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United States v. Mosby

United States District Court, D. Minnesota

July 11, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ALEXISUS JARMON MOSBY, Defendant.

          ORDER

          Patrick J. Schiltz United States District Judge

         This matter is before the Court on defendant Alexisus Jarmon Mosby's motion to dismiss the government's petition to revoke his supervised release. For the reasons that follow, Mosby's motion is denied.

         I. BACKGROUND

         In December 2006, Mosby was convicted by a jury of being a felon in possession of a firearm, and in April 2007, he was sentenced to 108 months' imprisonment followed by three years of supervised release. ECF Nos. 62, 74. Included among the conditions of Mosby's supervised release was the requirement that he not commit a federal, state, or local crime. ECF No. 74 at 3-4.

         Mosby was released from federal custody on June 30, 2015, and his term of supervised release began that day. See ECF No. 112 at 2:20-22. Mosby started violating the conditions of his supervised release almost immediately: He used cocaine, he lied to his probation officer about his employment status, and he ultimately absconded from supervision. ECF No. 93, 108. On September 15, 2015, Mosby's probation officer filed a petition to revoke his supervised release. ECF No. 92. On that same day, the Court issued a warrant for Mosby's arrest. ECF Nos. 93-94.

         Because Mosby had absconded, the United States Marshal was unable to locate him until October 13, 2015, at which point he was arrested and ordered detained. ECF Nos. 101, 103. On December 1, 2015, Mosby appeared before the Court for a revocation hearing. ECF No. 107. At that hearing, the Court found that Mosby had violated the conditions of his term of supervised release, revoked that term of supervised release, and sentenced him to 12 months' imprisonment followed by a new two-year term of supervised release. The sentencing judgment was entered the following day, December 2, 2015. ECF No. 108. The judgment included a set of conditions that Mosby would have to follow while on supervised release-conditions that were similar, but not identical, to the conditions that had applied during Mosby's original term of supervised release. Id. at 3-4.

         On August 15, 2016-while Mosby was in federal prison, serving his post- revocation term of incarceration-Mosby was charged in state court with having burglarized a home on October 6, 2015. See ECF Nos. 118, 138; see also ECF No. 148 at 2. This burglary occurred while Mosby was serving his original term of supervised release. But neither the Court nor anyone else (except Mosby) knew about the burglary when Mosby's original term of supervised release was revoked on December 2, 2015.

         Mosby completed his post-revocation term of incarceration on October 12, 2016, and was immediately transferred from the custody of the Bureau of Prisons (“BOP”) to the custody of the State of Minnesota. See ECF Nos. 118, 138. Five days later, on October 17, 2016, Mosby's probation officer filed a petition to revoke Mosby's term of supervised release again based on the burglary charges. See ECF Nos. 117, 118.

         Mosby was convicted of second-degree burglary in state court on July 18, 2017. ECF No. 138 at 1. He is currently serving the sentence that the state judge imposed for that conviction. He will complete that sentence on September 4, 2018. See ECF Nos. 150-51.

         On September 21, 2017, the Court granted the probation officer's amended petition to revoke Mosby's term of supervised release to reflect the fact that the burglary charges had resulted in a state-court conviction. See ECF Nos. 137-38. That same day, Mosby appeared before the Court for a revocation hearing. At that hearing, the Court raised the following issue with the parties:

         The petition to revoke Mosby's supervised release was unclear about whether it was seeking to revoke his original (first) term of supervised release or his new (second) term of supervised release. The problem with revoking Mosby's first term of supervised release was that it had already been revoked and replaced with the second term. How could the Court revoke a term of supervised release that had already been revoked? The problem with revoking Mosby's second term of supervised release was that the burglary occurred before that second term began and thus did not violate any of its conditions. How could the Court revoke a term of supervised release based on conduct that occurred before that term was even imposed? ECF No. 143 at 2:20-3:14.

         The Court informed the parties that, as best as it could determine, the Eighth Circuit had not yet addressed the issue, and the case law of the other circuits was in conflict. Id. at 3:16-5:6 (directing the parties to United States v. Cross, 846 F.3d 188 (6th Cir. 2017); United States v. Brown, 651 Fed.Appx. 216 (4th Cir. 2016) (per curiam); United States v. Wing, 682 F.3d 861 (9th Cir. 2012); United States v. Winfield, 665 F.3d 107 (4th Cir. 2012); and United States v. Johnson, 243 Fed.Appx. 666 (3d Cir. 2007)).

         Following a discussion with counsel, the Court indefinitely stayed the revocation proceeding (given that Mosby would be serving his state sentence anyway) and ordered the parties to brief two issues: (1) “Whether the Court has jurisdiction under 18 U.S.C. § 3583 to revoke [Mosby's] first term of supervised release, which began on June 30, 2015”; and (2) “Whether the Court has jurisdiction under 18 U.S.C. § 3583 to revoke [Mosby's] second term of supervised release, which effectively began on October 12, 2016.” ECF No. 139.

         II. ANALYSIS

         A. Jurisdiction

         The briefing order framed the question before the Court as jurisdictional. The government resists this framing (although the government concedes that, as a practical matter, nothing turns on its argument). The government contends that the Court's power to revoke Mosby's supervised release does not relate to the scope of its jurisdiction, but instead to the scope of its statutory authority. Specifically, the government argues that 18 U.S.C. § 3231 gives the Court jurisdiction over Mosby “until final termination or expiration of the last term of supervised release or until the last period of imprisonment has been served, whichever occurs later.” ECF No. 146 at 2. The government argues that 18 U.S.C. § 3583(e), “on the other hand, gives a district court authority to take certain actions-including termination, modification or revocation-with respect to supervised release, but it is not jurisdictional.” Id. at 3.

         The Court disagrees. Section 3231 gives district courts “original jurisdiction . . . of all offenses against the laws of the United States.” The government's position is that § 3231 jurisdiction does not end when the district court enters final judgment, but instead continues until that judgment is satisfied by the defendant serving his full sentence (including any term of supervised release). The government's position is not without support; indeed, then-Judge Gorsuch endorsed the government's view in his separate opinion in United States v. Spaulding, 802 F.3d 1110, 1128 (10th Cir. 2015) (Gorsuch, J., dissenting) (“This general grant of [§ 3231] jurisdiction is unqualified: it does not end after sentencing or any other artificial period of time.”).

         Unfortunately for the government, however, Judge Gorsuch was writing in dissent.[1] The weight of authority-including the authority in Judge Gorsuch's former circuit-holds that “§ 3231 jurisdiction ends when the district court enters final judgment in the criminal case and the time to appeal that judgment has expired.” United States v. James, No. 17-1217, 2018 WL 1560251, at *3 (10th Cir. Mar. 29, 2018); see also United States v. Benitez, 720 Fed.Appx. 509, 510 (10th Cir. 2018) (“§ 3231's grant of jurisdiction ended upon entry of the final judgment.”); United States v. Wahi, 850 F.3d 296, 300 (7th Cir. 2017) (holding that entry of final judgment in a criminal case “ended the court's § 3231 jurisdiction”); United States v. Lucido, 612 F.3d 871, 874 (6th Cir. 2010) (holding that the district court's § 3231 jurisdiction ended when it “entered [an] unchallenged final judgment[]”).

         A district court's jurisdiction to modify, revoke, or terminate a term of supervised release therefore comes not from § 3231, but ...


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