Argued: November 6, 2018
Appeal from the United States District Court for the Eastern
District of Pennsylvania (D.C. Criminal Action No.
2-03-cr-00592-001) District Judge: Honorable Jan E. DuBois
M. Donoghue, Esq. [ARGUED] Federal Community Defender Office
for the Eastern District of Pennsylvania Counsel for
Bernadette A. McKeon, Esq. [ARGUED] Robert A. Zauzmer, Esq.
Office of the United States Attorney Counsel for Appellee
Before: AMBRO, SCIRICA, and RENDELL, Circuit Judges.
SCIRICA, CIRCUIT JUDGE
appeal, we determine whether a defendant can count toward the
service of his supervised release term a period of time he is
fugitive, that is, absent from the court's supervision.
The statutory provisions governing supervised release do not
contain plain language-or indeed any language-that expressly
resolves that question. But, as the majority of Courts of
Appeals to address the question have concluded, a defendant
does not in fact serve his supervised release term while he
deliberately absconds from the court's supervision.
Accordingly, a defendant's supervised release term tolls
while he is of fugitive status.
Donte Island appealed to challenge the District Court's
order revoking his supervised release and sentencing him to a
term of imprisonment. Island primarily contended that under
18 U.S.C. § 3583(i) the Court's jurisdiction
terminated at the end of his three-year supervised release
term. Island asserted the Court accordingly lacked authority
to revoke his release based on his involvement in a police
officer shooting first raised to the court a few days after
those three years had passed. The government maintained the
Court had jurisdiction to revoke Island's supervised
release for the officer shooting violation based on an
earlier-issued warrant for unrelated violations. We have no
occasion to resolve that jurisdictional dispute, however,
because we join the majority of Circuits that have addressed
the issue to hold Island's supervised release term tolled
while he was fugitive from the court's supervision. As a
result of that tolling, Island's term of supervised
release had not yet expired when the later warrant was
issued. Because the District Court therefore had jurisdiction
over the second warrant and underlying petition of violation,
we will affirm.
a jury trial in 2004, the District Court sentenced Island to
110 months' imprisonment and 3 years' supervised
release for possession of a firearm by a convicted felon, 18
U.S.C. § 922(g)(1). Island commenced that three-year
supervised release term on June 26, 2013, and it was
scheduled to end on June 25, 2016.
completed the first two years of his release term without
incident, but on September 18, 2015, Island's probation
officer filed a petition of violation. The petition alleged
Island had breached the terms of his release by committing
several technical, i.e., noncriminal or minor,
violations, such as failing to notify his probation officer
of a changed address and failing several drug tests. The
petition noted that "[m]ore troublesome" among the
violations was Island's failure to report to his
probation officer. App'x 34. The officer relayed that
Island "ceased reporting as instructed" on July 17,
2015, after which his "whereabouts [were] unknown."
App'x 34, 28. The petition chronicled over half a dozen
attempts to contact Island in the coming months, none of
which were successful. Island failed to report for a
scheduled meeting, then did not respond to phone calls,
voicemails, letters, or emails sent to him at several
possible numbers and addresses. The Court issued a warrant on
the basis of that petition the day it was filed, but that
warrant remained outstanding.
27, 2016-just over three years after Island's supervised
release term had begun-the probation office filed a second
petition of violation, styled as an "[a]mended"
version of the first. App'x 35. The Court again issued a
warrant the same day, now based on a new violation. The
second petition alleged Island had committed a serious
violation of the terms of his release on June 21-just under
three years after Island's supervised release term had
begun-by firing a weapon at two police officers, hitting one.
Island was arrested and taken into custody by Delaware County
authorities that day. The District Court held a
teleconference with the government and Island's counsel
soon after receiving the petition, and the parties then
agreed to delay a hearing on both petitions of violation
until after the disposition of Island's Delaware County
charges. Island was convicted in July 2017 of attempted
murder and other charges, then sentenced in the Court of
Common Pleas of Delaware County, Pennsylvania to 33 to 100
District Court held a supervised release revocation hearing
on December 13, 2017. The government sought the statutory
maximum revocation term of 24 months' imprisonment; at
the hearing, it stressed the severity of the officer shooting
underlying the second violation petition. The government
further emphasized Island "wasn't within hours of
completing his sentence on this. . . . He was 11 months a
fugitive, right, so it's not like he committed the crime
on the 11th hour." App'x 57-58. In response, Island
emphasized he would already be serving 33 to 100 years in
prison and argued "it would be excessive and unnecessary
based on the practical realities of his case" to also
enforce a revocation term of imprisonment. App'x 62. The
court imposed the government's recommended revocation
sentence of 24 months, to run consecutively after
Island's state sentence, on the basis of only the second
violation petition. Island now appeals.
asserts on appeal that the District Court lacked jurisdiction
under 18 U.S.C. § 3583(i) to revoke his supervised
release because the warrant underlying revocation-based on
the shooting-was untimely issued after the three-year
calendar on his supervised release term had run. The
government responds that the earlier warrant for unrelated
technical violations endowed the District Court with ongoing
jurisdiction, but also contends the warrant was timely
because Island's three-year supervised release term was
tolled while he was of fugitive status. We may "affirm
on any ground supported by the record," United
States v. Mussagre, 405 F.3d 161, ...