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

FILED June 11, 2009

Charles R. Fulbruge III Nos. 08-50619 & Clerk 08-50620

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ALEJANDRO MOLINA-GAZCA, also known as Alejandro Martinez

Defendant-Appellant

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

Before JONES, Chief Judge, ELROD, Circuit Judge, and GUIROLA, District

Judge.*

LOUIS GUIROLA, JR., District Judge:

Alejandro Molina-Gazca appeals the revocation of his supervised

release contending that the district court lacked jurisdiction. In this case, the * District Judge, Southern District of Mississippi, sitting by designation. court is called upon to interpret the breadth of the supervised release tolling

provision in

(e). Finding that Molina-Gazca’s pretrial

detention was “in connection with” a conviction and thus tolled the period

of supervised release, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1999, Molina-Gazca pleaded guilty to possession with the intent to

distribute and importation of marijuana. The district court sentenced

Molina-Gazca to concurrent terms of sixty-four months imprisonment and

three years of supervised release. After release from imprisonment,

Molina-Gazca’s term of supervised release commenced on November 3,

2003. The term of supervised release was scheduled to expire on November

2, 2006.

According to the record, New Mexico authorities arrested Molina-

Gazca and charged him with several serious felony offenses on July 8, 2005.

He remained in custody pending trial. On November 15, 2006, Molina-Gazca

was convicted. He was sentenced to 39 years imprisonment on September

24, 2007. At sentencing Molina-Gazca was given credit for the time he

served in pretrial custody.

The government moved to revoke Molina-Gazca’s supervised release.

2 The government cited the New Mexico conviction and asserted that “terms

of supervision are tolled (i.e., do not run) while the offender is imprisoned for

30 or more consecutive days in connection with a conviction.” A revocation

warrant was issued on May 3, 2007, almost six months after Molina-Gazca’s

period of supervised release was set to expire and after his November 15,

2006, New Mexico conviction. At the revocation hearing, Molina-Gazca

argued that the district court lacked jurisdiction over the matter because

pursuant to § 3624(e) his time in pretrial custody did not toll his term of

supervised release.

In determining that it had jurisdiction to revoke Molina-Gazca’s

supervised release, the district court recognized that although there was no

binding precedent in this circuit, two other circuit courts had considered the

issue and reached opposite conclusions. The Ninth Circuit, in United States

v. Morales-Alejo,

(9th Cir. 1999), held that a conviction must

occur within the term of supervised release for the pretrial detention period

to toll the period of supervised release. Instead, the district court relied on

United States v. Goins,

(6th Cir. 2008), which held that when a

defendant is held for thirty days or longer in pretrial detention, and he is later

convicted for the offense for which he was held, and his pretrial detention is

3 credited as time served toward his sentence, then the pretrial detention is “in

connection with” a conviction and tolls the period of supervised release

under § 3624(e).

The district court ultimately concluded that Molina-Gazca had violated

the terms of his supervised release and sentenced him to concurrent terms

of fifteen months imprisonment. The fifteen-month terms were ordered to run

consecutively with the New Mexico judgment.

STANDARD OF REVIEW

Molina-Gazca timely appealed from both judgments, invoking the

court’s jurisdiction over final sentencing decisions. See

(a).

His appeal challenges the district court’s jurisdiction to revoke his supervised

release. “We review the district court's jurisdiction to revoke a defendant’s

supervised release de novo.” United States v. Garcia-Avalino,

(5th Cir. 2006) (quoting United States v. English,

(5th Cir.

2005)); see also United States v. Jimenez-Martinez,

(5th Cir.

1999).

DISCUSSION

No Fifth Circuit case decides the precise question of whether

“imprisonment in connection with a conviction” applies to pretrial detention

4 when the resulting conviction occurs after the period of supervised release

is scheduled to expire. Despite both parties’ arguments to the contrary,

United States v. Jackson,

(5th Cir. 2005) does not decide the

question because of an important factual distinction. In Jackson, the

defendant’s toll-triggering conviction occurred before the end of the term

of supervised release. In fact, the conviction in Jackson occurred before the

term of supervised release had begun.

at 302–05. The only occasion to

address the nature of the imprisonment-conviction “connection” in Jackson

was unrelated to the conviction’s timing.

.

“The appropriate starting point when interpreting any statute is its plain

meaning.” United States v. Elrawy,

(5th Cir. 2006). “In

ascertaining the plain meaning of the statute, the court must look to the

particular statutory language at issue, as well as the language and design

of the statute as a whole.” K Mart Corp. v. Cartier, Inc.,

,

,

(1988). The “supervision after release” provision of

§ 3624(e) provides in part that:

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

5 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.

(e) (emphasis added).

Molina-Gazca argues that a conviction within the period of supervised

release is necessary to trigger the tolling provision under § 3624(e). We

disagree. In Jackson, the court held that the statutory text of § 3624(e) was

unambiguous and provided that the period of supervised release does not

run during imprisonment, without exception.

. Congress could

have elected to restrict the application of § 3624(e) in the manner Molina-

Gazca suggests. For example, Congress could have limited tolling to periods

of imprisonment in connection with a conviction that “occurs during

supervised release.” However, § 3624(e) makes no distinction between pre-

trial or post-conviction periods of imprisonment, but instead requires that

“any period” of imprisonment be “in connection with a conviction” for tolling

to apply. The phrase “imprisoned in connection with a conviction” plainly

lacks any temporal limitation.

During oral argument, Molina-Gazca suggested that tolling the period of

pretrial detention leaves a defendant in a state of “jurisdictional limbo” while

the district court waits to see if a conviction will actually occur. We are

6 aware that on rare occasions the tolling of supervised release during pretrial

detention periods that are later connected to a conviction may create

potential problems for judges seeking to establish whether they have

jurisdiction to revoke a defendant’s supervised release. However, it is the

function of the court to apply § 3624(e) as written. To the extent that

Congress’s omission of a causal or temporal term results in uncertainty as to

a defendant’s status, our role is not to imply those limits when Congress could

have done so in the first instance.

Molina-Gazca also argues that detention and imprisonment are not

synonymous, and during his supervised release period, he suffered only

detention, and not imprisonment. In Morales-Alejo, the Ninth Circuit framed

the § 3624 question as whether “pretrial detention operates to toll a term of

supervised release” under § 3624, id. at 1105 and began with textual analysis:

We conclude that the intent of Congress is apparent from the language of the statute. Section 3624(e) provides for tolling when the person is “imprisoned in connection with a conviction.” A plain reading of this language suggests that there must be an imprisonment resulting from or otherwise triggered by a criminal conviction. Pretrial detention does not fit this definition, because a person in pretrial detention has not yet been convicted and might never be convicted.

Id. at 1103, 1105. In support of this construction, Morales-Alejo argued that

“Congress uses the terms ‘imprisonment’ and ‘detention’ very differently in

7 federal criminal statutes,” and that while “‘imprisonment’ consistently is used

to refer to a penalty or sentence . . . ‘detention’ is used to describe a

mechanism to insure a defendant’s appearance and the safety of the

community.”

The term “imprisonment” consistently is used to refer to a penalty or sentence. See, e.g.,

(using the term imprisonment as meaning sentence after conviction);

(same);

(b) (referring to imprisonment in the context of transfers to foreign countries and defining imprisonment as “a penalty imposed by a court under which the individual is confined to an institution”). In contrast, the term “detention” is used to describe a mechanism to insure a defendant's appearance and the safety of the community. See, e.g.,

(c) (providing that a defendant may be held in pretrial detention in order to insure appearance for legal proceedings or the safety of the community).

at 1105

In Goins, the Sixth Circuit was “hesitant to credit the Ninth Circuit’s

distinction between detention and imprisonment” because the resulting

construction would render parts of the statute meaningless:

If the Ninth Circuit were correct that Congress uses “imprisonment” only when it wishes to refer to a confinement that is the result of a penalty or sentence, then the phrase “in connection with a conviction” becomes entirely superfluous; “imprisonment,” according to the Ninth Circuit’s definition, would already mean that the confinement is the result of a conviction.

. The Goins court concluded that the plain meaning of “imprison”

8 included any instance of state detention.

. Goins also found

support for its construction in “18 U.S.C. § 3585(b), which provides for ‘credit

toward the service of a term of imprisonment for any time [the defendant]

has spent in official detention prior to the date the sentence commences

. . . as a result of the offense for which the sentence was imposed.’” Id.

(alteration in original).

Other federal criminal code provisions make any distinction between

imprisonment and detention less clear. For example,

often

uses variations of “imprison” and “detain” in close proximity, suggesting that

the terms carry different meanings. See § 3143(a), (b)(1), (b)(2), (c)(1).1 But,

, under the general arrest provisions, would seem to reject an

imprisonment-detention distinction by providing that offenders may be

“arrested and imprisoned or released as provided in chapter 207 of this title

[“Release and Detention of a Defendant Pending Judicial Proceedings”], as

the case may be, for trial before such court of the United States as by law

has cognizance of the offense.”

(emphasis added).

1 For example: “The judicial officer shall order that a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained.” § 3143(b)(2) (emphasis added).

9 We agree with the Sixth Circuit’s reasoning in Goins. If the term

“imprisonment” only refers to confinement that is the result of a penalty or

sentence, then the phrase within § 3624(e), “in connection with a

conviction,” is superfluous. “[W]hen interpreting a statute, it is necessary to

give meaning to all its words and to render none superfluous.” United States

v. Rayo-Valdez

(5th Cir. 2002); see also United States v.

Vargas-Duran,

(5th Cir. 2004) (holding that rules of statutory

interpretation “requires us, when possible, to give each word in a statute

operative effect”). Pretrial detention falls within “any period in which the

person is imprisoned”and tolls the period of supervised release, provided a

conviction ultimately occurs. This plain meaning interpretation of § 3624(e)

gives effect to all of its terms.

Molina-Gazca was arrested and convicted. At sentencing, his period

in pretrial detention was credited as time served on his New Mexico

conviction. Thus, his pretrial period of imprisonment was in connection with

the conviction. The district court correctly concluded that pursuant to §

3624(e) Molina-Gazca’s supervised release period was tolled during the

pretrial detention in connection with the New Mexico conviction and that it

had jurisdiction to revoke his supervised release.

10 CONCLUSION

For the foregoing reasons, the district court’s judgments are AFFIRMED.

-11-