For Whom Supervised Release Tolls

If you practice within the Sixth Circuit, and represent non-U.S. citizens in federal criminal proceedings on occasion, read on. Several years ago, in US v. Isong, 111 F.3d 428 (6th Cir. 1997) (and despite vehement opposition from AFPD Sumter Camp), the Sixth Circuit ruled that district courts have authority to order that a term of supervised release be tolled while a defendant is deported from the United States.

The Sixth Circuit is the ONLY circuit that has expressly approved the tolling of a defendant’s term of supervised release while the defendant is deported. Three other federal circuits subsequently ruled that this tolling practice exceeds the statutory authority of the court. See United States v. Balogun, 146 F.3d 141 (2nd Cir. 1998); United States v. Juan-Manuel, 222 F.3d 480 (8th Cir. 2000); United States v. Okoko, 365 F.3d 962 (11th Cir. 2004).

As the other circuits recognized, 18 USC § 3624(e) provides that: "the term of supervised release commences on the day the person is released from imprisonment." The statute provides just one exception to this rule: "[the] 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." Section 3624(e) "is clear, direct and requires no interpretation: ‘The term of supervised release commences on the day the person is released from imprisonment.’" United States v. Cook, 329 U.S. 335, 338 (3d Cir. 2003). By tolling in cases where the defendant is deported, courts exceed their statutory authority.

Nonetheless, in the Middle District of Tennessee (where undersigned counsel practices), in all cases where the defendant will be deported after imprisonment, the federal probation office recommends in the pre-sentence report that the court impose a special condition that the term of supervised release be tolled. The district court judges regularly impose this special condition, although several judges have declined to do so in individual cases based on mitigating facts. The use of tolling also has been reported in the Southern District of Ohio, and no doubt elsewhere within within the Sixth Circuit.

Given the circuit split and the compelling logic of the cases from the Second, Eighth, and Eleventh Circuits, defense counsel in the Sixth should object to tolling in each case where it is proposed. Who knows, this could be the case that gets you to the that big court in DC.