FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 04-50612

v. D.C. No. 

M CR-96-00735-R ARGARITO MURGUIA-OLIVEROS,

a/k/a Margarito Oliveros Murguia, OPINION

Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted

April 8, 2005—Pasadena, California

Filed August 29, 2005

Before: Mary M. Schroeder, Chief Judge, Harry Pregerson

and Stephen S. Trott, Circuit Judges.

Opinion by Chief Judge Schroeder

11695
COUNSEL

Elizabeth A. Newman, Deputy Federal Public Defender, Los

Angeles, California, for the appellant. 

Michael J. Raphael, Assistant U.S. Attorney, Los Angeles,

California, for the appellee. 

OPINION

SCHROEDER, Chief Judge: 

Margarito Murguia-Oliveros appeals the district court judgment revoking his supervised release and sentencing him to

UNITED STATES v. MURGUIA-OLIVEROS 11697
eight months in prison. Murguia-Oliveros claims that the district court lacked jurisdiction to revoke his supervised release

because the supervised release term expired before his arrest

and revocation hearing. He was arrested pursuant to a warrant

based on facts that were not sworn. We have held that under

these circumstances, a revocation of supervised release must

occur during the term of supervised release. See United States

v. Vargas-Amaya, 389 F.3d 901, 907 (9th Cir. 2004). We hold

that the district court had jurisdiction, because during the term

of Murguia-Oliveros’s supervised release he absconded and

became a fugitive for a period that tolled the term of supervised release, so that it was still running at the time of the

arrest and revocation hearing.

BACKGROUND

The facts are important. Murguia-Oliveros was originally

convicted of illegal reentry after deportation in 1996. He was

sentenced to a term of imprisonment followed by deportation

and three years of supervised release. On September 14, 2001,

after serving the term of imprisonment, he was released from

custody and deported from the United States. His three-year

term of supervised release thus began on that date and was set

to expire on September 14, 2004. Under the terms of his

supervised release, he was prohibited from reentering the

United States illegally after he was deported, and he was

required to report to the United States Probation Office within

72 hours of any reentry. 

Murguia-Oliveros did reenter the United States during his

term of supervised release, for he was arrested on unrelated

charges in San Diego in October of 2003. When his probation

officer subsequently learned of that arrest, he sent MurguiaOliveros a letter via certified mail to his last known address,

instructing him to report. Murguia-Oliveros failed to report

and did not make any contact with the probation officer. The

district court issued a bench warrant in January of 2004 for

Murguia-Oliveros’s arrest for violation of his supervised

11698 UNITED STATES v. MURGUIA-OLIVEROS
release. The warrant was not based on any affidavit or sworn

facts. 

Under the terms of the applicable statute, a released defendant can be arrested without a warrant during the period of

supervised release for violating the terms of that supervised

release. 18 U.S.C. § 3606. The statute provides that:

If there is probable cause to believe that a . . . person

on supervised release has violated a condition of his

. . . release, he may be arrested, and, upon arrest,

shall be taken without unnecessary delay before the

court having jurisdiction over him. A probation officer may make such an arrest whenever the . . . releasee is found, and may make the arrest without a

warrant. 

Id. During the period of supervised release, the district court

has jurisdiction to revoke the period of supervised release if

the district court finds by a preponderance of the evidence that

the defendant violated the terms of that supervised release. 18

U.S.C. § 3583(e)(3). 

After the period of supervised release has expired, however, the district court can revoke the term of supervised

release only if a warrant based on sworn facts was issued

within the supervised release period. 18 U.S.C. § 3583(i);

Vargas-Amaya, 389 F.3d at 907. There was no such warrant

in this case. The existence of probable cause is not disputed.

Murguia-Oliveros was actually arrested in November of

2004, nearly two months after the term of supervised release

was originally set to expire. The district court revoked

Murguia-Oliveros’s term of supervised release and sentenced

him to a term of imprisonment in December of 2004. 

The issue in this case therefore is whether MurguiaOliveros’s term of supervised release was still running at the

UNITED STATES v. MURGUIA-OLIVEROS 11699
time of his arrest and revocation hearing. The district court

held that it was. The district court concluded that MurguiaOliveros was in violation of the conditions of supervised

release for a period of time that tolled the running of the term

of supervised release, because his status was equivalent to that

of a fugitive. Murguia-Oliveros appeals. 

DISCUSSION

[1] The statutory provisions regarding supervised release

do not expressly provide for tolling during fugitive status. See

18 U.S.C. § 3624. In United States v. Crane, 979 F.2d 687,

691 (9th Cir. 1992), however, we held that specific statutory

language is not required to toll the term of supervised release

while a defendant is in “fugitive status.” We held that the

defendant’s term of supervised release was tolled while he

was a fugitive, because “[t]o hold otherwise here would

reward those who flee from bench warrants and maintain their

fugitive status until the expiration of their original term of

supervised release.” Id. 

We publish this opinion to clarify what constitutes “fugitive

status” for purposes of tolling a term of supervised release.

Murguia-Oliveros argues that he could not become a fugitive

merely by failing to comply with the terms of his supervised

release. We disagree. 

The leading case is Crane, where the defendant had been

sentenced to one year in custody, followed by one year of

supervised release at a community treatment center. 979 F.2d

at 688. After serving four and a half months of his supervised

release at the treatment center, the defendant left, or “absconded.” Id. The district court issued a bench warrant for his

arrest. Id. By the time the defendant was taken into federal

custody for violating his supervised release, his original

period of supervised release had expired. Id. The defendant

therefore argued that the district court no longer had jurisdiction over him. We held that the defendant’s term of super11700 UNITED STATES v. MURGUIA-OLIVEROS
vised release was tolled while he was in “fugitive status.” Id.

at 691. He had stopped serving the terms of supervised release

by leaving the place where he was supposed to serve it. 

[2] Murguia-Oliveros engaged in similar conduct. He

departed the place he was authorized by the terms of his

release to be. The terms of his release authorized him to be

outside the United States, but he entered the United States,

where he was not authorized to be, and failed to contact his

probation officer as required. In so doing, Murguia-Oliveros

clearly violated the terms of his supervised release. MurguiaOliveros was then ordered by his probation officer to report,

but did not do so. We therefore hold that Murguia-Oliveros

became a fugitive because he effectively absconded from

serving the terms of his supervised release. 

In arguing he was not a fugitive from his supervised

release, Murguia-Oliveros relies on authority dealing with the

fugitive disentitlement doctrine that applies to criminal

appeals. That principle of fugitive disentitlement authorizes

the dismissal of a criminal defendant’s appeal from a conviction when the defendant becomes a fugitive during the appellate process. We have held in that context that the defendant

does not become a fugitive, and the dismissal sanction therefore does not apply, when the convicted defendant fails to

comply with the conditions of probation in failing to report to

the probation office. United States v. Gonzalez, 300 F.3d

1048, 1051 (9th Cir. 2002). For the fugitive disentitlement

doctrine to apply in a criminal appeal, we require a further

showing that the defendant has fled or has hidden from the

jurisdiction of the court. Id. The reason is that escape from

custody is inconsistent with the pursuit of judicial remedies

and constitutes a voluntary waiver of any pending judicial

review of a criminal conviction. See Antonio-Martinez v. INS,

317 F.3d 1089, 1091 (9th Cir. 2003). Dismissal of a defendant’s appeal from a conviction is a severe sanction that

courts should not lightly impose. Id.

UNITED STATES v. MURGUIA-OLIVEROS 11701
Murguia-Oliveros thus argues that failure to comply with

the terms of his release should not result in the tolling, or

extension, of his release period because tolling is a similarly

severe sanction. It is not. 

[3] We deal here with a far less severe sanction, and one

that is necessary to the purpose of supervised release. This is

because, as we recognized in Crane, we should not reward

those who violate the terms of their supervised release and

avoid arrest until after the original term expires. 979 F.2d at

691. Tolling is necessary to prevent this result. 

[4] For similar reasons, Murguia-Oliveros’s reliance on

criminal statute of limitations cases is misplaced. Under 18

U.S.C. § 3290, “[n]o statute of limitation shall extend to any

person fleeing from justice.” We have held that, for this statute to apply, the government must bear the burden of showing

that a defendant concealed himself or herself with an intent to

avoid prosecution. See United States v. Gonsalves, 675 F.2d

1050, 1054 (9th Cir. 1982); Caplan v. Vokes, 649 F.3d 1336,

1341-42 (9th Cir. 1981); United States v. Wazney, 529 F.2d

1287, 1289 (9th Cir. 1967). The purpose of this statute is to

prevent a defendant from getting the benefit of the statute of

limitations when the defendant’s very purpose is either to

evade prosecution or to prevent the government from gathering information needed to prove charges. Gonsalves, 675 F.2d

at 1052-53. In contrast, the purpose of supervised release is to

establish a period of readjustment. It is “to protect the public

and to facilitate the reintegration of the defendant into the

community.” United States v. Vallejo, 69 F.3d 992, 994 (9th

Cir. 1996). A person on supervised release should not receive

credit against his period of supervised release for time that, by

virtue of his own wrongful act, he was not in fact observing

the terms of his supervised release. See United States v.

Rodriguez, 682 F.2d 827, 829 (9th Cir. 1982). 

[5] Here, Murguia-Oliveros was a fugitive for purposes of

supervised release at least from the time the government

11702 UNITED STATES v. MURGUIA-OLIVEROS
obtained a warrant for his arrest, in January of 2004, until the

time the supervised release would have expired, absent a violation, in September of 2004. This was a period of eight

months. Murguia-Oliveros was arrested in November of 2004,

which was well within the tolling period, and his supervised

release was revoked shortly thereafter. By virtue of tolling,

the term of supervised release had not expired at the time of

his arrest or at the time of the revocation. The district court

therefore had jurisdiction to revoke Murguia-Oliveros’s term

of supervised release, and on the basis of an unsworn warrant.

See 18 U.S.C. § 3583(e)(3); Vargas-Amaya, 389 F.3d at 907.

AFFIRMED.

UNITED STATES v. MURGUIA-OLIVEROS 11703