United States v. Michelle Wing , 400 F. App'x 187 ( 2010 )

FILED
NOT FOR PUBLICATION OCT 18 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30413
Plaintiff - Appellee, D.C. No. 9:01-cr-00037-DWM-1
v.
MEMORANDUM *
MICHELLE WING,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted October 5, 2010
Seattle, Washington
Before: THOMAS and M. SMITH, Circuit Judges, and HOGAN, District Judge.**
Michelle Wing argues on appeal that the district court lacked jurisdiction to
revoke her term of supervised release because the term had not yet commenced.
The record facially supports her claim: her new period of supervised release
appears to have been scheduled to commence after the district court hearing. See
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Michael R. Hogan, United States District Judge for the
District of Oregon, sitting by designation.
18 U.S.C. § 3624(e) (“The term of supervised release commences on the day the
person is released from imprisonment . . .”); United States v. Johnson, 529 U.S. 53,
57 (2000) (holding that a supervised release term does not commence until an
individual “is released from imprisonment”); United States v. Malandrini, 177 F.3d
771, 774 (9th Cir. 1999).
As Wing concedes, this argument was not presented to the district court.
However, because the argument implicates the court’s jurisdiction, Wing is not
precluded from raising it on appeal. United States v. Powell, 24 F.3d 28, 30 (9th
Cir.1994). Because the district court has not had the opportunity to consider the
argument, we are without benefit of the district court’s analysis on the issue, or its
analysis on the extent to which the revocation pertained (or could pertain) to
Wing’s first period of supervised release. See Johnson v. United States, 529 U.S.
694, 704-13 (2000) (noting that when a court “revokes” a supervised release term
under Section 3583(e), that term “continues to have some effect”); see also 18
U.S.C. § 3583(h), (i). We would benefit from the district court’s views, and it
would be unfair to the district court for us to decide this case without giving it the
opportunity consider the questions in the first instance. Therefore, we remand the
case to the district court for consideration of the issues raised in the appeal.
REMANDED.
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