“Unambiguous” and “plain.”
That is how the U.S. Courts of Appeals for the 4th and 9th Circuits, respectively, described 18 U.S.C. § 3624(e), a tolling provision for supervised release. Then, they reached different conclusions about it.
The number of circuits taking a side in this split is growing, with four decisions in the past three years alone. The Supreme Court has not yet stepped in, but circuit split watchers should stay tuned.
“Unlike parole,” the U.S. Courts website explains, “supervised release does not replace a portion of the sentence of imprisonment but is in addition to the time spent in prison.” If conditions are violated, supervised release can be revoked and the person sent back to prison. Under § 3624(e), “supervised release does not run during any period in which the person is imprisoned in connection with a conviction.”
In all five circuit split cases, the defendants found themselves in pretrial detention on additional charges, during what would have otherwise been supervised release. The original and additional crimes included bank fraud, drug conspiracy, illegal reentry, and other offenses.
The government moved to revoke supervised release for all five defendants, which the courts did, imposing prison time. In each case, the government relied on defendants’ pretrial detention to toll or stop the clock. Without tolling, its revocation requests would have been too late. The defendants argued that pretrial detention does not qualify for § 3624(e) tolling.
The 4th, 5th, 6th, and 11th Circuits disagreed, finding that pretrial detention is “imprison[ment] in connection with a conviction” that triggers tolling, in cases where the detention precedes a conviction and counts toward the prison sentence for that conviction. Conversely, the 9th Circuit found that pretrial detention is not “connect[ed] with a conviction,” since “a person in pretrial detention has not yet been convicted.”
The practical implication of this split could be reduced supervised release for defendants in the 9th Circuit, compared with other circuits, including reduced exposure to prison time for violating conditions while on supervised release.
This disparity, implicating liberty interests, is arguably “an important question of federal law,” a factor favoring certiorari under the Supreme Court’s Rule 10. Despite this, and the circuit split, another Rule 10 factor, the Court has already declined to resolve the supervised release split and will likely decline again on a pending petition.
The Court is looking for Goldilocks (“just right”) splits—not too shallow, lacking analysis from multiple circuits, or too lopsided, recognizing that an errant circuit may come into line or other circuits may join the minority, increasing the need for Court intervention. In this way, the Court can give its attention to the most pressing cases.
The 4-1 supervised release split is not too shallow. Five, or almost half, of the federal appellate courts have already weighed in. The split is lopsided, though, typically meaning the Court will wait. But, such splits can evolve.
For instance, in Samantar v. Yousuf, decided last year, the Court finally resolved a circuit split about sovereign immunity for foreign officials, after previously declining to resolve it when only one court was in the minority. When the split became 5-2, the Court granted certiorari, interestingly, adopting the minority view.
Although time will tell how the supervised release split develops, it remains one to watch, particularly in the uncommitted circuits and the 9th Circuit.