United States v. Foster, No. 13-1474 (10th Cir. 2014)
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In 2012, Cheston Foster was arrested for violating the terms of his supervised release, including traveling to Massachusetts without permission. Following a revocation hearing where Foster admitted the violations enumerated, the district court revoked his supervised release and sentenced Foster to time served and 30 months of supervised release. The court imposed a special condition that he reside in a halfway house residential re-entry center. Foster’s attorney sought an alternative arrangement by providing the probation office with the address of Foster’s mother, but the probation officer opposed this suggestion. The district court stated, “[w]hat we will do is we will start with a residential re-entry center, and if through his assigned probation officer there is an alternative that is reasonable, we will go at it that way, but we will start there.” On December 27, 2012, Foster left the residential reentry center without permission and did not return. A few months later, a grand jury issued an indictment charging Foster with a single count of escape from custody. Foster’s attorney moved to dismiss the indictment because the residence requirement “was not part of any detention or a sanction for his supervised release violation,” and therefore Foster was not in custody for purposes of the escape statute. The district court dismissed the indictment after concluding that Foster was not in custody. The government appealed. The Tenth Circuit disagreed with the district court, reversed and remanded the case for further proceedings.
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