13‐1180‐cr United States v. Bussey

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT ________________

August Term, 2013

(Argued: March 7, 2014 Decided: March 20, 2014)

Docket No. 13‐1180‐cr ________________

UNITED STATES OF AMERICA,

Appellee,

—v.—

MICHAEL BUSSEY,

Defendant‐Appellant. ________________ Before: RAGGI AND LYNCH, Circuit Judges, MCMAHON, District Judge.* ________________

On this appeal from a conviction for violating the terms of supervised

release, defendant challenges jurisdiction, contending that, before imposition of

judgment, his three‐year term of supervision had expired while he was in state

The Honorable Colleen McMahon, of the United States District Court for the *

Southern District of New York, sitting by designation.

1 custody for a parole violation. The jurisdictional challenge fails because

defendant’s state incarceration was “in connection with” an underlying

conviction, thereby tolling his federal term of supervised release.

(e).

AFFIRMED. ________________

ANNE M. BURGER, Assistant Federal Public Defender, Western District of New York, Rochester, New York, for Defendant‐ Appellant.

MONICA J. RICHARDS, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, New York, for Appellee. ________________

REENA RAGGI, Circuit Judge:

Defendant Michael Bussey appeals from a judgment of conviction entered

on March 25, 2013, in the Western District of New York (Charles J. Siragusa,

Judge) for violation of a condition of supervised release imposed in connection

with his earlier conviction for possession of a firearm by a convicted felon. See

(g)(1). Sentenced to an additional two‐year term of supervision

for the violation, Bussey asserts that the district court lacked jurisdiction because

his original three‐year term of federal supervision expired before the challenged

2 judgment was entered and while he was incarcerated for a violation of state

parole.

We review this jurisdictional challenge de novo, see United States v. Al

Kassar,

(2d Cir. 2011), focusing on two statutes,

(e) and 3583(i). The latter provision states that the “power of the court” to

revoke a term of supervised release and to impose punishment “extends beyond

the expiration of the term of supervised release for any period reasonably

necessary for the adjudication of matters arising before its expiration” if a

warrant has been issued for such violation before the term’s expiration.

(i). Meanwhile, § 3624(e) provides for tolling of supervision as follows: “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.” Id.

§ 3624(e).

The plain language of these statutes defeats Bussey’s jurisdictional

challenge, but a brief chronology is necessary to explain that conclusion. Bussey

began serving his original three‐year term of supervision on February 9, 2010,

when he was released from federal custody. He was at the same time also

3 serving New York parole, awarded as an early release on the 42‐month state

sentence imposed for unlawful possession of a firearm. Approximately a year

later, Bussey’s whereabouts were unknown to either state or federal supervising

authorities, prompting issuance of arrest warrants on April 1, 2011, by New York

State for violation of parole, and on April 7, 2011, by the United States for

violation of supervision. Taken into custody by state authorities, Bussey

remained incarcerated until March 8, 2013, when he completed serving his 22‐

month parole revocation term. Bussey was immediately thereafter transferred to

federal custody and, on March 20, 2013, first appeared on and was found guilty

of violating the condition of supervision requiring that he notify a probation

officer prior to a change in residence.1 The district court sentenced him to time

served (from March 8 to 20, 2013) and imposed an additional two years of

supervision.

As this chronology shows, the April 7, 2011 federal warrant for Bussey’s

arrest issued well before his three‐year term of supervision would have

concluded on February 9, 2013, even without regard to tolling. In such

circumstances, a district court clearly has jurisdiction to adjudicate a supervision

1 Bussey does not challenge the district court’s finding of guilt on this appeal, but only its jurisdiction to adjudicate him in violation of his supervision. 4 violation and may even do so “beyond the expiration of the term of supervised

release” as “reasonably necessary.” Id. § 3583(i). Any delay in this case was a

function of Bussey’s unavailability as a result of his state incarceration. Bussey

submits that the delay was not reasonably necessary because the United States

could have proceeded on the federal supervision violation by seeking a writ of

habeas corpus ad prosequendum under the All Writs Act to secure his presence

in federal court. See

. Even if this means of proceeding was

available, however, the government’s failure to employ it here does not defeat

jurisdiction.

That is so because § 3624(e) expressly tolls supervision terms for “any

period in which the person is imprisoned in connection with a conviction for a

. . . State . . . crime.”

(e). To the extent Bussey’s three‐year term

of federal supervision was thus statutorily tolled approximately 14 months after

it began—i.e., when he started his 22‐month incarceration in New York for

violating parole—his federal violation proceeding commenced and concluded

within one month of release was timely, and the district court had jurisdiction to

enter the challenged judgment.

5 In urging otherwise, Bussey maintains that his parole violation

adjudication did not result in imprisonment “in connection with” a conviction

for a state crime.

In support, he cites Morrissey v. Brewer,

(1972) (stating that “revocation of parole is not part of a criminal prosecution”).

The argument is unconvincing.

Parole is a form by which New York prisoners may serve out their

sentences for criminal convictions. See

(1)(a) (stating that

parolee “shall continue service of his or her sentence or sentences while on

parole”). Thus, while revocation of parole is not itself a criminal proceeding, the

incarceration that results from revocation is a consequence of the underlying

crime of conviction. Indeed, New York law provides that time served as a result

of revocation must be credited against the original sentence. See

§ 70.40(3)

(providing that original sentence must run while defendant is incarcerated for

parole violation); cf. N.Y. Exec. Law § 259‐i(3)(x)(D) (stating that harshest penalty

for violating post‐release supervision served after determinate prison sentence is

“reincarceration up to the balance of the remaining period of post‐release

supervision, not to exceed five years”). In these circumstances, there is no

denying that Bussey’s 22‐month term of incarceration was served “in connection

6 with” his conviction for a state crime. See Makagate v. Ashcroft,

,

154 (2d Cir. 2004) (stating that “in connection with” is expansive term

synonymous with “relating to,” “associated with,” “with respect to,” and “with

reference to” (internal quotation marks omitted)); see also United States v.

Jackson,

, 304–05 (5th Cir. 2005) (holding federal supervision tolled

under § 3624(e) during state incarceration for parole violation).

United States v. Garcia‐Rodriguez,

(5th Cir. 2011), and United

States v. Morales‐Alejo,

(9th Cir. 1999), relied on by Bussey,

warrant no different conclusion. In Garcia‐Rodriguez, the Fifth Circuit ruled that

supervision was not tolled during administrative detention pending deportation,

see 640 F.3d at 133–34; in Morales–Alejo, the Ninth Circuit reached the same

conclusion with respect to pre‐trial detention where the defendant later pleaded

guilty, see

; but see United States v. Goins,

(6th

Cir. 2006) (holding that pre‐trial detention credited against ultimate sentence

triggers tolling). The reason for these conclusions is that such detentions could

be imposed even absent conviction. Here, Bussey’s parole obligation derived

directly from his state criminal conviction, and his violation required him to

continue serving the sentence imposed for that conviction from which he had

7 earlier been released. Thus, we hold that Bussey’s New York reincarceration was

“in connection with” his underlying state conviction for unlawful weapon

possession, and that, as such, the district court still had jurisdiction in March

2013 to revoke his federal supervision.

Accordingly, the judgment of the district court is AFFIRMED.

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