                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-29-2009

USA v. Collin Cole
Precedential or Non-Precedential: Precedential

Docket No. 08-3201




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                                         PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                      No. 08-3201


           UNITED STATES OF AMERICA

                           v.

               COLLIN ROMEO COLE
                  Collin R. Cole,
                       Appellant


      Appeal from the United States District Court
                for the District of Delaware
          (D.C. Criminal No. 07-cr-00162-001)
     District Judge: Honorable Joseph J. Farnan, Jr.


                Argued March 24, 2009

Before: RENDELL, AMBRO and JORDAN, Circuit Judges.

                 (Filed: May 29, 2009)
Edson A. Bostic, Esq.
Daniel I. Siegel, Esq. [ARGUED]
Office of Federal Public Defender
704 King Street
First Federal Plaza, Suite 110
Wilmington, DE 19801
   Counsel for Appellant

Christopher J. Burke, Esq. [ARGUED]
Office of United States Attorney
1007 North Orange Street, Suite 700
P.O. Box 2046
Wilmington, DE 19899
  Counsel for Appellee


                 OPINION OF THE COURT


RENDELL, Circuit Judge.

        Collin Romeo Cole, a Jamaican national, pled guilty to
illegal reentry into the United States. The District Court
sentenced Cole to 71 months in prison and three years of
supervised release. It ordered that the supervised release term
be tolled as long as Cole remained outside of the United States
following his possible removal after his prison term. Cole
argues that the District Court exceeded its statutory authority
when it tolled his period of supervised release, because tolling
is not a “condition” of supervised release within the meaning of
28 U.S.C. § 3583(d). We agree that the District Court did not

                               2
have authority to suspend Cole’s period of supervised release,
and we will accordingly remand to the District Court to correct
this aspect of his sentence.

I. Background

        Cole was removed from the United States in 2005, after
he was convicted of two violent felonies in New York. He
illegally reentered the United States, and in 2007 he was arrested
on criminal impersonation and forgery charges and incarcerated
in a Delaware State prison. In November of 2007, Immigration
and Customs Enforcement (“ICE”) learned of Cole’s reentry and
imprisonment, and he was charged with violation of 8 U.S.C.
§ 1326(a) and (b)(2), which carry a statutory maximum of 20
years’ imprisonment. He pled guilty in March of 2008.

        The District Court sentenced Cole to 71 months in prison
and three years of supervised release. The court said that, based
on Cole’s history of illegal reentry and his family situation (he
has children who live in New York), it believed he would want
to return to the United States. Anticipating Cole’s future illegal
reentry, the court ordered that his three-year term of supervised
release not run during any time he was excluded from the United
States. During the sentencing hearing, the District Court said:

       If you’re deported, the term of supervised release, Mr.
       Cole, will run inactively as long as you remain outside
       the United States. Should you reenter the United States
       after deportation, that action will be a violation of
       supervised release. . . .


                                3
       Now, I want to make something clear to you, Mr. Cole.
       You’re going to be on supervised release once you’re
       gone from prison. That’s inactive. None of that time is
       running while you’re outside the United States. The
       minute you reenter the United States, it’s a violation . . ..
       So don’t come back.

(App. 29-30.)

       The written judgment of the District Court contains what
the court termed a “special condition[] of supervision”: “The
defendant’s term of supervised release shall run inactive if the
defendant is deported. Should the defendant re-enter the United
States after deportation, such action will be considered a
violation of supervised release.” (App. 6.)

II. Discussion

       Cole argues that the District Court exceeded its statutory
authority when it ordered that his period of supervised release be
tolled during his period of exclusion from the United States.
The issue of whether the statutes governing supervised release
permit tolling in this situation is a question of statutory
interpretation subject to de novo review. See United States v.
Poellnitz, 372 F.3d 562, 570 (3d Cir. 2004). Because Cole did
not object to the condition during sentencing, we review his
sentence under the plain error standard. Fed. R. Crim. P. 52(b).

      We have two issues to decide: whether the District
Court’s tolling of supervised release was proper; and, if it was
improper, whether it was a plain error.

                                 4
       A. Tolling is Not a Condition of Supervised Release

        Whether a District Court exceeds its authority under 18
U.S.C. § 3583 when it orders that a term of supervised release
be tolled during the time that a defendant is excluded from the
United States following removal is an issue of first impression
in our court. Four of our sister courts of appeals have held that
such tolling exceeds a district court’s power to set conditions of
supervised release. See United States v. Ossa-Gallegos, 491
F.3d 537 (6th Cir. 2007) (en banc); United States v. Okoko, 365
F.3d 962 (11th Cir. 2004); United States v. Juan-Manuel, 222
F.3d 480 (8th Cir. 2000); United States v. Balogun, 146 F.3d
141 (2d Cir. 1998).

        18 U.S.C. § 3583(a) authorizes district courts to include
a period of supervised release as part of a defendant’s sentence.
In addition to the enumerated conditions that a court must
impose as part of supervised release,1 the statute also provides
that “[t]he court may order, as a further condition of supervised
release, . . . any other conditions it considers to be appropriate,”
as long as the conditions reasonably relate to the sentencing



       1
        18 U.S.C. § 3583(d) expressly directs district courts to
order that the defendant not commit another crime or unlawfully
possess a controlled substance during the period of supervised
release. The statute also includes provisions that deal with
rehabilitation for domestic violence and drug abuse, sex
offender registration, DNA samples, and submission to drug
testing. 18 U.S.C. § 3583(d).

                                 5
factors in 18 U.S.C. § 3553(a).2 In addition, a special condition
must involve no greater deprivation of liberty than is reasonably
necessary for the purposes of imposing the sentence and must be
consistent with any pertinent policy statement issued by the
Sentencing Commission. 18 U.S.C. § 3583(d)(2)-(3).

        Cole points out that the supervised release statute, 18
U.S.C. § 3583, does not expressly authorize tolling during a
period of exclusion from the United States. He also notes that
Congress has specifically authorized tolling of supervised
release in only one situation – where the defendant is imprisoned
on an unrelated crime for more than 30 days. Additionally, he
argues that the canon of expressio unius est exclusio alterius
(the expression of one thing is the exclusion of another) means
that Congress did not intend for tolling to be applied in other
situations. See 18 U.S.C. § 3624(e). Cole acknowledges that
the statute does allow district courts to create special conditions
of supervised release, but argues that tolling is not such a
“condition” because there is no “activity the defendant must
avoid, no task the defendant must complete, no restriction the
defendant must observe.” (Appellant’s Br. 9.)



       2
         A court may order a further condition of supervised
release if the condition relates to the nature of the offense and
the history of the defendant, as well as the need for the sentence
to deter criminal conduct, protect the public, and provide the
defendant with effective correctional and rehabilitative
treatment. See 18 U.S.C. § 3583(d)(1); 18 U.S.C. § 3553(a)(1),
(a)(2)(B)-(D).

                                6
        The government argues that the District Court did not err
when it tolled Cole’s period of supervised release. According
to the government, Congress gave district courts broad power in
§ 3583(d) to set supervised release conditions. It argues that the
tolling is a classic “condition of supervised release,” one that
relates to the nature and circumstances of the offense, the history
and characteristics of the defendant, deterrence, protection of the
public, and the provision of needed correctional treatment. The
government contends that it makes sense for the supervised
release term to be tolled, because the U.S. Probation Office will
not be able to supervise the defendant during the time he is
outside the United States, and the rehabilitative and transitional
functions of supervised release will be lost. Furthermore, it
urges that if the defendant returns to the United States, he should
face the full set of requirements in the supervised release order.

       The United States Court of Appeals for the Sixth Circuit
addressed all of these arguments in its thorough en banc opinion
in United States v. Ossa-Gallegos, 491 F.3d 537 (6th Cir. 2007).
Ossa-Gallegos, like Cole, was charged with illegal reentry. He
was sentenced to 33 months’ imprisonment and two years of
supervised release, and the district court ordered that the
supervised release term would be tolled while he was outside of
the United States. In the panel opinion, United States v. Ossa-
Gallegos, 453 F.3d 371 (6th Cir. 2006), the court was obliged to
affirm the district court’s decision to toll supervised release
because in an earlier case, United States v. Isong, 111 F.3d 428
(6th Cir. 1997), the court had implicitly presumed that tolling
was a condition of supervised release and found that it was
reasonably related to the § 3553(a) factors. Ossa-Gallegos
acknowledged that Isong bound the panel, but petitioned for

                                7
review by the full court. The court vacated the panel opinion
and granted en banc review. The en banc court found,
unanimously, that tolling was not a condition of supervised
release and overruled Isong. 491 F.3d at 545. The en banc
court’s reasoning in Ossa-Gallegos is persuasive.

       Section 3583(d) allows district courts to order
“conditions” of supervised release; therefore, our inquiry is
whether tolling is such a condition. If tolling is not a condition,
then a district court has no authority to order tolling of
supervised release. Within the existing jurisprudence there are
two different approaches to defining “condition.” The en banc
Ossa-Gallegos court reasoned that a “condition” is a
contingency, a prerequisite or circumstance necessary to a
particular result. 491 F.3d. at 541. Other courts have held that
a “condition” is something over which the defendant has a
degree of control, something that the defendant either must do
or must refrain from doing. See Okoko, 365 F.3d at 966; Juan-
Manuel, 222 F.3d at 487; Balogun, 146 F.3d at 146.

        We are not convinced that we need to choose a particular
definition for “condition.” Our focus is on whether tolling is a
condition, and we believe the better reading of the statute is that
tolling is not a condition of supervised release. Rather, tolling
is a suspension of the supervised release period, a way of
removing the defendant from the effects of his sentence for a
specific period of time. It is useful to remember that tolling has
its roots in equity, as a way of temporarily stopping the running
of time for fairness reasons. See, e.g., Shendock v. Dir., Office
of Workers’ Comp. Programs, 893 F.2d 1458, 1462 (3d Cir.
1990). A statute of limitations, for example, may be tolled while

                                8
the plaintiff is a minor, or when the plaintiff has been prevented
from asserting his rights in some extraordinary way. See, e.g.,
Santos ex rel. Beato v. United States, 559 F.3d 189 (3d Cir.
2009); Urcinoli v. Cathel, 546 F.3d 269, 272-73 (3d Cir. 2008).

        Tolling, as a suspension of the time that supervised
release runs, is quite unlike any of the other conditions that
district courts may impose as part of supervised release:
refraining from illegal drug use; going to a rehabilitation
program for sex offenders; providing a DNA sample. See 18
U.S.C. § 3583(d). Other special conditions include requiring a
defendant to notify his probation officer when he is questioned
by law enforcement, or limiting a defendant’s contact with
minors. See, e.g., United States v. Maloney, 513 F.3d 350, 357
(3d Cir. 2008); United States v. Loy, 237 F.3d 251, 269-70 (3d
Cir. 2001). Each of these conditions is an aspect of supervised
release that is tailored to each defendant. They have nothing to
do with the time that the sentence or supervision is running;
tolling is not analogous to these conditions. We agree with the
Ossa-Gallegos court, which said:

       [T]olling describes the existing state of supervised
       release – that is, whether or not the period of supervised
       release is running. ‘Tolling’ is not a ‘condition’ in the
       sense in which the term is used in § 3583(d), and
       therefore, courts do not have authority under § 3583(d)
       to issue ‘conditions’ of supervised release which toll the
       period for which deported aliens are subject to
       supervised release.

491 F.3d at 542.

                                9
        The structure of the supervised release statutes also
suggests that tolling a period of supervised release following
removal is beyond the authority of a district court. By law, a
term of supervised release commences on the day the defendant
is released from imprisonment. 18 U.S.C. 3624(e). Congress
has provided for an exception to this rule in only one situation 3 :
where the defendant is imprisoned for more than 30 days for
another conviction. 18 U.S.C. § 3624(e). That is the only
instance in which Congress allowed for the suspension of the
supervised release period, and it did so specifically by statute.


       3
         The government argues that there is another express
tolling provision, because 18 U.S.C. § 3583(i) gives a court the
power to revoke a defendant’s supervised release term after the
date when the term would have expired if a warrant or summons
for a violation of supervised release was issued before the end
of the term. Several courts refer to this section as a tolling
provision. See e.g., United States v. Okoko, 365 F.3d 962, 964-
65 (11th Cir. 2004); United States v. Juan-Manuel, 222 F.3d
480, 488 (8th Cir. 2000). The United States Court of Appeals
for the Sixth Circuit, however, does not view section 3583(i) as
a tolling provision, “because tolling requires an actual
suspension of the running of the period of supervised release,
and under § 3583(i) there is no suspension, but rather an
extension of the period during which the government may
pursue violations of supervised release.” United States v. Ossa-
Gallegos, 491 F.3d 537, 543 n.5 (6th Cir. 2007). We agree with
the Sixth Circuit Court of Appeals that § 3583(i) is not a tolling
provision, because there is no suspension of the supervised
release period, but rather an extension of it.

                                10
We find persuasive Cole’s argument that the canon of expressio
unius est exclusio alterius suggests that where Congress has
explicitly allowed for tolling only when the defendant is
imprisoned on another charge, it does not intend for district
courts to toll supervised release under any other circumstance.

       The government argues that an alien living abroad cannot
be supervised effectively by U.S. Probation, whose reach does
not extend beyond the borders of the United States. Further, it
urges that a defendant may find it difficult or impossible to
comply with the conditions of supervised release, which means
that a violation of the terms of supervised release is almost
automatic. However, the statute addresses some of those
concerns – none of the mandatory conditions of supervised
release requires physical presence in the United States (e.g.,
refraining from the use of drugs, not committing a crime) and
those that might (like drug treatment) are only mandatory if they
exist within a 50-mile radius of the defendant’s home.

        We also note that the statutory structure makes the
government’s position logically suspect: a defendant charged
with illegal reentry, such as Cole, may be ordered to leave and
stay outside of the United States as a condition of his supervised
release. 18 U.S.C. § 3583(d) (“If an alien defendant is subject
to deportation, the court may provide, as a condition of
supervised release, that he be deported and remain outside the
United States . . ..”). If a defendant is removed and ordered
excluded from the United States as a condition of supervised
release, how can it be that the period of supervised release is
tolled during that period? See Isong, 111 F.3d at 433 (Moore,
J., dissenting). The United States Court of Appeals for the

                               11
Eighth Circuit noted this problem in United States v. Juan-
Manuel, 222 F.3d 480 (8th Cir. 2000): “Congress could not
have intended to allow a defendant to be excluded from the
United States as a condition of supervised release while, at the
same time, allow all conditions of supervised release to be
suspended for the duration of that exclusion.” Id. at 487.4

       We appreciate the government’s arguments as to
practicality and the desire to impose terms of supervised release
on post-removal defendants when they return to the United
States – indeed, it may make sense for Congress to address this
issue and revise the statute – but, as written, the statute does not
allow district courts to toll supervised release periods following
removal. We concur with our sister courts of appeals: if
Congress had wanted to authorize tolling the period of
supervised release during the period that a removed defendant
was outside the jurisdiction of the United States, the statute
would contain that provision.



       4
         This logical inconsistency appears in the District
Court’s judgment, in which it writes that “[t]he defendant’s term
of supervised release shall run inactive if the defendant is
deported. Should the defendant re-enter the United States after
deportation, such action will be considered a violation of
supervised release.” (App. 6.) If the period of supervised
release has been tolled and is suspended during the time Cole is
excluded from the United States, his reentry into the United
States cannot violate supervised release, because there is no
supervised release in effect.

                                12
       B. Plain Error

        The other courts of appeals that have addressed the issue
of whether a term of supervised release may be tolled following
a defendant’s removal have reviewed the question de novo.
However, Cole did not object to the tolling at sentencing;
therefore, we review his sentence for plain error. Fed. R. Crim.
P. 52(b). Having decided that the District Court erred when it
tolled Cole’s term of supervised release, we must now determine
whether that error was plain, whether it affected Cole’s
substantial rights, and whether it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.

       Cole contends that the plain error standard was met. He
argues that there was error, and that even though there was no
Third Circuit precedent directly on point, the error was clear
because all of the other circuits who had ruled on the issue had
held that there was no tolling. Further, Cole says, the error
affected his substantial rights because he would be subject to
imprisonment upon his return to the United States, even if he
returned long after the three-year period of supervised release
would have run had he remained in the United States. Finally,
he argues that the error seriously affected the integrity of judicial
proceedings, because imposing a sentence not authorized by law
has a serious and detrimental impact on the fairness and
reputation of the proceedings.

        The government revisits its arguments that there was no
error in the first place: that the District Court has discretion to
fashion conditions of supervised release and that tolling
supervised release can prevent an illegally returning defendant

                                 13
from entering the United States again. It says that even if we
find that the District Court should not have tolled Cole’s period
of supervised release, the error was not plain because of the lack
of Third Circuit precedent. It argues that even though the four
courts of appeals that have spoken on the issue have all found
the tolling to be error, the United States Court of Appeals for the
Sixth Circuit had previously held otherwise, in Isong, and two
district courts, in Virginia and in Texas, found such tolling
permissible. See United States v. Zepeda-Dominguez, 545 F.
Supp. 2d 547 (E.D. Va. 2008); United States v. Castro-
Gonzalez, No. 04-337, 2008 WL 620741 (S.D. Tex. Mar. 4,
2008).

        The government analogizes the situation here to the fact
pattern presented in United States v. Harris, 471 F.3d 507 (3d
Cir. 2006). There, we found that the government’s questioning
at trial amounted to legal error, but that the error wasn’t plain
because the issue was complicated and fact specific, and the
Supreme Court had yet to rule. The government also cites
United States v. Rivas, 493 F.3d 131 (3d Cir. 2007), where we
found that while certain police testimony was improper, the
error wasn’t plain because “there was at least a possible
legitimate reason for the testimony.” Id. at 137.

        The government also argues that there is no effect on
Cole’s substantial rights or a miscarriage of justice. The
government distinguishes Cole’s situation from cases where the
condition of supervised release at issue would have an
immediate impact on the defendant as soon as he was released
from prison. Here, the government argues, the impact on Cole
is far more remote, because the condition will only apply if Cole

                                14
is removed after his prison term, and the supervised release
period will begin only if he has reentered the United States after
removal. The government says that this is far too speculative to
affect Cole’s substantial rights or the fairness and integrity of
the proceedings.

        We have already concluded that the District Court erred
when it ordered that Cole’s period of supervised release be
tolled following his removal. We also conclude that the error
was plain: the statute simply does not allow a district court to
stop and start supervised release. The statute provides for the
supervised release period to start on the day that the defendant
is released from prison; it continues during the period of months
or years that the district court ordered in its judgment. As noted
above, the only exception is when the defendant is imprisoned
for more than 30 days for another crime. 18 U.S.C. § 3624(e).
If Congress intended there to be an exception for post-removal
defendants’ supervised release, it would have included that in
the statute.

        We are not persuaded by the government’s arguments as
to the lack of Third Circuit authority. Even though the District
Court had no precedent from our court to guide its decision, all
of the other circuits that have addressed the issue have found
that such tolling is impermissible based upon the statutory
provisions at issue. In United States v. Evans, 155 F.3d 245 (3d
Cir. 1998), we found that a district court violated the supervised
release statute when it conditioned supervised release on
reimbursement of the cost of court-appointed counsel. The
government argued that the error was not plain because we had
not yet addressed whether such a condition was appropriate. We

                               15
found that the government’s argument was “without merit.
Neither the absence of circuit precedent nor the lack of
consideration of the issue by another court prevents the clearly
erroneous application of statutory law from being plain error.”
Id. at 252. Cole’s arguments in this case are even stronger than
those of the defendant in Evans, because there were four court
of appeals opinions to provide guidance.

        The government’s citation to Harris and Rivas is
unhelpful. Both Harris and Rivas were fact-intensive cases –
this case is not. The legal issue here does not involve a complex
set of facts or judgments as to evidentiary matters. Rather, it
involves an examination of various statutory provisions
regarding sentencing. Therefore, Harris and Rivas fail to
persuade us that we should find that the error in this case was
not plain.

        The government also points to Isong, the Sixth Circuit
case that was overruled by the en banc Ossa-Gallegos opinion,
and two district court cases: Zepeda-Dominguez and Castro-
Gonzalez. The government describes these as tolling cases, but
both cases seek to distinguish Ossa-Gallegos. In Zepeda-
Dominguez, the district court specifically said that it was not
tolling the defendant’s period of supervised release. Rather, the
court’s judgment ordered that the defendant be released from the
Bureau of Prisons directly to ICE for removal. The court
reasoned that because supervised release does not begin until a
defendant is released by the Bureau of Prisons to the supervision
of a probation officer, a defendant who is immediately removed
before reporting to a probation officer would not begin the
supervised release period until he reenters the United States and

                               16
reports to a probation officer. 545 F. Supp. 2d at 549. Whether
the Zepeda-Dominguez court effectively distinguished Ossa-
Gallegos is not before us; even if the case were properly
decided, it is not helpful to the government here.

        In Castro-Gonzalez, the district court pointed out that the
judgment does not toll the term of supervised release, but rather
provides that while the defendant was out of the country he
would not be subject to supervision by the Probation Office.
The court distinguished Ossa-Gallegos, saying that
“[s]upervision becoming inactive is distinguishable from an
explicit statement that the supervised release term itself is
‘tolled.’” 2008 WL 620741, at *4. Again, whether the district
court effectively distinguished Ossa-Gallegos is not for us to
decide, but as with Zepeda-Dominguez, Castro-Gonzalez does
not support the government’s argument that the District Court’s
error was not plain. The great weight of authority holds that the
tolling the district court ordered here was impermissible, and we
find that the error was plain.

        We also find that the error affected Cole’s substantial
rights. Our precedent is clear that a plainly erroneous condition
of supervised release always affects a defendant’s substantial
rights. See United States v. Voelker, 489 F.3d 136, 154 (3d Cir.
2007). Even though we hold today that tolling is not a condition
of supervised release, the same reasoning applies – the District
Court’s tolling of supervised release inevitably affects Cole’s
substantial rights, because it unlawfully extends the time that the
supervised release conditions apply to him beyond the three
years of his sentence. The statute says that his supervised
release period starts the day he is released from prison; his

                                17
sentence says that the period runs for three years. Tolling
supervised release in a manner not allowed by the statute affects
Cole’s substantial rights.

          The government’s argument that Cole will not be
prejudiced immediately by the tolling, and that therefore his
substantial rights are not affected, is not persuasive. A condition
of supervised release to be applied after a defendant has served
a long prison sentence may be remote, but if it is contrary to law
it still affects his substantial rights. While we do not know now
whether Cole will seek to reenter the United States after he
serves his prison sentence and is removed, no court can know,
when it applies a condition of supervised release, whether the
defendant will violate it. The supervised release situation is by
definition speculative. That does not prevent it from affecting
substantial rights.

       In Evans, we held that “imposing a sentence not
authorized by law seriously affects the fairness, integrity, and
reputation of the proceedings.” 155 F.3d at 152. Having
decided today that the tolling of Cole’s period of supervised
release during his time of exclusion from the United States was
unlawful, we would be casting doubt on the fairness, integrity,
and reputation of our proceedings if we were to allow tolling
without statutory authorization.

        We are guided by our sister courts of appeals, and by our
own precedents, to conclude that the District Court’s tolling of
supervised release following Cole’s post-imprisonment removal
was plain error, that it affected Cole’s substantial rights, and that
it affected the fairness and integrity of our judicial proceedings.

                                 18
In light of the above, we will reverse the District Court and
remand the case for resentencing consistent with this opinion.




                             19
