IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20406

UNITED STATES OF AMERICA, 

Plaintiff - Appellee

v.

OSCAR DANILO GARCIA-RODRIGUEZ, also known as Oscar Daniello

Mendoza, also known as Roverto Ponse, also known as Carlos Rodriguez, also

known as Roberto Perdomo-Ponce, also known as Roberto Perdomo Ponce, also

known as Oscar Danilo Rodriguez-Gien, also known as Oscar Danilo Garcia, 

Defendant - Appellant

Consolidated with 

No. 09-40635

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

OSCAR DANILO GARCIA-RODRIGUEZ,

Defendant-Appellant

United States Court of Appeals

Fifth Circuit

F I L E D

May 2, 2011

Lyle W. Cayce

Clerk
Nos. 09-20406 & 09-40635

1 The federal public defender initially filed briefs in both Case No. 09-20406 and Case

No. 09-40635 in accordance with Anders v. California, 386 U.S. 738 (1967), requesting leave

to withdraw as counsel because neither case contained a nonfrivolous issue. This court filed

an April 6, 2010 Order (Smith, J.), instructing the federal public defender to file a brief on the

merits addressing (1) “a potential nonfrivolous issue regarding the district court’s assessment

of two criminal history points under U.S.S.G. § 4A1.1(d) on the ground that Garcia was under

a valid sentence when he committed the instant offense” in Case No. 09-20406, and (2) “a

potential nonfrivolous issue for appeal regarding the district court’s jurisdiction to revoke

supervised release” in Case No. 09-40635. After further examination, the federal public

defender argued that the only nonfrivolous issue in either case was issue (2) above. We agree

and therefore address only the jurisdictional issue in Case No. 09-40635.

2

Appeals from the United States District Court 

for the Southern District of Texas

Before SMITH, DeMOSS, and OWEN, Circuit Judges.

PER CURIAM:

The sole issue on appeal is whether the district court had jurisdiction to

revoke Oscar Danilo Garcia-Rodriguez’s three-year term of supervised release

in Case No. 09-40635.1 Resolution of this issue depends on the date on which

Garcia was “released from imprisonment” pursuant to 18 U.S.C. § 3624(e). We

hold that he was released from imprisonment the moment his administrative

detention began, i.e., the moment he was transferred from Bureau of Prisons

(BOP) custody to Immigration and Customs Enforcement(ICE) custody to await

deportation. However, because the record is not clear as to the exact date on

which Garcia was released from imprisonment, we make a limited remand to the

district court for further fact-finding in order to determine the exact date on

which Garcia was released from imprisonment.

I. FACTS

On March 14, 2003, Garcia pleaded guilty to having been found in the

United States after deportation following a felony conviction in violation of 8

U.S.C. § 1326(a) and (b)(1). He was sentenced to a 37-month term of
Nos. 09-20406 & 09-40635

2 The revocation petition stated that Garcia was deported on October 28, 2005, but the

Presentence Investigation Report and the government’s proffer stated that he was deported

on November 17, 2005.

3

imprisonment followed by a three-year term of supervised release. Upon

completion of his prison sentence, apparently on some date between October 17,

2005, and October 28, 2005, he was transferred from BOP custody to ICE

custody to await deportation. It appears that he was deported on October 28,

2005.2

Almost three years later, on October 11, 2008, Garcia was arrested in

Houston for criminal trespass. On October 24, 2008, a probation officer filed a

warrant petition alleging that Garcia had violated the conditions of his

supervised release by committing (1) criminal trespass, (2) illegal re-entry, and

(3) a violation of the special condition of release that he not return to the United

States illegally. The probation officer recommended that Garcia’s term of

supervised release be revoked. A revocation warrant issued on October 24, 2008.

On April 28, 2009, Garcia filed a motion to dismiss the revocation warrant

arguing that the district court did not have jurisdiction to hear the revocation

case pursuantto 18 U.S.C. § 3583(i), because the revocation warrantissued after

his term of supervised release had expired. He contended in his motion that,

according to the staff at the Federal Detention Center in Houston, the BOP’s

SENTRY system (an inmate record-keeping system) shows that he was

transferred from BOP custody to ICE custody on October 17, 2005, not on

October 28, 2005, as alleged in the warrant petition. He asserted that October

17, 2005, was the date on which his three-year term of supervised release

commenced and therefore that his term expired at midnight on October 16, 2008,

approximately one week before the revocation warrant issued.

Garcia’s counsel ultimately chose not pursue the motion to dismiss.

Subsequently, at a hearing before the district court on June 11, 2009, Garcia
Nos. 09-20406 & 09-40635

4

pleaded “true” to illegal re-entry and to violating the special condition that he

not return to the United States illegally. The district court revoked his term of

supervised release and sentenced him to an additional 18-month term of

imprisonment. He timely appealed.

In response to the federal public defender’s filing of briefs in accordance

with Anders v. California, 386 U.S. 738 (1967), Garcia filed certain objections

(Objections). His Objections again asserted that the district court lacked

jurisdiction to revoke his term of supervised release. In support of his Objections

he attached an email addressed to federal public defender Michael L. Herman,

his trial counsel, from Beth Hull, a paralegal specialist employed by the BOP.

The email dated March 26, 2009, reads in relevant part:

SENTRY shows 10/17/2005 is the date I/M changed to ICE custody

and he was INS removed 10/28/2005.

This court subsequently issued an April 6, 2010 Order instructing the federal

public defender to file a brief on the merits addressing, inter alia, the

jurisdictional issue in Case No. 09-40635 which we now consider.

II. DISCUSSION

“We review the district court’s jurisdiction to revoke a defendant’s

supervised release de novo.” United States v. Jackson, 426 F.3d 301, 304 (5th

Cir. 2005) (citing United States v. Jimenez-Martinez, 179 F.3d 980, 981 (5th Cir.

1999)). “A district court has jurisdiction to revoke a defendant’s supervised

release during the term of supervised release, or within a reasonable time after

the term of supervised release has expired if a summons or warrant regarding

a supervised release violation was issued prior to the expiration of the term of

supervised release.” Id. (citing 18 U.S.C. § 3583(i)). A “term of supervised

release commences on the day the person is released from imprisonment . . . . A

term of supervised release does not run during any period in which the person

is imprisoned in connection with a conviction for a Federal, State, or local crime
Nos. 09-20406 & 09-40635

3 Garcia states in his reply brief that even if his term of supervised release commenced

on or after October 25, 2005, “it would still not be clear whether the district court had

jurisdiction to consider the revocation petition, because there is no evidence that, as required,

a warrant or summons also issued prior to the expiration of the term of supervised release.”

This is incorrect as a magistrate judge issue a revocation warrant pursuant to the warrant

petition on October 24, 2008.

5

unless the imprisonment is for a period of less than 30 consecutive days.” 18

U.S.C. § 3624(e). The revocation warrant was issued on October 24, 2008, so

only if Garcia was released from imprisonment prior to October 24, 2005, did his

three-year term of supervised release expire before the revocation warrant

issued.3

A. “Released From Imprisonment”

The government contends that even if Garcia was transferred from BOP

custody to ICE custody on October 17, 2005, as Garcia asserts, such transfer did

not cause his term of supervised release to commence. It argues that, under

§ 3624(e), Garcia was not “released from imprisonment” when he was

transferred into ICE custody because administrative detention by ICE continued

his confinement. It asserts that his term of supervised release only commenced

on October 28, 2005, the date on which he was actually deported and, therefore,

the date on which he was no longer confined by either the BOP or ICE. The

government relies primarily on United States v. Johnson, 529 U.S. 53 (2000),

and United States v. Jackson, 426 F.3d 301 (5th Cir. 2005), for the proposition

that administrative detention qualifies as “imprisonment” for purposes of

§ 3624(e), but neither case is directly on point.

In Johnson, the Supreme Court found that, regardless of whether a

defendant served more time in prison than he should have, the text of § 3624(e)

controls and a term of supervised release commences only when the defendant

“is released from imprisonment.” 529 U.S. at 57. In its discussion the Court

noted that “the ordinary, commonsense meaning of release is to be freed from
Nos. 09-20406 & 09-40635

6

confinement.” Id. Citing § 3624(e), it also stated that a defendant’s “term of

supervised release comes after imprisonment, once the prisoner is released by

the Bureau of Prisons to the supervision of a probation officer. Supervised

release does not run while an individual remains in the custody of the Bureau

of Prisons.” Id. (internal marks omitted). The Court did not answer whether

other types of “confinement” qualify as “imprisonment” under § 3624(e).

In Jackson, this court determined that a defendant’s term of supervised

release was properly tolled during his imprisonment which was the result of a

parole revocation that was later held to be unconstitutional. 426 F.3d at 305.

It noted that § 3624(e) “indicates that the period of supervised release does not

run during imprisonment; the statute states no exceptions.” Id. at 304. It also

did not answer whether other forms of confinement qualify as imprisonment.

Neither Johnson nor Jackson directly considered whether administrative

detention by ICE qualifies as “imprisonment,” such that a prisoner’s transfer

from BOP custody to ICE custody would not constitute being “released from

imprisonment.” 18 U.S.C. § 3624(e). And other non-precedential decisions cited

by Garcia have indicated, but have not explicitly held, that administrative

detention does not qualify as imprisonment. See, e.g., UnitedStates v.Perez, 251

F. App’x 523, 524 (10th Cir. 2007) (unpublished) (noting that the defendant was

released into ICE custody and detained for two years and that his “period of

supervised release began to run as soon as he was transferred to ICE custody”).

We have not found (and the parties do not cite) any circuit court authority

directly on point. However, a straightforward reading of the applicable statute

shows that administrative detention by ICE is notthe same as imprisonment by

the BOP.

Section 3624(a) of the statute provides that “[a] prisoner shall be released

by the Bureau of Prisons on the date of the expiration of the prisoner’s term of

imprisonment, less any time credited toward the service of the prisoner’s
Nos. 09-20406 & 09-40635

7

sentence as provided in subsection (b).” 18 U.S.C. § 3624(a). The statute further

provides:

A prisoner whose sentence includes a term of supervised release

after imprisonment shall be released by the Bureau of Prisons to the

supervision of a probation officer who shall, during the term

imposed, supervise the person released to the degree warranted by

the conditions specified by the sentencing court. The term of

supervised release commences on the day the person is released

from imprisonment and runs concurrently with any Federal, State,

or localterm of probation or supervised release or parole for another

offense to which the person is subject or becomes subject during the

term of supervised release. A term of supervised release does not

run during any period in which the person is imprisoned in

connection with a conviction for a Federal, State, or local crime

unless the imprisonment is for a period of less than 30 consecutive

days.

Id. § 3624(e). 

The statutory language of subsections (a) and (e) makes several things

clear. First, imprisonment ends upon a prisoner’s release from the custody of

“the Bureau of Prisons.” See id. § 3624(a), (e). Second, any other term of

imprisonment must be “in connection with a [separate] conviction” for a “crime”

if such imprisonment is to toll the term of supervised release. Id. § 3624(e).

Third, the release shall be made “to the supervision of a probation officer.” Id.

And finally, only the specific terms “imprisonment” or “imprisoned” are used, not

the term administrative detention or other specific types of custody. Id.

§ 3624(a), (e). In Garcia’s case, he was released from BOP custody the moment

he was transferred to ICE custody. He had no other term of imprisonment,

based upon a separate conviction for a crime, which would have tolled his term

of supervised release. Any supervision by a probation officer would have simply

been “inactive” supervision while he was in ICE custody and then after he was

deported. See United States v. Brown, 54 F.3d 234, 239 (5th Cir. 1995) (finding

that supervised release continues after deportation and citing a probation
Nos. 09-20406 & 09-40635

8

manual which specifies that the supervision will simply be “inactive” until the

expiration date). While the Supreme Court in Johnson did state that being

released from imprisonment meant being “freed from confinement,” it also

specifically mentioned a defendant remaining in BOP custody, and it continued

to use only the statutory term “imprisonment” and not the term administrative

detention or any other possible variation of the term “confinement.” 529 U.S. at

57. Simply because he remained confined while being administratively detained

by ICE does not mean he also remained “imprisoned.”

Moreover, it is clear under federal immigration law that administrative

detention of an alien is not the same as imprisonment for a crime. See, e.g., 8

U.S.C. § 1226(c)(1) (providing that the Attorney General is required to take

aliens who have committed felonies into custody “when the alien is released,

without regard to whether the alien is released on parole, supervised release, or

probation, and without regard to whether the alien may be arrested or

imprisoned again for the same offense”); 8 U.S.C. § 1229a(a)(3) (eliminating the

district courts’ jurisdiction to deport an alien defendant); 8 U.S.C. § 1231(a)(4)(A)

(providing that“the Attorney General may not remove an alien who is sentenced

to imprisonment until the alien is released from imprisonment”); 18 U.S.C.

§ 3583(d) (providing that 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, and may order that he be delivered to a duly

authorized immigration official for such deportation”). If the transfer of an alien

from BOP custody to ICE custody is itself a possible condition of supervised

release, the resulting administrative detention by ICE cannot also be part of the

alien’s term of imprisonment.

While Garcia’s administrative detention and subsequent deportation by

ICE may be related to a crime that he previously committed, that relationship

does not turn such detention into “imprisonment” as contemplated by § 3624(e).
Nos. 09-20406 & 09-40635

4 At oral argument, defense counsel noted that the transfer of custody from BOP to ICE

may have been a “transfer by declaration” as opposed to a physicaltransfer of Garcia from one

place of confinement to another. This distinction, if true, does not change our analysis—the

moment of transfer (physical or by declaration) qualifies as the moment Garcia was “released

from imprisonment” under § 3624(e).

9

We therefore hold that administrative detention by ICE does not qualify as

imprisonment and that, for purposes of § 3624(e), Garcia was “released from

imprisonment”the moment he was transferred from BOP custody to ICE custody

to await deportation.4

B. Facts in the Record

This court stated in its April 6, 2010 Order that “the record does not

plainly establish . . . the commencement date for the supervised release term

imposed in connection with the 2003 illegal reentry conviction.” The parties cite

to various, and at times conflicting, documents in the record, none of which

conclusively establish on what date Garcia was transferred from BOP custody

to ICE custody, or on what date he was actually deported.

This conflict was not directly addressed by the district court, and we find

the appellate record insufficient to resolve it on appeal. Therefore, we make a

limited remand to the district court for the purpose of answering the following

questions: (1) On what date did Garcia complete his 37-month term of

imprisonment for his 2003 illegal re-entry conviction? (2) On what date was

Garcia transferred from BOP custody to ICE custody? And (3) on what date was

Garcia actually deported? The district court may conduct a hearing, take

testimony, and receive additional evidence, as it deems appropriate, in order to

make the necessary factual determinations. The district court shall make a

written report of its factual determinations. Such written report, along with a

transcript of any hearing(s) and any additional evidence received by the district

court, shall be promptly submitted to this court for review by this same panel.

This panel will then make a final determination as to whether the district court
Nos. 09-20406 & 09-40635

10

had jurisdiction to revoke Garcia’s three-year term of supervised release and

sentence him to an additional 18-month term of imprisonment.

III. CONCLUSION

For the foregoing reasons, we make a LIMITED REMAND to the district

court. This panel retains jurisdiction over the case.