                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                        No. 12-10169
             Plaintiff-Appellee,
                                                   D.C. No.
                    v.                       2:99-cr-00030-HDM-
                                                    LRL-1
 ANGELO EARL,
         Defendant-Appellant.                       OPINION


    On appeal from the United States District Court
              for the District of Nevada
  Howard D. McKibben, Senior District Judge, presiding

                   Argued and Submitted
        February 14, 2013—San Francisco, California

                     Filed September 5, 2013

Before: Stephen Reinhardt and Milan D. Smith, Jr., Circuit
    Judges, and James G. Carr, Senior District Judge.*

                         Opinion by Judge Carr




  *
    The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
2                    UNITED STATES V. EARL

                           SUMMARY**


                           Criminal Law

    Affirming the district court’s order revoking supervised
release and imposing additional conditions on the defendant,
the panel held that a defendant’s term of supervised release
does not begin when the Bureau of Prisons places him in
home confinement as part of his federal sentence, and the
district court therefore retained jurisdiction over the
defendant’s revocation hearing.


                             COUNSEL

Jason F. Carr (argued), Alina M. Shell, Assistant Federal
Public Defenders; Rene L. Valladares, Federal Public
Defender, Office of the Federal Public Defender, Las Vegas,
Nevada, for Defendant-Appellant.

Adam M. Flake (argued), Assistant United States Attorney;
Robert L. Ellman, Appellate Chief; Daniel G. Bogden, United
States Attorney; Office of the United States Attorney, Las
Vegas, Nevada, for Plaintiff-Appellee.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  UNITED STATES V. EARL                      3

                         OPINION

CARR, Senior District Judge:

                       I. Background

    Defendant-appellant, Angelo Earl, appeals the trial court’s
finding that he violated a condition of his supervised release.
Defendant argues the trial court lacked jurisdiction to revoke
his term of release. For the reasons discussed below, the trial
court retained jurisdiction over defendant’s revocation
hearing. We therefore affirm the trial court’s order revoking
his supervised release and imposing additional conditions on
defendant.

    Defendant pled guilty to four drug offenses, including
attempting to sell sixty-three grams of cocaine to an
undercover police officer. On January 18, 2000, the trial court
sentenced him to 121 months’ imprisonment and five years’
supervised release. Defendant officially began supervised
release on June 10, 2007. Sometime before then, the Bureau
of Prisons (BOP) had placed defendant at a halfway house.
Defendant succeeded at the halfway house, and the BOP
thereafter placed him in home confinement.

    On February 9, 2012, the probation officer filed a petition
seeking to revoke defendant’s supervised release, alleging he
violated two of his conditions of release. On February 28,
2012, the trial court held a revocation hearing, and defendant
admitted that he violated one of the conditions of his release
by associating with known felons. The trial court sentenced
defendant to six months’ imprisonment and two years’
additional supervised release. According to its inmate locator,
4                    UNITED STATES V. EARL

the BOP released defendant from prison on August 25, 2012.1
Defendant brings this appeal.

                           II. Discussion

    Contrary to defendant’s argument, the trial court retained
jurisdiction to revoke defendant’s term of supervised release
because a prisoner’s term of supervised release does not
begin when he is on home confinement while still serving his
federal sentence, because he remains in BOP’s legal custody
during that time. We need not, therefore, remand for an
evidentiary hearing to address further defendant’s argument.

    This court reviews challenges to a trial court’s subject
matter jurisdiction de novo. United States v. Powell, 24 F.3d
28, 30 (9th Cir. 1994). A trial court only retains jurisdiction
to revoke a term of supervised release during its pendency.
United States v. Vargas-Amaya, 389 F.3d 901, 903 (9th Cir.
2004). 18 U.S.C. § 3624(c)(2) specifically authorizes the
BOP to “place a prisoner in home confinement” for a limited
period of time. If defendant’s term of home confinement, as
he argues, also qualified as his term of supervised release, it
is possible the trial court did not retain jurisdiction because
defendant’s term of supervised release may have lapsed
before the revocation petition was filed. The critical question,
therefore, is whether home confinement may begin the
running of a person’s term of supervised release.



    1
     Defendant’s release does not render this appeal moot because a
successful appeal would affect his current two-year term of supervised
release. See United States v. Verdin, 243 F.3d 1174, 1178 (9th Cir. 2001)
(appeal not moot because the defendant’s success on appeal could alter the
supervised release portion of his sentence).
                  UNITED STATES V. EARL                    5

   18 U.S.C. § 3621 grants the BOP authority to determine
where to place a prisoner:

       (a) Commitment to custody of Bureau of
       Prisons.–A person who has been sentenced to
       a term of imprisonment . . . shall be
       committed to the custody of the [BOP] until
       the expiration of the term imposed, or until
       earlier released for satisfactory behavior
       pursuant to the provisions of section 3624.

       (b) Place of imprisonment.–The [BOP] shall
       designate the place of the prisoner’s
       imprisonment. The [BOP] may designate any
       available penal or correctional facility that
       meets minimum standards of health and
       habitability established by the [BOP], whether
       maintained by the Federal Government or
       otherwise and whether within or without the
       judicial district in which the person was
       convicted, that the [BOP] determines to be
       appropriate and suitable . . . .

    18 U.S.C. § 3624(e) governs the conditions under which
a person’s supervised release may begin. That section states,
in pertinent part:

       A prisoner whose sentence includes a term of
       supervised release after imprisonment shall be
       released by the [BOP] to the supervision of a
       probation officer who shall, during the term
       imposed, supervise the person released to the
       degree warranted by the conditions specified
       by the sentencing court. The term of
6                 UNITED STATES V. EARL

       supervised release commences on the day the
       person is released from imprisonment . . . . 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 . . . .

    The Supreme Court addressed this statutory language in
United States v. Johnson, 529 U.S. 53 (2000). In Johnson, the
defendant was convicted of several drug and firearms
convictions. Id. at 55. An appellate court later declared two
of his convictions invalid, and, as a result, Johnson had over-
served his remaining sentences by two-and-a-half years. Id.
Johnson moved the trial court to reduce his term of
supervised release by the excess time he had served in prison
while unlawfully incarcerated. Id.

    The Supreme Court held that “a supervised release term
does not commence until an individual is ‘released from
imprisonment.’” Johnson, 529 U.S. at 57 (quoting 18 U.S.C.
§ 3624(e)). Despite the fact that Johnson remained in prison
beyond the period in which his supervised release should
have run, the plain language of the statute requires actual
release from imprisonment before a person may begin serving
his term of supervised release. Id. at 60. In this context, the
Supreme Court declared that:

       A term of supervised release comes “after
       imprisonment,” once the prisoner is “released
       by the [BOP] to the supervision of a probation
       officer.” Supervised release does not run
                  UNITED STATES V. EARL                       7

       while an individual remains in the custody of
       the [BOP].

Johnson, 529 U.S. at 57 (quoting 18 U.S.C. § 3624(e)).

     In defendant’s view, this court has interpreted § 3624(e)
and Johnson with differing and conflicting results. Defendant
relies on United States v. Sullivan, 504 F.3d 969 (9th Cir.
2007), for the proposition that the question of whether a
person is released from “imprisonment” for supervised
release purposes depends on the factual nature of the
confinement. In Sullivan, this court held that Sullivan’s
transfer to a community pre-release center, following the
completion of his federal sentence, began his period of
supervised release. Id. at 973. This was so because “detention
at a community center, where the defendant is not subject to
the control of the [BOP], is not ‘imprisonment’ . . . .” Id.
(citing Reno v. Koray, 515 U.S. 50, 59 (1995)). Therefore,
Sullivan’s term of supervised release began when the BOP
released him to the pre-release center. Id. Contrary to
defendant’s argument, however, Sullivan does not mandate a
fact-specific inquiry into the nature of the confinement to
determine whether a person remains “imprisoned” under the
statute if that individual has not yet served his entire federal
sentence and therefore has not been released from BOP’s
legal custody in the first place.

    Instead, this case is governed by United States v. Miller,
547 F.3d 1207, 1211 (9th Cir. 2008). In Miller, this court held
that a person transferred to a county jail for a work-release
program while still serving his federal sentence did not
commence his term of supervised release when he was
transferred. Id. at 1210. Because the prisoner remained in
BOP’s legal custody, even though he was housed elsewhere,
8                   UNITED STATES V. EARL

he had not been “released from imprisonment[,]” and his term
of supervised release did not begin to run until he completed
his federal sentence. Id. at 1212. We stated that, “[r]egardless
of where the BOP elects to transfer a person, she or he
remains under BOP custody until the prescribed term of
‘imprisonment’ expires.” Id. at 1211.

    Applying Miller, we hold that a defendant’s term of
supervised release does not begin when the BOP places him
in home confinement as part of his federal sentence. When he
was transferred to home confinement, defendant, like Miller,
remained under BOP’s legal custody.2 The BOP controlled
the terms of his home confinement and, under 18 U.S.C.
§ 3624(c)(2), it had explicit authority to do so. Defendant had
not yet completed his federal term of imprisonment, and,
regardless of where the BOP decided to place him, his term
of supervised release could not begin until his prescribed term
of imprisonment expired. Miller, 547 F.3d at 1211. Because
defendant’s release to home confinement did not commence
his term of supervised release, defendant’s five-year term of
supervised release did not commence until June 10, 2007, and
the revocation petition filed February 9, 2012, was timely.
Thus, the trial court retained jurisdiction to revoke
defendant’s term of supervised release.

    Defendant notes that the statute and cases present the
following tension: when the BOP places a person in
community confinement or home detention, he is no longer
in prison. Thus he is not technically “imprisoned” in one
sense of the word. However, the statutory language and
precedent discussed above resolve this apparent tension. First,

  2
    Defendant does not dispute that, while in home confinement, he was
“serving the remainder of his sentence under BOP control and custody.”
                  UNITED STATES V. EARL                    9

the statute specifically states that the prisoner must be
released from BOP’s legal custody in order to be “released
from imprisonment”:

       A prisoner whose sentence includes a term of
       supervised release after imprisonment shall be
       released by the [BOP] to the supervision of a
       probation officer who shall, during the term
       imposed, supervise the person released to the
       degree warranted by the conditions specified
       by the sentencing court. The term of
       supervised release commences on the day the
       person is released from imprisonment . . . .

18 U.S.C. § 3624(e). Under the statute, a person is not
“released” from imprisonment merely because he is
physically allowed to leave the prison. Rather, the person
must be legally “released by the [BOP] to the supervision of
a probation officer.” As the Supreme Court stated,
“[s]upervised release does not run while an individual
remains in the custody of the [BOP].” Johnson, 529 U.S. at
57. We therefore interpret the term “released” in the context
of the statute to require not only release from imprisonment,
but also release from the BOP’s legal custody at the
expiration of the prisoner’s prescribed sentence.

    Contrary to defendant’s argument, United States v.
Turner, 689 F.3d 1117 (9th Cir. 2012), does not support his
position. In that case, Turner served his federal prison term
for distributing child pornography, and the government then
detained him civilly under the Adam Walsh Protection Act,
18 U.S.C. § 4248(a). Id. at 1119. Turner remained in civil
detention for over four years pending his civil commitment
hearing. Id. While in detention, Turner filed a motion to
10                    UNITED STATES V. EARL

terminate his supervised release on the basis that he served
the term while in civil detention. Id. The trial court denied the
motion and later released Turner, finding the government
failed to prove he should be civilly detained. Id. This court
held that the civil detention by BOP did not toll defendant’s
term of supervised release. Turner, 689 F.3d at 1120–21.
Thus, Turner’s term of supervised release began to run at the
time he completed his sentence, although, due to the civil
detention process, he was not physically released from
imprisonment at that time. Id. at 1123–24.

    Defendant overlooks the critical distinction the court
made in Turner, 689 F.3d at 1124. Turner remained in
custody due to a civil detention petition, and not in
conjunction with a criminal sentence. Id. Turner completed
his prison sentence and the BOP “released” him as a matter
of law from its legal custody when that sentence ended. Id.
The fact that the BOP then immediately remanded him to its
physical custody as a civil detainee did not mean he was
never released.3 Id. Like a person on supervised release whom
the BOP detains before trial pending a new criminal charge,
Turner was not in BOP’s physical custody in connection with
a criminal conviction, and therefore had been “released from


 3
    Judge M. Smith dissented from the court’s decision in Turner, stating
that, because the BOP did not physically release Turner from the prison,
he could not be “released from imprisonment” under the statute. 689 F.3d
at 1126 (M. Smith, J., dissenting). Even if the dissent’s position were the
law of our circuit, it would not alter the outcome of this case, because the
dissent simply argued that physical release is a necessary—but not
necessarily sufficient—condition to being legally released from
imprisonment. Id. at 1128. The dissent stressed, as we emphasize here,
“that supervised release does not begin while a person remains in the
BOP’s custody[,]” and only begins “once a person completes his lawful
term of imprisonment.” Id. at 1127–28 (citing Johnson, 529 U.S. at 57).
                  UNITED STATES V. EARL                     11

imprisonment” within the meaning of § 3624(e). Id. at
1124–25. Here, defendant, unlike Turner, had not completed
his prison sentence when the BOP placed him in home
confinement, so he was not released from imprisonment.

     Nor does Turner’s discussion of the rule of lenity support
defendant’s argument. In Turner, the court applied the rule to
the Adam Walsh Act civil detention statute when interpreted
in connection with the supervised release tolling provision of
18 U.S.C. § 3624(e). Turner, 689 F.3d at 1125–26. The
tolling provision precludes a term of supervised release from
running when the person is “imprisoned in connection with
a conviction” for another crime. 18 U.S.C. § 3624(e). The
court stated that, “[i]n passing the Adam Walsh Act,
Congress apparently did not affirmatively consider the effect
of § 3624(e), the supervised release statute.” Turner,
689 F.3d at 1125–26. Because the statutes, when read
together, created “a grievous ambiguity or uncertainty”
regarding whether Turner was imprisoned “in connection
with a conviction for a” crime, the court applied the rule to
support its holding that the statute should be interpreted in
Turner’s favor. Id. The court did not, as defendant suggests,
hold the phrase “released from imprisonment” in 18 U.S.C.
§ 3624(e) ambiguous.

   For the foregoing reasons, we affirm the trial court’s order
revoking defendant’s term of supervised release and imposing
additional terms.

   AFFIRMED.
