                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 10-5147


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ROY FLORES-SIERRAS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:10-cr-00102-HCM-TEM-1)


Submitted:   May 24, 2011                         Decided:   June 22, 2011


Before SHEDD and      WYNN,   Circuit   Judges,    and   HAMILTON,   Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Richard J.
Colgan, Assistant Federal Public Defender, Caroline S. Platt,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Scott W.
Putney,   Assistant  United States  Attorney,  Newport  News,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Roy   Flores-Sierras         pled          guilty     to     a     one-count

indictment charging him with illegal reentry into the United

States following deportation in violation of 8 U.S.C. § 1326(a)

(2006) and was sentenced to three months’ imprisonment and one

year of supervised release, with the condition that he serve the

period    of    supervised       release    “if     he     returns    to    the    country,

legally or illegally, with the usual terms.”                         The court further

ordered    that      upon   completion         of    the     term    of     imprisonment,

Flores-Sierras is to be surrendered to immigration authorities

for   deportation.          On    appeal,    Flores-Sierras          argues       that   the

district court lacked the authority to delay the start of his

supervised       release.         We    agree       and    accordingly          vacate   his

sentence and remand the case for further proceedings. *

               Supervised release is governed by 18 U.S.C. § 3583

(2006), which provides that a court, “in imposing a sentence

. . . may include as a part of the sentence a requirement that

the defendant be placed on a term of supervised release after

imprisonment.”        18 U.S.C. § 3583(a).               A court imposing a term of

supervised release is directed to examine specified sentencing

factors set forth in 18 U.S.C. § 3553(a) (2006) in determining


      *
          Flores-Sierras         does    not      challenge        his     conviction     on
appeal.



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the length of the term.              18 U.S.C. § 3583(c).                   Courts are also

permitted to impose conditions on supervised release, including

the condition that the defendant not commit any crimes during

the term of supervised release.                   18 U.S.C. § 3583(d).                   Section

3583(d)     further     permits      a   sentencing             court       to   impose     “any

condition” as “a further condition to supervised release,” so

long as the condition meets certain criteria, including that the

condition is “reasonably related” to the specified § 3553(a)

factors, involves “no greater deprivation of liberty than is

reasonably       necessary,”     and     is    consistent            with     the   Sentencing

Commission’s       policy   statements.              18       U.S.C.    §    3583(d)(1)-(3).

Section 3583(d) also provides that “[i]f 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, and may order that he be delivered to a duly

authorized        immigration     official        for         such     deportation.”          18

U.S.C. § 3583(d).

             In    addition     to   §   3583,       18       U.S.C.    §     3624(e)     (2006)

supplies the statutory definition for when a term of supervised

release begins: “The term of supervised release commences on the

day   the   person     is   released          from    imprisonment.”                18    U.S.C.

§ 3624(e).        The statute provides for the tolling of supervised

release     in    a   single    circumstance              —    when     the      defendant    is

imprisoned on an unrelated crime for more than thirty days.                                  Id.

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On appeal, Flores-Sierras argues that, under the plain language

of § 3624(e), the district court lacked the authority to delay

the start of his supervised release in the event he is deported

following     his      incarceration.            Flores-Sierras          notes    that   his

position has the support of the five circuit courts that have

addressed the issue.              See United States v. Cole, 567 F.3d 110

(3d Cir. 2009); 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).     The     Government      agrees        with        Flores-Sierras      that     the

district court lacked the authority to delay the start of his

supervised release.

              This       appeal        raises      a         question     of      statutory

interpretation.          “When interpreting statutes we start with the

plain language.”          U.S. Dep’t of Labor v. N.C. Growers Ass’n, 377

F.3d   345,      350    (4th    Cir.    2004).          In    interpreting       the    plain

language      of   a    statute,       we   give   the        terms     their    “ordinary,

contemporary,          common   meaning,        absent        an   indication     Congress

intended it to bear some different import.”                           North Carolina ex

rel. Cooper v. Tenn. Valley Auth., 515 F.3d 344, 351 (4th Cir.

2008) (alterations and internal quotation marks omitted).

              In this case, the plain language of § 3624(e) clearly

provides      that      supervised       release       starts      “on    the    day”    the

                                             4
defendant is released from prison.                      The statute provides for

tolling only when the defendant is otherwise incarcerated, and

“the fact that Congress explicitly allows for tolling only when

a   defendant     is    imprisoned     indicates        that   Congress       does   not

intend    for    district     courts   to       toll   the   period    of    supervised

release under any other circumstance.”                    Ossa-Gallegos, 491 F.3d

at 543.      In contrast, in the case of probation, Congress has

provided for tolling mechanisms.                  See 18 U.S.C. § 3564(a) (“A

term of probation commences on the day that the sentence of

probation is imposed, unless otherwise ordered by the court.”).

            In addition, we note that an opposite position would

result in certain inconsistencies.                 One condition of supervised

release    is    that    Flores-Sierras          refrain     from     reentering     the

United States if deported.             But if his supervised release does

not begin until he reenters the United States, this condition is

a nullity.       As the Third Circuit explained, “[i]f 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?”                         Cole, 567

F.3d at 115 .

            Finally, while § 3583 does permit the district court

to impose conditions on supervised release, “‘tolling’ is not a

‘condition’      in     the   sense    in       which    the   term     is    used    in

§ 3583(d).”       Ossa-Gallegos, 491 F.3d at 542.                      “[C]onditions”

                                            5
within   §   3583    “are     contingencies      upon    which   the     right   to

continue on supervised release depends,” and “the continuation

of   supervised     release    is    not    contingent    on   tolling;    rather,

tolling describes the existing state of supervised release —

that is, whether or not the period of supervised release is

running.”    Id.

             We conclude that the district court’s order runs afoul

of § 3624(e) because Flores-Sierras’ supervised release will not

necessarily “commence on the day” his term of imprisonment ends.

Accordingly, we vacate Flores-Sierras’ sentence and remand for

further proceedings consistent with this opinion.                      We dispense

with oral argument because the facts and legal contentions are

adequately    presented       in    the    materials    before   the    court    and

argument would not aid the decisional process.



                                                          VACATED AND REMANDED




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