                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                          AUG 18 1998
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 vs.                                                    No. 98-2005
                                                  (D.C. No. CR-97-450-BB)
 RICHARD T. JARAMILLO,                                    (D.N.M.)

           Defendant-Appellant.


                                 ORDER AND JUDGMENT *


Before TACHA, BALDOCK, and KELLY, Circuit Judges.


       Defendant-Appellant Richard T. Jaramillo pleaded guilty to one count of

maliciously conveying false information. See 18 U.S.C. § 844(e). The district

court sentenced Mr. Jaramillo to time served, a sentence which exceeded the

maximum Guideline range by 7 days, and, as a condition of his supervised

release, ordered Mr. Jaramillo to have no contact with his ex-wife or children

except as provided by the New Mexico state court. On appeal, Mr. Jaramillo

challenges the length of his sentence and the district court’s imposition of the



       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
special supervised release condition. Our jurisdiction arises under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a). We dismiss as moot Mr. Jaramillo’s appeal of

the district court’s imposition of sentence and affirm the district court’s

imposition of the special condition of supervised release.

      As a threshold matter, the government contends that Mr. Jaramillo’s

challenge of the sentence of time served is moot because he has been released

from confinement. Mr. Jaramillo counters that the appeal of his sentence is not

moot because the successful resolution of this appeal would affect the term of his

supervised release. Mr. Jaramillo’s contention, however, is based on the belief

that we can provide him the remedy he seeks, an earlier commencement of his

term of supervised release based on the date when a 180-day sentence should have

expired. Though neither party chose to brief this important issue, our research

indicates that neither the relevant statute nor case law allows us to grant such a

remedy.

      In United States v. Reider, 103 F.3d 99, 102-03 (10th Cir. 1996), we held

that the plain language of 18 U.S.C. § 3624(e) requires a term of supervised

release to commence when the “person is released from imprisonment.” Id.

(quoting § 3624(e)); see United States v. Joseph, 109 F.3d 34, 36-38 (1st Cir.

1997) (holding supervised release does not run while a person is incarcerated for

a federal crime); United States v. Vallejo, 69 F.3d 992, 994 (9th Cir. 1995)


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(holding that term of supervised release does not commence until day defendant is

subject to conditions of supervised release), cert. denied, 517 U.S. 1148 (1996);

United States v. Douglas, 88 F.3d 533, 534 (8th Cir. 1996) (per curiam) (same);

Quinones v. United States, 936 F. Supp. 153, 154-55 (S.D.N.Y. 1996) (same); but

see United States v. Blake, 88 F.3d 824, 825-26 (9th Cir. 1996) (holding

supervised release begins on date a prisoner’s term of imprisonment expires,

whether or not released on that date, in limited circumstances where Sentencing

Guidelines are retroactively amended); United States v. Monenegro-Rojo, 908

F.2d 425, 431 n.8 (9th Cir. 1990) (holding that fairness requires that extra time in

prison should be counted toward term of supervised release).

      It is undisputed Mr. Jaramillo was not released from imprisonment until

December 22, 1997. Thus, Mr. Jaramillo’s term of supervised release could not

have begun until that time, notwithstanding the seven extra days he spent in

prison. See Joseph, 109 F.3d at 37; Douglas, 88 F.3d at 534; Quinones, 936 F.

Supp. at 155; cf. United States v. Temple, 918 F.2d 134, 135 (10th Cir. 1990)

(interpreting prior statute governing credit for time served and concluding

“Congress did not intend criminal defendants to receive credit toward probation

for time spent in custody”). Moreover, even if the seven extra days could be

credited toward Mr. Jaramillo’s term of supervised release, we lack the authority

to award a sentence credit. See United States v. Jenkins, 38 F.3d 1143, 1143-44


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(10th Cir. 1994).

      Finally, though Mr. Jaramillo argues by implication that the district court

might shorten the term of supervised release if we vacated and remanded for

resentencing, see Aplt. Brief at 10-11, we do not remand in futility. Because of

Mr. Jaramillo’s brief sentence, this is not a case where a reduction of sentence

provides the district court with discretion over the term of supervised release that

it did not have under the greater sentence. See USSG § 5D1.1(b). Mr. Jaramillo

did not object to the length of the term of supervised release, and even were we to

review for plain error, we would likely find none. Moreover, it is clear from the

colloquies between the court and defense counsel during the plea and sentencing

hearings that all parties involved considered “time served” as the benchmark for

Mr. Jaramillo’s sentence, see II R. at 10, 23-24, and that despite defense

counsel’s failure to object the district court was aware of the length of Mr.

Jaramillo’s imprisonment. See I R. doc. 34, at 2. Thus, because the district court

had the same facts and law before it at sentencing that it would upon remand, we

are not convinced the length of Mr. Jaramillo’s term of supervised release would

be altered. Because neither we nor the district court have the authority to redress

Mr. Jaramillo’s injury, his challenge to the district court’s imposition of sentence

is moot. See Spencer v. Kemna, 118 S. Ct. 978, 983 (1998).

      We review the district court’s imposition of a special condition of


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supervised release for abuse of discretion, see United States v. Edgin, 92 F.3d

1044, 1047 (10th Cir. 1996), cert. denied, 117 S. Ct. 714 (1997), and find none.

The presentence report, which the district court incorporated in its findings, see

III R. at 7-8, provides ample justification for the imposition of restrictions on Mr.

Jaramillo’s contact with his ex-wife and children. Thus, Edgin is inapposite. See

Edgin, 92 F.3d at 1049. Further, the district court was well within its discretion

to order Mr. Jaramillo to comply with the state court’s temporary restraining order

as a condition of his release. See 18 U.S.C. § 3583(d); USSG § 5D1.3(b). We

accordingly DISMISS Mr. Jaramillo’s appeal of the district court’s imposition of

sentence as moot and AFFIRM the district court’s imposition of the special

condition of supervised release.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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