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Eleventh Circuit Announces Supervised Release Term Not Tolled When Defendant Absconds, Deepening Circuit Split

by Anthony W. Accurso

The U.S. Court of Appeals for the Eleventh Circuit held that, when a defendant has absconded while on supervised release, the clock on their period of supervision continues to run, causing it to expire at the end of its stated term.

James Reginald Talley was convicted in the Middle District of Florida under 18 U.S.C. § 922(g)(1) for being a convicted felon in possession of a firearm. After his release to supervision on May 10, 2018, he was required to complete three years of supervision.

In September 2020, Talley suffered a heart attack and asked for medical leave from his place of employment. His probation officer (“PO”) learned about this when she attempted to visit him at work and was notified of his absence. Between September 2020 and January 2021, she attempted to call Talley and visit him at home on several occasions but was unable to make contact with him. She also contacted his employer multiple times, and though they expected him to return after his health improved, they also hadn’t heard from him. The PO left messages for Talley to contact her during each of her failed attempts to reach him.

Also in late 2020, another female probationer reported to her PO that she was in a relationship with Talley, a violation of his conditions of supervision prohibiting contact with other felons.

The PO petitioned the court for revocation, and a warrant was issued for Talley on January 26, 2021, based on two violations: (1) the prohibited contact and (2) his failure to follow the instructions of his PO.

He was arrested in May 2022—a year after his supervised release expired—for felony battery in the state of Florida. He was brought before the District Court to answer for his violations of supervision conditions, in which the Government also now included his violation of state law. Although the alleged state offense occurred a full year after his supervised release expired, the Government argued that the District Court had jurisdiction over that offense via the judicially created doctrine of “fugitive tolling,” which equitably tolled Talley’s supervised release period during his truancy.

Talley admitted to absconding but denied having a relationship with another felon. He also admitted to the conduct underlying the felony battery but denied that the court had jurisdiction to violate him for that, arguing that his supervision ended prior to the conduct at issue.

The District Court agreed with the Government that his term of supervision should be “tolled,” because “we want to discourage people from engaging in that kind of activity” (absconding). It sentenced him to 18 months in prison—with no supervision to follow and to run concurrent to any state sentence—based on his absconding and committing a state offense (the association was excused). He timely appealed.

The Court noted that there is a split among circuits with respect to whether federal supervised release is tolled when a defendant absconds. Four circuits have held that it does toll: United States v. Island, 916 F.3d 249 (3d Cir. 2019); United States v. Barinas, 865 F.3d 99 (2d Cir. 2017); United States v. Buchanan, 638 F.3d 448 (4th Cir. 2011); United States v. Murguria-Oliveros, 421 F.3d 951 (9th Cir. 2005). Only the First Circuit has ruled otherwise. United States v. Hernandez-Ferrer, 599 F.3d 63 (1st Cir. 2010). The Court announced that it agrees with the First Court’s position and join it in holding that “there can be no tolling of the period of supervised release on the basis of fugitive status.” Quoting Hernandez-Ferrer.

The Court stated that its conclusion is based on two reasons. First, it explained that the fugitive tolling doctrine “has no role in the context of supervised release.” The doctrine comes from the prison context where a sentence is tolled while the prisoner is a fugitive and not serving his term of imprisonment. The rationale is that a prisoner should not be credited for time not actually in prison serving his prison sentence. United States v. Barfield, 396 F.3d 1144 (11th Cir. 2005). Notably, tolling in this context does not increase the total length of the prison sentence; it merely “pauses and then restarts the clock,” according to the Court. But there is a crucial distinction between a prison term and supervised release, viz., even absconded, a defendant can be held liable for violations of supervision until the expiration of that term, so the restraint on the defendant’s liberty does not cease the moment he absconds, in contrast to the situation where a prisoner absconds, explained the Court.

Additionally, the Court stated that fugitive tolling in this case asserted by the Government isn’t “tolling” at all. The Court noted that the Government seeks to delay expiration of Talley’s supervision and to violate his supervision based on his commission of a state offense. But an “individual under a term of supervised release is subject to a restraint contemplated by the law—namely, the conditions of supervision—for the entire term of supervised release no matter where he is.” Anderson v. Corall, 263 U.S. 193 (1923).

Tolling, a kind of suspension, would mean that the supervised conditions were not in effect during the tolling period. Yet, the Government sought to violate Talley based on a violation of those conditions during the time it sought his supervision to be tolled (that is, during a period when the supervised conditions were not even in effect due to the claimed tolling). This is an inconsistent position because a “supervised release order cannot simultaneously be suspended and actively in effect.” United States v. Okoko, 365 F.3d 963 (11th Cir. 2004). The Court explained that what the Government’s position actually calls for is extending Talley’s term of supervised release from 36 months to a total of 48 months. That’s not tolling; that’s extending.

Second, the Court stated that the text of the Sentencing Reform Act “strongly counsels against applying fugitive tolling to supervised release.” Congress enacted two provisions that provide for the tolling of a term of supervision (18 U.S.C. §§ 3583(i) and 3624(e)), neither of which covers absconding. The Court agreed with the First Circuit’s rationale that the “absence of an express tolling provision for fugitive status, coupled with the presence of … express tolling provisions that encompass other circumstances, is highly significant.” Quoting Hernandez-Ferrer. “When Congress knows how to say something but chooses not to, the silence is controlling.” Animal Legal Defense Fund v. United States Department of Agriculture,789 F.3d 1206 (11th Cir. 2015). Thus, for the foregoing reasons, the Eleventh Circuit joined the First Circuit in holding that absconding does not toll a period of supervision.

As a result, the Court concluded that Talley’s supervised release term ended as scheduled in May 2021, and because his 2022 state battery conviction didn’t occur until after that date, the District Court lacked jurisdiction to revoke his supervision on that basis.

Accordingly, the Court vacated and remanded to the District Court for proceedings consistent with its opinion. See: United States v. Talley, 83 F.4th 1296 (11th Cir. 2023).  

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United States v. Talley



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