United States Court of Appeals

Fifth Circuit



## FILED

September 20, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 04-30887

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BENJAMIN DUANE JACKSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of Louisiana

Before DAVIS, JONES, and GARZA, Circuit Judges.

PER CURIAM:

This case presents an issue of first impression: whether

incarceration for a parole violation that was later held

unconstitutional by a state court tolls the defendant’s period of

supervised release under 18 U.S.C. § 3624. Defendant-Appellant

Benjamin Duane Jackson (“Ja ckson”) appeals the district court’s

judgment holding that his prior incarceration tolled his supervised

release and thereby extended the period he must submit to supervised release. We AFFIRM.

BACKGROUND

On April 25, 1995, Jackson was convicted of armed robbery

in a Louisiana court and sentenced to five years’ imprisonment. He2

was released on parole on December 26, 1996, and his parole was to

expire on September 8, 1999.

In August 1999, approximately one month before his parole

was to expire, Jackson was arrested in the Southern District of

Mississippi and charged with conspiracy to distribute marijuana and

use of a communication facility to facilitate conspiracy to distribute marijuana. After his arrest, Jackson immediately contacted

his parole agent, and the parole agent was present at Jackson’s

first appearance in federal court. At that time, a parole violation warrant was issued for Jacks on, but neither Jackson nor

federal authorities were notified of its issuan ce. Jackson

subsequently pleaded guilty to one count of conspiracy to

distribute marijuana. On June 16, 2000, the Southern District of

Mississippi sentenced Jackson to twenty months’ imprisonment and

three years’ supervised release.

Jackson was released from prison and began his period of

supervised release on January 17, 2001. The supervised release was

to end on January 16, 2004. On May 7, 2002, Jackson’s supervised

release was transferred to the Middle District of Louisiana.

In early 2002, Jackson was arrested in Louisiana on

charges that were later dismissed. On June 7, 2002, while those

charges were pending, Louisian a revoked Jackson’s parole on the

basis of his federal drug conviction, and Jackson was returned to

the State Department of Corrections to serve the thirty-two months

remaining on his armed robbery sentence.3 Jackson filed a state habeas corpus petition arguing that

his parole revocation violated his du e process rights under

Morrissey v. Brewer , 408 U.S. 471, 92 S. Ct. 2593 (1972), because

he was not given a prerevocation hearing in a timely manner after

his arrest in August 1999. After holding two hearings, the

Commissioner for the state court recommended that the state court

grant Jackson’s petition. The Commissioner found that Jackson’s

d ue process rights had been violated because he was not gi ven a

timely prerevocation hearing. Alternatively, the Commissioner

recommended that Jackson be given credit for time served while he

was serving his federal sentence and while he was at liberty prior

to his parole revocation. On January 9, 2003, the state court

adopted the Commissioner’s recommendation and explicitly ordered

that Jackson be given credit for the time he served in federal

custody and while he was at liberty. R. 21. Jackson was released

from state custody on January 17, 2003.

A p etition for the revocation of Jackson’s supervised

release was filed in the District Court for the Middle District of

Louisiana on March 23, 2004 , over two months after Jackson’s

supervised release was originally set to expire. The petition

alleged that Jackson committed five violations of his supervised

release: (1) use of marijuana; (2) failure to make scheduled

payments on his fine; (3) failure to submit a monthly report to his

proba tion officer; (4) failure to follow the instructions of his

probation officer; and (5) failure to complete a substance abuse4

treatment program ordered by his probation officer. Some of the

allegations regarding the use of marijuana and the failure to make

payments on his fine occurred prior to the original expiration date

of his super vised release, and the remaining alleged violations

occurred after that date.

At the hearing on the petition to revoke Jackson’s supervised release, Jackson argued that the petition should be d enied

b ecause it was not issued until after his supervised release

expired on January 16, 2004. The Government asserted that

Jackson’s supervised release period was tolled while he was

incarcerated for the parole revocation from June 7, 2002, until

January 17, 2003, and that his supervised release, therefore,

expired on August 26, 2004, making the revocation petition timely.

In response, Jackson maintained that his supervised release period

was not tolled by his incarceration because his incarceration was

found to be in violation of his due process rights. Jackson

further argued that the petition should be denied because he was

not given written notice that his supervised re lease period had

been tolled and because the tolling was not alleged in the

petition.

At the hearing, Jackson admitted to violating the terms

of his supervised release after January 16, 2004, but stated that

he thought that his supervised release ended on that date . He

admitted that his parole officer told him orally that his

supervised release had been tolled, but stated that he did not5

believe this because he was given no documentation of the tolling.

Jackson testified that he went to the appropriate judge’s chambers

and asked whether his supervised release had been tolled, and that

someone ther e told him that she was unaware of the tolling, and

that she would write him a letter if there were any changes to his

supervised release. Jackson stated that he never received a letter

stating that his supervised release had changed, so he thought that

it expired on January 16, 2004, as originally scheduled.

At the conclusion of the hearin g, the district court

found that Jackson had violated the terms of his supervised release

as alleged in the revocation petition, and the court ordered the

parties to fi le briefs on the issue whether Jackson’s supervised

release was tolled by his incarceration following h is parole

revocation. In his brief, Jackson argued that his incarceration

did not toll his superv ised release because unconstitutional

incarceration, like an unconstitutional statute, is void. Jackson

additionally asserted that, pursuant to t he state court ruling

giving him credit for t he time he served in federal prison and

while at liberty, his sente nce for the armed robbery offense

expired in April 2002. Therefore, he contended that his sentence

had expired by the time his parole was revoked on July 7, 2002,

making his incarceration not related to a conviction and tolling of

his supervised release improper under 18 U.S.C. § 3624(e). The

Government asserted that the state court did not find that the

revocation of Jackson’s parole was unconstitutional and that even1 Jackson initially filed his notice of appeal more than ten days but

less than thirty days after the judgment was entered, so this court remanded the

case to the district court to determine whether the untimely filing of the notice

of appeal was the result of excusable neglect or good cause (entitling Jackson

to an extension of time under F ED

. R. A PP

. P. 4(b)(4)). U nited States v. Jackson

, No. 04-30887 (5th Cir. Oct. 5, 2004) (per curiam). The district court granted

Jackson the extension of time, making his notice of appeal timely. S ee F ED

. R.

A PP

. P. 4(b)(4).

2 For the first t i me in his reply brief, Jackson argues that he was

entitled to written notice of the tolling of the term of his supervised release

under 18 U.S.C. § 3583(f). Arguments raised for the first time in a reply brief,

even by pro se litigants such as Jackson, are waived. S ee K nighten v.

Commissioner , 702 F.2d 59, 60 n.1 (5th Cir. 1983).

6 if it did, the incarceration still tolled his supervised release

pursuant to § 3624(e) because Jackson’s initial armed robbery

conviction was not overturned.

The district court determined that the state court had

ruled that although Jackson’s parole revocation was unc onstitutional, his incar ceration for the parole revocation nevertheless

tolled his supe rvised release. Accordingly, the district court

granted the petition to revoke Jackson’s supervised release. The

district court sentenced Jackson to 105 days’ imprisonment (time

served), up to six months at a halfway house at the discretion of

his probation officer, and twenty-five months’ supervised release.

Jackson filed a timely appeal. 1

DISCUSSION

The sole issue before us is whether the district court

had jurisdiction to revoke Jackson’s supervised release. 2 Jackson

contends that his imprisonment did not toll the term of his

supe rvised release because his parole revocation was held

unconstitutional by the state court. Jackson asserts that because3 Our review in this case is de novo because Jackson challenges the

district court’s jurisdiction to adjudicate the petition to revoke his supervised

release; Jackson does not make a discrete challeng e to the district court’s

ultimate conclusion. Cf. United States v. Jeanes , 150 F.3d 483, 485 (5th Cir.

1998) (reviewing the district court’s decision not to reduce the defendant’s

supervised release for abuse of discretion).

7 the state court ruled that his parole ended in April 2002, and his

parole was not revoked until June 7, 2002, his incarceration could

not have been related to his armed robb ery conviction and,

therefore, could not have tolled his term of supervised release.

We review the district court’s jurisdiction to revoke a

defendant’s supervised release de novo. 3 U nited States v. JimenezMartinez

, 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 viol ation was issued prior to the

expiration of the term of supervised release. 18 U.S.C. § 3583(i).

The revocation warrant was issued on March 23, 2004, and Jackson’s

supervised release was revoked on June 25, 2004. Thus, unless

Jackson’s period of sup ervised release was tolled during his

imprisonment, the district court lacked jurisdiction to revoke

Jackson’s supervised release.

We begin our analysis with the plain text of the statute,

see D oe v. KPMG, LLP , 398 F.3d 686, 688 (5th Cir. 2005), which

states:

The term of supervised release commences on the day the

person is released from imprisonment and runs c oncur-8

r ently with any Federal, State, or local term o f 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 re lease does not run during any period in

which the person is imprisoned in connection with a

conviction for a Federal, S tate, or local crime unless

the impr isonment is for a period of less than 30

consecutive days. . . .

18 U.S.C. § 3624(e) (emphasis added). The first part of the

emphasized sentence indicates that the period of supervised release

does not run during imprisonment; the statute states no exceptions.

Additionally , the “period” of imprisonment during which the

supervised release term is tolled is connected to “a conviction for

a Federal, State, or local crime.” Although Jackson was put back

in prison thr ough an unconstitutional parole revocation hearing,

the conviction for which his sentence existed in the first place

—

commission of the Louisiana armed robbery offense — was valid and

is not contested by Jackson here. The statutory text is

unambiguous; Jackson’s period of supervised release w as properly

tolled during his imprisonment and thus the district court properly

had jurisdiction to rule on the petition to revoke Jackson’s

supervised release.

T he Supreme Court’s treatment of the same statute in

United States v. Johnson

, 529 U .S. 53, 120 S. Ct. 1114 (2000),

informs our analysis here. In J ohnson

, the defendant was initially

sentenced to 171 months’ imprisonment and a mandatory period of

three years’ supervised release. Intervening caselaw in Johnson’s

favor resul ted in one of his convictions being vacated, which9

reduced his sentence to fifty-one months. Because Johnson had

already served more than fifty-one months, he was immediately

released. Johnson then sought a reduction in his supervised

release term for the extra time he served in prison. The Supreme

Court held that Johnson was not entitle d to any reduction in his

period of supervi sed release because § 3624(e) explicitly states

that a term of supervised release does not commence until the

defendant “is released from imprisonm ent.” J ohnson

, 529 U.S. at

57, 120 S. Ct. at 117 (quoting § 3624(e)); accord Jeanes

, 150 F.3d

at 485 (arriving at a similar conclusion in a pre- Johnson case).

Additionally, the Court noted that its reading of th e statute

“accords with the statute’s purpose and design. The objectives of

supervised release would be unfulfilled if excess prison time were

to offset and reduce terms of supervised release.” J ohnson

, 529

U.S. at 59, 120 S. Ct. at 1118. Supervised Release serves a

rehabilitative role “distinct from those served by incarceration”

by helping defendants transition back into the community. I d. As

we have noted before, “supervised release . . . serves a broader,

societal purpose by reducing recidivism.” J eanes

, 150 F.3d at 485;

see also Gozlon-Peretz v. United States

, 498 U.S. 395, 407, 111

S. Ct. 840, 848 (1991) (“Supervised release is a unique method of

postconfinement supervision invented by Congress for a series of

sentencing reforms.”).

The district court’s result in this case similarly

supports, but is not dependent upon, the policy aims of supervised4 Johnson was convicted of federal offenses and thus his appeal stemmed

from a challenge to the federal district court’s refusal to give him credit for

his time served to reduce his period of supervised release. Johnson , 529 U.S.

at 55; 120 S. Ct. at 1116-17.

10 release. Shortening the period of supervised release reduces the

amount of time a former prisoner is monitored by the system and

undermines the reha bilitative goals Congress pursued in enacting

§ 3624. While Jackson was in prison, purposefully kept o ut of the

community, his probation officer could not supervise him; it was

impossible for his probation officer to assist him in returning to

the commun ity. Although Jackson’s case is in some ways

distinguishable from Johnson because the state gave Jackson credit

for the time served in prison, 4 this difference is insufficient to

remove Jackson’s case beyond the plain text of the statute, or to

divorce it from the policy aims of § 3624.

CONCLUSION

In light of the plain meaning of the statute and the

Supreme Court’s pronouncements on similar challenges, the judgment

of the district court is AFFIRMED.