Court repudiates extension of federal supervised release while a defendant absconds

After completing a term of imprisonment, federal criminal defendants often serve terms of supervised release that usually last between one to five years, depending on the offense for which they were convicted. Isabel Rico pleaded guilty to federal drug trafficking offenses and was sentenced to seven years of imprisonment followed by four years of supervised release. Rico violated her terms of supervised release several times, including near the end of her term of supervision. She stopped reporting to her probation officer, stopped living at the address she gave her probation officer, and absconded. After her term of supervision expired and while she was a fugitive, she also committed new crimes.

In Rico v. United States, the Supreme Court held, 8-1, that Rico’s term of supervision expired notwithstanding her flight and that the new crimes, committed after the term of supervision ended, could not by themselves authorize a district court to revoke her term of supervision.

The court’s ruling was quite narrow. As 18 U.S.C. § 3583(i) provides, a defendant’s flight does not preclude a court from adjudicating after the expiration of the term of supervised release violations that occurred before the term expired, as long as “a warrant or summons has been issued on the basis of an allegation of such a violation.” Overwhelmingly, when a defendant flees supervision near the end of a term of supervised release, a warrant or summons will be issued for at least that violation, and the court will retain the power to punish that violation, even if it takes time to apprehend the defendant. In addition, the court accepted, as Rico had conceded, that crimes committed by a defendant after the term of supervision expired and while the defendant was a fugitive may also be considered by the district court in its discretion in fashioning a sentence for the violations identified in the warrant or summons. The court merely rejected that the term of supervision would be deemed to continue past the point it would have ordinarily expired simply because of the defendant’s flight. A defendant’s crimes while a fugitive after the expiration of the term of supervision would therefore not independently justify revoking the term of supervision or factor into determining the advisory sentencing guideline range for the violation.

The court’s opinion by Justice Neil Gorsuch reasoned that the statutory language included express extension and tolling rules that did not address fugitive status, undercutting that there is an additional, unstated extension when a defendant on supervision flees. For example, Section 3582(e)(2) permits a court to extend supervision, subject to procedural requirements and a statutory cap on its length. Section 3582(i), as just noted, extends a court’s power to adjudicate violations after the term has expired. And Section 3624(e) specifies that a term of supervised release does not run when a defendant is imprisoned for 30 consecutive days or more for another conviction.

Turning to the government’s arguments, the court rejected two key points the government made. First, the government argued that a defendant should not be deemed to get “credit” toward completing the term of supervision while a fugitive because statutory language requires a defendant to be “supervised.” But the court explained that the statutory language the government relied upon merely described who must supervise a defendant and what duties a probation officer has and did not speak to the length of the term of supervision. Moreover, the court reasoned that on the government’s view Rico had to be deemed on supervised release to violate it while a fugitive, so the lack of supervision could not mean the defendant was not serving a term of supervised release.

The government also argued that Congress should be deemed to have incorporated common-law fugitive-tolling doctrine. The main way that fugitive-tolling doctrine has worked is that an incarcerated defendant does not receive credit toward a sentence of imprisonment for time the defendant spends as a fugitive. But the court explained that doctrine does not extend the term of imprisonment in the way that the government wanted to extend the term of supervised release.

Looking for a closer analogy to supervised release, the government also argued that the court had previously deemed a term of federal parole to stop during the time that a defendant was serving a state sentence. But again, the term was not extended, and equally importantly, Congress had incorporated a version of this rule in Section 3624(e) when a defendant on supervised release is imprisoned for 30 days or more. In sum, although the court agreed that “Congress may sometimes legislate against the backdrop of the common law,” the fugitive-tolling doctrine did not assist the government here.

Justice Samuel Alito dissented. He did not contest the court’s analysis that fugitive status fails to extend the term of supervised release. Rather, he reasoned that the district court revoked Rico’s supervision properly, even under the court’s view, and appropriately considered her offenses after the term of supervision expired.

Given how narrow it is, the court’s ruling seems unlikely to affect many cases – or even alter that much the sentences – that district courts impose for defendants who become fugitives on supervised release.