United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
matter is before the Court on the DEFENDANT'S MOTION TO
DISMISS PETITION ON PROBATION FOR LACK OF JURISDICTION (ECF
No. 21) ("Def. Mot."). For the reasons set forth
below, the Defendant's Motion will be granted and the
Petition on Probation will be dismissed.
relevant facts in this matter are not in dispute. On January
14, 2013, Travis Mason Sherry was convicted of Driving Under
the Influence of Alcohol in the Eastern District of North
Carolina and was sentenced to a fourteen-month term of
probation. On May 6, 2013, Sherry's term of probation was
extended an additional twenty-two months after he committed
violations of the conditions of his supervision, and
jurisdiction over his probation was transferred to the
Eastern District of Virginia shortly
thereafter. As extended, Sherry's term of
probation was set to expire on January 13, 2016.
26, 2015, Sherry allegedly threatened and brandished a
firearm against two of his neighbors. The officers who
responded to the scene testified that Sherry appeared
intoxicated. The same officers also testified that a gun
matching the description given by the neighbors was found in
Sherry's residence. Sherry did not report this contact
with law enforcement to his probation officer as required by
the conditions of his probation, and, when eventually
confronted by the probation officer on December 1, 2015, he
denied brandishing or otherwise displaying any firearms. The
probation officer advised Sherry that an investigation into
the matter would be conducted, and that he could face legal
consequences if his version of the events proved untrue.
December 18, 2015, after obtaining a copy of the police
report from the June 2015 incident that contradicted
Sherry's narrative, the probation officer submitted a
Petition on Probation (ECF No. 7) . It was approved by the
Court and filed on December 28, 2015. The same day, a warrant
was issued for Sherry's arrest; but, because the United
States Marshals Service (USMS) "policy is to not enter
misdemeanor warrants into NCIC, and such warrants are of
lower priority . . . USMS did not attempt to serve
Defendant." (Gov. Resp. 2, n. 1); see also Tr.
Evid. Hrg. of April 17, 12:18-13:5 (Proffer).
and apparently in accordance with a nationwide office
protocol, the probation office placed Sherry's file into
"inactive status" because the warrant had been
issued. Id. at 6:22-24 ("Our office protocol is
once a warrant is issued, the case is placed in inactive
status, notification is made to the marshals, and we await
execution of the warrant."). Because Sherry's case
was "inactive, " the probation office did not
further communicate with him or otherwise advise him that a
warrant had been issued. Id. at 6:17-20. The
probation officer did, however, alert USMS that Sherry was
thought to be a poor candidate for self-surrender, and
further explained that he might pose a safety concern to any
USMS officers executing the warrant. Id. at 4:9-5:1.
USMS did not ask Sherry to surrender on the warrant or
attempt to arrest him. Id. at 13:10-14. Under the
circumstances, the Court cannot find that Sherry was even
aware of the outstanding warrant.
March 20, 2017, nearly fifteen months later, Sherry was
arrested in Henrico County on a new, separate charge of
brandishing a firearm. Meanwhile, USMS had "reviewed its
database" in February of 2017 and decided to enter the
original warrant into NCIC. That warrant then served as a
federal detainer; and, therefore, after being released on
bond in state court on March 30, Sherry was transferred into
federal custody in response to the outstanding warrant. He
then made his initial appearance in this Court and was
detained pending trial on the Petition on Probation that had
been filed on December 28, 2015. The probation office also
issued an Addendum to its original Petition on Probation that
added the new brandishing charge. (ECF No. 9).
made his initial appearance before Magistrate Judge Young on
the Petition on Probation and the Addendum on April 3, 2017.
The detention hearing was held that day, and Sherry was
detained pending trial on the charges in the Petition on
Probation and the Addendum. Sherry appealed the detention
order, and the Court heard his appeal on April 3, 2017.
See ECF No. 16. At the hearing on the appeal of the
detention order, Sherry for the first time raised his
jurisdictional arguments. See ECF Nos. 18, 20.
Sherry moved to dismiss both the Petition on Probation and
the Addendum on the ground that Sherry's probation had
expired in January of 2016, and that, under 18 U.S.C. §
3565, the Court therefore lacked subject-matter jurisdiction
to adjudicate either. (ECF No. 18) . The Court ordered
expedited briefing on the matter. Id.
April 4, 2017, Sherry filed DEFENDANT'S MOTION TO DISMISS
PETITION ON PROBATION FOR LACK OF JURISDICTION ("Def.
Mot.") (ECF No. 22). The next day the UNITED STATES'
RESPONSE TO DEFENDANT'S MOTION TO DISMISS ("Gov.
Resp.") (ECF No. 23) was filed, asserting for the first
time that the Court retained jurisdiction over Sherry as a
consequence of the so-called "fugitive tolling"
doctrine. Supplemental briefing was ordered. (ECF No. 24) .
Following the additional briefing and an evidentiary hearing,
argument was heard on the motion on April 27, 2017. (ECF No.
26). The matter is now ripe for adjudication.
TOLLING AND 18 U.S.C. § 3565(c)
tolling is a judicially-created doctrine based on the
uncontroversial premise that a defendant "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."
United States v. Murguia-Oliveros, 421 F.3d 951, 954
(9th Cir. 2005); see also United States v.
Workman, 617 F.2d 48, 51 (4th Cir. 1980) ("[A]
probationer cannot obtain credit against the [probationary
period] for any period of time during which he was not, in
fact, under probationary supervision by virtue of his own
wrongful act."). Where applicable, fugitive tolling
"operates to stop the clock" of probation, and the
clock does not resume ticking until "federal authorities
are capable of resuming supervision." United States
v. Buchanan, 638 F.3d 448, 457 (4th Cir. 2011) (internal
name implies, fugitive tolling is applied most regularly
where a "defendant absconds while on supervised
release" or probation, thereby becoming a fugitive from
justice. Id. In such circumstances, the doctrine
preserves the time that the defendant has remaining on his
term until he returns to federal custody (either through
surrender or arrest). Only then will the clock resume on the
period of probation or supervised release. Id.
some circuits have rejected fugitive tolling as unnecessary
or even contrary to the statutes governing supervised release
and probation, see United States v.
Hernandez-Ferrer, 599 F.3d 63, 64 (1st Cir. 2010), the
Fourth Circuit has followed the Ninth Circuit in adopting the
doctrine. Buchanan, 638 F.3d at 455 (w
[W] e agree with . . . the Ninth Circuit and hold that a term
of supervised release is tolled when a defendant absconds
from supervision."). In doing so, however, the Fourth
Circuit appears to have acknowledged that the doctrine is of
limited utility, conceding that "tolling is unnecessary
to avoid allowing a defendant to benefit from absconding ...
in cases where a petition or summons is filed before the
expiration of the supervised release term." Id.
at 455, n. 7. That, of course, is quite sensible: in
those cases ...