     Case: 13-41020   Document: 00512733614     Page: 1   Date Filed: 08/14/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                 No. 13-41020                           FILED
                                                                  August 14, 2014
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                               Clerk

                                           Plaintiff-Appellee,
v.

ISRAEL NOE JUAREZ-VELASQUEZ,

                                           Defendant-Appellant.




                Appeal from the United States District Court
                     for the Southern District of Texas


Before STEWART, Chief Judge, and WIENER, and COSTA, Circuit Judges.
CARL E. STEWART, Chief Judge:
      This is an appeal from the district court’s revocation of Defendant Israel
Juarez-Velasquez’s (Juarez) supervised release. Juarez argues on appeal that
his supervised release expired prior to the date the United States Probation
Office (Probation) petitioned the district court for revocation—thereby
divesting the district court of jurisdiction over his supervised release. For the
reasons explained herein, we vacate the district court’s order revoking Juarez’s
supervised release.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      In June 2007, Juarez, an undocumented Mexican national, was deported
from the United States after being convicted of an aggravated felony—
Possession of Methamphetamine with Intent to Sell/Deliver. Approximately
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one month after his deportation, Juarez unlawfully reentered the United
States. On June 27, 2008, United States Customs and Border Protection
Agents apprehended Juarez in Texas.        On July 8, 2008, the government
indicted him for being “an alien” unlawfully present in the United States “who
had previously been . . . deported, and removed, after having been convicted of
an aggravated felony.” On July 15, 2008, Juarez pleaded guilty to the July 8,
2008 indictment (2008 reentry case). The district court sentenced Juarez to
twenty-four months’ imprisonment to be followed by a three-year term of
supervised release. Juarez completed his twenty-four month term of
imprisonment and was released from federal custody on March 25, 2010. He
was immediately taken into custody by the Palm Beach County, Florida
Sheriff’s Department to face charges for homicide and burglary. Juarez was
acquitted of those charges on September 3, 2010. He remained in state custody
until the conclusion of his homicide and burglary trial, and on September 15,
2010, Juarez was deported to Mexico.
      In August 2012, Juarez unlawfully reentered the United States again
and was apprehended in Texas on October 3, 2012, during a traffic stop. Juarez
was arrested for public intoxication and possession of marijuana, and placed
in the Harlingen City Jail. On October 4, 2012, Immigration and Customs
Enforcement (ICE) agents encountered Juarez while he was in state custody
in Texas and ascertained that he was unlawfully present in the United States.
An immigration detainer was issued against Juarez that day. He remained in
state custody until his state charges were dismissed. On April 12, 2013, the
day after his state charges were dismissed, Juarez was transferred to federal
custody pursuant to the immigration detainer.            On May 7, 2013, the
government charged him with being unlawfully present in the United States
after being deported for committing an aggravated felony. Juarez pleaded
guilty to that charge on May 30, 2013 (2013 reentry case). The district court
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                                  No. 13-41020
sentenced him to 42 months’ imprisonment to be followed by a three-year term
of supervised release.
      On May 31, 2013, Probation petitioned the district court to revoke
Juarez’s supervised release in his 2008 reentry case. Probation moved for
revocation on the grounds that Juarez violated his probation in four ways: (1)
he was an “alien unlawfully found in the United States after deportation,
having previously been convicted of an aggravated felony; (2) he unlawfully
possessed marijuana; (3) he reentered the United States illegally; and (4) he
drove a motor vehicle without Probation’s permission.”
      Juarez admitted to all of the alleged supervised release violations with
the exception of marijuana possession. On September 4, 2013, the district
court revoked Juarez’s supervised release in the 2008 reentry case and
sentenced him to eight months’ imprisonment to be served consecutively to the
forty-two month sentence imposed in the 2013 reentry case. Juarez filed a
motion to reconsider the sentence imposed in his 2013 reentry case. Therein,
he requested an order clarifying that his sentence began on October 4, 2012—
the day he encountered ICE agents while in the Texas jail—for the purpose of
receiving credit for time served. The district court granted Juarez’s request
and stated:
      While initially arrested by local authorities, [Juarez] was never
      prosecuted by those authorities and was held in jail pursuant to
      the detainer placed upon him by the ICE authorities. Therefore,
      this Court concludes that his time in federal custody began on
      October 4, 2012, the day he was encountered by federal agents, and
      this Order will be reflected in this Court’s ultimate judgment.




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                                  No. 13-41020
                               II. DISCUSSION
                                       A.
      Juarez challenges, for the first time on appeal, the district court’s
jurisdiction to revoke his supervised release in the 2008 reentry case. Although
Juarez failed to raise an objection to the district court’s jurisdiction below, we
review his claim de novo. See In re Berman-Smith, 737 F.3d 997, 1000 (5th
Cir. 2013) (per curiam) (“Jurisdiction may not be waived, and federal appellate
courts have a special obligation to consider not only their own jurisdiction, but
also that of the lower courts.”); United States v. Meza, 620 F.3d 505, 507 (5th
Cir. 2010) (reviewing jurisdictional challenge to Appellant’s sentence de novo
even though she failed to object below).
      The district court, “in imposing a sentence to a term of imprisonment for
a felony or a misdemeanor, 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 district court has jurisdiction to revoke
a defendant’s supervised release during the term of supervised release, or
within a reasonable time [thereafter] if a summons or warrant regarding a
supervised release violation was issued prior to the expiration of the term of
supervised release.” United States v. Jackson, 426 F.3d 301, 304 (5th Cir.
2005) (per curiam) (citing 18 U.S.C. §3583(i)). As provided for by the applicable
statute:
      The term of supervised release commences on the day the person
      is released from imprisonment and runs concurrently with any
      Federal, State or local term of probation or supervised release or
      parole for another offense to which the person is subject or becomes
      subject during the term of supervised release. A term of
      supervised release does not run during any period in which the
      person is imprisoned in connection with a conviction for a Federal,
      State, or local crime unless the imprisonment is for a period of less
      than 30 consecutive days.

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18 U.S.C § 3624(e) (emphasis added). Section 3624(e) makes clear that tolling
a term of supervised release is appropriate only when the defendant’s
imprisonment is connected to a criminal conviction.        See United States v.
Molina-Gazca, 571 F.3d 470, 474 (5th Cir. 2009) (“Pretrial detention falls
within ‘any period in which the person is imprisoned’ and tolls the period of
supervised release, provided a conviction ultimately occurs.”).
      Juarez argued in his original brief that his three-year term of supervised
release commenced in March 2010 and concluded in March 2013. Therefore,
according to Juarez, the district court erred by revoking his supervised release
in May 2013—after his term expired in March. His original brief asserted that
although he was released from federal custody to pretrial detention in Florida
to face state charges in 2010, he was never convicted of the offenses for which
he was detained. Therefore, according to Juarez, his detention in Florida was
not in connection with a conviction—as required by § 3624(e)—and did not toll
his term of supervised release.
      The government seemingly conceded Juarez’s argument that his pretrial
detention in Florida did not toll his supervised release.         In its briefing,
however, the government “strenuously disagree[d] with Juarez that his
supervised release expired on March 25, 2013, three years to date [sic] after he
was released from BOP imprisonment.” The government claimed that Juarez’s
supervised release was tolled on October 4, 2012 when federal agents in Texas
issued an immigration detainer against him. The government noted that “[o]n
that date Juarez had served 2 years, 5 months, and 9 days of his three-year
supervised release term.” According to the government, Juarez’s incarceration
from October 4, 2012 through September 4, 2013 was “in connection with” his
2013 reentry conviction.    Therefore, the government claims, his term of
supervised release tolled during that period pursuant to § 3624(e).


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                                  No. 13-41020
      In reply, Juarez argued that the government failed to respond to his
initial claim that his period of incarceration in Florida did not toll his
supervised release. Instead, according to Juarez, the government raised “a
new, factually-distinct period of pretrial detention . . . to argue for a separate
period of tolling as a defensive argument.” Accordingly, Juarez fully addressed
the government’s newly-presented theory in his reply brief. He argued that
the Texas state charges for which he was detained resulted in no conviction.
Juarez emphasized the fact that “[d]uring the entire time that [he] was in state
custody, the [2013 reentry] charge . . . was not even in existence.”
“Consequently, [according to Juarez,] there was no factual relation between
the period of state pretrial detention and the federal illegal reentry charge
because the federal charge did not come into existence until after the period of
pretrial detention had terminated.”
                                       B.
      It is well-established that any period of incarceration that tolls
supervised release must be “in connection with a conviction.” Jackson, 426
F.3d at 304; 18 U.S.C. § 3624(e). In 2009, we addressed, inter alia, the question
of whether a term of pretrial detention could toll supervised release. Molina-
Gazca, 571 F.3d at 472. Answering in the affirmative, we adopted the Sixth
Circuit’s rationale in United States v. Goins, 516 F.3d 416 (6th Cir. 2008) and
made clear that pretrial detention indeed tolls a term of supervised release so
long as it is in connection with a conviction. Molina-Gazca, 571 F.3d at 473–
74. The question before us today focuses squarely on whether, under these
facts, the immigration detainer imposed against Juarez resulted in
imprisonment in connection with a conviction.
      To properly address this issue, we must consider the practical and legal
implications of an immigration detainer. We have explained that ‘“[f]iling a
detainer is an informal procedure in which the INS informs prison officials that
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                                      No. 13-41020
a person is subject to deportation and requests that officials give the INS notice
of the person’s death, impending release, or transfer to another institution.’” 1
Zolicoffer v. U.S. Dep’t. of Justice, 315 F.3d 538, 540 (5th Cir. 2003) (per
curiam) (quoting Giddings v. Chandler, 979 F.2d 1104, 1105 n.3 (5th Cir.
1992)). We have also stated that for purposes of § 3624(e), “administrative
detention by ICE is not the same as imprisonment by the BOP.” See United
States v. Garcia-Rodriguez, 640 F.3d 129, 132 (5th Cir. 2011) (per curiam). In
Garcia-Rodriguez, the defendant, after completing his federal sentence, was
transferred from BOP custody to ICE custody to await deportation. Id. at 130.
After being deported, the defendant illegally reentered the United States and
was arrested in Texas for criminal trespass. Id. Probation filed a warrant
petition alleging that the defendant violated his supervised release. Id. The
defendant challenged the revocation warrant on the grounds that the district
court did not have jurisdiction to revoke his supervised release because the
warrant issued after his term of supervised release expired. Id. at 130–31. He
argued that his supervised release commenced the moment he was transferred
from BOP custody to ICE custody based upon the immigration detainer. Id. at
131. The government argued that his administrative detention “continued his
confinement.” Id. at 132. We held “that administrative detention by ICE
does not qualify as imprisonment and that, for purposes of § 3624(e),
Garcia was ‘released from imprisonment’ the moment he was transferred from
BOP custody to ICE custody to await deportation.”                 Id. at 134 (emphasis
added).




       1“On March 1, 2003, most of the functions of the Immigration and Naturalization
Service were transferred to the Bureau of Immigration and Customs Enforcement, and the
Immigration and Naturalization Service ceased to exist.” Kawashima v. Holder, 132 S.Ct.
1166, 1171 n.1 (2012). Therefore, for purposes of our analysis in this case, INS and ICE are
synonymous.
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                                 No. 13-41020
      Similarly in this case, Juarez was held in pretrial detention on state
charges when ICE agents imposed the immigration detainer. Throughout the
duration of Juarez’s pretrial detention in Texas, no federal criminal charges
were pending.     The immigration detainer was simply an administrative
mechanism that ensured that upon the completion of his state criminal matter,
Juarez would be transferred to federal custody to face any immigration
consequences that accrued as a result of his illegal reentry. See Zolicoffer, 315
F.3d at 540. Indeed, the day after Juarez’s Texas charges were dismissed, he
was released and immediately transferred to federal custody. The day after
Juarez was transferred to federal custody, the United States filed illegal
reentry charges against him.      At that point, and not before, Juarez was
imprisoned in connection with a conviction—the 2013 reentry case to which
he eventually pleaded guilty.
                                       C.
      The government also argues that because Juarez received credit—in his
2013 reentry case—for time served during his pretrial detention in Texas, that
period of detention tolled his supervised release in the 2008 reentry case. We
disagree.
      The district court, upon Juarez’s motion requesting credit for time
served, entered an order stating that Juarez’s detention in the 2013 reentry
case began on October 4, 2012, when he was held in a Texas jail. The district
court stated:
      While initially arrested by local authorities, [Juarez] was never
      prosecuted by those authorities and was held in jail pursuant to
      the detainer placed upon him by the ICE authorities. Therefore,
      this Court concludes that his time in federal custody began on
      October 4, 2012, the day he was encountered by federal agents. . . .




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                                       No. 13-41020
       The wisdom of the district court’s order is not at issue in this appeal. 2
Nonetheless, the Supreme Court has made clear that the Attorney General,
not the district court, holds the responsibility for administering sentences.
United States v. Wilson, 503 U.S. 329, 335 (1992) (citing 18 U.S.C. § 3621(a));
see also United States v. Setser, 607 F.3d 128, 132–33 (5th Cir. 2010) (holding
that 18 U.S.C. § 3585(b) does not authorize a district court to award credit for
time served); United States v. Binion, 981 F.2d 1256, *1 (5th Cir. 1992) (per
curiam) (unpublished) (“The district court acted beyond its jurisdiction in
undertaking to consider crediting time previously served regardless of its
conclusion.”). Pursuant to Supreme Court and Fifth Circuit precedent, the
district court likely exceeded its jurisdiction by ordering that Juarez receive
credit for time served during his pretrial detention in Texas. Therefore, we
decline to consider the district court’s potentially erroneous order in our
analysis of whether Juarez’s pretrial detention in Texas tolled his supervised
release. 3


       2  We note, however, that the district court incorrectly found that Juarez was held in
jail pursuant to the detainer placed upon him by the ICE authorities. Such a finding
necessarily implies that the ICE detainer kept Juarez in jail—during the relevant time
period—when he would have otherwise been released. The record indicates that the Cameron
County District Attorney’s Office dismissed their charges against Juarez on April 11, 2013.
He was released from state custody on April 12, 2013—the very next day. Therefore, the
state charges were the impetus for the entire duration of Juarez’s pretrial detention in
Texas—not the immigration detainer.
        3 The government also argued that Juarez waived appellate review of his challenge to

the district court’s jurisdiction for two reasons. First, according to the government, Juarez
failed to adequately brief his claim on appeal. We disagree. Juarez’s initial brief made
arguments challenging the district court’s jurisdiction to revoke his supervised release
pursuant to 18 U.S.C. § 3624. Additionally, Juarez provided Fifth Circuit case law and other
persuasive authority to support his position that the district court exceeded its jurisdiction.
Any arguments raised for the first time in his reply brief were in direct response to newly-
raised arguments in the government’s brief.
        Second, the government alleged that Juarez’s request that he receive credit for the
time he spent in pretrial detention in Texas affirmatively waived any challenge on appeal to
the district court’s jurisdiction to revoke his supervised release. The government’s argument
is without merit. The government cites no authority supporting the proposition that a
defendant’s decision to seek credit for time served in one case necessitates waiver of
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                                         No. 13-41020
                                    III. CONCLUSION
       For the reasons explained above, we conclude that Juarez’s terms of
pretrial detention—in Florida and Texas—did not toll his supervised release.
Neither period of detention was in connection with a conviction and the
immigration detainer imposed during Juarez’s Texas pretrial detention was an
administrative hold that did not amount to imprisonment in connection with a
conviction for purposes of § 3624(e). Therefore, we hold that the district court
did not have jurisdiction to revoke Juarez’s supervised release.
       Accordingly, we vacate the district court’s revocation of Juarez’s
supervised release. We also vacate the 8-month sentence imposed as a result
of the revocation.




potentially valid arguments regarding the district court’s jurisdiction in a separate case. As
stated previously, “[j]urisdiction may not be waived, and federal appellate courts have a
special obligation to consider not only their own jurisdiction, but also that of the lower courts.”
In re Berman-Smith, 737 F.3d at 1000.
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