2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-29-2009

USA v. Collin Cole

Precedential or Non-Precedential: Precedential

Docket No. 08-3201

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-3201

 

UNITED STATES OF AMERICA

v. 

COLLIN ROMEO COLE

Collin R. Cole, 

 Appellant

 

Appeal from the United States District Court

for the District of Delaware

(D.C. Criminal No. 07-cr-00162-001)

District Judge: Honorable Joseph J. Farnan, Jr.

 

Argued March 24, 2009

Before: RENDELL, AMBRO and JORDAN, Circuit Judges.

(Filed: May 29, 2009)

 
2

Edson A. Bostic, Esq.

Daniel I. Siegel, Esq. [ARGUED]

Office of Federal Public Defender

704 King Street

First Federal Plaza, Suite 110

Wilmington, DE 19801

 Counsel for Appellant

Christopher J. Burke, Esq. [ARGUED]

Office of United States Attorney

1007 North Orange Street, Suite 700

P.O. Box 2046

Wilmington, DE 19899

 Counsel for Appellee

 

OPINION OF THE COURT

 

RENDELL, Circuit Judge.

Collin Romeo Cole, a Jamaican national, pled guilty to

illegal reentry into the United States. The District Court

sentenced Cole to 71 months in prison and three years of

supervised release. It ordered that the supervised release term

be tolled as long as Cole remained outside of the United States

following his possible removal after his prison term. Cole

argues that the District Court exceeded its statutory authority

when it tolled his period of supervised release, because tolling

is not a “condition” of supervised release within the meaning of

28 U.S.C. § 3583(d). We agree that the District Court did not
3

have authority to suspend Cole’s period of supervised release,

and we will accordingly remand to the District Court to correct

this aspect of his sentence.

I. Background

Cole was removed from the United States in 2005, after

he was convicted of two violent felonies in New York. He

illegally reentered the United States, and in 2007 he was arrested

on criminal impersonation and forgery charges and incarcerated

in a Delaware State prison. In November of 2007, Immigration

and Customs Enforcement (“ICE”) learned of Cole’s reentry and

imprisonment, and he was charged with violation of 8 U.S.C.

§ 1326(a) and (b)(2), which carry a statutory maximum of 20

years’ imprisonment. He pled guilty in March of 2008.

The District Court sentenced Cole to 71 months in prison

and three years of supervised release. The court said that, based

on Cole’s history of illegal reentry and his family situation (he

has children who live in New York), it believed he would want

to return to the United States. Anticipating Cole’s future illegal

reentry, the court ordered that his three-year term of supervised

release not run during any time he was excluded from the United

States. During the sentencing hearing, the District Court said:

If you’re deported, the term of supervised release, Mr.

Cole, will run inactively as long as you remain outside

the United States. Should you reenter the United States

after deportation, that action will be a violation of

supervised release. . . .
4

Now, I want to make something clear to you, Mr. Cole.

You’re going to be on supervised release once you’re

gone from prison. That’s inactive. None of that time is

running while you’re outside the United States. The

minute you reenter the United States, it’s a violation . . ..

So don’t come back. 

(App. 29-30.) 

The written judgment of the District Court contains what

the court termed a “special condition[] of supervision”: “The

defendant’s term of supervised release shall run inactive if the

defendant is deported. Should the defendant re-enter the United

States after deportation, such action will be considered a

violation of supervised release.” (App. 6.) 

II. Discussion

Cole argues that the District Court exceeded its statutory

authority when it ordered that his period of supervised release be

tolled during his period of exclusion from the United States.

The issue of whether the statutes governing supervised release

permit tolling in this situation is a question of statutory

interpretation subject to de novo review. See United States v.

Poellnitz, 372 F.3d 562, 570 (3d Cir. 2004). Because Cole did

not object to the condition during sentencing, we review his

sentence under the plain error standard. Fed. R. Crim. P. 52(b).

We have two issues to decide: whether the District

Court’s tolling of supervised release was proper; and, if it was

improper, whether it was a plain error. 
18 U.S.C. § 3583(d) expressly directs district courts to 1

order that the defendant not commit another crime or unlawfully

possess a controlled substance during the period of supervised

release. The statute also includes provisions that deal with

rehabilitation for domestic violence and drug abuse, sex

offender registration, DNA samples, and submission to drug

testing. 18 U.S.C. § 3583(d). 

5

A. Tolling is Not a Condition of Supervised Release

Whether a District Court exceeds its authority under 18

U.S.C. § 3583 when it orders that a term of supervised release

be tolled during the time that a defendant is excluded from the

United States following removal is an issue of first impression

in our court. Four of our sister courts of appeals have held that

such tolling exceeds a district court’s power to set conditions of

supervised release. See United States v. Ossa-Gallegos, 491

F.3d 537 (6th Cir. 2007) (en banc); United States v. Okoko, 365

F.3d 962 (11th Cir. 2004); United States v. Juan-Manuel, 222

F.3d 480 (8th Cir. 2000); United States v. Balogun, 146 F.3d

141 (2d Cir. 1998). 

18 U.S.C. § 3583(a) authorizes district courts to include

a period of supervised release as part of a defendant’s sentence.

In addition to the enumerated conditions that a court must

impose as part of supervised release, the statute also provides 1

that “[t]he court may order, as a further condition of supervised

release, . . . any other conditions it considers to be appropriate,”

as long as the conditions reasonably relate to the sentencing
 A court may order a further condition of supervised 2

release if the condition relates to the nature of the offense and

the history of the defendant, as well as the need for the sentence

to deter criminal conduct, protect the public, and provide the

defendant with effective correctional and rehabilitative

treatment. See 18 U.S.C. § 3583(d)(1); 18 U.S.C. § 3553(a)(1),

(a)(2)(B)-(D). 

6

factors in 18 U.S.C. § 3553(a). In addition, a special condition 2

must involve no greater deprivation of liberty than is reasonably

necessary for the purposes of imposing the sentence and must be

consistent with any pertinent policy statement issued by the

Sentencing Commission. 18 U.S.C. § 3583(d)(2)-(3). 

Cole points out that the supervised release statute, 18

U.S.C. § 3583, does not expressly authorize tolling during a

period of exclusion from the United States. He also notes that

Congress has specifically authorized tolling of supervised

release in only one situation – where the defendant is imprisoned

on an unrelated crime for more than 30 days. Additionally, he

argues that the canon of expressio unius est exclusio alterius

(the expression of one thing is the exclusion of another) means

that Congress did not intend for tolling to be applied in other

situations. See 18 U.S.C. § 3624(e). Cole acknowledges that

the statute does allow district courts to create special conditions

of supervised release, but argues that tolling is not such a

“condition” because there is no “activity the defendant must

avoid, no task the defendant must complete, no restriction the

defendant must observe.” (Appellant’s Br. 9.) 
7

The government argues that the District Court did not err

when it tolled Cole’s period of supervised release. According

to the government, Congress gave district courts broad power in

§ 3583(d) to set supervised release conditions. It argues that the

tolling is a classic “condition of supervised release,” one that

relates to the nature and circumstances of the offense, the history

and characteristics of the defendant, deterrence, protection of the

public, and the provision of needed correctional treatment. The

government contends that it makes sense for the supervised

release term to be tolled, because the U.S. Probation Office will

not be able to supervise the defendant during the time he is

outside the United States, and the rehabilitative and transitional

functions of supervised release will be lost. Furthermore, it

urges that if the defendant returns to the United States, he should

face the full set of requirements in the supervised release order.

The United States Court of Appeals for the Sixth Circuit

addressed all of these arguments in its thorough en banc opinion

in United States v. Ossa-Gallegos, 491 F.3d 537 (6th Cir. 2007).

Ossa-Gallegos, like Cole, was charged with illegal reentry. He

was sentenced to 33 months’ imprisonment and two years of

supervised release, and the district court ordered that the

supervised release term would be tolled while he was outside of

the United States. In the panel opinion, United States v. OssaGallegos, 453 F.3d 371 (6th Cir. 2006), the court was obliged to

affirm the district court’s decision to toll supervised release

because in an earlier case, United States v. Isong, 111 F.3d 428

(6th Cir. 1997), the court had implicitly presumed that tolling

was a condition of supervised release and found that it was

reasonably related to the § 3553(a) factors. Ossa-Gallegos

acknowledged that Isong bound the panel, but petitioned for
8

review by the full court. The court vacated the panel opinion

and granted en banc review. The en banc court found,

unanimously, that tolling was not a condition of supervised

release and overruled Isong. 491 F.3d at 545. The en banc

court’s reasoning in Ossa-Gallegos is persuasive.

Section 3583(d) allows district courts to order

“conditions” of supervised release; therefore, our inquiry is

whether tolling is such a condition. If tolling is not a condition,

then a district court has no authority to order tolling of

supervised release. Within the existing jurisprudence there are

two different approaches to defining “condition.” The en banc

Ossa-Gallegos court reasoned that a “condition” is a

contingency, a prerequisite or circumstance necessary to a

particular result. 491 F.3d. at 541. Other courts have held that

a “condition” is something over which the defendant has a

degree of control, something that the defendant either must do

or must refrain from doing. See Okoko, 365 F.3d at 966; JuanManuel, 222 F.3d at 487; Balogun, 146 F.3d at 146. 

We are not convinced that we need to choose a particular

definition for “condition.” Our focus is on whether tolling is a

condition, and we believe the better reading of the statute is that

tolling is not a condition of supervised release. Rather, tolling

is a suspension of the supervised release period, a way of

removing the defendant from the effects of his sentence for a

specific period of time. It is useful to remember that tolling has

its roots in equity, as a way of temporarily stopping the running

of time for fairness reasons. See, e.g., Shendock v. Dir., Office

of Workers’ Comp. Programs, 893 F.2d 1458, 1462 (3d Cir.

1990). A statute of limitations, for example, may be tolled while
9

the plaintiff is a minor, or when the plaintiff has been prevented

from asserting his rights in some extraordinary way. See, e.g.,

Santos ex rel. Beato v. United States, 559 F.3d 189 (3d Cir.

2009); Urcinoli v. Cathel, 546 F.3d 269, 272-73 (3d Cir. 2008).

Tolling, as a suspension of the time that supervised

release runs, is quite unlike any of the other conditions that

district courts may impose as part of supervised release:

refraining from illegal drug use; going to a rehabilitation

program for sex offenders; providing a DNA sample. See 18

U.S.C. § 3583(d). Other special conditions include requiring a

defendant to notify his probation officer when he is questioned

by law enforcement, or limiting a defendant’s contact with

minors. See, e.g., United States v. Maloney, 513 F.3d 350, 357

(3d Cir. 2008); United States v. Loy, 237 F.3d 251, 269-70 (3d

Cir. 2001). Each of these conditions is an aspect of supervised

release that is tailored to each defendant. They have nothing to

do with the time that the sentence or supervision is running;

tolling is not analogous to these conditions. We agree with the

Ossa-Gallegos court, which said: 

[T]olling describes the existing state of supervised

release – that is, whether or not the period of supervised

release is running. ‘Tolling’ is not a ‘condition’ in the

sense in which the term is used in § 3583(d), and

therefore, courts do not have authority under § 3583(d)

to issue ‘conditions’ of supervised release which toll the

period for which deported aliens are subject to

supervised release.

491 F.3d at 542. 
The government argues that there is another express 3

tolling provision, because 18 U.S.C. § 3583(i) gives a court the

power to revoke a defendant’s supervised release term after the

date when the term would have expired if a warrant or summons

for a violation of supervised release was issued before the end

of the term. Several courts refer to this section as a tolling

provision. See e.g., United States v. Okoko, 365 F.3d 962, 964-

65 (11th Cir. 2004); United States v. Juan-Manuel, 222 F.3d

480, 488 (8th Cir. 2000). The United States Court of Appeals

for the Sixth Circuit, however, does not view section 3583(i) as

a tolling provision, “because tolling requires an actual

suspension of the running of the period of supervised release,

and under § 3583(i) there is no suspension, but rather an

extension of the period during which the government may

pursue violations of supervised release.” United States v. OssaGallegos, 491 F.3d 537, 543 n.5 (6th Cir. 2007). We agree with

the Sixth Circuit Court of Appeals that § 3583(i) is not a tolling

provision, because there is no suspension of the supervised

release period, but rather an extension of it.

10

The structure of the supervised release statutes also

suggests that tolling a period of supervised release following

removal is beyond the authority of a district court. By law, a

term of supervised release commences on the day the defendant

is released from imprisonment. 18 U.S.C. 3624(e). Congress

has provided for an exception to this rule in only one situation :

3

where the defendant is imprisoned for more than 30 days for

another conviction. 18 U.S.C. § 3624(e). That is the only

instance in which Congress allowed for the suspension of the

supervised release period, and it did so specifically by statute.
11

We find persuasive Cole’s argument that the canon of expressio

unius est exclusio alterius suggests that where Congress has

explicitly allowed for tolling only when the defendant is

imprisoned on another charge, it does not intend for district

courts to toll supervised release under any other circumstance.

 The government argues that an alien living abroad cannot

be supervised effectively by U.S. Probation, whose reach does

not extend beyond the borders of the United States. Further, it

urges that a defendant may find it difficult or impossible to

comply with the conditions of supervised release, which means

that a violation of the terms of supervised release is almost

automatic. However, the statute addresses some of those

concerns – none of the mandatory conditions of supervised

release requires physical presence in the United States (e.g.,

refraining from the use of drugs, not committing a crime) and

those that might (like drug treatment) are only mandatory if they

exist within a 50-mile radius of the defendant’s home. 

We also note that the statutory structure makes the

government’s position logically suspect: a defendant charged

with illegal reentry, such as Cole, may be ordered to leave and

stay outside of the United States as a condition of his supervised

release. 18 U.S.C. § 3583(d) (“If an alien defendant is subject

to deportation, the court may provide, as a condition of

supervised release, that he be deported and remain outside the

United States . . ..”). If a defendant is removed and ordered

excluded from the United States as a condition of supervised

release, how can it be that the period of supervised release is

tolled during that period? See Isong, 111 F.3d at 433 (Moore,

J., dissenting). The United States Court of Appeals for the
 This logical inconsistency appears in the District 4

Court’s judgment, in which it writes that “[t]he defendant’s term

of supervised release shall run inactive if the defendant is

deported. Should the defendant re-enter the United States after

deportation, such action will be considered a violation of

supervised release.” (App. 6.) If the period of supervised

release has been tolled and is suspended during the time Cole is

excluded from the United States, his reentry into the United

States cannot violate supervised release, because there is no

supervised release in effect.

12

Eighth Circuit noted this problem in United States v. JuanManuel, 222 F.3d 480 (8th Cir. 2000): “Congress could not

have intended to allow a defendant to be excluded from the

United States as a condition of supervised release while, at the

same time, allow all conditions of supervised release to be

suspended for the duration of that exclusion.” Id. at 487.4

We appreciate the government’s arguments as to

practicality and the desire to impose terms of supervised release

on post-removal defendants when they return to the United

States – indeed, it may make sense for Congress to address this

issue and revise the statute – but, as written, the statute does not

allow district courts to toll supervised release periods following

removal. We concur with our sister courts of appeals: if

Congress had wanted to authorize tolling the period of

supervised release during the period that a removed defendant

was outside the jurisdiction of the United States, the statute

would contain that provision.
13

B. Plain Error

The other courts of appeals that have addressed the issue

of whether a term of supervised release may be tolled following

a defendant’s removal have reviewed the question de novo.

However, Cole did not object to the tolling at sentencing;

therefore, we review his sentence for plain error. Fed. R. Crim.

P. 52(b). Having decided that the District Court erred when it

tolled Cole’s term of supervised release, we must now determine

whether that error was plain, whether it affected Cole’s

substantial rights, and whether it seriously affects the fairness,

integrity, or public reputation of judicial proceedings. 

Cole contends that the plain error standard was met. He

argues that there was error, and that even though there was no

Third Circuit precedent directly on point, the error was clear

because all of the other circuits who had ruled on the issue had

held that there was no tolling. Further, Cole says, the error

affected his substantial rights because he would be subject to

imprisonment upon his return to the United States, even if he

returned long after the three-year period of supervised release

would have run had he remained in the United States. Finally,

he argues that the error seriously affected the integrity of judicial

proceedings, because imposing a sentence not authorized by law

has a serious and detrimental impact on the fairness and

reputation of the proceedings. 

The government revisits its arguments that there was no

error in the first place: that the District Court has discretion to

fashion conditions of supervised release and that tolling

supervised release can prevent an illegally returning defendant
14

from entering the United States again. It says that even if we

find that the District Court should not have tolled Cole’s period

of supervised release, the error was not plain because of the lack

of Third Circuit precedent. It argues that even though the four

courts of appeals that have spoken on the issue have all found

the tolling to be error, the United States Court of Appeals for the

Sixth Circuit had previously held otherwise, in Isong, and two

district courts, in Virginia and in Texas, found such tolling

permissible. See United States v. Zepeda-Dominguez, 545 F.

Supp. 2d 547 (E.D. Va. 2008); United States v. CastroGonzalez, No. 04-337, 2008 WL 620741 (S.D. Tex. Mar. 4,

2008). 

The government analogizes the situation here to the fact

pattern presented in United States v. Harris, 471 F.3d 507 (3d

Cir. 2006). There, we found that the government’s questioning

at trial amounted to legal error, but that the error wasn’t plain

because the issue was complicated and fact specific, and the

Supreme Court had yet to rule. The government also cites

United States v. Rivas, 493 F.3d 131 (3d Cir. 2007), where we

found that while certain police testimony was improper, the

error wasn’t plain because “there was at least a possible

legitimate reason for the testimony.” Id. at 137.

The government also argues that there is no effect on

Cole’s substantial rights or a miscarriage of justice. The

government distinguishes Cole’s situation from cases where the

condition of supervised release at issue would have an

immediate impact on the defendant as soon as he was released

from prison. Here, the government argues, the impact on Cole

is far more remote, because the condition will only apply if Cole
15

is removed after his prison term, and the supervised release

period will begin only if he has reentered the United States after

removal. The government says that this is far too speculative to

affect Cole’s substantial rights or the fairness and integrity of

the proceedings.

We have already concluded that the District Court erred

when it ordered that Cole’s period of supervised release be

tolled following his removal. We also conclude that the error

was plain: the statute simply does not allow a district court to

stop and start supervised release. The statute provides for the

supervised release period to start on the day that the defendant

is released from prison; it continues during the period of months

or years that the district court ordered in its judgment. As noted

above, the only exception is when the defendant is imprisoned

for more than 30 days for another crime. 18 U.S.C. § 3624(e).

If Congress intended there to be an exception for post-removal

defendants’ supervised release, it would have included that in

the statute. 

We are not persuaded by the government’s arguments as

to the lack of Third Circuit authority. Even though the District

Court had no precedent from our court to guide its decision, all

of the other circuits that have addressed the issue have found

that such tolling is impermissible based upon the statutory

provisions at issue. In United States v. Evans, 155 F.3d 245 (3d

Cir. 1998), we found that a district court violated the supervised

release statute when it conditioned supervised release on

reimbursement of the cost of court-appointed counsel. The

government argued that the error was not plain because we had

not yet addressed whether such a condition was appropriate. We
16

found that the government’s argument was “without merit.

Neither the absence of circuit precedent nor the lack of

consideration of the issue by another court prevents the clearly

erroneous application of statutory law from being plain error.”

Id. at 252. Cole’s arguments in this case are even stronger than

those of the defendant in Evans, because there were four court

of appeals opinions to provide guidance.

The government’s citation to Harris and Rivas is

unhelpful. Both Harris and Rivas were fact-intensive cases –

this case is not. The legal issue here does not involve a complex

set of facts or judgments as to evidentiary matters. Rather, it

involves an examination of various statutory provisions

regarding sentencing. Therefore, Harris and Rivas fail to

persuade us that we should find that the error in this case was

not plain.

The government also points to Isong, the Sixth Circuit

case that was overruled by the en banc Ossa-Gallegos opinion,

and two district court cases: Zepeda-Dominguez and CastroGonzalez. The government describes these as tolling cases, but

both cases seek to distinguish Ossa-Gallegos. In ZepedaDominguez, the district court specifically said that it was not

tolling the defendant’s period of supervised release. Rather, the

court’s judgment ordered that the defendant be released from the

Bureau of Prisons directly to ICE for removal. The court

reasoned that because supervised release does not begin until a

defendant is released by the Bureau of Prisons to the supervision

of a probation officer, a defendant who is immediately removed

before reporting to a probation officer would not begin the

supervised release period until he reenters the United States and
17

reports to a probation officer. 545 F. Supp. 2d at 549. Whether

the Zepeda-Dominguez court effectively distinguished OssaGallegos is not before us; even if the case were properly

decided, it is not helpful to the government here.

In Castro-Gonzalez, the district court pointed out that the

judgment does not toll the term of supervised release, but rather

provides that while the defendant was out of the country he

would not be subject to supervision by the Probation Office.

The court distinguished Ossa-Gallegos, saying that

“[s]upervision becoming inactive is distinguishable from an

explicit statement that the supervised release term itself is

‘tolled.’” 2008 WL 620741, at *4. Again, whether the district

court effectively distinguished Ossa-Gallegos is not for us to

decide, but as with Zepeda-Dominguez, Castro-Gonzalez does

not support the government’s argument that the District Court’s

error was not plain. The great weight of authority holds that the

tolling the district court ordered here was impermissible, and we

find that the error was plain.

We also find that the error affected Cole’s substantial

rights. Our precedent is clear that a plainly erroneous condition

of supervised release always affects a defendant’s substantial

rights. See United States v. Voelker, 489 F.3d 136, 154 (3d Cir.

2007). Even though we hold today that tolling is not a condition

of supervised release, the same reasoning applies – the District

Court’s tolling of supervised release inevitably affects Cole’s

substantial rights, because it unlawfully extends the time that the

supervised release conditions apply to him beyond the three

years of his sentence. The statute says that his supervised

release period starts the day he is released from prison; his
18

sentence says that the period runs for three years. Tolling

supervised release in a manner not allowed by the statute affects

Cole’s substantial rights. 

The government’s argument that Cole will not be

prejudiced immediately by the tolling, and that therefore his

substantial rights are not affected, is not persuasive. A condition

of supervised release to be applied after a defendant has served

a long prison sentence may be remote, but if it is contrary to law

it still affects his substantial rights. While we do not know now

whether Cole will seek to reenter the United States after he

serves his prison sentence and is removed, no court can know,

when it applies a condition of supervised release, whether the

defendant will violate it. The supervised release situation is by

definition speculative. That does not prevent it from affecting

substantial rights. 

In Evans, we held that “imposing a sentence not

authorized by law seriously affects the fairness, integrity, and

reputation of the proceedings.” 155 F.3d at 152. Having

decided today that the tolling of Cole’s period of supervised

release during his time of exclusion from the United States was

unlawful, we would be casting doubt on the fairness, integrity,

and reputation of our proceedings if we were to allow tolling

without statutory authorization. 

We are guided by our sister courts of appeals, and by our

own precedents, to conclude that the District Court’s tolling of

supervised release following Cole’s post-imprisonment removal

was plain error, that it affected Cole’s substantial rights, and that

it affected the fairness and integrity of our judicial proceedings.
19

In light of the above, we will reverse the District Court and

remand the case for resentencing consistent with this opinion.