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United States v. Island

United States Court of Appeals, Third Circuit

February 26, 2019

UNITED STATES OF AMERICA
v.
DONTE ISLAND, a/k/a Norman Tomas, a/k/a Norman Thomas Donte Island, Appellant

          Argued: November 6, 2018

          On 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

          Keith M. Donoghue, Esq. [ARGUED] Federal Community Defender Office for the Eastern District of Pennsylvania Counsel for Appellant

          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.

          OPINION

          SCIRICA, CIRCUIT JUDGE

         In this 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.

         Defendant 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.

         I.

         Following 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.

         Island 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.

         On June 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 years' imprisonment.

         The 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.[1]

         II.

         Island 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, ...


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