United States District Court, D. Minnesota
Patrick J. Schiltz United States District Judge
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.
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.
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.
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.
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.
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.
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.
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:
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.
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)).
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.
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.
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
for the government, however, Judge Gorsuch was writing in
dissent. 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”).
district court's jurisdiction to modify, revoke, or
terminate a term of supervised release therefore comes not
from § 3231, but ...