F.3d at 888–91
(reviewing the Ninth Circuit’s fugitive tolling cases); see also
United States v. Nuno-Garza, 365 F. App’x 806, 807–08 (9th
Cir. 2010) (automatically tolling both a period of state
custody and fugitive status and concluding that jurisdiction to
revoke supervised release was extended past the expiration of
the original term).
C.
Other circuits that have considered the issue have held
that § 3624(e) automatically tolls a period of supervised
release for state imprisonment. See United States v. Manning,
317 F. App’x 517, 520–21 (6th Cir. 2009) (recognizing
§ 3624(e) as automatically tolling a term of supervised
UNITED STATES V . AHMADZAI 9
release)1; United States v. House, 501 F.3d 928, 930 (8th Cir.
2007) (noting that the “express terms” of § 3624(e) tolled a
supervised release term during a state prison sentence
regardless of the validity of a revocation warrant issued
during the original term); Jackson, 426 F.3d at 304–05
(noting that periods of state incarceration in connection with
a conviction automatically toll supervised release terms
without a judicial tolling order); United States v. Contreras-
Arevalo, 150 F. App’x 350, 352 (5th Cir. 2005) (per curiam)
(relying on Jackson to hold that Ҥ 3624(e) tolls supervised
release for all terms of imprisonment related to a conviction
without exception, and that holding otherwise would run
contrary to the purpose of supervised release”)2; United States
v. Rodriguez, 153 F. App’x 662, 664 n.2 (11th Cir. 2005)
(same)3; see also United States v. Hernández-Ferrer,
599 F.3d 63, 67 (1st Cir. 2010) (“The government is correct
that imprisonment lasting for at least thirty days, in
connection with a different offense, tolls the running of a
supervised release term.”).
1
The Sixth Circuit permits citation to unpublished opinions. See 6th
Cir. R. 32.1(a) (noting that the limitations of Fed. R. App. P. 32.1(a) do
not apply).
2
The Fifth Circuit permits citation to unpublished opinions. See 5th Cir.
R. 28.7, 47.5.4 (citation of unpublished opinions); Windland v.
Quarterman, 578 F.3d 314, 317 n.4 (5th Cir. 2009) (“Although an
unpublished opinion has no precedential value, we cite [these cases] as an
example of our past practice on this matter.”).
3
The Eleventh Circuit “generally does not cite to its ‘unpublished’
opinions because they are not precedent.” 11th Cir. R 36-3, Internal
Operating Procedure 7. “Unpublished opinions are not considered binding
precedent, but they may be cited as persuasive authority.” 11th Cir. R.
36-2.
10 UNITED STATES V . AHMADZAI
This interpretation also comports with the rationale of
supervised release described by the Supreme Court, since
“[t]he objectives of supervised release would be unfulfilled if
excess prison time were to offset and reduce terms of
supervised release.” United States v. Johnson, 529 U.S. 53,
59 (2000) (recounting the goals of supervised release after
holding that a defendant’s term begins after release from
imprisonment, even if that imprisonment was the result of a
later-vacated conviction). “Congress intended supervised
release to assist individuals in their transition to community
life. Supervised release fulfills rehabilitative ends, distinct
from those served by incarceration.” Id. It follows that a
term of supervised release must be distinct from any period
of incarceration designed to serve other punitive goals. See,
e.g., Schmidt, 99 F.3d at 319 (rejecting defendant’s argument
that prison term for one conviction satisfies concurrent term
of supervised release imposed after a second conviction).
Ahmadzai’s position would allow time spent imprisoned after
a conviction to satisfy a term of supervised release, which
would directly conflict with the rehabilitative purpose of
supervised release.
IV. CONCLUSION
The district court had jurisdiction to revoke Ahmadzai’s
supervised release. His period of state custody automatically
tolled his term of supervised release. Since the district court
issued a bench warrant within the period of the tolled
supervised release term, Ahmadzai’s supervision was
properly revoked.
AFFIRMED.