                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                       PUBLISH
                                                                      August 8, 2007
                    UNITED STATES CO URT O F APPEALS              Elisabeth A. Shumaker
                                                                      Clerk of Court
                                 TENTH CIRCUIT



 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,
          v.                                            No. 07-2072
 RANDA LL A. CRISLER,

               Defendant - Appellant.



           A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                    FOR T HE D ISTRICT OF NEW M EXICO
                           (D .C. NO. CR-03-286 JC) *


Submitted on the briefs:

Phillip P. M edrano, Assistant Federal Public Defender, Albuquerque, New
M exico, for Defendant - Appellant.

Larry Gómez, Acting United States Attorney and David N. W illiams, Assistant
United States Attorney, Albuquerque, New M exico, for Plaintiff - Appellee.


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


HA RTZ, Circuit Judge.



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
      This appeal concerns the district court’s authority to revoke probation after

the term of probation has expired. Because the district court lacked authority in

this case, we must reverse the revocation.

      On October 9, 2003, Randall Crisler pleaded guilty before the United States

District Court for the District of New M exico to false personation of a officer or

employee of the United States, see 18 U.S.C. § 912. He was sentenced on

February 18, 2004, to three years on probation. As a special condition of the

probation, M r. Crisler w as not to possess or consume alcohol. O n April 5, 2006, a

probation officer filed a petition alleging that M r. Crisler had violated that

condition on February 17.

      The district court scheduled a hearing on the petition for June 15, 2006, but

granted M r. Crisler a continuance. At the rescheduled hearing on September 5,

2006, the court found that M r. Crisler had violated his probation by consuming

alcohol. It decided, however, not to revoke M r. Crisler’s probation. Instead, it

said that it would “hold the petition in abeyance for a period of five months,” R.

Vol. III at 6, and it specified several new conditions of M r. Crisler’s continued

probation, including that he was not to contact any past employers and that he

would be subject to electronic monitoring of his alcohol consumption.

      On February 27, 2007, a probation officer filed an “Amended Petition for

Revocation of Supervised Release.” R. Doc. 57. The entry on the petition for



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“Date Supervision Expires” is “02/17/2007,” id., ten days earlier. The petition

repeats the earlier allegation of an alcohol-related violation on February 17, 2006,

and adds two alleged violations on February 18, 2007 (one day after expiration of

the term of probation): sending an email to a former employer and removing an

electronic alcohol monitor. At a hearing on M arch 7, 2007, M r. Crisler argued

that the court was w ithout jurisdiction to consider the petition because his

probation had expired on February 17. The Assistant United States Attorney

responded that “the revocation hearing held on September 5, 2006, is pending.”

R. Vol. IV at 3. The court held that it had jurisdiction under 18 U.S.C. § 3565(c),

found the allegations in the probation officer’s petition to be true, revoked

M r. Crisler’s probation, and sentenced him to 90 days’ imprisonment and 12

months’ supervised release. M r. Crisler appeals.

      Section 3565(c) states:

      The power of the court to revoke a sentence of probation for
      violation of a condition of probation, and to impose another sentence,
      extends beyond the expiration of the term of probation for any period
      reasonably necessary for the adjudication of matters arising before its
      expiration if, prior to its expiration, a warrant or summons has been
      issued on the basis of an allegation of such a violation.

18 U.S.C. § 3565(c). In other words, the court cannot revoke probation after the

term of probation has expired unless (1) the delay in revocation was reasonably

necessary and (2) a warrant or summons issued before the expiration date.

Neither condition was met here. It is undisputed that the amended petition for



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revocation was filed after the probation term had expired. And even if the

“amended” petition is deemed to relate back to the original petition of April 5,

2006, with respect to the alcohol-related allegation, it was not “reasonably

necessary” to delay revocation until after expiration of the term of probation.

Although M r. Crisler had sought a continuance of the originally scheduled

hearing, the hearing was then conducted on September 5, 2006. To be sure, the

district court “abated” the petition for an additional five months; but that period

ended on February 5, 2007, within the probation term. The record contains

absolutely no reason why the abated revocation proceeding could not have been

conducted by the probation-expiration date of February 17, 2007. As for the tw o

alleged violations on February 18, 2007, M r. Crisler’s probation had already

ended a day earlier. The district court had never entered an order extending

probation beyond the original three-year term.

      Accordingly, we REVERSE the district court’s revocation of M r. Crisler’s

probation and remand w ith instructions to end his supervised release forthwith.




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