United States v. Morales-Isabarras, No. 13-10005 (Ikuta with Nelson and M. Smith)

When can a defendant finally shed the albatross of supervised release?  In illegal-reentry cases where the defendant repeatedly returns to the United States, the answer may be "never." 

The defendant in this case has illegally entered and reentered, and been deported, on numerous occasions.  As relevant here, he was convicted in 2003 of illegal reentry and sentenced to prison plus three years of supervised release.  After his prison term, he was deported, but came back in 2006.  At that time he was charged with a new illegal reentry crime, and a warrant was issued for violating supervised release in the 2003 case.  That warrant was not ultimately executed until 2012, after he had served prison sentences not only on the 2006 illegal reentry but also on a 2012 misdemeanor illegal entry (presumably part of Operation Streamline, since he was caught in Arizona).  It was only when the defendant was serving the 6-month sentence for the 2012 case that the warrant on the 2003 supervised-release violation was finally executed -- and by that time, well over three years had elapsed since he had been released from prison in connection with the 2003 illegal-reentry case. 

This appeal is from the revocation order and sentence imposed for the 2003 supervised release violation.  The defendant contends that the district court lacked jurisdiction because the revocation order was entered more than three years after he was released from prison in connection with that case and even after it was "reasonably necessary" to extend that supervised-release term to adjudicate the violation occasioned by the 2006 reentry.  See 18 U.S.C. § 3583(i).  So the legal question became whether it was reasonably necessary for the government to wait six years to adjudicate the 2003 supervised-release violation, where the government was prosecuting (and imprisoning) him for an immigration crime during that period. 

The Ninth Circuit held that the six-year delay was reasonably necessary.  First, the court took issue with the computation of the length of the delay, noting that under 18 U.S.C. § 3624(e), supervised release periods are tolled while a person is serving time in connection with another crime (as the defendant here was on the 2006 illegal reentry).  This led the court to characterize the delay as involving only three and a half years.  As a practical and legal matter, the court held, it was necessary to delay resolving the 2003 supervised-release violation until after the 2006 illegal-reentry charge was fully resolved.  The charges arose out of different judicial districts, which would have required the government to shuffle the defendant around between districts for various hearings.  (The court overlooks the possibility of transferring supervision to the district in which the new charge is pending.)  Nor could the 2003 supervised-release violation have been dealt with practically while the defendant was serving the sentence in the 2006 case, because that would have required the Bureau of Prisons to writ the defendant out for further proceedings, something the court also saw as too burdensome for the government.  And of course the supervised-release violation could not be addressed while the defendant was outside the United States (because he had been deported). 

 The opinion is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/03/13/13-10005.pdf