United States v. Buchanan

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

 No. 09-4834

WILLIAM BUCHANAN, a/k/a Kenneth

Parker,

Defendant-Appellant.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

T. S. Ellis, III, Senior District Judge.

(1:91-cr-00062-TSE-1)

Argued: December 10, 2010

Decided: April 13, 2011

Before WILKINSON, SHEDD, and DUNCAN,

Circuit Judges.

Affirmed by published opinion. Judge Shedd wrote the opin-

ion, in which Judge Wilkinson and Judge Duncan joined.

COUNSEL

ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL

PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.

Joseph V. Moreno, UNITED STATES DEPARTMENT OF

2 UNITED STATES v. BUCHANAN

JUSTICE, Washington, D.C., for Appellee. ON BRIEF:

Michael S. Nachmanoff, Federal Public Defender, Kevin R.

Brehm, Assistant Federal Public Defender, OFFICE OF THE

FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for

Appellant. Neil H. MacBride, United States Attorney, Alex-

andria, Virginia, for Appellee.

OPINION

SHEDD, Circuit Judge:

While on federal supervised release, William Buchanan

absconded and remained a fugitive for approximately 13

years. After Buchanan was apprehended the district court

found that he had committed multiple supervised release vio-

lations from the time he absconded until he was retaken; con-

sequently, it revoked his supervised release and sentenced

him to separate concurrent custody terms of 48 months, 36

months, and 27 months. Buchanan now appeals the revocation

order in part, and the 36- and 27-month sentences, arguing

that the court lacked jurisdiction to adjudicate the violations

associated with those sentences because they were not

charged in a warrant or summons before the scheduled expira-

tion of his supervised release term. The court rejected this

argument, concluding that the supervised release term was

tolled while Buchanan was a fugitive. United States v.

Buchanan, 632 F. Supp.2d 554 (E.D.Va. 2009). Because we

agree with the court’s conclusion, we affirm.

I

In 1991, Buchanan pled guilty in the Eastern District of

Virginia to one count of conspiracy to distribute 50 grams or

more of crack cocaine. The district court sentenced him to a

120-month term of imprisonment, which it subsequently

reduced to 30 months on the government’s substantial assis-

UNITED STATES v. BUCHANAN 3

tance motion. The court also imposed a five-year supervised

release term.

In March 1993, Buchanan was released from federal cus-

tody, and his supervised release term commenced. Because he

was an Ohio resident, his immediate supervision was trans-

ferred to the United States Probation Office in the Northern

District of Ohio. However, jurisdiction over his supervision

was maintained by the United States Probation Office in the

Eastern District of Virginia. Therefore, Buchanan had a pro-

bation officer in Ohio to whom he was required to report, as

well as a probation officer in Virginia who monitored his

supervision. Buchanan’s supervised release term was sched-

uled to end in March 1998.

In May 1994, Buchanan was indicted in Ohio on state drug

trafficking charges. He was released on bond, but in February

1995 he failed to appear for trial in state court, resulting in the

issuance of a state arrest warrant. Buchanan’s last personal

contact with his Ohio probation officer occurred in January

1995. Shortly thereafter, the Ohio probation officer deter-

mined that Buchanan had absconded from federal supervision.

In April 1995, the Virginia probation officer submitted to

the district court a "Petition on Probation and Supervised

Release" (the "Petition"), alleging that Buchanan violated the

terms and conditions of his supervised release by incurring a

new criminal charge in Ohio, by failing to report to his Ohio

probation officer as directed, and by failing to notify his Ohio

probation officer within 72 hours of any change in residence

or employment. Consequently, the court issued an arrest war-

rant, which remained outstanding until December 2008, when

Buchanan was located and arrested in Georgia.

In February 2009, an addendum to the Petition was filed

alleging that during the time he was a fugitive Buchanan had

violated the terms and conditions of his supervised release in

several respects. Specifically, this addendum alleges that (1)

4 UNITED STATES v. BUCHANAN

in September 1996, Buchanan was arrested in Alabama for

marijuana trafficking; (2) in March 2005, he was arrested in

Missouri for (inter alia) possession of a controlled substance

and unlawful use of a weapon; (3) in January 2008, he was

arrested in Georgia for driving under the influence; and (4) in

December 2008, he was arrested in Georgia for entering an

auto or other motor vehicle with intent to commit a theft or

felony, and financial transaction card fraud. In March 2009,

a second addendum to the Petition was filed, alleging that in

2008 Buchanan violated the terms and conditions of his

supervised release by committing the crime of identity theft

in Georgia. Buchanan avoided federal detection for these

arrests by using various aliases.

Upon his return to the Eastern District of Virginia,

Buchanan conceded that the Petition (setting forth the 1995

charges) was properly before the district court, but he moved

to dismiss the two addenda, contending that the court lacked

jurisdiction over them because his scheduled supervised

release term expired in March 1998, and the addenda were not

filed until 2009. He argued that the supervised release statutes

provide only two ways in which the release term may be

adjusted or the court can exercise control over the defendant

outside that period. The first way is codified in 18 U.S.C.

§ 3624(e), which allows for a supervised release term to be

tolled during any period in which the defendant is imprisoned

for 30 days or more in connection with another crime. The

second is codified in 18 U.S.C. § 3583(i), which authorizes a

district court to exercise authority over a defendant after the

scheduled expiration of the supervised release term for a rea-

sonable period to adjudicate a matter arising before the expi-

ration of the term if a warrant or summons for that matter is

issued during the term.1 Reading these statutes in light of the

1

When applicable, § 3624(e) stops the running of the supervised release

period and is thus a tolling provision. See United States v. Ide, 624 F.3d

666 (4th Cir. 2010). However, § 3583(i) "does not stop the running of the

supervised release period; rather, it extends the district court’s power to

revoke beyond the supervised release period in certain circumstances."

United States v. Jordan, 572 F.3d 446, 448 (8th Cir. 2009).

UNITED STATES v. BUCHANAN 5

canon "expressio unius est exclusio alterius" – Buchanan con-

tended that the court was not authorized to adjudicate the vio-

lations set forth in the addenda because no warrant or

summons issued for them during the supervised release term.

The district court denied the motion, holding that Buchan-

an’s supervised release term was tolled while he was a fugi-

tive. The court concluded that the supervised release statutes

do not address the issue of fugitive tolling and that its applica-

tion is consistent with the congressional purpose of supervised

release and the law relating to fugitives generally. On the

merits of the violations, the court found Buchanan guilty on

the 1995 charges that he failed to appear in Ohio state court

for the drug trafficking indictment and failed to maintain con-

tact with his probation officer, the 1996 Alabama drug traf-

ficking charge, and the 2008 Georgia identity theft charge.

The court imposed concurrent sentences of 48 months, 36

months, and 27 months, respectively, and dismissed the

remaining alleged violations.

II

On appeal, Buchanan reiterates the statutory argument he

made below, contending that the district court erred by deny-

ing his motion to dismiss the addenda.2 Stated simply, the

issue before us is whether a sentencing court is authorized to

revoke a term of supervised release after the scheduled expi-

ration date of the release term for conduct that (a) occurs

while the defendant has absconded from supervision and (b)

2

Buchanan does not challenge either the district court’s findings that he

committed the conduct underlying the violations or its authority to impose

the 48-month sentence. Therefore, regardless of our decision, he will be

subject to the 48-month sentence. Because that sentence is concurrent to

the others, the "concurrent sentence doctrine" is potentially applicable in

this case; however, we exercise our discretion to decide the appeal on the

merits. See Benton v. Maryland, 395 U.S. 784 (1969) (discussing doc-

trine); United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980)

(same).

6 UNITED STATES v. BUCHANAN

is not brought to the court’s attention until after the term’s

scheduled expiration date when the defendant is apprehended.

This is a matter of law that we review de novo. See Ide, 624

F.3d at 668.

A.

We begin with an overview of the pertinent aspects of the

supervised release system. In the Sentencing Reform Act of

1984, "Congress eliminated most forms of parole in favor of

supervised release, a form of postconfinement monitoring

overseen by the sentencing court, rather than the Parole Com-

mission." Johnson v. United States, 529 U.S. 694, 696-97

(2000). Supervised release is similar to parole in essential

respects, United States v. Pierce, 75 F.3d 173, 177 (4th Cir.

1996), but "Congress designed supervised release as the suc-

cessor to parole . . . because it believed that the parole system

provided inadequate supervision," United States v. Armstrong,

187 F.3d 392, 394 (4th Cir. 1999).

Supervised release "is not a punishment in lieu of incarcer-

ation." United States v. Granderson, 511 U.S. 39, 50 (1994).

Rather, it "is a unique method of post-confinement supervi-

sion," Gozlon-Peretz v. United States, 498 U.S. 395, 407

(1991), that "fulfills rehabilitative ends, distinct from those

served by incarceration," United States v. Johnson, 529 U.S.

53, 59 (2000). "The congressional policy in providing for a

term of supervised release after incarceration is to improve

the odds of a successful transition from the prison to liberty,"

Johnson v. United States, 529 U.S. at 708-09, and "Congress

has manifested an intent to require full service of supervised

release for rehabilitative purposes," United States v. Bowe,

309 F.3d 234, 240 (4th Cir. 2002).

The maximum length of a supervised release term varies

according to the severity of the initial offense. See 18 U.S.C.

§§ 3583(a), (b). The term commences on the day the defen-

dant "is released from imprisonment and runs concurrently

UNITED STATES v. BUCHANAN 7

with any Federal, State, or local term of probation or super-

vised release or parole for another offense to which the person

is subject or becomes subject during the term of supervised

release," but it does not run (i.e., is tolled) during any period

in which the defendant "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." 18 U.S.C. § 3624(e).

A defendant who is on supervised release must abide by

certain mandatory and discretionary terms and conditions, see

18 U.S.C. § 3583(d), which constitute "a substantial imposi-

tion on [his] liberty," United States v. Maxwell, 285 F.3d 336,

342 (4th Cir. 2002). If the defendant violates a term or condi-

tion of release, the sentencing court may (and in some

instances must) revoke the supervised release and require him

"to serve in prison all or part of the term of supervised release

authorized by statute for the offense that resulted in such term

of supervised release without credit for time previously served

on postrelease supervision," subject to certain statutory limits.

18 U.S.C. § 3583(e)(3). "[T]he term of supervised release, the

revocation of that term, and any additional term of imprison-

ment imposed for violating the terms of the supervised release

are all part of the original sentence." United States v. Evans,

159 F.3d 908, 913 (4th Cir. 1998).

Apart from the tolling provision of § 3624(e), the super-

vised release statutes were initially silent regarding whether a

sentencing court could revoke supervised release after the

scheduled expiration of the release term. In the face of this

silence, many courts "recognized that unless a court retains

some authority to punish violations of supervised release after

the expiration of the term, violations of the conditions of

release (which can include serious misconduct) that occur late

in the term of supervised release would go unpunished."

United States v. Janvier, 599 F.3d 264, 265-66 (2d Cir. 2010).

Reasoning "that Congress could not have intended such

unfortunate results," these courts held that "[s]o long as some

8 UNITED STATES v. BUCHANAN

triggering event had occurred during the term of release, . . .

a court would retain jurisdiction over the releasee for the time

necessary to adjudicate the charge." Id. at 266.

We were presented with this issue in United States v. Bar-

ton, 26 F.3d 490 (4th Cir. 1994). There, we held that "courts

retain jurisdiction to hold hearings related to revocation of

supervised release for a reasonable period after the term of

release expires when a petition charging a violation of the

conditions of supervised release is filed during the period of

supervised release." Id. at 491. We found that the plain lan-

guage of § 3583(e)(3), which provides for revocation, com-

pelled this result because that section incorporates the Federal

Rules of Criminal Procedure that are applicable to supervised

release revocation, and one such rule provided for a revoca-

tion hearing "within a reasonable time." As we explained: "If

a petition is filed near the end of the supervisory period, the

only logical construction of ‘within a reasonable time’ is that

a hearing may be held shortly after the supervisory period

expires." 26 F.3d at 491-92. We rejected the defendant’s argu-

ment that "because a tolling provision is included in 18 U.S.C.

§ 3565, which governs revocation of probation, but is not

included in . . . § 3583, Congress did not intend for the district

court’s jurisdiction to continue beyond the term of supervised

release." 26 F.3d at 492 (footnote omitted).

In 1994, Congress enacted § 3583(i), which is titled "De-

layed revocation," to "make explicit the authority of courts to

revoke supervised release after expiration of the release term.

. . ." Janvier, 599 F.3d at 266. Section 3583(i) provides that

the sentencing court’s power to revoke supervised release

"extends beyond the expiration of the term of supervised

release for any period reasonably necessary for the adjudica-

tion of matters arising before its expiration if, before its expi-

ration, a warrant or summons has been issued on the basis of

an allegation of such a violation."

UNITED STATES v. BUCHANAN 9

B.

The supervised release statutes do not address the issue of

fugitive tolling, and we have not previously addressed it in the

supervised release context. However, we alluded to the doc-

trine in the analogous context of probation revocation in

United States v. Workman, 617 F.2d 48 (4th Cir. 1980), stat-

ing that "a probationer [cannot] obtain credit against the [pro-

bation] period for any period of time during which he was not,

in fact, under probationary supervision by virtue of his own

wrongful act." Id. at 51. Our holding in Workman is consistent

with the general rule that "when the service of a sentence is

interrupted by conduct of the defendant the time spent out of

custody on his sentence is not counted as time served

thereon." United States v. Luck, 664 F.2d 311, 312 (D.C. Cir.

1981); see also Theriault v. Peek, 406 F.2d 117, 117 (5th Cir.

1968) ("Escape from prison interrupts service, and the time

elapsing between escape and retaking contribute[s] nothing to

the service of the sentence.").3

The Supreme Court applied this general rule in the parole

context in Anderson v. Corall, 263 U.S. 193 (1923). There,

the defendant was paroled in February 1916 after serving part

of his three-year federal criminal sentence. While on parole,

he was convicted of a state crime, and in October 1916 he was

confined in state prison for three years. After the defendant

3

There is a strong federal policy disfavoring fugitives in analogous cir-

cumstances. This policy arises from the "[d]eeply rooted" maxim "that no

man may take advantage of his own wrong." Glus v. Brooklyn East. Dist.

Term., 359 U.S. 231, 232 (1959). See, e.g., 18 U.S.C. § 3290 ("No statute

of limitations shall extend to any person fleeing from justice."); Jaffe v.

Accredited Sur. & Cas. Co., 294 F.3d 584 (4th Cir. 2002) (discussing the

fugitive disentitlement doctrine); United States v. Kosko, 870 F.2d 162,

164 (4th Cir. 1989) (in affirming the denial of a continuance motion for

a defendant who had absconded during pretrial proceedings, we stated that

"to have granted him the continuance . . . which he sought would have

been to reward him for his misconduct in violating the conditions of his

release and remaining a fugitive from justice").

10 UNITED STATES v. BUCHANAN

was released from state prison in December 1919, he was

retaken into federal custody, and shortly thereafter the parole

board revoked his parole. The defendant then sought habeas

relief, arguing that his three-year federal sentence had ended

in March 1917 while he was in state prison. The defendant

prevailed in the lower courts, but the Supreme Court reversed.

The Court began its analysis by observing that "[m]ere

lapse of time without imprisonment or other restraint contem-

plated by the law does not constitute service of sentence.

Escape from prison interrupts service, and the time elapsing

between escape and retaking will not be taken into account or

allowed as a part of the term." Id. at 196. The Court then

noted that parole does not "suspend service or operate to

shorten the term," and "[w]hile on parole the convict is bound

to remain in the legal custody and under the control of the

warden until the expiration of the term, less allowance, if any,

for good conduct." Id. Given this framework, the Court stated

that although parole is "an amelioration of punishment, it is

in legal effect imprisonment." Id. Applying these principles to

the facts of the case, the Court concluded:

Corall’s violation of the parole, evidenced by the

warden’s warrant and his conviction, sentence to and

confinement in the [state] penitentiary, interrupted

his service under the sentence here in question, and

was in legal effect on the same plane as an escape

from the custody and control of the warden. His sta-

tus and rights were analogous to those of an escaped

convict. The term of his sentence had not expired in

October, 1916, when . . . he was convicted of

another crime and sentenced to the [state] peniten-

tiary. Then – if not earlier – he ceased to be in the

legal custody and under the control of the warden of

the [federal] penitentiary, as required by section 3 of

the act and the terms of the parole authorized

thereby. His claim that his term expired in 1917

before he was retaken and while he was serving sen-

UNITED STATES v. BUCHANAN 11

tence [in state prison] cannot be sustained, and we

hold that it had not expired in January, 1920, at the

time of the action of the board.

Id. at 196-97.4

C.

The First and the Ninth Circuits appear to be the only other

circuit courts to have considered the question of fugitive toll-

ing in the supervised release context. Those courts have

reached different conclusions.

Consistent with the general rule discussed above, the Ninth

Circuit applies tolling in the supervised release context when

a defendant has absconded, explaining that the fugitive tolling

doctrine rests on the principle that a person on supervised

release "should not receive credit against his period of super-

vised release for time that, by virtue of his own wrongful act,

he was not in fact observing the terms of his supervised

release." United States v. Murguia-Oliveros, 421 F.3d 951,

954 (9th Cir. 2005). In the Ninth Circuit’s view, a contrary

ruling "would reward those who flee from bench warrants and

4

Similarly, in Zerbst v. Kidwell, 304 U.S. 359 (1938), the defendants,

while on federal parole, committed federal crimes for which they were

convicted and sentenced. After serving their second sentences, the defen-

dants were held in custody pursuant to a parole violation warrant. Eventu-

ally, their habeas proceedings reached the Supreme Court, which held that

not only had the defendants forfeited the privileges of parole, but since

they were "no longer in either actual or constructive custody under [their]

first sentence, service under the second sentence cannot be credited to the

first without doing violence to the plain intent and purpose of the statutes

providing for a parole system." Id. at 361. Notably, the Court stated: "It

is not reasonable to assume that Congress intended that a parolee whose

conduct measures up to parole standards should remain under control of

the board until expiration of the term of his sentence, but that misconduct

of a parole violator could result in reducing the time during which the

board has control over him to a period less than his original sentence." Id.

at 363.

12 UNITED STATES v. BUCHANAN

maintain their fugitive status until the expiration of their origi-

nal term of supervised release." United States v. Crane, 979

F.2d 687, 691 (9th Cir. 1992). Applying this rule, the Ninth

Circuit holds that "[f]ugitive tolling begins when the defen-

dant absconds from supervision — making it impossible for

the Probation Office to supervise his actions — and ends

when federal authorities are capable of resuming supervi-

sion." United States v. Ignacio Juarez, 601 F.3d 885, 890 (9th

Cir. 2010).

The First Circuit has rejected the Ninth Circuit’s view,

holding that "there can be no tolling of the period of super-

vised release on the basis of fugitive status." United States v.

Hernandez-Ferrer, 599 F.3d 63, 64 (1st Cir. 2010). In reach-

ing this conclusion, the court primarily relied on the plain lan-

guage of § 3624(e) (the "delayed revocation" provision). As

it explained:

To begin, the statutory provisions touching upon

supervised release neither expressly require nor

expressly permit tolling during the interval when an

offender is in fugitive status. The only tolling provi-

sion that Congress saw fit to enact is contained in 18

U.S.C. § 3624(e), which tolls the running of a term

of supervised release during any period in which an

offender is imprisoned for thirty days or more in

connection with a different crime. The absence of an

express tolling provision for fugitive status, coupled

with the presence of an express tolling provision that

encompasses other circumstances, is highly signifi-

cant. The maxim "expressio unius est exclusio

alterius" – which translates roughly as "the expres-

sion of one thing is the exclusion of other things" –

is a venerable canon of statutory construction, and

that maxim is directly applicable here.

599 F.3d at 67-68 (citations omitted).

UNITED STATES v. BUCHANAN 13

Bolstering its conclusion, the First Circuit noted that sev-

eral courts citing the expressio unius canon have ruled that the

supervised release statutes do not authorize tolling a term of

supervised release during the period that a defendant is absent

from the country because of deportation. In light of this

authority, the court observed:

[T]he fact that Congress provided for tolling a period

of supervised release only when an offender is

imprisoned for a different crime is a decisive argu-

ment for the proposition that Congress did not intend

to toll a period of supervised release for any other

reason (including an offender’s fugitive status). If

Congress had wanted to authorize tolling when an

offender absconds from supervision, we believe that

it would have said so.

Id. at 68 (footnote omitted).5

The First Circuit also expressly disagreed with the Ninth

Circuit’s determination that failure to apply fugitive tolling

rewards a defendant who absconds and remains a fugitive

until his supervised release term expires. The court pointed to

§ 3583(i) and stated that "as long as a warrant or summons

issues before the expiration of the term, an offender who

remains a fugitive will still be subject to the court’s jurisdic-

tion once located, and his conduct while a fugitive will be

considered at sentencing. It follows that a judicially contrived

tolling mechanism is not necessary to deter offenders from

absconding." 599 F.3d at 69 (citation omitted).

Factually, Hernandez-Ferrer is similar to the instant case

because the district court had before it two violations: one that

5

Additionally, the First Circuit found that in light of certain caselaw that

predated the Sentencing Reform Act, Congress’ codification of a tolling

provision only for terms of imprisonment indicates that Congress did not

intend for any other tolling provision to apply.

14 UNITED STATES v. BUCHANAN

was concededly within the scheduled supervised release term

and one that occurred after the term’s scheduled expiration

date. Although the First Circuit held that fugitive tolling could

not operate to permit the court to revoke supervised release

based on the latter violation, it also held that the court could

consider the conduct underlying that violation when sentenc-

ing the defendant for the prior violation. As it explained:

"Crimes committed by an offender between the occurrence of

a supervised release violation and sentencing for that violation

are relevant in weighing the need for deterrence — a key con-

sideration mandated by section 3583(e)." Id.6

D.

Having considered the foregoing authorities, we agree with

the district court and the Ninth Circuit and hold that a term of

supervised release is tolled when a defendant absconds from

supervision. As noted, the supervised release term constitutes

part of the original criminal sentence, and the congressional

intent is for defendants to serve their full release term. Just as

an escaped prisoner or parole violator is not credited for time

during which they are not in compliance with their criminal

sentence, a fugitive from supervised release should not be so

credited. A contrary holding would not only thwart congres-

sional intent but also potentially reward an absconder for his

misconduct. See generally United States v. Johnson, 138 F.3d

115, 119 (4th Cir. 1998) (noting that "Congress never

intended . . . for sentencing to become a hyper-technical exer-

cise devoid of common sense").7

6

Notwithstanding the First Circuit’s criticism, the Ninth Circuit contin-

ues to apply fugitive tolling in the supervised release context. See United

States v. Watson, 633 F.3d 929 (9th Cir. 2011).

7

We disagree with the First Circuit’s statement that tolling is unneces-

sary to avoid allowing a defendant to benefit from absconding. That state-

ment may have merit in cases where a petition or summons is filed before

the expiration of the supervised release term, in which case the § 3583(i)

delayed revocation provision would extend the sentencing court’s author-

UNITED STATES v. BUCHANAN 15

It is true that Congress has created a supervised release toll-

ing provision in only one instance — § 3624(e). As noted,

Buchanan and the First Circuit rely on the expressio unius

canon and point to § 3624(e) as evidencing congressional

intent to preclude fugitive tolling of the supervised release

term. We find the expressio unius canon to be unavailing. See

generally Chickasaw Nation v. United States, 534 U.S. 84, 94

(2001) (noting that statutory canons "are not mandatory rules"

and that "other circumstances evidencing congressional intent

can overcome their force"). Section 3624(e)’s tolling provi-

sion appears to be based on the fact that a defendant who is

imprisoned for more than 30 days is not, while imprisoned,

under the supervision contemplated by the supervised release

statutes. To effectuate its intent to require service of the full

supervised release term, Congress determined that tolling in

that instance is necessary. See United States v. Jackson, 426

F.3d 301, 305 (5th Cir. 2005) ("Shortening the period of

supervised release reduces the amount of time a former pris-

oner is monitored by the system and undermines the rehabili-

tative goals Congress pursued in enacting § 3624. While

Jackson was in prison, purposefully kept out of the commu-

nity, his probation officer could not supervise him; it was

impossible for his probation officer to assist him in returning

to the community.").

We do not believe that Congress’ decision to address super-

vised release tolling only in the imprisonment context answers

the question of whether fugitive tolling is applicable. As the

Supreme Court has made clear, congressional silence on an

issue is not always indicative of congressional intent, see, e.g.,

ity beyond the scheduled expiration date. However, it does not take into

account a case where a defendant absconds late in the release term and his

absence is not detected in time for a warrant or summons to be issued

before the term expires. Without issuance of such a warrant or summons,

that defendant would be beyond the sentencing court’s authority under the

First Circuit’s holding, and he would have thus avoided with impunity

serving the full supervised release term.

16 UNITED STATES v. BUCHANAN

Staples v. United States, 511 U.S. 600, 605 (1994), and courts

should "not read the enumeration of one case to exclude

another unless it is fair to suppose that Congress considered

the unnamed possibility and meant to say no to it," Barnhart

v. Peabody Coal Co., 537 U.S. 149, 168 (2003).8 Moreover,

"the normal rule of statutory construction is that if Congress

intends for legislation to change the interpretation of a judi-

cially created concept, it makes that intent specific." Midlan-

tic Nat’l Bk. v. N.J. Dept. of Env. Prot., 474 U.S. 494, 501

(1986). We find no indication to suggest that Congress con-

sidered the issue and intended to preclude the judicially cre-

ated doctrine of fugitive tolling in the supervised release

context. See Young v. United States, 535 U.S. 43, 52 (2002)

(rejecting the argument that the presence of a tolling provision

in one bankruptcy statute, and the absence of such a provision

in another bankruptcy statute, compels the conclusion that

Congress intended to preclude tolling under the latter statute);

Barton, 26 F.3d at 492 (rejecting the argument that "because

a tolling provision is included in 18 U.S.C. § 3565, which

governs revocation of probation, but is not included in . . .

§ 3583, Congress did not intend for the district court’s juris-

diction to continue beyond the term of supervised release."

(footnote omitted)).

We are aware that in United States v. Johnson, the Supreme

Court addressed § 3624(e) and stated: "When Congress pro-

vides exceptions in a statute, it does not follow that courts

have authority to create others. The proper inference, and the

one we adopt here, is that Congress considered the issue of

exceptions and, in the end, limited the statute to the ones set

forth." 529 U.S. at 58. However, read in context, that state-

ment does not preclude fugitive tolling. In that case, two of

the defendant’s multiple convictions had been vacated, which

led to his serving too much time in prison. As a consequence,

8

As the 11th Circuit has explained, congressional silence can be inter-

preted in a variety of ways. Tug Allie-B, Inc. v. United States, 273 F.3d

936, 945 (11th Cir. 2001).

UNITED STATES v. BUCHANAN 17

the defendant argued that his supervised release term should

have commenced at the time he was supposed to have been

released from prison rather than when he was actually

released. In other words, he contended that his supervised

release term ran concurrently with the excess period during

which he was imprisoned. Relying on the plain language of

§ 3624(e), the Court rejected this argument. The Court noted

that § 3624(e) allows for concurrent counting in certain cir-

cumstances, none of which was applicable.9 It is clear from

the context that the Court’s statement regarding the limitation

of exceptions in § 3624(e) is directed at concurrent counting,

and the Court was not addressing whether Congress meant to

preclude alternate forms of tolling.

We also recognize that several circuit courts have held that

tolling a term of supervised release during a defendant’s

absence from the United States because of an immigration

removal order is impermissible. However, we agree with the

district court that fugitive tolling is distinguishable because

the fugitive-defendant’s absence arises from his own miscon-

duct. The same cannot be said about a defendant who has

been removed from the country by government order.

E.

When applicable, tolling operates to "stop the clock." See

United States v. Ibarra, 502 U.S. 1, 4 n.2 (1991) ("Principles

of equitable tolling usually dictate that when a time bar has

been suspended and then begins to run again upon a later

event, the time remaining on the clock is calculated by sub-

tracting from the full limitations period whatever time ran

before the clock was stopped."). This point is made clear in

9

One of the concurrent provisions is set forth in the tolling sentence of

§ 3624(e). Specifically, that provision allows for supervised release to run

concurrently with a term of imprisonment of less than 30 consecutive

days. If the term of imprisonment is 30 days or more, then the supervised

release term is tolled.

18 UNITED STATES v. BUCHANAN

§ 3624(e), which specifies that the term "does not run" while

the defendant is imprisoned for another crime for 30 or more

consecutive days. Thus, when a defendant absconds from

supervised release, his supervised release "clock" stops, and

it resumes when federal authorities are capable of resuming

supervision.

Buchanan contends that, as applied in this case, tolling

effectively operates to do more than stop the clock. He argues

that tolling extends his term beyond five years because the

district court revoked his release and sentenced him not only

for the 1995 violations relating to his flight from supervision,

but also for conduct that occurred during the 13-year period

in which he was a fugitive. We are unpersuaded.

When a defendant absconds while on supervised release,

his absence precludes the sentencing court from exercising

supervision over him. Tolling is necessary in that instance to

ensure that, upon being apprehended, the defendant will be

subject to judicial supervision for a complete term. However,

that does not mean that a defendant who has absconded

thereby nullifies the terms and conditions of the supervised

release order during his flight. Rather, the terms and condi-

tions remain in effect, and the fugitive-defendant is not at lib-

erty to embark on a "holiday" from them. To the extent that

this result may seem harsh, it is the defendant’s own miscon-

duct which creates it.

III

Buchanan absconded from his five-year supervised release

term in 1995, which was the second year of the term, and he

was not brought back under the district court’s supervision

until late 2008. His supervised release term was tolled during

the 13 years he was a fugitive, and it recommenced when the

court was able to exercise supervision over him. Because he

had approximately three years remaining on his supervised

release term, the court had the authority to revoke his super-

UNITED STATES v. BUCHANAN 19

vised release for the violations set forth in the addenda.

Accordingly, we affirm the order of revocation and the con-

current sentences imposed thereto.

AFFIRMED