                                                                                      FILED
                               NOT FOR PUBLICATION                                     JUN 05 2013

                                                                                  MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                               U .S. C O U R T OF APPE ALS




                                FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                           No. 12-50281

                Plaintiff - Appellee,                D.C. No. 2:88-cr-00732-RSWL-1

   v.
                                                     MEMORANDUM *
 GERALD MARK WILLIAMS,

                Defendant - Appellant.

                       Appeal from the United States District Court
                          for the Central District of California
                       Ronald S.W. Lew, District Judge, Presiding

                           Argued and Submitted April 8, 2013
                                  Pasadena, California

Before: REINHARDT and MURGUIA, Circuit Judges, and MOLLOY, District
Judge.**

        Gerald Mark Williams appeals the district court’s revocation of his

supervised release. He argues that the district court lacked jurisdiction to order

revocation of his supervised release because the term of his supervision had

        *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
        **
               The Honorable Donald W. Molloy, United States District Judge for the District of
Montana, sitting by designation.

                                                1
expired before the violation upon which the district court based its revocation. We

reverse.

      At the May 10, 2011 revocation hearing the district court asserted

jurisdiction based on the erroneous assumption that a December 22, 2003 bench

warrant stayed Williams’s term of supervised release pursuant to 18 U.S.C.

§ 3583(i). We reversed and remanded for evidentiary development and

consideration of whether jurisdiction might instead rest on the grounds that

Williams’s supervised release was tolled for two disputed periods when he was

either deported or a fugitive. United States v. Williams, 467 F. App’x 628 (9th Cir.

2012). On remand, the district court found Williams was a fugitive and his

supervised release was accordingly tolled from December 1, 1999 to May 27, 2001

and from September 7, 2003 to March 9, 2009. The court concluded jurisdiction to

revoke Williams’s supervised release was properly exercised because he was still

subject to supervision following these two periods of fugitive tolling.

      We have jurisdiction under 28 U.S.C. § 1291. A district court’s exercise of

jurisdiction to revoke a term of supervised release is reviewed de novo. United

States v. Ignacio Juarez, 601 F.3d 885, 888 (9th Cir. 2010) (per curiam).

      In the revocation proceedings below, it was the government’s burden to

prove the facts surrounding both periods of fugitive tolling. See United States v.



                                          2
Sumner, 226 F.3d 1005, 1010 (9th Cir. 2000) (holding the burden of establishing

jurisdiction is on the party asserting a cause is properly before the court). The

government did not meet this burden as to the first period, where it was alleged

Williams was a fugitive because he absconded from supervision from December 1,

1999 to May 27, 2001.

      It is undisputed that Williams self-deported to Belize in November 1999. A

defendant who leaves the country after having been ordered deported has been

deported as a matter of law. 8 U.S.C. § 1101(g) (“any alien ordered deported or

removed . . . who has left the United States, shall be considered to have been

deported in pursuance of law . . .”); see Mrvica v. Esperdy, 376 U.S. 560, 563-64

(1964). Therefore, when Williams, a citizen of Belize, returned to Belize under an

order of deportation, he did not abscond from supervision but rather left the United

States as ordered by the Immigration and Naturalization Service. The period of

supervision continues to run while a non-citizen defendant is outside the United

States pursuant to a deportation order. Ignacio Juarez, 601 F.3d at 890; United

States v. Murguia-Oliveros, 421 F.3d 951, 952, 954 (9th Cir. 2005). A deported

non-citizen has absconded for purposes of fugitive tolling when he reenters the

United States and fails to conform with the condition of his supervised release

requiring him to advise his probation officer of his presence. Ignacio Juarez, 601



                                           3
F.3d at 890.

       Williams’s probation officer allowed him to leave the country and requested

that he provide documentation of his presence in Belize on arrival.1 His attorney

sent his Notification of Departure to the probation officer. Later, at the probation

officer’s request, the United States Embassy sent a letter to the probation office

confirming Williams’s presence in Belize. Williams’s probation officer was

evidently dissatisfied with this proof confirming Williams’s presence in Belize. On

hearing of the probation officer’s concern, Williams took further action to comply

with the officer’s direction to provide documentation. Williams contacted his

attorney, who followed up by submitting a corrected Notification of Departure.

The probation officer made no further effort to contact the embassy or Williams’s

attorney to alleviate his concerns about the completeness and accuracy of any of

the information he received.

       The evidence in the record, including the submissions by Williams’s

attorney and the United States Embassy letter to the probation officer, establish


       1
         Williams moves requesting judicial notice of portions of his probation office file
produced by the government in this appeal, not part of the record below. This Court may in
narrow circumstances take judicial notice of matters not otherwise included in the record on
appeal. See Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003) (citing Fed. R. Evid. 201(f);
EEOC v. Ratliff, 906 F.2d 1314, 1318 n.6 (9th Cir. 1990)). The documents here were produced
by the government and comprise part of Williams’ probation office file. Judicial notice of the
presence of the documents in the government’s file is appropriate. Williams motion for judicial
notice is accordingly GRANTED.

                                               4
Williams’s presence in Belize and confirm his intent to comply with the

instructions of his probation officer. There is not sufficient evidence that these

communications were motivated by Williams’s desire to travel as he pleased and

mislead his probation officer. The district court’s conclusions that Williams was a

fugitive from December 1, 1999 to May 27, 2001 and that his supervised release

was tolled for that period were erroneous.

      The government does not dispute that in the absence of this period of

fugitive tolling, the district court did not have jurisdiction to revoke Williams’s

supervised release. We therefore reverse the district court’s judgment and vacate

Williams’s sentence. Because we reverse, we need not reach the other issues

Williams raises in this appeal.

      REVERSED.




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