                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 09-5144


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ALEJANDRO CASTRO-CASTRO, a/k/a Jose Luis Gutierrez, a/k/a
Alejandro Castro,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.      Henry Coke Morgan, Jr.,
Senior District Judge. (2:08-cr-00201-HCM-TEM-1)


Submitted:   September 30, 2010          Decided:     December 6, 2010


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


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Richard J.
Colgan, Assistant Federal Public Defender, Caroline S. Platt,
Research and Writing Attorney, Norfolk, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, Richard D. Cooke,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Alejandro Castro-Castro pleaded guilty to a one-count

indictment charging him with illegal reentry into the United

States      following     deportation       and     subsequent          to     a    felony

conviction, in violation of 8 U.S.C. § 1326(a), (b)(1) (2006),

and was sentenced to twenty-one months’ imprisonment and three

years’ supervised release, with the requirement that “[i]f the

defendant is deported, supervised release is to begin if and/or

when    the   defendant    reenters    the    United    States.”             On    appeal,

Castro-Castro      argues     that     the    district          court        lacked    the

authority to delay the start of his supervised release.                                 We

agree      and,   accordingly,       affirm       Castro-Castro’s            conviction,

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

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


       *
           Castro-Castro does not challenge his conviction on appeal.


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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, Castro-Castro 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.                 Castro-Castro 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, while contending that our review is for

plain error, agrees with Castro-Castro that the district court

lacked    the    authority    to   delay     the     start   of    his   supervised

release.        We agree with the Government that, even under the

plain error standard, Castro-Castro is entitled to relief.

            In order to satisfy the plain error standard, Castro-

Castro must show:           (1) an error was made; (2) the error is

plain; and (3) the error affects substantial rights.                     See United

States v. Olano, 507 U.S. 725, 732 (1993).                        The decision to

correct the error lies within our discretion, and we exercise

that     discretion   only    if   the       error     “seriously    affects    the

fairness,       integrity     or    public           reputation     of     judicial

proceedings.”      Olano, 507 U.S. at 732 (alterations and internal

quotation marks omitted).           Castro-Castro bears the burden of

                                         4
satisfying      each    element   of    the       plain     error    standard.       United

States v. Vonn, 535 U.S. 55, 59 (2002).

            The parties agree that Castro-Castro’s 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

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.”).

                                             5
              In     addition,          as     both       parties         note,     an    opposite

position creates certain logical inconsistencies.                                  As the Third

Circuit   explained,             “a    defendant        charged      with     illegal       reentry

. . . may be ordered to leave and stay outside of the United

States as a condition of his supervised release.                                  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?”                                     Cole, 567

F.3d at 115 (citations omitted).

              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”

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.

              The    district           court       attempted        to     distinguish      these

cases    by   stating        that       it     was      not     “tolling”      the       supervised

release, but simply delaying the start of supervised release in

the event Castro-Castro was deported following his imprisonment.

In   addition,       the    district          court’s      order      still       runs    afoul   of

                                                    6
§ 3624(e)   because    Castro-Castro’s      supervised     release      will   not

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

            Further,   as    the    Government   concedes,       the    district

court’s error satisfies the remaining requirements for relief on

plain error review - the error was plain and affects Castro-

Castro’s    substantial      rights.       Moreover,     we   will      use    our

discretion to correct the error because it affects the fairness,

integrity, and reputation of our proceedings.                 See Cole, 567

F.3d at 118.

            Accordingly,      although      we    affirm      Castro-Castro's

conviction,    we   vacate    his    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.

                                                           AFFIRMED IN PART,
                                                            VACATED IN PART,
                                                                AND REMANDED




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