13‐1180‐cr United States v. Bussey
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT ________________
August Term, 2013
(Argued: March 7, 2014 Decided: March 20, 2014)
Docket No. 13‐1180‐cr ________________
UNITED STATES OF AMERICA,
Appellee,
—v.—
MICHAEL BUSSEY,
Defendant‐Appellant. ________________ Before: RAGGI AND LYNCH, Circuit Judges, MCMAHON, District Judge.* ________________
On this appeal from a conviction for violating the terms of supervised
release, defendant challenges jurisdiction, contending that, before imposition of
judgment, his three‐year term of supervision had expired while he was in state
The Honorable Colleen McMahon, of the United States District Court for the *
Southern District of New York, sitting by designation.
1 custody for a parole violation. The jurisdictional challenge fails because
defendant’s state incarceration was “in connection with” an underlying
conviction, thereby tolling his federal term of supervised release. 18 U.S.C.
§ 3624(e).
AFFIRMED. ________________
ANNE M. BURGER, Assistant Federal Public Defender, Western District of New York, Rochester, New York, for Defendant‐ Appellant.
MONICA J. RICHARDS, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, New York, for Appellee. ________________
REENA RAGGI, Circuit Judge:
Defendant Michael Bussey appeals from a judgment of conviction entered
on March 25, 2013, in the Western District of New York (Charles J. Siragusa,
Judge) for violation of a condition of supervised release imposed in connection
with his earlier conviction for possession of a firearm by a convicted felon. See
18 U.S.C. § 922(g)(1). Sentenced to an additional two‐year term of supervision
for the violation, Bussey asserts that the district court lacked jurisdiction because
his original three‐year term of federal supervision expired before the challenged
2 judgment was entered and while he was incarcerated for a violation of state
parole.
We review this jurisdictional challenge de novo, see United States v. Al
Kassar, 660 F.3d 108, 117 (2d Cir. 2011), focusing on two statutes, 18 U.S.C.
§§ 3624(e) and 3583(i). The latter provision states that the “power of the court” to
revoke a term of supervised release and to impose punishment “extends beyond
the expiration of the term of supervised release for any period reasonably
necessary for the adjudication of matters arising before its expiration” if a
warrant has been issued for such violation before the term’s expiration. 18 U.S.C.
§ 3583(i). Meanwhile, § 3624(e) provides for tolling of supervision as follows: “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 plain language of these statutes defeats Bussey’s jurisdictional
challenge, but a brief chronology is necessary to explain that conclusion. Bussey
began serving his original three‐year term of supervision on February 9, 2010,
when he was released from federal custody. He was at the same time also
3 serving New York parole, awarded as an early release on the 42‐month state
sentence imposed for unlawful possession of a firearm. Approximately a year
later, Bussey’s whereabouts were unknown to either state or federal supervising
authorities, prompting issuance of arrest warrants on April 1, 2011, by New York
State for violation of parole, and on April 7, 2011, by the United States for
violation of supervision. Taken into custody by state authorities, Bussey
remained incarcerated until March 8, 2013, when he completed serving his 22‐
month parole revocation term. Bussey was immediately thereafter transferred to
federal custody and, on March 20, 2013, first appeared on and was found guilty
of violating the condition of supervision requiring that he notify a probation
officer prior to a change in residence.1 The district court sentenced him to time
served (from March 8 to 20, 2013) and imposed an additional two years of
supervision.
As this chronology shows, the April 7, 2011 federal warrant for Bussey’s
arrest issued well before his three‐year term of supervision would have
concluded on February 9, 2013, even without regard to tolling. In such
circumstances, a district court clearly has jurisdiction to adjudicate a supervision
1 Bussey does not challenge the district court’s finding of guilt on this appeal, but only its jurisdiction to adjudicate him in violation of his supervision. 4 violation and may even do so “beyond the expiration of the term of supervised
release” as “reasonably necessary.” Id. § 3583(i). Any delay in this case was a
function of Bussey’s unavailability as a result of his state incarceration. Bussey
submits that the delay was not reasonably necessary because the United States
could have proceeded on the federal supervision violation by seeking a writ of
habeas corpus ad prosequendum under the All Writs Act to secure his presence
in federal court. See 28 U.S.C. § 1651. Even if this means of proceeding was
available, however, the government’s failure to employ it here does not defeat
jurisdiction.
That is so because § 3624(e) expressly tolls supervision terms for “any
period in which the person is imprisoned in connection with a conviction for a
. . . State . . . crime.” 18 U.S.C. § 3624(e). To the extent Bussey’s three‐year term
of federal supervision was thus statutorily tolled approximately 14 months after
it began—i.e., when he started his 22‐month incarceration in New York for
violating parole—his federal violation proceeding commenced and concluded
within one month of release was timely, and the district court had jurisdiction to
enter the challenged judgment.
5 In urging otherwise, Bussey maintains that his parole violation
adjudication did not result in imprisonment “in connection with” a conviction
for a state crime. Id. In support, he cites Morrissey v. Brewer, 408 U.S. 471, 480
(1972) (stating that “revocation of parole is not part of a criminal prosecution”).
The argument is unconvincing.
Parole is a form by which New York prisoners may serve out their
sentences for criminal convictions. See N.Y. Penal Law § 70.40(1)(a) (stating that
parolee “shall continue service of his or her sentence or sentences while on
parole”). Thus, while revocation of parole is not itself a criminal proceeding, the
incarceration that results from revocation is a consequence of the underlying
crime of conviction. Indeed, New York law provides that time served as a result
of revocation must be credited against the original sentence. See id. § 70.40(3)
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13‐1180‐cr United States v. Bussey
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT ________________
August Term, 2013
(Argued: March 7, 2014 Decided: March 20, 2014)
Docket No. 13‐1180‐cr ________________
UNITED STATES OF AMERICA,
Appellee,
—v.—
MICHAEL BUSSEY,
Defendant‐Appellant. ________________ Before: RAGGI AND LYNCH, Circuit Judges, MCMAHON, District Judge.* ________________
On this appeal from a conviction for violating the terms of supervised
release, defendant challenges jurisdiction, contending that, before imposition of
judgment, his three‐year term of supervision had expired while he was in state
The Honorable Colleen McMahon, of the United States District Court for the *
Southern District of New York, sitting by designation.
1 custody for a parole violation. The jurisdictional challenge fails because
defendant’s state incarceration was “in connection with” an underlying
conviction, thereby tolling his federal term of supervised release. 18 U.S.C.
§ 3624(e).
AFFIRMED. ________________
ANNE M. BURGER, Assistant Federal Public Defender, Western District of New York, Rochester, New York, for Defendant‐ Appellant.
MONICA J. RICHARDS, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, New York, for Appellee. ________________
REENA RAGGI, Circuit Judge:
Defendant Michael Bussey appeals from a judgment of conviction entered
on March 25, 2013, in the Western District of New York (Charles J. Siragusa,
Judge) for violation of a condition of supervised release imposed in connection
with his earlier conviction for possession of a firearm by a convicted felon. See
18 U.S.C. § 922(g)(1). Sentenced to an additional two‐year term of supervision
for the violation, Bussey asserts that the district court lacked jurisdiction because
his original three‐year term of federal supervision expired before the challenged
2 judgment was entered and while he was incarcerated for a violation of state
parole.
We review this jurisdictional challenge de novo, see United States v. Al
Kassar, 660 F.3d 108, 117 (2d Cir. 2011), focusing on two statutes, 18 U.S.C.
§§ 3624(e) and 3583(i). The latter provision states that the “power of the court” to
revoke a term of supervised release and to impose punishment “extends beyond
the expiration of the term of supervised release for any period reasonably
necessary for the adjudication of matters arising before its expiration” if a
warrant has been issued for such violation before the term’s expiration. 18 U.S.C.
§ 3583(i). Meanwhile, § 3624(e) provides for tolling of supervision as follows: “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 plain language of these statutes defeats Bussey’s jurisdictional
challenge, but a brief chronology is necessary to explain that conclusion. Bussey
began serving his original three‐year term of supervision on February 9, 2010,
when he was released from federal custody. He was at the same time also
3 serving New York parole, awarded as an early release on the 42‐month state
sentence imposed for unlawful possession of a firearm. Approximately a year
later, Bussey’s whereabouts were unknown to either state or federal supervising
authorities, prompting issuance of arrest warrants on April 1, 2011, by New York
State for violation of parole, and on April 7, 2011, by the United States for
violation of supervision. Taken into custody by state authorities, Bussey
remained incarcerated until March 8, 2013, when he completed serving his 22‐
month parole revocation term. Bussey was immediately thereafter transferred to
federal custody and, on March 20, 2013, first appeared on and was found guilty
of violating the condition of supervision requiring that he notify a probation
officer prior to a change in residence.1 The district court sentenced him to time
served (from March 8 to 20, 2013) and imposed an additional two years of
supervision.
As this chronology shows, the April 7, 2011 federal warrant for Bussey’s
arrest issued well before his three‐year term of supervision would have
concluded on February 9, 2013, even without regard to tolling. In such
circumstances, a district court clearly has jurisdiction to adjudicate a supervision
1 Bussey does not challenge the district court’s finding of guilt on this appeal, but only its jurisdiction to adjudicate him in violation of his supervision. 4 violation and may even do so “beyond the expiration of the term of supervised
release” as “reasonably necessary.” Id. § 3583(i). Any delay in this case was a
function of Bussey’s unavailability as a result of his state incarceration. Bussey
submits that the delay was not reasonably necessary because the United States
could have proceeded on the federal supervision violation by seeking a writ of
habeas corpus ad prosequendum under the All Writs Act to secure his presence
in federal court. See 28 U.S.C. § 1651. Even if this means of proceeding was
available, however, the government’s failure to employ it here does not defeat
jurisdiction.
That is so because § 3624(e) expressly tolls supervision terms for “any
period in which the person is imprisoned in connection with a conviction for a
. . . State . . . crime.” 18 U.S.C. § 3624(e). To the extent Bussey’s three‐year term
of federal supervision was thus statutorily tolled approximately 14 months after
it began—i.e., when he started his 22‐month incarceration in New York for
violating parole—his federal violation proceeding commenced and concluded
within one month of release was timely, and the district court had jurisdiction to
enter the challenged judgment.
5 In urging otherwise, Bussey maintains that his parole violation
adjudication did not result in imprisonment “in connection with” a conviction
for a state crime. Id. In support, he cites Morrissey v. Brewer, 408 U.S. 471, 480
(1972) (stating that “revocation of parole is not part of a criminal prosecution”).
The argument is unconvincing.
Parole is a form by which New York prisoners may serve out their
sentences for criminal convictions. See N.Y. Penal Law § 70.40(1)(a) (stating that
parolee “shall continue service of his or her sentence or sentences while on
parole”). Thus, while revocation of parole is not itself a criminal proceeding, the
incarceration that results from revocation is a consequence of the underlying
crime of conviction. Indeed, New York law provides that time served as a result
of revocation must be credited against the original sentence. See id. § 70.40(3)
(providing that original sentence must run while defendant is incarcerated for
parole violation); cf. N.Y. Exec. Law § 259‐i(3)(x)(D) (stating that harshest penalty
for violating post‐release supervision served after determinate prison sentence is
“reincarceration up to the balance of the remaining period of post‐release
supervision, not to exceed five years”). In these circumstances, there is no
denying that Bussey’s 22‐month term of incarceration was served “in connection
6 with” his conviction for a state crime. See Makagate v. Ashcroft, 385 F.3d 144,
154 (2d Cir. 2004) (stating that “in connection with” is expansive term
synonymous with “relating to,” “associated with,” “with respect to,” and “with
reference to” (internal quotation marks omitted)); see also United States v.
Jackson, 426 F.3d 301, 304–05 (5th Cir. 2005) (holding federal supervision tolled
under § 3624(e) during state incarceration for parole violation).
United States v. Garcia‐Rodriguez, 640 F.3d 129 (5th Cir. 2011), and United
States v. Morales‐Alejo, 193 F.3d 1102 (9th Cir. 1999), relied on by Bussey,
warrant no different conclusion. In Garcia‐Rodriguez, the Fifth Circuit ruled that
supervision was not tolled during administrative detention pending deportation,
see 640 F.3d at 133–34; in Morales–Alejo, the Ninth Circuit reached the same
conclusion with respect to pre‐trial detention where the defendant later pleaded
guilty, see 193 F.3d at 1105; but see United States v. Goins, 516 F.3d 416, 423 (6th
Cir. 2006) (holding that pre‐trial detention credited against ultimate sentence
triggers tolling). The reason for these conclusions is that such detentions could
be imposed even absent conviction. Here, Bussey’s parole obligation derived
directly from his state criminal conviction, and his violation required him to
continue serving the sentence imposed for that conviction from which he had
7 earlier been released. Thus, we hold that Bussey’s New York reincarceration was
“in connection with” his underlying state conviction for unlawful weapon
possession, and that, as such, the district court still had jurisdiction in March
2013 to revoke his federal supervision.
Accordingly, the judgment of the district court is AFFIRMED.