US v. Roy Flores-Sierra, No. 10-5147 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5147 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ROY FLORES-SIERRAS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Henry Coke Morgan, Jr., Senior District Judge. (4:10-cr-00102-HCM-TEM-1) Submitted: May 24, 2011 Before SHEDD and Circuit Judge. WYNN, Decided: Circuit Judges, and June 22, 2011 HAMILTON, Senior Vacated and remanded by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Richard J. Colgan, Assistant Federal Public Defender, Caroline S. Platt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Scott W. Putney, Assistant United States Attorney, Newport News, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Roy Flores-Sierras pled guilty to a one-count indictment charging him with illegal reentry into the United States following deportation in violation of 8 U.S.C. § 1326(a) (2006) and was sentenced to three months imprisonment and one year of supervised release, with the condition that he serve the period of supervised release if he returns to the country, legally or illegally, with the usual terms. The court further ordered of that upon completion of the term imprisonment, Flores-Sierras is to be surrendered to immigration authorities for deportation. On appeal, Flores-Sierras argues that the district court lacked the authority to delay the start of his supervised release. We agree and accordingly vacate his sentence and remand the case for further proceedings. * Supervised release is governed by 18 U.S.C. § 3583 (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 * Flores-Sierras does not appeal. 2 challenge his conviction on the length of the term. 18 U.S.C. § 3583(c). Courts are also 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, Flores-Sierras 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. Flores-Sierras 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 agrees with Flores-Sierras that the district court lacked the authority to delay the start of his supervised release. This appeal raises a question of statutory interpretation. When interpreting statutes we start with the plain language. U.S. Dep t of Labor v. N.C. Growers Ass n, 377 F.3d 345, language 350 of a contemporary, (4th Cir. statute, common 2004). we give meaning, In the absent interpreting the terms ordinary, an intended it to bear some different import. their indication plain Congress 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 4 starts on the day the defendant is released from prison. 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 that toll the release under any other circumstance. at 543. 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. ). In addition, we note that an opposite position would result in certain inconsistencies. release is that Flores-Sierras United States if deported. One condition of supervised refrain from reentering the But if his supervised release does not begin until he reenters the United States, this condition is a nullity. removed As the Third Circuit explained, [i]f a defendant is 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 . Finally, while § 3583 does permit the district court to impose conditions on supervised release, tolling is not a condition § 3583(d). in the sense in which the term Ossa-Gallegos, 491 F.3d at 542. 5 is used in [C]onditions within § 3583 are contingencies upon 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. We conclude that the district court s order runs afoul of § 3624(e) because Flores-Sierras supervised release will not necessarily commence on the day his term of imprisonment ends. Accordingly, we vacate Flores-Sierras sentence and remand for further proceedings consistent with this opinion. 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. VACATED AND REMANDED 6

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