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United States v. Bussey

United States Court of Appeals, Second Circuit

March 20, 2014

UNITED STATES OF AMERICA, Appellee,
v.
MICHAEL BUSSEY, Defendant-Appellant

Argued: March 7, 2014.

On this appeal from a conviction for violating the terms of supervised release, defendant challenges jurisdiction, contending that, before imposition of judgment, his three-year term of supervision had expired while he was in state custody for a parole violation. The jurisdictional challenge fails because defendant's state incarceration was " in connection with" an underlying conviction, thereby tolling his federal term of supervised release. 18 U.S.C. § 3624(e).

ANNE M. BURGER, Assistant Federal Public Defender, Western District of New York, Rochester, New York, for Defendant-Appellant.

MONICA J. RICHARDS, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, New York, for Appellee.

Before: RAGGI AND LYNCH, Circuit Judges, MCMAHON, District Judge.[*]

OPINION

Page 632

Reena Raggi, Circuit Judge :

Defendant Michael Bussey appeals from a judgment of conviction entered on March 25, 2013, in the Western District of New York (Charles J. Siragusa, Judge ) for violation of a condition of supervised release imposed in connection with his earlier conviction for possession of a firearm by a convicted felon. See 18 U.S.C. § 922(g)(1). Sentenced to an additional two-year term of supervision for the violation, Bussey asserts that the district court lacked jurisdiction because his original three-year term of federal supervision expired before the challenged judgment was entered and while he was incarcerated for a violation of state parole.

We review this jurisdictional challenge de novo, see United States v. Al Kassar, 660 F.3d 108, 117 (2d Cir. 2011), focusing on two statutes, 18 U.S.C. § § 3624(e) and 3583(i). The latter provision states that the " power of the court" to revoke a term of supervised release and to impose punishment " extends beyond the expiration of the term of supervised release for any period reasonably necessary for the adjudication of matters arising before its expiration" if a warrant has been issued for such violation before the term's expiration. 18 U.S.C. § 3583(i). Meanwhile, § 3624(e) provides for tolling of supervision as follows: " A term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days." Id. § 3624(e).

The plain language of these statutes defeats Bussey's jurisdictional challenge, but a brief chronology is necessary to explain that conclusion. Bussey began serving his original three-year term of supervision on February 9, 2010, when he was released from federal custody. He was at the same time also serving New York parole, awarded as an early release on the 42-month state sentence imposed for unlawful possession of a firearm. Approximately a year later, Bussey's whereabouts were unknown to either state or federal supervising authorities, prompting issuance of arrest warrants on April 1, 2011, by New York State for violation of parole, and on April 7, 2011, by the United States for violation of supervision. Taken into custody by state authorities, Bussey remained incarcerated until March 8, 2013, when he completed serving his 22-month parole revocation term. Bussey was immediately thereafter transferred to federal custody and, on March 20, 2013, first appeared on and was found guilty of violating the condition of supervision requiring that he notify a probation officer prior to a change in residence.[1] The district court sentenced him to time served (from March 8 to 20, 2013) and imposed an additional two years of supervision.

As this chronology shows, the April 7, 2011 federal warrant for Bussey's arrest

Page 633

issued well before his three-year term of supervision would have concluded on February 9, 2013, even without regard to tolling. In such circumstances, a district court clearly has jurisdiction to adjudicate a supervision violation and may even do so " beyond the expiration of the term of supervised release" as " reasonably necessary." Id. § 3583(i). Any delay in this case was a function of Bussey's unavailability as a result of his state incarceration. Bussey submits that the delay was not reasonably necessary because the United States could have proceeded on the federal supervision violation by seeking a writ of habeas corpus ad prosequendum under the All Writs Act to secure his presence in federal court. See 28 U.S.C. § 1651. Even if this means of proceeding was available, however, the government's failure to employ it here does not defeat jurisdiction.

That is so because § 3624(e) expressly tolls supervision terms for " any period in which the person is imprisoned in connection with a conviction for a... State... crime." 18 U.S.C. § 3624(e). To the extent Bussey's three-year term of federal supervision was thus statutorily tolled approximately 14 months after it began--i.e., when he started his 22-month incarceration in New York for violating parole--his federal violation proceeding commenced and concluded ...


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