                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  January 9, 2018
                      UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                      No. 17-1326
                                              (D.C. No. 1:08-CR-00167-WYD-1)
 CORY MICHAEL DEMERS,                                     (D. Colo.)

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before LUCERO, BALDOCK, and MORITZ, Circuit Judges. **


      Defendant Cory Michael Demers appeals the district court’s denial of his

motions to correct an illegal sentence. See 18 U.S.C. § 3742(a)(1). We exercise

jurisdiction under 28 U.S.C. § 1291, and affirm.

                                         I.

      The underlying facts are not in dispute. Defendant stands convicted of being

a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).        In


      *
         This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. Civ. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
November 2008, the district court sentenced him to 30 months in prison and three

years of supervised release. In June 2010, Defendant was released from federal

custody and began serving a concurrent sentence with the Colorado Department of

Corrections. Near the end of May 2012, the State of Colorado transferred Defendant

to a community corrections center to complete his sentence. On April 9, 2013, the

State released Defendant on parole supervision. On June 24, 2015, Defendant’s

federal probation officer filed a petition alleging violations of his federal supervised

release. Following a revocation hearing on March 31, 2016, the district court found

Defendant had committed six violations of his supervised release and sentenced him

to 18 months in prison. Defendant subsequently filed two unsuccessful motions in

the district court to correct an illegal sentence.

      On appeal, Defendant does not challenge the district court’s finding that he

violated the terms of his federal supervised release. Rather, he claims, as he did in

the district court, that his term of federal supervision began in May 2012 when the

State of Colorado placed him in a community corrections center. If Defendant is

correct (which he is not), his term of supervised release had expired before his

probation officer filed the petition to revoke his supervision. Unfortunately for

Defendant, the district court was correct in determining Defendant’s term of federal

supervised release did not commence to run until April 9, 2013, when he was

released from the custody and control of the Colorado community corrections center.

Thus, Defendant’s three-year term of supervised release had not expired when his

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probation officer filed the revocation petition.

                                          II.

      We review a district court’s decision to revoke supervision for an abuse of

discretion. United States v. Hammond, 869 F.3d 1153, 1157 (10th Cir. 2017). A

district court abuses its discretion when it relies on an incorrect conclusion of law

or a clearly erroneous finding of fact. Id. Supervision after release is addressed at

18 U.S.C. § 3624(e).      Section 3624(e) provides in relevant part: “A term of

supervised release does not run during any period in which a person is imprisoned

in connection with a conviction for Federal, State, or local crime unless the

imprisonment is for a period of less than 30 consecutive days.”

      Defendant focuses on where he served out his state prison sentence, i.e., a

community corrections center. But under Colorado law, had defendant left the center

without authorization, he would have been subject to prosecution for escape. “A

defendant serving a sentence at a community corrections facility is in ‘custody’ for

the purposes of the escape statute.” Colorado v. Lanzieri, 25 P.3d 1170, 1172 n.2

(Colo. 2001) (citing Colo. Rev. Stat. § 17-27-106 (2000)). Defendant was not, nor

could he have been, subject to federal supervision while in the custody of, or in other

words imprisoned by, the State of Colorado. Pursuant to Colorado law, he was not

released from state custody until April 9, 2013, the day the State released him on

parole supervision.




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      Defendant’s reliance on the Ninth Circuit’s decision in United States v.

Sullivan, 504 F.3d 969 (9th Cir. 2007), is misplaced. In that case, the court held a

defendant’s federal supervised release began when he was transferred from a

Montana state prison to a pre-release center. Importantly, however, the court’s

conclusion was based upon its finding that “Montana’s ‘pre-release centers are part

of a community corrections system which exists as an alternative to imprisonment.’”

Id. at 972 (emphasis in original) (quoting State v. Chandler, 922 P.2d 1164, 1166

(Mont. 1996)). But Colorado law differs from Montana law. Under the former,

Defendant’s placement in the community corrections center did not constitute an

“alternative to imprisonment” and thus his three-year term of federal supervision did

not commence until his release from the center on April 9, 2013.

      AFFIRMED. Defendant’s motion for release from custody pending appeal is

DENIED as moot.

                                       Entered for the Court,



                                       Bobby R. Baldock
                                       United States Circuit Judge




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