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United States v. Marsh

United States Court of Appeals, District of Columbia Circuit

July 19, 2016

United States of America, Appellee
v.
Brian D. Marsh, Appellant

          Argued May 6, 2016

         Appeal from the United States District Court for the District of Columbia (No. 1:03-cr-00423-1)

          Mary E. Davis, appointed by the court, argued the cause and filed the briefs for appellant.

          Jay Apperson, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Elizabeth Trosman and Elizabeth H. Danello, Assistant U.S. Attorneys

          Before: Tatel, Srinivasan, and Pillard, Circuit Judges

          OPINION

          Tatel, Circuit Judge

This case raises the question whether 18 U.S.C. § 3624(e), which provides that "[a] term of supervised release does not run during any period in which [a] person is imprisoned in connection with a conviction for a Federal, State, or local crime, " tolls a supervised-release term during a period of pretrial detention if the defendant is later convicted of the charges on which he is held and receives credit toward his sentence for the time served in pretrial detention. For the reasons set forth below, we hold that it does not.

         I.

         In 2004, appellant Brian Marsh pled guilty to one count of unlawful possession with intent to distribute 100 grams or more of phencyclidine. Shortly thereafter, the district court sentenced him to 63 months' imprisonment, followed by four years of supervised release. Marsh completed his term of incarceration on May 9, 2008. His term of supervised release was, therefore, set to expire on May 8, 2012.

         Roughly nine months prior to that scheduled expiration, on August 11, 2011, Marsh was indicted for several new drug-trafficking offenses. He was arrested six days later, on August 17, and detained pending trial. He ultimately pled guilty to the new charges on June 19, 2012, and, on September 20, a different district judge sentenced him to 150 months' imprisonment, with credit for time served, followed by five years of supervised release.

         Marsh's convictions for these later offenses established that he had violated the conditions of his supervised release by engaging in criminal activity. See 18 U.S.C. § 3583(d) (mandating, as a condition of supervised release, that "the defendant not commit another Federal, State, or local crime during the term of supervision"). Thus, on September 21, the day after his sentencing in the second case, the district court that presided over his 2004 conviction held a hearing to address the apparent violation. At the hearing, the court purported to revoke Marsh's supervised-release term and to sentence him to the statutory maximum of 36 months' imprisonment, to run consecutive to the 150 months imposed for the new charges. See Revocation Hr'g Tr. 24 (Sept. 21, 2012); see also 18 U.S.C. § 3583(e)(3).

         Marsh now appeals, raising two principal challenges. First, he contends that his supervised-release term ended on May 8, 2012, and that the district court consequently lacked jurisdiction in September 2012 to revoke his term of supervised release and to impose an additional period of incarceration. Second, he contends that even if the district court had jurisdiction, it plainly erred in sentencing him by, among other things, applying an across-the-board policy of imposing the maximum sentence available when a defendant commits a crime while on supervised release. Because we agree with Marsh's first challenge-that the district court lacked jurisdiction to revoke his term of supervised release and to impose a further period of incarceration-we need not address the alleged defects in the district court's sentencing procedures.

         II.

         As a threshold matter, Marsh contends that, in September 2012, the district court lacked authority to revoke his term of supervised release and to impose an additional period of imprisonment because he was no longer under its supervision. We review that jurisdictional question de novo. See Board of Trustees of Hotel & Restaurant Employees Local 25 v. Madison Hotel, Inc., 97 F.3d 1479, 1483 (D.C. Cir. 1996); see also, e.g., United States v. Johnson, 581 F.3d 1310, ...


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