United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-1658

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri.

Stephen Loren Clark, *

* [UNPUBLISHED]

Appellant. *

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Submitted: September 22, 2010

Filed: December 27, 2010

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Before BYE, BEAM, and SMITH, Circuit Judges.

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PER CURIAM.

Stephen L. Clark pleaded guilty to conspiracy to distribute marijuana and was

sentenced to 60 months' imprisonment, followed by a four-year term of supervised

release. During his term of supervised release, Clark filed a motion for early

termination of supervised release, which the district court denied without prejudice.

Subsequently, the court ordered that Clark's supervised release continue. Clark did not

appeal. Thereafter, Clark filed an amended motion for early termination of supervised

release; however, before the district court ruled on the motion, it transferred

jurisdiction of Clark's supervised release to the United States District Court for the

District of Kansas ("District of Kansas"). The district court entered an order denying

Clark's amended motion for early termination of supervised release as moot because
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of the transfer of jurisdiction. In response, Clark filed a motion to file notice of appeal

out of time. The district court granted Clark's motion, and this appeal followed. We

dismiss the appeal for lack of jurisdiction because the district court was without

jurisdiction to grant Clark leave to appeal its order out of time.

I. Background

On July 20, 2004, the district court sentenced Clark to 60 months' imprisonment

for conspiracy to distribute marijuana in excess of 100 kilograms, followed by a fouryear term of supervised release. On February 4, 2008, after serving his term of

imprisonment, Clark began his supervised release term.

On June 29, 2009, Clark filed a motion seeking an early discharge from

supervised release pursuant to 18 U.S.C. § 3583(e)(1). In support of his motion, Clark

stated that he had received no conduct violations while serving his prison sentence and

had not incurred any violation of the terms of his supervised release. According to

Clark, he had been on supervised release for 17 months and had submitted almost 100

urine samples, which all tested negative, to his probation officer. The government did

not oppose Clark's motion. 

Upon the district court's request, the United States Probation Office reported

that Clark's supervising probation officer in the District of Kansas had recently

become concerned that Clark may have submitted invalid urine samples. The

probation officer planned to place a sweat patch on Clark for alternative substance

abuse testing. The probation officer also indicated that Clark was not registered as a

sex offender, as required by law, due to a prior sex-offense conviction. 

On September 14, 2009, the district court denied without prejudice Clark's

motion for discharge, stating that 
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defendant should be continued on supervision for a period of 120 days

beginning July 20, 2009, with continued urinalysis testing. If after 120

days defendant continues to incur invalid test results, he will remain on

supervision. If defendant submits valid urine samples that do not test

positive for illegal drugs, and does not incur any other violations, the

request for early discharge will be granted and the term of supervised

release will be terminated. In addition, defendant will be ordered to

comply with Special Condition #4 of supervised release, "The defendant

shall register with the state sex offender registration agency in the state

where the defendant resides, works, or is a student, as directed by the

probation office." Assuming full compliance with the foregoing,

defendant's term of supervised release would terminate on November 17,

2009.

On November 24, 2009, the district court entered an order stating that Clark's

"term of supervised release shall continue in effect." In the order, the court discussed

its September 14, 2009 order and subsequent events, stating: 

The Court noted [in its September 14, 2009 order] that defendant's

supervising probation officer was concerned defendant may have

submitted invalid urine samples. The Court ordered that defendant be

continued on supervision for a period of 120 days beginning July 20,

2009, with continued urinalysis testing. The Court stated that if after 120

days defendant continued to incur invalid test results, he would remain

on supervision, but if defendant submitted valid urine samples that did

not test positive for illegal drugs, and if he did not incur any other

violations, the request for early discharge would be granted and the term

of supervised release would be terminated as of November 17, 2009.

On November 16, 2009, the United States Probation Office reported that

defendant submitted two sweat patch tests which tested positive for

cocaine, in August and September 2009. Defendant's subsequent sweat

patch tests have been negative. As a result of the positive test results for

cocaine, the Court will not terminate defendant's term of supervised

release at this time.
1

On March 8, 2010, Clark filed a motion for early termination of supervised

release in the District of Kansas. The district court in the District of Kansas held in

abeyance Clark's motion and a motion to revoke Clark's supervised release pending

the outcome of the instant appeal. Then, on April 18, 2010, Clark filed a motion in the

District of Kansas to return jurisdiction of his supervised release to the Eastern

District of Missouri and an amended motion asking the District of Kansas to discharge

him from his supervised release. The district court in the District of Kansas entered

the following order:

For the reasons set forth on the record in the hearing held on April 28,

2010[,] at 3:00 p.m., the court stayed the revocation proceedings in this

matter pending a ruling by the Eighth Circuit Court of Appeals on

defendant's notice of appeal filed in Case No. 03-00233-CAS. The court

granted release of defendant from custody and ordered that he remain on

supervised release under the same conditions as previously ordered.

Defendant is to notify the court as soon as he receives notice from the

court of appeals. 

IT IS ORDERED that defendant is released from custody and is to

remain on supervised release under the same conditions as previously

ordered. 

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Clark did not appeal the district court's order; instead, on January 16, 2010, he

filed an amended motion for early termination of supervised release. But before the

district court ruled on the motion, it transferred jurisdiction of Clark's supervised

release on January 21, 2010, to the District of Kansas. The District of Kansas accepted

jurisdiction over Clark's supervised release on February 17, 2010.1

 On February 23,

2010, the district court denied Clark's amended motion for early termination of

supervised release as moot because it had transferred jurisdiction. 

On March 9, 2010, Clark filed a motion with the district court pursuant to

Federal Rule of Appellate Procedure 4(b) asking for leave to file a notice of appeal out

of time of the district court's February 23, 2010 order. On March 10, 2010, the district

court granted Clark's motion. 
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II. Discussion

According to Clark, he requested discharge from supervised release on June 29,

2009. Then, on September 14, 2009, the district court entered an order stating that if

Clark complied with the court's order, then the court would discharge him from

supervised release on November 17, 2009. Clark maintains that he complied with the

district court's September 14, 2009 order and therefore was discharged from

supervised release on November 17, 2009, per the September 14, 2009 order. With

that as his premise, Clark argues that any orders that the district court entered after

November 17, 2009, are void and unenforceable. 

In response, the government asserts that on March 10, 2010, the time that the

district court denied Clark's amended motion for early termination of supervised

release as moot, the court lacked jurisdiction over Clark because jurisdiction was

transferred to the District of Kansas on January 21, 2010. Thus, the government

contends that jurisdiction for Clark's supervised release status now rests with the

District of Kansas. 

We agree with the government that the district court lacked jurisdiction when

it entered its February 23, 2010 order denying as moot Clark's amended motion for

early termination of supervised release and its March 10, 2010 order permitting Clark

to file his notice of appeal out of time. 

Section 3605 of 18 U.S.C. provides:

A court, after imposing a sentence, may transfer jurisdiction over a

probationer or person on supervised release to the district court for any

other district to which the person is required to proceed as a condition of

his probation or release, or is permitted to proceed, with the concurrence

of such court. A later transfer of jurisdiction may be made in the same

manner. A court to which jurisdiction is transferred under this section is
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authorized to exercise all powers over the probationer or releasee that are

permitted by this subchapter or subchapter B or D of chapter 227.

"[S]ection 3605 expand[s] the power of the transferee court over the supervised

offender" as it "was intended to permit the transferee court 'to exercise all the powers

over the . . . releasee that are permitted' by the statutes dealing with supervised

releasees." United States v. Fernandez, 379 F.3d 270, 275 (5th Cir. 2004) (quoting S.

Rep. No. 98-225, at 132 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3315). The

transferee court can change the period of probation without consent of the sentencing

court because "the new court will be in a better position to know whether a change in

the term of the supervised release is justified." Id. (internal quotation and citation

omitted). By enacting § 3605, "Congress clearly intended to expand, not limit, the

ability of the transferor court to transfer jurisdiction and of the transferee court to take

full jurisdiction from the transferor court." Id. (emphasis added). Thus, a transferee

court, for example, possesses the power "to revoke [a defendant's] supervised release

as to the case transferred from [the transferor district], regardless of whether the

conduct underlying the revocation was pre-transfer or post-transfer . . . ." United

States v. Bailey, 257 F. App'x 210, 212 (11th Cir. 2007) (unpublished per curiam); see

also United States v. King, 608 F.3d 1122, 1128 (9th Cir. 2010) ("We thus hold that

a transferee court has jurisdiction under 18 U.S.C. § 3605 to revoke a term of

supervised release for violations committed before the transfer of jurisdiction.").

Here, the district court's original order continuing Clark's term of supervised

release was entered on November 24, 2009. Clark did not appeal from that order.

Instead, on January 16, 2010, he filed an amended motion for early termination of his

supervised release. At that point, the district court had yet to transfer jurisdiction to

the District of Kansas. But before ruling on the amended motion, the district court did

transfer jurisdiction to the District of Kansas on January 21, 2010; the District of

Kansas accepted the transfer of jurisdiction on February 17, 2010. Thus, at the time

that the district court denied the amended motion for early termination of supervised
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release on February 23, 2010—and subsequently ordered that Clark could file his

notice of appeal out of time—it no longer possessed jurisdiction over Clark because

a transfer of jurisdiction means that the "transferee court . . . take[s] full jurisdiction

from the transferor court." Fernandez, 379 F.3d at 275; see also United States v.

D'Amario, 178 F. App'x 151, 152 (3d Cir. 2006) (unpublished per curiam) ("On May

2, 2003, the District of New Jersey transferred jurisdiction over [the defendant's]

supervised release pursuant to 18 U.S.C. § 3605 to the District of Rhode Island. . . .

Thus, the District of New Jersey no longer has jurisdiction to provide the relief that

he seeks and properly denied his motion."). 

III. Conclusion

Accordingly, we dismiss the instant appeal because the district court lacked

jurisdiction in entering its February 23, 2010 and March 10, 2010 orders. The

determination of Clark's supervised release status rests with the District of Kansas. 

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