UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

(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

(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.”

(a). A court imposing a term of

supervised release is directed to examine specified sentencing

factors set forth in

(a) (2006) in determining

the length of the term.

(c). Courts are also

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

2 permitted to impose conditions on supervised release, including

the condition that the defendant not commit any crimes during

the term of supervised release.

(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.

(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.”

(d).

In addition to § 3583,

(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.”

(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.

3 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,

(3d Cir. 2009); United States v. Ossa-Gallegos,

(6th Cir. 2007) (en banc); United States v. Okoko,

(11th Cir. 2004); United States v. Juan-Manuel,

(8th Cir. 2000); United States v. Balogun,

(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,

(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,

(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,

(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,

(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.,

(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,

. In contrast, in the case of probation, Congress has

provided for tolling mechanisms. See

(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,

(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,

. “[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,

.

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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