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Ninth Circuit Rules Weekends in Jail Count as Time ‘In Prison’

by Dale Chappell

Weekends in jail count as time “in prison,” the U.S. Court of Appeals for the Ninth Circuit held, granting immediate release for a prisoner serving a supervised release revocation term in prison.

When Wallace Shimabukuro violated his federal supervised release for the third and final time, the district court sentenced him to 17 months in prison and ended his supervised release. The court credited Shimabukuro with the 18 months he served for his first violation and the one month he did for the second, but the judge refused to count the 50 consecutive weekends he served as part of that second violation. Shimabukuro appealed, arguing that counting the weekends he spent in jail counted, and the most he could have received on his third violation was 12 months in prison. The Court of Appeals agreed and ordered his release.

Under 18 U.S.C. § 3583(e) that was in effect at the time of Shimabukuro’s original criminal offense, there was a cap on the amount of prison time the court could have given Shimabukuro for his supervised release violations. That version required the court to aggregate all of the prison time for his collective violations to count toward the three-year maximum for his class B felony conviction. The Court of Appeals held that the “plain language” of § 3583(e) required weekends in jail to count as time “in prison.”

The Court further noted that § 3583(e) was amended in 2003 to require the maximum prison time for a violation to apply to each violation and removed the court’s ability to aggregate the previous prison time toward the overall maximum allowed. United States v. Knight, 580 F.3d 933 (9th Cir. 2009). However, Shimabukuro’s offense occurred before the 2003 amendment, and the version of the § 3583(e) that was in effect at the time of his offense governed his case. Thus, even though his supervised release violation happened many years later, the Court had to use the version in effect at the time of his original offense. To apply a newer version of § 3583(e) to Shimabukuro’s supervised release violation would violate the U.S. Constitution’s Ex Post Facto Clause, which bars different punishment than what was in effect at the time of the offense. Peugh v. United States, 569 U.S. 530 (2013).

Accordingly, the Court of Appeals vacated Shimabukuro’s supervised release and ordered his immediate release. See: United States v. Shimabukuro, 2018 U.S. App. LEXIS 9998 (9th Cir. 2018). 

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Related legal case

United States v. Shimabukuro



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