                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                                   TENTH CIRCUIT                    December 23, 2014

                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court
UNITED STATES OF AMERICA,
           Plaintiff – Appellee,
                                                   Nos. 14-2005, 14-2006
v.                                            (D.C. Nos. 1:07-CR-01334-WJ-1,
ADRIAN MIKE,                                       2:12-CR-01922-WJ-1)
                                                          (D.N.M.)
          Defendant – Appellant.


                           ORDER AND JUDGMENT *


Before PHILLIPS, SEYMOUR, and MORITZ, Circuit Judges.


     Defendant Adrian Mike appeals his conviction for escape in violation of 18

U.S.C. § 751(a). Mike walked away from a halfway house where he was

confined as a condition of supervised release. He argues that such a violation

did not constitute “escape” from “confinement” within the meaning of § 751(a).

However, he also acknowledges to this court that such a contention is foreclosed

by our precedent. Mike believes, however, that we should seek the approval of

the full court in order to overturn this precedent. We decline his invitation.

     Mike also contends that the Indictment charging him with escape under

§ 751(a) is fatally defective for two reasons: (1) he was not in custody for a

     *
     This order is not binding precedent except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Court Rule 32.1.
felony charge or conviction, and (2) the Indictment incorrectly states that he

was “confined at the direction of the Attorney General.” Mike’s assertion that he

was not in custody for a felony charge or conviction is again foreclosed by our

precedent. And, while we agree that Mike was not “confined at the direction of

the Attorney General,” this statement is mere surplusage and does not render the

Indictment fatally defective. Exercising jurisdiction under 18 U.S.C. §

3742(a)(1) and 28 U.S.C. § 1291, we AFFIRM the district court.


                                  BACKGROUND
   Mike originally was sentenced to the custody of the Bureau of Prisons

(“BOP”) on September 8, 2009, for a term of 24 months following his

conviction for assault resulting in serious bodily injury. Mike was placed on

supervised release on September 16, 2010, but his inability to comply with the

terms of his supervised release resulted in repeated revocation sentences over

the next year and a half. These sentences included two additional stints in

custody and subsequent periods of supervised release. On January 6, 2012, Mike

began residing at Diersen Charities Residential Reentry Center in Las Cruces,

New Mexico to serve his third supervised release term.

   This brings us to the current case. On March 25, 2012, Mike walked away

from Diersen Charities without permission. For this, he was charged with escape

in violation of § 751(a). 1 His Indictment reads, in pertinent part:


   1
       Section 751(a) provides:
                                        -2-
      On or about March 25, 2012 . . . the defendant, Adrian Mike, a/k/a
      Sean Mike Pooh, did knowingly escape from custody while housed
      at Diersen Charities, an institutional facility in which he was
      lawfully confined at the direction of the Attorney General by virtue
      of a judgment and commitment of the United States District Court
      for the District of New Mexico, for a violation of supervised release
      upon conviction for the commission of Assault Resulting in Serious
      Bodily Injury; Crime on an Indian Reservation, in violation of 18
      U.S.C. § 1153. In violation of 18 U.S.C. § 751(a).

   Mike moved to dismiss the Indictment on the grounds that it failed to state an

offense. The district court denied Mike’s motion. Mike then entered a

conditional guilty plea under Fed. R. Crim. P. 11(a)(2), reserving his right to

appeal the denial of his Motion to Dismiss the Indictment. He now appeals.


                                  DISCUSSION
   We review de novo the question of whether Mike was in custody for the

purposes of § 751(a) because it involves a question of statutory construction.

United States v. Ko, 739 F.3d 558, 560 (10th Cir. 2014). We also review de novo



            Whoever escapes or attempts to escape from the
            custody of the Attorney 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 custody under or by virtue of any
            process issued under the laws of the United States by
            any court, judge, or magistrate judge, or from the
            custody of an officer or employee of the United States
            pursuant to lawful arrest, shall, if the custody or
            confinement is by virtue of an arrest on a charge of
            felony, or conviction of any offense, be fined under
            this title or imprisoned not more than five years, or
            both; or . . . by virtue of an arrest or charge of or for a
            misdemeanor, and prior to conviction, be fined under
            this title or imprisoned not more than one year, or both.
                                       -3-
the sufficiency of an indictment as a question of law. United States v. Dashney,

117 F.3d 1197, 1205 (10th Cir. 1997). “An indictment is sufficient if it sets forth

the elements of the offense charged, puts the defendant on fair notice of the

charges against which he must defend, and enables the defendant to assert a

double jeopardy defense.” Id.

   Mike raises three issues on appeal. First, Mike argues that he was not in

“custody” from which he could “escape” for the purposes of § 751(a). Mike’s

principal contention here is that the restrictions applicable to persons in halfway

houses do not constitute custody for § 751(a). He bases this argument on the

definition of “custody” and claims that this court is interpreting the word too

broadly. Mike emphasizes that, “[e]ven if the word ‘custody’ could in a vacuum

be read to include any restriction on freedom of movement or association, that

reading is implausible in light of the requirement that the defendant ‘escape’

from ‘custody.’”

   As Mike notes, however, this argument is foreclosed by our precedent. In

United States v. Sack, we said that “[b]ecause [the defendant] was in the custody

of the halfway house as a result of an order of the district court, we conclude he

was in custody under § 751.” 379 F.3d 1177, 1179 (10th Cir. 2004). Mike has

highlighted for us that “[o]ne panel [of the Tenth Circuit] . . . may overrule a

point of law established by a prior panel after obtaining authorization from all

active judges on the court.” United States v. Meyers, 200 F.3d 715, 721 (10th

Cir. 2000). We believe, however, that Sack was rightly decided. Mike has

                                       -4-
provided us with no adequate basis to disturb Sack’s holding. In addition, this

court recently confirmed Sack’s holding in United States v. Foster, 754 F.3d

1186, 1190 (10th Cir. 2014). In Foster, this court rejected the very argument that

Mike makes here: that a defendant who is placed at a halfway house as a

condition of his supervised release is not in custody. Id. at 1191.

   Mike’s other arguments relate to the Indictment charging him with escape.

Mike contends that the Indictment is fatally defective because (1) he was not in

custody for a felony charge or conviction, and (2) the Indictment incorrectly

states that Mike was “confined at the direction of the Attorney General.” We

consider each of these points in turn.

   Mike argues that, rather than being in custody for a felony charge or

conviction as required under § 751(a), he was in custody for violating the

conditions of his supervised release. Unfortunately for Mike, this argument runs

headlong into our holding in Sack. In Sack, the defendant similarly argued that

his indictment for escape was defective because he was only in custody for

violating the conditions of his release. Sack, 379 F.3d at 1181–82. We explained:

      [T]hroughout the relevant period [the defendant] was subject to
      court orders that arose from his arrest for the felony. That the court
      twice altered the conditions of [the defendant’s] release based on
      his behavior does not sever the connection between the original
      arrest and the custody from which [the defendant] escaped.

Id. at 1182. Unfortunately for Mike, the same is true here. He was subject to

court orders that arose from his arrest for assault resulting in serious bodily



                                         -5-
injury, a felony. That the district court repeatedly altered the conditions of his

release due to his behavior does nothing to sever this connection.

   Mike also contests the Indictment’s statement that he was “confined ‘at the

direction of the Attorney General.’” He correctly points out that he had been

released from the BOP’s confinement and was in the halfway house as a

condition of his supervised release. Thus, he was no longer confined at the

direction of the Attorney General as alleged in the Indictment.

   Mike is correct. The Supreme Court has counseled us that an individual on

supervised release is not in the BOP’s custody. See United States v. Johnson,

529 U.S. 53, 57 (2000) (“Supervised release does not run while an individual

remains in the custody of the Bureau of Prisons.”). The district court, not the

BOP, directed that Mike be placed in a halfway house as a condition of his

supervised release. Therefore, the language in his Indictment suggesting he was

“confined at the direction of the Attorney General” is incorrect.

   Unfortunately for Mike, however, this mistake does not render the Indictment

fatally defective. Section 751(a) applies not only to individuals who “escape[]

or attempt[] to escape from the custody of the Attorney General or his

authorized representative, or from any institution or facility in which he is

confined by direction of the Attorney General,” but also to those who “escape[]

or attempt[] to escape . . . from any custody under or by virtue of any process

issued under the laws of the United States by any court, judge, or magistrate

judge . . . .” Here, Mike was undoubtedly confined to the halfway house by a

                                       -6-
“process issued under the laws of the United States by any court, judge, or

magistrate judge.” 18 U.S.C. § 751(a). And the Indictment properly alleges this,

noting that Mike was “lawfully confined [at Diersen Charities] at the direction

of the Attorney General by virtue of a judgment and commitment of the United

States District Court for the District of New Mexico.”

    Even though the Indictment incorrectly alleges that Mike was “confined at

the direction of the Attorney General,” this statement is mere surplusage when

viewed in the context of the Indictment as a whole. Even with this incorrect

assertion, the Indictment still alleges that Mike violated § 751(a) by leaving a

confinement that the district court ordered. Thus, the Indictment still

sufficiently “sets forth the elements of the offense charged, puts [Mike] on fair

notice of the charges against which he must defend, and enables [Mike] to assert

a double jeopardy defense.” See Dashney, 117 F.3d at 1205. While we agree that

Mike was not “confined at the direction of the Attorney General,” we conclude

that the inclusion of this erroneous statement does not render his Indictment

fatal. 2




    2
     Mike also argues that, if we reverse his escape conviction, we should
remand his case for resentencing so that he is able to receive credit on his
revocation sentence. Because we reject Mike’s argument that his escape
conviction should be reversed, we need not address his request for resentencing.
                                      -7-
                          CONCLUSION
For the reasons stated here, we AFFIRM the district court’s judgment.




                                  ENTERED FOR THE COURT



                                  Gregory A. Phillips
                                  Circuit Judge




                               -8-
