The U.S. Court of Appeals for the Eleventh Circuit’s recent panel ruling in United States v. Talley has deepened the current circuit split regarding the “fugitive tolling doctrine.”[i] Convicted felon James Talley appealed a district court’s decision revoking his supervised release and ordering him to be imprisoned, based both on a violation he committed after his term of supervised release expired and on finding he was a fugitive.[ii] The issue dividing courts is whether a defendant’s term of supervised release tolls when they flee from supervision and become a fugitive.[iii] Joining the First Circuit, the Eleventh Circuit held that a defendant’s term of supervised release is not extended if he flees from supervision.[iv] Accordingly, crimes committed after the expiration of a defendant’s term of supervised release cannot be considered violations of his supervision.[v] In 2019, the Supreme Court declined to address the issue,[vi] and it is unclear whether the Federal Government will seek the Court’s review of this issue. Meanwhile, the split among courts will likely expand. Upon consideration by the Supreme Court or other courts throughout the United States, the minority view should be adopted. Although not expressed, Congress’s intention is clear—the fugitive tolling doctrine does not apply.
In 1984, Congress passed the Sentencing Reform Act, significantly reshaping the federal sentencing landscape in an effort to bring consistency and predictability to federal sentencing.[vii] The Sentencing Reform Act abolished federal parole, replacing it with supervised release. However, the creation of supervised release gave way to a new problem: should a court toll a term of supervised release when a defendant obtains fugitive status after fleeing from supervision? The judicially crafted fugitive tolling doctrine was created to ensure that imprisoned defendants serve their entire sentence. The basic concept was that a defendant should not be credited with time served in prison while not actually in prison.[viii] However, it is critical to note that the doctrine does not extend or increase the original sentence’s length. Applying the doctrine to supervised release would essentially stop the clock when the defendant first flees from supervision and restart the clock once he is found.
The Eleventh Circuit’s decision in Talley makes it clear that applying the fugitive tolling doctrine to supervised release is inconsistent with the Sentencing Reform Act.[ix] Congress specified only two circumstances when a period of supervised release may be tolled, neither of which permits tolling when the defendant flees from supervision and becomes a fugitive. Tolling is only provided for under 18 U.S.C. § 3624(e) and § 3583(i).[x] Section 3624(e) provides that the term of supervised release is tolled while a defendant is imprisoned for thirty or more days in connection with another conviction. Section 3583(i) provides that a term of supervised release is tolled for a reasonable period necessary to adjudicate matters arising before the term expires if a warrant or summons is issued before the term’s expiration. With these tolling provisions in mind, the court applied the canon of statutory construction, expressio unius est exclusion alterus—“the expression of one thing is the exclusion of other things.” Congress did not intend for tolling to apply in other circumstances, including fugitive status.
Although the Eleventh and First Circuits agree, five Circuits have come to contrary conclusions.[xi] Some courts have held that the expressio unius canon does not apply because there is no indication that Congress considered and rejected the application of the fugitive tolling doctrine.[xii] In their view, applying the fugitive tolling doctrine furthers the purpose of supervised release. The Third and Fifth Circuits have also relied on the idea that offenders should not benefit from their wrongdoing.[xiii] These courts reason that without tolling, a defendant who flees from supervision could evade judicial oversight for the entire term of their supervised release. This is simply not true—a defendant who flees from supervision does not evade judicial oversight.
Fleeing from supervision is, in itself, sufficient reason to revoke supervision. Under the plain language of Section 3583(i), a court can punish a defendant for fleeing from supervision even after the expiration of his supervised release, so long as the court has issued a warrant or summons before the term’s expiration.[xiv] Obtaining a warrant or summons is not an overly onerous task imposed on the Government. In her dissenting opinion in United States v. Island, Judge Rendell notes, “there is little excuse for the Government failing to issue a timely warrant in most circumstances.”[xv] When sentencing a defendant for having fled in violation of their supervision, a court, under Section 3583(e), can consider any actions taken by the defendant during the time period in which he made himself unavailable.[xvi] Therefore, although offenses committed by defendants like Talley are not considered violations of their supervision if they happen after their term ends, the court can undoubtedly factor them into the sentencing decision for the defendant’s evasion of supervision, so long as a warrant or summons was issued before the term’s expiration.
The Government may or may not appeal the Eleventh Circuit’s decision to the Supreme Court. If it does, the Court may decide to review the issue. Upon consideration by the Supreme Court or other courts throughout the United States, the minority view should be adopted. The plain language of the Sentencing Reform Act of 1984 should control. Congress did not adopt a provision tolling a term of supervision when a defendant flees from supervision. That silence speaks louder than words.
[i] United States v. Talley, No. 22–13921, (11th Cir. Sep. 7, 2023). https://media.ca11.uscourts.gov/opinions/pub/files/202213921.pdf.
[ii] See id.
[iii] See id.; see also United States v. Hernandez-Ferrer, 599 F.3d 63, 68 (1st Cir. 2010); States v. Murguia-Oliveros, 421 F.3d 951, 955 (9th Cir. 2005); United States v. Buchanan, 638 F.3d 448, 455 (4th Cir. 2011); United States v. Barinas, 865 F.3d 99, 109 (2d Cir. 2017); United States v. Island, 916 F.3d 249, 254 (3d Cir. 2019), cert. denied, 140 S. Ct. 405 (2019); tes v. Cartagena-Lopez, 979 F.3d 356, 363 (5th Cir. 2020).
[iv] See Talley, No. 22–13921, at 19.
[v] See id.
[vi] See generally Island v. United States, 140 S. Ct. 405 (2019) (denying a petition for a writ of certiorari).
[vii] See Lisa M. Seghetti & Alison M. Smith, Cong. Rsch. Serv., RL32766, Federal Sentencing Guidelines: Background, Legal Analysis, and Policy Options 13 (2007), https://sgp.fas.org/crs/misc/RL32766.pdf.
[viii] See United States v. Barfield, 396 F.3d 1144, 1147–48 (11th Cir. 2005).
[ix] See Talley, No. 22–13921, at 16.
[x] See 18 U.S.C. §§ 3624(e), 3583(i).
[xi] See Murguia-Oliveros, 421 F.3d 951, Buchanan, 638 F.3d 448, United Barinas, 865 F.3d 99, Island, 916 F.3d 249, Cartagena-Lopez, 979 F.3d 356.
[xii] See Island, 916 F.3d at 253; Buchanan, 638 F.3d at 456.
[xiii] See Island, 916 F.3d at 253–54; Cartagena-Lopez, 979 F.3d at 362–63.
[xiv] See 18 U.S.C. § 3583(i).
[xv] Island, 916 F.3d at 258–59.
[xvi] See 18 U.S.C. § 3624(e).
