Sunday, April 15, 2018

Case o' The Week: Faster than a speeding jet - Shimabukuro and Custodial Terms for Supervised Release

  Defense counsel flew for six hours, from SFO to Honolulu, after oral argument in San Francisco
  The Ninth was considerably faster: it took only four hours to deliver the per curiam victory.
  United States v. Shimabukuro, 2018 WL 1755526 (9th Cir. Apr. 12, 2018), decision available here.

Players: Per curiam defense win by Chief Judge Thomas, Judge Friedland, and DJ Olguin (delivered four hours after oral argument! See argument link here). 
  New speed-to-victory record set by First Ass’t Fed. Public Defender Alexander Silvert, argued by Fed. Defender Peter Wolff, District of Hawai’i.

Facts: Shimabukuro’s supervised release was revoked three times over eight years. Id. The second time he was sentenced to time served, and 41 months of supervised release, “with 150 days of intermittent confinement at the Federal Detention Center in Honolulu.” Id.
  When he violated the third time, he was sentenced to seventeen months of imprisonment with no term to follow. Id. Shimabukuro protested that this term exceeded the maximum “cap,” if the court counted the 150 days of intermittent confinement from the second supervised release revocation. Id. (referring to the custodial cap set forth in the version of 18 USC § 3583(e)(3) in effect in at the time of the original offense). 
  The district court disagreed, concluding that intermittent confinement does not count as time “in prison.” Id.

Issue(s): “Defendant Wallace Shimabukuro’s appeal of the term of imprisonment imposed after he violated the conditions of his supervised release requires us to decide whether intermittent confinement counts against the cap 18 U.S.C. § 3583(e)(3) (2002) places on the amount of time ‘in prison’ a district court may impose when revoking a defendant’s supervised release.” Id. at *1.

Held: “We hold that it does.” Id. “The 150 days that Shimabukuro spent at the Federal Detention Center constitute time spent ‘in prison’ and thus should have been included in the district court’s calculation of the aggregate time it previously had required Shimabukuro to spend ‘in prison.’ Any other result would defy the plain language of the statute.” Id. at *2.

Of Note: Custodial “aggregation” is from the old-school version of § 3583(e)(3). The statute was amended in April 2003 (a month after Shimabukuro’s original conspiracy offense was completed). Id. at *1 & n.1. 
  The old version of § 3583(e)(3) – at issue here – required district courts to aggregate prison time imposed and credit that towards a custodial “cap” for revocations. Id. at *2 & n.3. 
  Keep an eye on April 2003, and the original offense date, as the dividing line: that good aggregation / custodial cap for supervised release violations is only available to our clients who’ve been entangled in the federal system for fifteen years or more. Id. at *1 & n.1.

How to Use: Like “conditional pleas,” the “intermittent confinement” in Shimabukuro is a mythical beast not found in NorCal. The Bay Area is one of the few large metropolitan areas that have been cheated out of a Federal Detention Center. See generally list of prisons here
  When intermittent confinement is attempted in our local county jails it inevitably goes poorly: low-security federal defendants have been warehoused in full-lock down cells, way out in Sacramento jails, for intermittent weekend confinements.
  Consider this aggravating local quirk as a basis for a Section 3553(a) variance. As a practical matter, a ND Cal client can’t realistically serve an intermittent confinement sentence that is permitted in the guidelines – a sentence that is available to defendants in Hawaii, and Texas, and Florida, and Louisiana, and Pennsylvania, and the many other districts that have FDCs.
For Further Reading: A "just enough" Sentencing Commission has managed to adopt a new slate of amendments. See press release, here

    (The Commissioners don't exactly look thrilled at the news.)  
   A “reader friendly” version of the amendments can be found here
  Take a close look at “Alternatives to Incarceration for Nonviolent First Offenders:” there's some good new commentary language that is fair game to be used at sentencing now, before the Nov. 1, 2018 effective date.

Steven Kalar, Federal Public Defender, Northern District of California. Website at


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