                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                 No. 11-30140
               Plaintiff-Appellant,
               v.                            DC No.
                                          CR 11-0044 EFS
ANTHONY EDYLE BURKE,
                                            OPINION
              Defendant-Appellee.
                                      
       Appeal from the United States District Court
         for the Eastern District of Washington
        Edward F. Shea, District Judge, Presiding

                  Argued and Submitted
           April 10, 2012—Seattle, Washington

                 Filed September 13, 2012

   Before: Dorothy W. Nelson, A. Wallace Tashima, and
           Consuelo M. Callahan, Circuit Judges.

                Opinion by Judge Tashima;
                Dissent by Judge Callahan




                           11219
                   UNITED STATES v. BURKE               11221




                         COUNSEL

Joseph H. Harrington, Assistant United States Attorney, Spo-
kane, Washington, for the plaintiff-appellant.

Peter S. Schweda, Spokane, Washington, for the defendant-
appellee.


                         OPINION

TASHIMA, Circuit Judge:

   The government appeals the district court’s dismissal of an
indictment charging Anthony Edyle Burke with escape from
custody in violation of 18 U.S.C. § 751(a). The district court
concluded that Burke was not in “custody” within the mean-
ing of § 751(a) when he left the residential reentry center
where he was residing as a condition of his supervised
release. We agree and affirm.

                              I.

   In 2008, Burke pleaded guilty to a violation of 18 U.S.C.
§ 922(g)(4) and was sentenced to 37 months in prison, fol-
lowed by 3 years of supervised release. Upon his release from
11222              UNITED STATES v. BURKE
the custody of the Bureau of Prisons (“BOP”), Burke violated
the terms of his supervised release when he failed to report to
his probation officer to commence a 180-day stay in a resi-
dential reentry center. After a revocation hearing, Burke was
sentenced to be incarcerated for another 7 months and 21
days, followed by a 28-month term of supervised release.
Burke’s conditions of supervised release ordered:

    Defendant shall reside in a residential reentry center
    for a period up to 180 days. This placement may
    include a pre-release component, day reporting and
    home confinement (with or without electronic moni-
    toring but not to include GPS) at the direction of the
    CCM and USPO. Defendant shall abide by the rules
    and requirements of the facility, Defendant shall
    remain at the facility until said 180 days has been
    completed.

Burke completed his prison term and commenced supervised
release on March 19, 2010. In compliance with the conditions
of his supervised release, he began residing at the Spokane
Residential Reentry Center (“SRRC”).

   On April 27, 2010, Burke checked out of SRRC and failed
to return. As a result, SRRC reported him to his probation
officer as an “absconder.” The next day, state authorities
arrested Burke in Montana. Burke was returned to Washing-
ton to appear for his supervised release violations. On March
22, 2011, the grand jury returned an indictment charging
Burke with escape from custody in violation of § 751(a).

   Burke moved to dismiss the indictment, arguing that he was
not in “custody” within the meaning of § 751(a). The govern-
ment opposed the motion. The district court reviewed the con-
ditions of Burke’s supervised release, including the rules and
restrictions set forth in SRRC’s resident handbook, and
granted the motion. It explained:
                   UNITED STATES v. BURKE                 11223
    [SRRC] is part of supervised release in this case. It
    is a court order after imprisonment is served and the
    person is no longer in custody, designed specifically
    in a case like Mr. Burke . . . to provide him with a
    transition from custody to the community in a way
    that enables him to make a smooth transition, since
    he is essentially homeless; and that was the driving
    or motivating factor in the Court’s imposition of this
    term — that Mr. [Burke] had nothing and nowhere
    to go. And this simply gave him the opportunity to
    transition. It was by no means, by letter or in spirit,
    a custodial order of the Court; and therefore, the
    Court grants the motion.

The government timely filed this appeal.

                              II.

   We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo the district court’s interpretation of § 751(a).
United States v. Wilbur, 674 F.3d 1160, 1170 (9th Cir. 2012).
We review the district court’s findings of fact with regard to
the motion to dismiss the indictment for clear error. Id.

                              III.

  [1] 18 U.S.C. § 751(a) provides:

    Whoever escapes . . . from the custody of the Attor-
    ney General or his authorized representative, or from
    any institution or facility in which he is confined by
    direction of the Attorney General, or from any cus-
    tody under or by virtue of any process issued under
    the laws of the United States by any court . . . shall,
    if the custody or confinement is by virtue of an arrest
    on a charge of felony . . . be fined . . . or imprisoned
    . . . or both . . . .
11224               UNITED STATES v. BURKE
We have not previously addressed whether an individual who
has completed his term of imprisonment and is residing at a
halfway house or residential reentry center according to the
court-ordered conditions of his supervised release is in “custo-
dy” within the meaning of § 751(a). We have, however, held
that a defendant released on a personal recognizance bond and
ordered by a court to reside at a halfway house pending trial
is not in “custody” for purposes of that statute. United States
v. Baxley, 982 F.2d 1265 (9th Cir. 1992).

   The district court relied on our decision in Baxley to dis-
miss the indictment against Burke. The government argues
that this reliance was misplaced because the circumstances of
Burke’s release were different from those presented in Baxley
and more closely resembled incarceration. In support of this
argument, the government points to SRRC rules that estab-
lished a curfew, limited visitors, assigned beds, restricted tele-
phone use, and required residents to advise staff of their
comings and goings in order to leave the premises. However,
the district court examined the rules and requirements at
SRRC and found that they mirrored standard supervised
release conditions. It stated that its finding was consistent
with the general understanding that restrictions at a halfway
house are significantly less than those at a custodial facility.
The court therefore concluded that the SRRC rules identified
by the government were not sufficient to constitute “custody”
for purposes of § 751(a).

   [2] We agree that Burke was not in “custody” when he left
the SRRC. He was not serving a prison sentence, nor was he
confined to SRRC under conditions equivalent to custodial
incarceration. Although the government argues that rules gov-
erning Burke’s daily activities at SRRC distinguish this case
from Baxley, our opinion in that case contains no indication
that similar restrictions on telephone use or meal times, for
example, were not in place at Baxley’s halfway house. Like
Baxley, residents at SRRC were free to be employed outside
the center, and to come and go during the day with permission
                      UNITED STATES v. BURKE                     11225
if they logged in and out. See Baxley, 982 F.2d at 1269. The
government stresses that SRRC put residents on “escape or
abscond status” if they failed to return timely to the center,
but similar restrictions on movement were imposed on Bax-
ley. The halfway house where Baxley resided listed him as an
“escapee” when he was not present within two hours of his
estimated time of return. Id. at 1267.

  [3] Burke was not in “custody” when he left the SRRC
because the conditions of his release “were much more analo-
gous to probation than they were to imprisonment.” Id. at
1269. As we held in Baxley:

      [I]ndividuals on probation are conditionally released
      from incarceration, must maintain a particular resi-
      dence or notify the court of changes, are subject to
      travel restrictions, and must report regularly to gov-
      ernment officials. If an individual violates probation,
      he is not tried for escape; rather, his probation is
      revoked, and he can be indicted for escape only if he
      thereafter fails to report for custodial incarceration.

Id. at 1269-70. Like an individual on probation, Burke was
conditionally released from incarceration; his failure to return
to SRRC was a violation of his release conditions punishable
by revocation of release, not an escape from “custody” within
the meaning of § 751(a).1

   The government argues that the district court should have
looked to our opinions in United States v. Keller, 912 F.2d
1058 (9th Cir. 1990), and United States v. Jones, 569 F.2d
499 (9th Cir. 1978), to hold that Burke escaped from custody
in violation of § 751(a). But there is a crucial distinction
between Burke and the defendants in Keller and Jones: the
latter were committed to BOP custody when they absconded.
  1
   Indeed, Burke was later sentenced to 12 months in prison and 9 months
of supervised release for violating the terms of his supervised release.
11226                  UNITED STATES v. BURKE
See Keller, 912 F.2d at 1059-60 (noting that Keller was “com-
mitted to the Attorney General for imprisonment” and “or-
dered into custody”); Jones, 569 F.2d at 500 (addressing
situation of a prisoner committed to a “pre-release or half-way
house program by designation of the Attorney General”). In
contrast, Burke had completed his prison term and was no
longer in BOP custody when he left SRRC.

   Moreover, as we recognized in Baxley, Jones never
addressed what “custody” means under § 751(a). See Baxley,
982 F.2d at 1269 n.8 (“[D]icta in United States v. Jones . . .
gave an interpretation of the term as it was used in an entirely
different statute (18 U.S.C. § 4082(d)) . . . and . . . addressed
only an issue involving jury instructions and not the question
presented here.”). The plain language of the Jones opinion
indicates that the Court did not reach the question presented
in this case. See 569 F.2d at 500 ( “This appeal presents a sin-
gle issue: Does a charge of escape under 18 U.S.C. § 751
require proof of intent to avoid confinement?”).

  Finally, the government urges this Court to follow the
Tenth Circuit’s decision in United States v. Sack, 379 F.3d
1177 (10th Cir. 2004), although it acknowledges that Sack
expressly rejected Baxley and adopted a definition of “custo-
dy” far broader than the one recognized by our Circuit.2 Id. at
1181; see also id. at 1180 n.2 (indicating individual could be
prosecuted under § 751(a) for violating condition of release
requiring her to reside with family member). Even if we could
do so, we decline to disregard our own precedent in favor of
Sack’s expansive reading of the term. Our approach is sup-
ported by the rule of lenity, which requires us to resolve
ambiguity in favor of the defendant and give effect to the
more lenient construction of the term “custody.” See Liparota
  2
    The dissent’s assertion that Sack is reconcilable with Baxley, “if we
hold in this case that Burke was in ‘custody,’ ” Dissent at 11232, is per-
plexing in light of Sack’s express rejection of Baxley. See Sack, 379 F.3d
at 1181 (“[W]e are not persuaded by the reasoning in Baxley.”).
                      UNITED STATES v. BURKE                     11227
v. United States, 471 U.S. 419, 427 (1985) (“[A]mbiguity
concerning the ambit of criminal statutes should be resolved
in favor of lenity.” (citation omitted)); Baxley, 982 F.2d at
1270.3

                                  IV.

  For the foregoing reasons, the order of the district court dis-
missing the indictment is

  AFFIRMED.



CALLAHAN, Circuit Judge, dissenting:

   I respectfully dissent because I would hold that Burke was
in custody. Our decisions have determined “custody” in con-
texts such as Burke’s by examining two factors: (1) the cir-
cumstances of the release, and (2) the extent of the restrictions
on the defendant’s freedom. See, e.g., United States v. Baxley,
982 F.2d 1265, 1269 (9th Cir. 1992); United States v. Jones,
569 F.2d 499 (9th Cir. 1978); see also United States v. Sack,
379 F.3d 1177, 1179 (10th Cir. 2004). Here, Burke was
afforded supervised release to the Residential Reentry Center
(the “RRC”) as part of his sentence. Moreover, the restrictions
on his freedom at the RRC “approached those of incarcera-
tion.” See Baxley, 982 F.2d at 1269. Accordingly, I would
hold that Burke escaped from “custody under or by virtue of
any process issued under the laws of the United States by any
court, judge, or magistrate judge,” 18 U.S.C. § 751(a), and
would affirm.
  3
   The case relied on by the dissent, see Dissent at 11228 n.2, Reno v.
Koray, 515 U.S. 50 (1995), is not to the contrary. Here, as in Reno, “we
can make no more than a guess as to what Congress intended.” Id. at 65.
11228                   UNITED STATES v. BURKE
                              I.   Analysis

      A.   “Custody” in the Residential Reentry Center
           Context

   The issue presented by this appeal is whether Burke was in
“custody” at the RRC as that term is used in 18 U.S.C. § 751(a).1
The government has the burden of establishing probable cause
that a defendant was in “custody” within the meaning of the
statute in order for the indictment to survive a motion to dis-
miss. See United States v. Gowdy, 628 F.3d 1265, 1267 (11th
Cir. 2010). We have eschewed bright-line rules defining “cus-
tody” under § 751(a) and have consistently held that the defi-
nition varies “in meaning when used in different contexts.”2
Baxley, 982 F.2d at 1269 (quoting Brown v. Rison, 895 F.2d
533, 535 (9th Cir. 1990)). In the residential reentry cen-
ter/halfway house context, our case law has developed a defi-
nition of “custody” by focusing on the circumstances of the
release and the extent of the restrictions on the defendant’s
freedom. We have held that custody “need not involve direct
physical restraint” and may be “minimal” or “constructive.”
United States v. Keller, 912 F.2d 1058, 1059 (9th Cir. 1990).
Here, the government has established probable cause that
Burke was in custody when, as part of his sentence of super-
  1
     I agree with the majority that we review the court’s order dismissing
Burke’s indictment based on its interpretation of the federal statute de
novo. See United States v. Gomez-Rodriguez, 96 F.3d 1262, 1264 (9th Cir.
1996) (en banc).
   2
     Even though the definition of “custody” is analyzed on a case-by-case
basis, the meaning of the word is not ambiguous such that the rule of len-
ity should apply. “A statute is not ambiguous for purposes of lenity merely
because there is a division of judicial authority over its proper construc-
tion. The rule of lenity applies only if, after seizing everything from which
aid can be derived, we can make no more than a guess as to what Congress
intended.” Reno v. Koray, 515 U.S. 50, 64-65 (1995) (internal quotation
marks and citations omitted). The Ninth Circuit, as well as other federal
courts, have successfully determined Congress’s intent in determining
“custody” in particular cases. No court has concluded that the word “cus-
tody” is too ambiguous to construe in this context.
                   UNITED STATES v. BURKE               11229
vised release, he was released from prison to the RRC, and
that facility imposed substantial restrictions on his freedom.

  B.   The Circumstances of the Release in Burke’s Case

   We have held that a person may be in “custody” for pur-
poses of § 751(a) when released to a halfway house or resi-
dential reentry center. In Jones, a convicted inmate was
released from prison into a halfway house at the direction of
the Attorney General. Jones, 569 F.2d at 500. He then failed
to return from a weekend pass. Id. We concluded that Jones
had escaped from custody. Id. at 500-01. In Keller, the defen-
dant was serving a term of probation. Keller, 912 F.2d at
1059. He violated the terms of his probation, which the court
then revoked, allowing him two weeks to wind up his affairs
and report to his place of confinement. Id. Keller failed to
report, and we affirmed his conviction for escape. Id. at
1058-59. We reasoned that indicators of “custody” are
whether “[a] person of ordinary intelligence and understand-
ing would know that he was not free to leave” and “that he
was in ‘custody under or by virtue of any process issued
under the laws of the United States by [a] court, [or] judge.’
(§ 751(a)).” Id. at 1060 (quoting United States v. Peterson,
592 F.2d 1035, 1037 (9th Cir.1979)).

   The majority seeks to distinguish Jones on the ground that
Jones, unlike Burke, was placed in a halfway house “by desig-
nation of the Attorney General.” Maj. Op. at 11226. But this
distinction has little legal significance. The statute defines
“custody” as including “custody under or by virtue of any
process issued under the laws of the United States by any
court, judge, or magistrate judge.” 18 U.S.C. § 751(a). While
Burke may have completed his prison term, he had not com-
pleted the sentence ordered by the court, which included a
period of supervised release to the RRC, and his freedom
remained restricted.

   The majority reads our opinion in Baxley as modifying our
rulings in Jones and Keller. Maj. Op. at 11225-26. However,
11230              UNITED STATES v. BURKE
Baxley turned on the fact that the defendant was released
pending trial on a personal recognizance bond with a special
condition that he reside at a halfway house. Baxley, 982 F.2d
at 1266-67. In concluding that Baxley was not “in custody”
for purposes of conviction under the escape statute, we
emphasized that Baxley was an unconvicted criminal defen-
dant on a pre-trial release: “Baxley was assigned to the Clark
Center not as part of his sentence after trial, but pursuant to
the conditions of a personal recognizance bond.” Id. at 1269.
Although Jones does not state that Jones was on supervised
release as Burke was, it does say that after Jones’s commit-
ment to prison, he “was released to a contract ‘half-way
house.’ ” Jones, 569 F.2d at 500. Thus, in Baxley, we found
Jones distinguishable precisely because it “involved post-
incarceration release to a halfway house.” Baxley, 982 F.2d
at 1269 n.8.

   Furthermore, in Baxley, we recognized that there are differ-
ent fundamental concerns that arise on a pre-trial personal
recognizance release, where the aim is to ensure that an
unconvicted defendant appears for trial, as contrasted with a
situation where a convicted inmate is assigned to a halfway
house as part of his sentence of supervised release. See Bax-
ley, 982 F.2d at 1269. Here, Burke was on supervised release
that was part of his sentence, rather than a pre-trial recogni-
zance release as in Baxley. Thus, Burke’s release from the
Bureau of Prisons did not constitute a release from custody as
directed by the district court, and he was still in “custody”
under § 751(a).

  C.    The Extent of the Restrictions on Burke’s Freedom

  We have long held that the touchstone of whether a defen-
dant is in custody is whether he should have reasonably
understood that he was not “free to leave.” Keller, 912 F.2d
1058, 1060. Here, Burke could not have reasonably felt “free
to leave” and not return at the appointed time. The RRC
expressly warned him that he could not come and go from the
                    UNITED STATES v. BURKE                11231
facility as he pleased and that he would be placed on “escape
or abscond status” if he left without permission or failed to
timely return. Among numerous other restrictions placed on
Burke were that all requested absences from the RRC
required advance approval and had to be for narrowly permit-
ted purposes. The RRC imposed restrictions such as bed
assignments, eating and cleaning protocol, daily activities, job
assignments at the residence, limitations on phone calls, limi-
tations on personal property, and limitations on visitors.
Moreover, the residents’ living quarters were subject to ran-
dom searches for contraband. Residents at the RRC could not
have phones or pagers without permission and even then, only
for employment purposes, and residents were subject to ran-
dom and scheduled urinary and breathalyser tests as well as
pat-down searches. Other than the fact that Burke could—
occasionally and under very narrow circumstances—leave the
RRC, the restrictions are quite different from probation and
approached those of incarceration.

   The importance of the extent of the restrictions on a defen-
dant’s perceived freedom is illustrated by Baxley and Person.
See Baxley, 982 F.2d at 1269; United States v. Person, 223 F.
Supp. 982 (S.D. Cal. 1963) (holding that a parolee living at
a halfway house who could come and go each day was not
sufficiently restricted to be in “custody” for purposes of the
escape statute). In those cases, the defendants had the freedom
to generally come and go as they pleased as long as they gave
notice to the facility. See Baxley, 982 F.2d at 1269; Person,
223 F. Supp. at 984-86. Both Baxley and Person were reason-
ably “free to leave” as that phrase is defined in Keller, 912
F.2d at 1060.

   In contrast, Burke was expressly warned that he needed
advance permission to leave, could do so “for necessary busi-
ness only,” and would be placed on “escape or abscond sta-
tus” if he left without permission or failed to timely return to
the RRC. Everything about Burke’s daily life was controlled
and scheduled. Thus, the restrictions on Burke’s freedom
11232               UNITED STATES v. BURKE
were much more strict than those in Baxley, where the court
concluded that “[t]he restrictions on Baxley’s activities were
slight” and “[i]n no way did Baxley’s ‘conditions of confine-
ment approach[ ] those of incarceration.’ ” See Baxley, 982
F.2d at 1269 (quoting Grady v. Crabtree, 958 F.2d 874, 875
(9th Cir.1992) (per curiam)).

   Finally, the majority’s expansive reading of Baxley is in
tension with the opinions of the Sixth and Tenth Circuits. See
Sack, 379 F.3d at 1179-80 (holding that Sack was in custody
when released to a halfway house where the restrictions at the
halfway house were similar to the restrictions at Burke’s
RRC); United States v. Swanson, 253 F.3d 1220, 1223-24
(10th Cir. 2001) (“Life at a halfway house undoubtedly entails
fewer restrictions than life in prison, but one who lives there
under court order is not free to come and go at will. In that
respect, residence at a halfway house is a form of ‘custo-
dy.’ ”); United States v. Rudinsky, 439 F.2d 1074, 1076-77
(6th Cir. 1971) (finding that the defendant was in custody
where he was substantially deprived of “freedom of move-
ment and association” while confined at a community treat-
ment center). These decisions are reconcilable with our
precedent in Baxley and Jones, but only if we hold in this case
that Burke was in “custody.”

   Sack is particularly instructive. There, the Tenth Circuit
concluded that the defendant was in “custody” within the
meaning of the escape statute while residing in a halfway
house pursuant to pretrial release because he was there as a
result of an order of the district court and his freedom of
movement was restricted. Sack, 379 F.3d at 1179-80. Even
though Sack involved a pretrial release like that in Baxley, the
court found Baxley distinguishable because the Ninth Circuit
“focused on whether the specific conditions of residence at a
halfway house were sufficiently restrictive to constitute custo-
dy” and thereby concluded that Baxley did not have extensive
restrictions on his freedom. Id. at 1180-81. In contrast, the
Tenth Circuit concluded in Sack that the district court was in
                    UNITED STATES v. BURKE                 11233
control of Sack’s liberty pending trial, and he was only per-
mitted to leave the halfway house for employment purposes
and was not able to come and go as he pleased, as in Baxley.
Id. at 1178, 1181-82. Thus, even though Sack was on a pre-
trial release, the restrictions on his freedom were sufficiently
onerous to constitute “custody.” Id.; see also Swanson, 253
F.3d at 1223-24 (holding that “residence at a halfway house
is a form of ‘custody’ ” under the escape statute).

   All of these cases from our circuit and our sister circuits
can be reconciled through the reasonable application of our
two inquiries for determining custody: (1) what are the cir-
cumstances of the release, and (2) what are the restrictions on
the defendant’s freedom. I would hold that Burke’s court-
ordered supervised release to the RRC was custodial under
§ 751(a) and that the restrictions on his freedom were more
analogous to incarceration than probation.

                     II.   CONCLUSION

   The record demonstrates that Burke was in custody when
he escaped from the RRC. Burke has failed to demonstrate
that he reasonably felt free to leave and not return to the RRC.
First, Burke was subject to a post-incarceration release, which
is distinguishable from a pre-trial release both in purpose and
in restraint. Second, Burke was subject to severe restrictions
on his freedom at the RRC, approaching those of incarcera-
tion. Consequently, Burke’s case falls closer on the spectrum
to the cases where courts have found a defendant residing at
a halfway house or RRC to be in “custody” than to those that
have not. The majority’s reasoning thus unduly expands Bax-
ley and creates an unnecessary circuit split. Because there was
at least probable cause that Burke was in custody sufficient to
sustain the indictment, I would reverse the district court’s dis-
missal of the indictment.
