US v. Alejandro Castro-Castro, No. 09-5144 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5144 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALEJANDRO CASTRO-CASTRO, a/k/a Jose Luis Gutierrez, a/k/a Alejandro Castro, Defendant Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior District Judge. (2:08-cr-00201-HCM-TEM-1) Submitted: September 30, 2010 Before SHEDD and Circuit Judge. WYNN, Circuit Decided: Judges, and December 6, 2010 HAMILTON, Senior Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Richard J. Colgan, Assistant Federal Public Defender, Caroline S. Platt, Research and Writing Attorney, Norfolk, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Richard D. Cooke, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Alejandro Castro-Castro pleaded guilty to a one-count indictment charging him with illegal reentry into the United States following deportation and subsequent to a felony conviction, in violation of 8 U.S.C. § 1326(a), (b)(1) (2006), and was sentenced to twenty-one months imprisonment and three years supervised release, with the requirement that [i]f the defendant is deported, supervised release is to begin if and/or when the defendant Castro-Castro reenters the States. district On authority to delay the start of his supervised release. We vacate accordingly, his sentence, affirm and court appeal, the and, that United lacked agree argues the Castro-Castro s remand the case conviction, for further U.S.C. § 3583 proceedings. * Supervised release is governed by 18 (2006), which provides that a court, in imposing a sentence . . . may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment. 18 U.S.C. § 3583(a). A court imposing a term of supervised release is directed to examine specified sentencing factors set forth in 18 U.S.C. § 3553(a) (2006) in determining the length of the term. * 18 U.S.C. § 3583(c). Courts are also Castro-Castro does not challenge his conviction on appeal. 2 permitted to impose conditions on supervised release, including the condition that the defendant not commit any crimes during the term of supervised release. 3583(d) further permits a 18 U.S.C. § 3583(d). sentencing court to Section impose any condition as a further condition to supervised release, so long as the condition meets certain criteria, including that the condition is reasonably related to the specified § 3553(a) factors, involves no greater deprivation of liberty than is reasonably necessary, Commission s policy and is consistent statements. 18 with U.S.C. the Sentencing § 3583(d)(1)-(3). Section 3583(d) also provides that [i]f an alien defendant is subject to deportation, the court may provide, as a condition of supervised release, that he be deported and remain outside the United States, and may order that he be delivered to a duly authorized immigration official for such deportation. 18 U.S.C. § 3583(d). In addition to § 3583, 18 U.S.C. § 3624(e) (2006) supplies the statutory definition for when a term of supervised release begins: The term of supervised release commences on the day the person is released from imprisonment. 18 U.S.C. § 3624(e). The statute provides for the tolling of supervised release a in single circumstance when the defendant imprisoned on an unrelated crime for more than thirty days. 3 is Id. On appeal, Castro-Castro argues that, under the plain language of § 3624(e), the district court lacked the authority to delay the start of his supervised release in the event he is deported following his incarceration. Castro-Castro notes that his position has the support of the five circuit courts that have addressed the issue. See United States v. Cole, 567 F.3d 110 (3d Cir. 2009); United States v. Ossa-Gallegos, 491 F.3d 537 (6th Cir. 2007) (en banc); United States v. Okoko, 365 F.3d 962 (11th Cir. 2004); United States v. Juan-Manuel, 222 F.3d 480 (8th Cir. 2000); United States v. Balogun, 146 F.3d 141 (2d Cir. 1998). The Government, while contending that our review is for plain error, agrees with Castro-Castro that the district court lacked the release. authority to delay the start of his supervised We agree with the Government that, even under the plain error standard, Castro-Castro is entitled to relief. In order to satisfy the plain error standard, CastroCastro must show: (1) an error was made; (2) the error is See United plain; and (3) the error affects substantial rights. States v. Olano, 507 U.S. 725, 732 (1993). The decision to correct the error lies within our discretion, and we exercise that discretion fairness, only integrity proceedings. if or the error public seriously reputation affects of the judicial Olano, 507 U.S. at 732 (alterations and internal quotation marks omitted). Castro-Castro bears the burden of 4 satisfying each element of the plain error standard. United States v. Vonn, 535 U.S. 55, 59 (2002). The parties agree that Castro-Castro s appeal raises a question of statutory interpretation. When statutes we start with the plain language. interpreting U.S. Dep t of Labor v. N.C. Growers Ass n, 377 F.3d 345, 350 (4th Cir. 2004). In interpreting the plain language of a statute, we give the terms their ordinary, contemporary, common meaning, absent an indication Congress intended it to bear some different import. North Carolina ex rel. Cooper v. Tenn. Valley Auth., 515 F.3d 344, 351 (4th Cir. 2008) (alterations and internal quotation marks omitted). In this case, the plain language of § 3624(e) clearly provides that supervised release starts defendant is released from prison. on the day the The statute provides for tolling only when the defendant is otherwise incarcerated, and the fact that Congress explicitly allows for tolling only when a defendant intend for is imprisoned district courts indicates to toll release under any other circumstance. at 543. that the Congress period of does not supervised Ossa-Gallegos, 491 F.3d In contrast, in the case of probation, Congress has provided for tolling mechanisms. See 18 U.S.C. § 3564(a) ( A term of probation commences on the day that the sentence of probation is imposed, unless otherwise ordered by the court. ). 5 In addition, as both parties note, position creates certain logical inconsistencies. Circuit explained, a defendant charged with an opposite As the Third illegal reentry . . . may be ordered to leave and stay outside of the United States as a condition of his supervised release. If a defendant is removed and ordered excluded from the United States as a condition of supervised release, how can it be that the period of supervised release is tolled during that period? Cole, 567 F.3d at 115 (citations omitted). Finally, while § 3583 does permit the district court to impose conditions on supervised release, tolling is not a condition in § 3583(d). within § 3583 the sense in which the term Ossa-Gallegos, 491 F.3d at 542. are contingencies upon is used in [C]onditions which the right to continue on supervised release depends, and the continuation of supervised release is not contingent on tolling; rather, tolling describes the existing state of supervised release that is, whether or not the period of supervised release is running. Id. The cases by district stating that court it attempted was not to distinguish tolling the these supervised release, but simply delaying the start of supervised release in the event Castro-Castro was deported following his imprisonment. In addition, the district court s 6 order still runs afoul of § 3624(e) because Castro-Castro s supervised release will not necessarily commence on the day his term of imprisonment ends. Further, as the Government concedes, the district court s error satisfies the remaining requirements for relief on plain error review - the error was plain and affects CastroCastro s substantial rights. Moreover, we will use our discretion to correct the error because it affects the fairness, integrity, and reputation of our proceedings. See Cole, 567 F.3d at 118. Accordingly, conviction, we vacate although his we sentence affirm and proceedings consistent with this opinion. Castro-Castro's remand for further We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 7
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