                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 10-4551


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

LUIS ANGEL GONZALES, a/k/a Luis Angel Gonzales Sanchez,
a/k/a Angel Gonzales, a/k/a Juis Angel Gonzales-Sanchez,
a/k/a Luis Angelgo Sanchez, a/k/a Luis Angel Sanchez,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.      Henry Coke Morgan, Jr.,
Senior District Judge. (2:09-cr-00178-HCM-FBS-1)


Submitted:     February 15, 2011             Decided:    March 18, 2011


Before SHEDD and     WYNN,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Richard J.
Colgan, Assistant Federal Public Defender, Caroline S. Platt,
Research and Writing Attorney, Norfolk, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, Randy Stoker,
Assistant  United   States  Attorney,  Norfolk,   Virginia,  for
Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            Luis       Angel    Gonzales        pled     guilty        to   a   one-count

indictment charging him with illegal reentry into the United

States following deportation in violation of 8 U.S.C. § 1326(a)

(2006), and was sentenced to eight months’ imprisonment and one

year of supervised release, with the condition that “his period

of supervised release shall not commence until he surrenders to

the probation officer to begin serving that period, which is to

say, he’s not going to be serving supervised release while he’s

deported and outside of the United States.”                        The court further

ordered    that    upon    completion         of   the    term     of       imprisonment,

Gonzales is to be surrendered to immigration authorities for

deportation.       On appeal, Gonzales argues that the district court

lacked    the    authority      to    delay     the    start      of    his     supervised

release.          We    agree        and,     accordingly,         affirm        Gonzales’

conviction, vacate his sentence, and remand the case for further

proceedings. *

            Supervised release is governed by 18 U.S.C. § 3583

(2006), which provides that a court, “in imposing a sentence

. . . may include as a part of the sentence a requirement that

the defendant be placed on a term of supervised release after

imprisonment.”         18 U.S.C. § 3583(a).            A court imposing a term of

     *
         Gonzales does not challenge his conviction on appeal.



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supervised release is directed to examine specified sentencing

factors set forth in 18 U.S.C. § 3553(a) (2006) in determining

the length of the term. 18 U.S.C. § 3583(c).                          Courts are also

permitted to impose conditions on supervised release, including

the condition that the defendant not commit any crimes during

the term of supervised release. 18 U.S.C. § 3583(d).                              Section

3583(d)     further    permits     a   sentencing         court       to   impose    “any

condition” as “a further condition to supervised release,” so

long as the condition meets certain criteria, including that the

condition is “reasonably related” to the specified § 3553(a)

factors, involves “no greater deprivation of liberty than is

reasonably    necessary,”      and     is    consistent        with    the   Sentencing

Commission’s       policy   statements.            18   U.S.C.    §    3583(d)(1)-(3).

Section 3583(d) also provides that “[i]f an alien defendant is

subject to deportation, the court may provide, as a condition of

supervised release, that he be deported and remain outside the

United States, and may order that he be delivered to a duly

authorized     immigration       official       for     such     deportation.”          18

U.S.C. § 3583(d).

             In   addition   to    §   3583,       18   U.S.C.    §    3624(e)      (2006)

supplies the statutory definition for when a term of supervised

release begins: “The term of supervised release commences on the

day   the   person    is    released        from    imprisonment.”           18     U.S.C.

§ 3624(e).        The statute provides for the tolling of supervised

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release    in         a     single        circumstance—when            the     defendant     is

imprisoned on an unrelated crime for more than thirty days.                                 Id.

On appeal, Gonzales argues that, under the plain language of

§ 3624(e), the district court lacked the authority to delay the

start of his supervised release in the event he is deported

following his incarceration.                    Gonzales notes that his position

has the support of the five circuit courts that have addressed

the issue.          See United States v. Cole, 567 F.3d 110 (3d Cir.

2009); United States v. Ossa-Gallegos, 491 F.3d 537 (6th Cir.

2007) (en banc); United States v. Okoko, 365 F.3d 962 (11th Cir.

2004);    United          States    v.    Juan-Manuel,          222    F.3d   480   (8th    Cir.

2000); United States v. Balogun, 146 F.3d 141 (2d Cir. 1998).

The    Government          agrees    with      Gonzales         that   the    district     court

lacked    the       authority       to     delay     the    start       of    his   supervised

release.

               This        appeal         raises      a         question      of     statutory

interpretation.             “When interpreting statutes we start with the

plain language.”            U.S. Dep’t of Labor v. N.C. Growers Ass’n, 377

F.3d    345,    350        (4th    Cir.    2004).          In    interpreting       the    plain

language       of   a      statute,       we   give   the        terms     their    “ordinary,

contemporary,           common      meaning,       absent        an    indication    Congress

intended it to bear some different import.” North Carolina ex

rel. Cooper v. Tenn. Valley Auth., 515 F.3d 344, 351 (4th Cir.

2008) (alterations and internal quotation marks omitted).

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            In this case, the plain language of § 3624(e) clearly

provides        that    supervised      release          starts    “on     the   day”     the

defendant is released from prison.                        The statute provides for

tolling only when the defendant is otherwise incarcerated, and

“the fact that Congress explicitly allows for tolling only when

a   defendant      is    imprisoned      indicates         that     Congress       does   not

intend    for     district     courts    to       toll    the     period   of    supervised

release under any other circumstance.”                      Ossa-Gallegos, 491 F.3d

at 543.         In contrast, in the case of probation, Congress has

provided for tolling mechanisms.                    See 18 U.S.C. § 3564(a) (“A

term of probation commences on the day that the sentence of

probation is imposed, unless otherwise ordered by the court.”).

            In addition, we note that an opposite position would

result     in     certain      inconsistencies.              As     the    Third    Circuit

explained, “a defendant charged with illegal reentry . . . may

be ordered to leave and stay outside of the United States as a

condition of his supervised release.                      If a defendant is removed

and ordered excluded from the United States as a condition of

supervised release, how can it be that the period of supervised

release is tolled during that period?”                          Cole, 567 F.3d at 115

(citations omitted).

            Finally, while § 3583 does permit the district court

to impose conditions on supervised release, “‘tolling’ is not a

‘condition’        in    the    sense    in       which     the     term    is     used    in

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§ 3583(d).”        Ossa-Gallegos, 491 F.3d at 542.                      “[C]onditions”

within    §     3583     “are    contingencies       upon      which   the    right   to

continue on supervised release depends,” and “the continuation

of    supervised       release    is   not   contingent        on    tolling;    rather,

tolling describes the existing state of supervised release—that

is, whether or not the period of supervised release is running.”

Id.

              We conclude that the district court’s order runs afoul

of    § 3624(e)        because    Gonzales’       supervised        release    will   not

necessarily “commence on the day” his term of imprisonment ends.

Accordingly, although we affirm Gonzales’ conviction, we vacate

his sentence and remand for further proceedings consistent with

this opinion.          We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before    the    court     and    argument       would   not    aid    the    decisional

process.

                                                                     AFFIRMED IN PART,
                                                                      VACATED IN PART,
                                                                          AND REMANDED




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