Oral Argument Re-Listen: Rico v. United States | Disappearing Defedant Dilemma

This is the Supreme Court oral argument in Rico versus United States, a disappearing

defendant dilemma. Isabel Rico became a fugitive during her 42-month term of supervised release.

The government says her time on the run doesn't count toward her sentence.

Adam G. Unikowski, Washington, D.C. argues for petitioner Rico. Joshua K. Handel,

Assistant to the Solicitor General, Department of Justice, Washington, D.C. argues for

respondent United States. We'll hear your argument first this morning in case 24-1056

Rico versus United States. Mr. Unikowski? Mr. Chief Justice, and may it please the court.

The question in this case is not weather, but instead how to hold people accountable

for absconding from supervised release. The text and history of the Sentencing Reform Act

establish that Congress intended for revocation not fugitive tolling to be the means of addressing

abscondment. To begin with the text, the effect of the government's position is that

Ms. Rico was subject to the conditions of supervised release for a period exceeding the time

specified in her judgment, and there's no textual support for that result. The government claims

that Ms. Rico wasn't serving her sentence at all during the period of the abscondment,

but that argument cannot be squared with the government's simultaneous contention

that Ms. Rico violated the conditions of supervised release during that period,

warranting an increased sentence. History supports Ms. Rico's position. Contrary to the

government's contention, there is no common law tradition of fugitive tolling for parole.

Instead, fugitive tolling for parole came to exist via a 1976 statute and a 1983 implementing

regulation. But in the Sentencing Reform Act, Congress prospectively repealed that statute

and enacted nothing in its stead for supervised release while leaving it intact for legacy parole

cases, and it remains intact today. As a result, Congress has created a two-track scheme,

parole with fugitive tolling and supervised release without it. And we ask the Court to adhere

to that dichotomy. I welcome the Court's questions.

Well, Mr. Unikowski, the government seems to be arguing, making a simple point,

how can it be considered supervised release when the absconder is not being supervised?

Your Honor, I completely understand the intuitive force of the government's argument that

the essence of supervised release is being supervised, and if a person absconds, they're

just not serving the sentence at all. In the same way as a prison escapee isn't serving

the sentence at all. But ultimately, although I understand the intuitive force of that

argument at first blush, I don't think it carries the day, because the government's

argument has a counterintuitive component of its own, which is that it requires

believing that not only was Ms. Rico subject to the conditions of supervised release

during the entire abscondment period, but she actually violated those very conditions during

that period, warranting her increased sentence. So it just seems to me almost thought

illogically, if Ms. Rico violated the conditions of supervised release, she must have been serving

the very sentence that imposed those conditions of supervised release. I do understand the intuition

underlying the government's argument today, that it just doesn't really make sense that a person

should get credit when they've absconded. I get that, but I think that one point that really

blunts the intuitive force of the government's position is that both parties agree that ultimately

the absconder should be deprived of credit for the time spent absconding. The sole question

between the parties today is very narrow. It's how that deprivation of credit should be

effectuated. So the way we understand the Sentencing Reform Act, if a warrant, as issues based on

the abscondment, as occurred in this case, then once the person is apprehended, even after the

term expires, the person can be brought before the sentence in court and then the judge revoke

supervised release and strips the person of all credit for time served during the abscondment period.

So essentially, the judge, rather than stopping the clock, the clock keeps going and then the clock

is rewound back to the beginning. But is it really a credit system, Mr. Unikowski? I guess I

was a little confused by the government's suggestion, even at the beginning of its brief, that what's

happening in the supervised release world is that the court is depriving the individual credit

for supervised release. My understanding is that even when there's a revocation, the person is not

being deemed as giving credit. In other words, when supervised releases revoked and the court

sends the person back to prison and perhaps imposes another period of supervised release,

they don't calculate how much supervised release they're going to give based on how much was

already served. You know, you had a three-year period, you absconded after one, so now only two

is available. Really credit doesn't seem like the right framework to understand what's even

happening in supervised release. I agree with what you said, Your Honor, 100%. At the revocation

hearing, whatever the person has left to serve just sort of goes away and the court imposes a whole

new sentence of imprisonment and an additional period of supervised release based on the court's

assessment of the defendant at that time. Of the needs, right? I mean, isn't the reason why

supervised release is sort of fundamentally different than parole or probation or imprisonment

is because it's not imposed for punishment. It's supposed to be about helping this person

reintegrate into society and the amount of time that it's necessary to do that is evaluated based

on who that person is and what they've done but not based on how much time they previously served

in supervised release. Yes, that's correct. So the government's suggestion in its brief that

because she absconded for 37 months, she has 37 months left to go, doesn't actually capture what

happened in this case because those 37 months just went away. After the new revocation hearing,

the judge imposed whatever sentence the judge felt was appropriate. The effect of the question

presented in this case actually is to consider the time spent during abscondment as still subject

to the conditions of supervised release, which allowed the government to argue that a crime committed

during that period, but after the term expired was a violation of supervised release resulting in

a heightened guidelines. Mr. Yunekowski, you said that the problem here results from the sentencing

reform act, but I wonder and maybe I may be misunderstanding things so you'll correct me if the

problem here is not entirely one created by the sentencing guidelines. Suppose the sentencing

guidelines were not in the picture. So your client obscans, therefore she's violated the terms of

supervised release. Therefore, her supervised release is revoked. Then the judge has to decide

what to do, send her back to prison, impose an additional term of supervised release.

The statute sets out the factors that are relevant to that consideration. We went through those

factors last term and it doesn't seem to me that what she did after the expiration of the 37

months is any less relevant to those determinations than what she did before the expiration of the 37

months. So that becomes important. The 37 month mark point becomes important only because the

guidelines grade assign a grade to the nature of the offenses that occurred. Am I right in all this?

Yes, I agree with everything you said, Your Honor. So we believe that the sentencing

court does have the authority to consider the crimes she committed after that time expired as part

of the discretionary decision as to what sentence she could should get after the resentencing.

So I don't disagree with anything that Your Honor has said. So the only thing that's really at stake

here is whether the court is going to consider whether to depart upward from the range that

results from the grade of the violations that occurred before the 37 months or considers

whether to depart downward from the grade that would apply if the post 37 months violations

were occurred, right? And the court, all the court has to do is to give respectful consideration

to those guidelines. That's really all that's involved here, am I right?

On the fact of this case, yes, there are other cases in which fugitive tolling matters for other

reasons, but on the facts of this case, you have accurately characterized the dispute between the

parties. Mr., I'm sorry. I'm sorry. I finished. You've done? Yes. All right. The government worries that,

okay, there is tolling if you get a warrant within the period that's still before the clock runs,

before the 37 months is out. You effectively get tolling under eye, but they worry that there

are going to be some cases where as a practical matter, they can't get a warrant in time,

and the period will expire. Do you have any thoughts or reactions to that?

Yes. I understand that there is a concern that it may be that a violation occurs at the very end

of the term, and it goes undetected, and the warrant doesn't issue in time. But I think fugitive

tolling is both too broad and too narrow a solution to the problem that you've identified.

So, first of all, I think it's too narrow because that is a problem that can arise with any

violation late in the term, committing a crime, possession drugs, anything else.

May it skip detection, you're saying? Yes. In fact, in some ways,

abscondment is the easiest type of violation to identify, because the abscondor doesn't,

or the supervisee doesn't answer a cell phone, and so the probation officer can get a warrant

right away. So, if we're concerned about the problem of late in term violations, it seems

ought to focus only on the one type of violation that's easiest to detect. I also think fugitive

tolling is too broad, because it applies to supervisees who commit, who abscond anytime in the

term, and it causes the conditions to essentially last forever after the term until the person is

apprehended. There's also an amicus brief by NACDL, which walks through empirically that

abscondments tend to occur early in the term. So, I'm not sure the concern the government

identifies has a lot of real world force. What about the situation where the person who's on

supervise release is imprisoned for a state of facts. So, the supervise release term is told

during that period, and then when the person is released, the state authorities may not notify

the federal court that the person has been released, so no warrant would issue.

Right. So, that is the facts of the sweat case, which is currently pending on

surgery to this court. As far as I know, that's the only time that's come up since 1984. I've

looked around, haven't found any other cases with that fact pattern. So, it's an unusual case. I think

ultimately, it's a good idea for federal probation officers to maintain contact with state authorities

as to when the person is released from state prison, but I don't think that one singular rather

unusual fact pattern is a basis to establish fugitive tolling across the board for all supervisees.

I'd like to make a point, if I may, about another reason I think. In the end, it really doesn't

matter if they commit a new crime. They're subject to arrests and prosecution for that new crime.

Correct? Yes. In this very case, Ms. Rico was convicted of a drug offense in state court and

was sentenced to prison time. So, she was held accountable for that action, and as Justice

Alito stated, that can also be considered as part of the discretionary revocation sentencing.

It's only a very narrow question of whether that offense increases her guidelines range.

Mr. Yunekowski, it seems that part of the dispute here between you and the government has

to do with what it means to be on a term of supervised release, where you say it means being

subject to a certain set of conditions. And the government says, well, it means that,

but it also means something else. It means that you're being supervised, that you're being

monitored in some way, which does not happen when the person has absconded. So, what do you think

of that? The idea of supervised release contemplates a level of supervision above and beyond

the particular conditions of the term. I respectfully disagree with the government's

argument on that score, because I think it improperly decouples the burdens imposed by the

sentence with how to determine whether the person is serving the sentence. Ordinarily,

those two are flip sides of the same coin, like the government talks about the prison case,

so the burden imposed by the sentence is, you have to be in prison, and you determine if the

person satisfying the sentence by checking if the person has been in prison. But in this case,

the burdens imposed by the sentence are the conditions in the judgment, but the government

contends that when determined, if it one satisfies a sentence based on this concept of supervision,

which doesn't correspond to any particular supervised release condition, and because of that decoupling,

you have the unusual fact pattern in this case, where the government contends that Miss Rico

violated the conditions of supervised release while not serving that sentence. I think the court

should follow the ordinary practice of saying that when determines if one is serving the sentence

by looking at the binding effect of the sentence? I would like to also talk about some additional

statutory clues that I think militate in Miss Rico's favor. First, I think it's a relevant fact

that there's no statutory definition of abscondment, and I think it's, and in fact, that's a

difficult concept to define at the margins. There's two Amicus briefs, the NACDL Amicus brief,

and the NAFD Amicus brief, that talk in some detail about the difficulties courts have had

in deciding questions like when a violation of supervised release rises to the level of an abscondment,

and also when the clock on the abscondment period starts. It does seem unlikely from our perspective

that Congress would have intended the very basic question of when a supervised release term

ends to be governed by this nebulous and non-statutory abscondment standard with judges essentially

figuring out the answer to these questions on the fly without any statutory anchor. It just

seems more likely from our perspective that Congress intended the regime to operate this way.

The clock keeps going unless it's told under the explicit language of Section 3624,

or until there's a revocation hearing. At that point, the judge can recognize that it's necessary

to turn the clock back to the beginning to ensure the person actually serves the full term of

supervised release in contact with the probation officer that's the court contemplated.

I'd like to say a few words about history as well. I think the historical evidence is quite strongly

in our favor. The government makes the point that there is a strong historical tradition that when

someone escapes from prison, that stops the clock on their sentence, and then the clock resumes when

they are returned to prison, I think that makes sense. You know, 20 years in prison you have to

actually be 20 years physically in prison. But I think that the historical evidence really runs

the other way in terms of fugitive tolling. The federal parole statute was first enacted in 1910,

and then for all was abolished prospectively in 1984, and neither we nor the government can come

up with any cases ever in which the government's fugitive tolling rule was applied. You know, in the

manner the government proposes today in which the conditions of supervised release, or excuse me,

of parole extended after the scheduled expiration of the term. And it's not just the absence of

evidence of fugitive tolling, there's also evidence of absence in the form of this 1983 regulation

that we cite in brief. So that regulation said that prospectively based on this 1976 statute,

there will be fugitive tolling in exactly the same form that the government advocates in this case.

So in a couple of ways, I think that regulation rebutts the notion that there's a tradition of

fugitive tolling. One, it's premised on this 1976 statute, not this longstanding common law

tradition. Two, it's perspective only employing that the rule didn't previously exist. And second,

and third, excuse me, it's not clear why the parole commission would have enacted such a rule

if the tradition already existed in advance. So I think that provides pretty strong evidence

that there just, this just wasn't thing that parole boards were doing until 1983. And then in

the Sentencing Reform Act in 1984, Congress repeals the statute on which this provision was based,

4210C. It enacts no replacement provision. And meanwhile, section 4210C is immediately adjacent to

this other statute, 4210B, which enacts a version of prisoner toll. And Congress does re-enact that

in the Sentencing Reform Act. Well, before the abolition of parole with the Sentencing Reform Act,

there were no Sentencing guidelines. So it's not clear to me why it would be relevant, why

a court would be concerned about whether the parolee committed offenses during the period when the

parolee was supposed to be on parole after the expiration of the parole term or not. The parolee

violates in terms of parole when the parolee is apprehended, the court would revoke parole and

then decide what to do. So why would it be relevant? Suppose your client were on parole. Why would

it be relevant to determine whether the additional things that she did while out on parole occurred

before after the 37 months? I mean, the 1983 regulation explicitly says that if you commit the

violation after the schedule ending, it will be considered a violation of parole. So, you know,

it's hard to reconstruct exactly what they were thinking, but presumably it was felt that this

was important enough to encode it in a regulation. And so, you know, Congress had that regulation

on its desk. It was enacted just a year before the Sentencing Reform Act and Congress

executed in the Sentencing Reform Act. So I just think that that's at least some amount of

historical consideration is warranted here, especially since I think what this case boils down to

are these competing intuitions. The government has this intuition on its side of the house that

it doesn't make sense to say that a person who isn't supervised is serving a sentence of supervised

release. And then we have the intuition on our side of the house that it doesn't make sense to say

that someone could have violated the conditions of supervised release when they're not on supervised

release. And ultimately, it's the court's job in this case to cut through that Gordian knot. And

I think rather than kind of wrestling with these competing intuitions, I think it's wise to look

at the historical tradition here where we see that this just wasn't happening for the entire

history of the parole statute. And so the proposition, the government claims in its briefest,

very obvious, didn't occur to the parole commission at the time. And so I think the court should

carry that tradition forward at least. So how do you respond to the other point that the

government makes, the thrust of it being that the court has ordered this person to serve,

let's say, three year period of supervised release and they didn't do so. Why should they get

the benefit of running away or absconding and not having to comply with the court's order?

Well, in some way they just shouldn't because at the revocation here in the judges empowered to

rewind the clock and require the person to start all over again. So we think there's an alignment

between how abscondment is handled and other types of legislation. You mean, there's rev,

there's, there, there, that you envision Congress saying for the absconder, the revocation remedy

is what we are imposing here. That's exactly right. And that's, that's how it works with other

types of violations. Like, it's true that part of the essence of supervised release is supervision,

but part of the essence of supervised release is also complying with the law. And yet, if a person

isn't a conspiracy, say, for one year during the supervised release period, that's obviously

plainly contrary to the spirit and the letter of supervised release. But the government does not

claim that that stops the clock for the year. Instead, what happens is a warrant issues,

the person comes to the sentencing court and then supervised release is revoked, the person

goes back to federal prison and then back on supervised release. And so effectively, the person

is stripped of credit for that year, but it's done through the mechanism of revocation. And all

we're saying in this case is that the same thing should happen to abscondment, which after all is

just a different type of violation of the conditions of supervised release.

Council, that earlier case, Swift, I think you said, was the name?

Yes, Swift from the Fifth Circuit.

I haven't read it, so I don't know anything about it. But it's not an issue of keeping in touch

with the state authorities, the warrant of absconding could have been issued, should have been issued

at the, or a warrant should have issued the moment they learned of the state law conviction, correct?

Yes, so that case involved a very idiosyncratic fact pattern of a person who served a federal prison

sentence and then served a state prison sentence for many years and then was released and actually

did report to his state probation officer. And apparently, he didn't realize and the federal

government didn't realize that he also had to simultaneously start this term, a federal supervised

release. And apparently, no one from the federal...

Oh, that really is idiosyncratic.

So, yes, so there haven't, I mean, that is just an unusual case, it happens to be pending on

surgery right now, but we haven't found any cases like that since 1984 other than this one.

So, you know, and the government cites other exotic fact patterns where a warrant wouldn't

issue during the term, such as if there's an administrative error in obtaining the abscondment warrant.

And yes, theoretically, that could happen, but, you know, it doesn't happen very often.

And in the ordinary case, like this one, it's perfectly appropriate for the probation officer to get more.

In that swift case, you have to deal with the language of the statute, which requires a warrant

to have issued before the expiration of the date.

Exactly, but in this case, the warrant did issue basically for the abscondment.

And so, we agreed the sentence report absolutely had the jurisdiction after the examination.

Thank you, counsel.

But, okay, yes, so let me just make one other point about the structure of the statute that I think

supports our position. That's rooted in section 3583i, the tolling provision we just talked about.

So, that's not only about abscondment, but abscondment is one common scenario in which that statute

would arise, because the statute says that if a warrant issues during the term, then the sentence

in court retains jurisdiction after the expiration of the term to revoke supervised release.

So, ordinarily, you wouldn't have the situation where the warrant issues during the term,

but the hearing happens after the term, because the probation officer knows where the supervisee

lives, so the warrant can be executed very swiftly. But one situation in which it couldn't be executed

swiftly is when the person is absconded, so the warrant issues during the term that they can't find

the person until after the term expires. And yet, even in that context, the way that section 3583i

is set up is it assumes that the term is going to end, and then after the expiration of the term,

there will be this revocation hearing that rewinds the clock to the beginning.

And I do think that's inconsistent with how the government is looking at things,

which is that the term never ends once the abscondment occurs. And so, that's just an additional

piece of structural support in the statute that I do think militates in favor of our position.

If there's no further questions, I'm just as Thomas a further.

Just a sudden meal, just as Dave Capcom checks.

Thank you, Council.

Thank you.

Mr. Handel?

Mr. Chief Justice, and may I please the court. A supervisee is not discharging her term of supervised release

while she is absconding from supervision. That common sense intuition is consistent with the

modern statutory text, with this court's precedence interpreting it, and with the uniformed

decisional law preceding it. The supervised release statutes require that a supervisee

shall be supervised by a probation officer following her release from confinement, and they detail

how that active and ongoing supervision must proceed. This court has accordingly recognized

that supervised release is a system of both post confinement monitoring and post confinement

assistance, neither of which is possible when the supervisees whereabouts are unknown because

she has absconded. A fugitive who deliberately and successfully evades supervision,

depriving the court of any information as to her conduct, condition, and compliance,

is not being supervised in any sense that lawyers, legislators, or laymen would understand that word.

Petitioner's theory that she was discharging the supervision component of her judgment despite

being entirely unsupervised because her abscondment did not automatically terminate her release

conditions, misunderstands the nature of supervised release. To discharge her term of supervised

release, a supervisee must be both under the supervision of a probation officer and subject

to release conditions, but her defiance as to the former does not relieve her obligations as to

the latter. Just as nothing in the supervised release statutes authorizes a supervisee to earn

credit for time spent as an unsupervised fugitive, nothing permits her by means of abscondment to take

a vacation from her court ordered conditions whenever they prove inconvenient. Those two intuitive

principles resolve this case. I welcome the court's questions.

You suggest that without the tolling she would receive an unwarranted benefit. What exactly is that benefit?

Yes, so I think there are a couple of possible benefits that a supervisee would receive from a

period of fugitivity if you did not apply the fugitive tolling doctrine. So it does not apply to

this case, but the most obvious and most serious benefit that a fugitive could receive

would be the ability to just run out the term of supervised release while she is abscondment.

So in this case, what is the benefit?

So in this case, the benefit is essentially that she avoided the post-confignment

monitoring and surveillance.

So if you have revocation as a sanction for that, what is this case about?

Right, so this case, as I believe just as Alito pointed out, this case really boils down to

just a disagreement about the sentencing guidelines. And candidly, especially given petitioners

concession that the court at the revocation hearing can consider the full range of conduct,

post-dating the abscondment, we don't think that in the real world this is going to shake out to

that much of a difference when it comes to the actual revocation sanction.

And I think we said in the real world, there is no benefit unless she runs out the clock

before the government gets a warrant. I think, is that right?

I think that is the situation that we are mostly concerned about.

Oh, yes.

And if that's the situation you're concerned about, it seems to me that it's a very unlikely scenario

to arise, except for as Mr. Unikowsky says, if the violation occurs at the very end of the supervised

release period, it might escape detection. And similarly, though that's true with anything,

a supervised release individual might do any crime here she might commit, might escape detection

at the end of that period.

So respectfully, Justice Gorsuch, I disagree about the likelihood of the 35-83I mechanism failing.

So I think, as has been discussed, we have the SWIT case out of the Fifth Circuit where a

defendant was serving a state term of imprisonment and then did not report to her federal

probation officer as she was directed. There's the crane case out of the ninth circuit where a

supervisee was in a residential treatment program, left early, and that was not reported to the

probation officer.

It's also possible a probation officer will miss other crimes at the very end of a period, right?

Absolutely. These were not right at the end of the period. I mean, this is, you know,

there are several. Well, if the government has a problem getting warrants,

maybe the government ought to go to Congress and ask for I to be amended as it already has once.

Thoughts? Well, well, Your Honor, so, you know, I know that the government occasionally comes in

here and pleads like resource constraints and administrability. That's what this one sounds

like to me. Let me just say with all respect, this process is completely between the probation

office and the supervisee. The government does not get involved in the judicial situation.

Hold on. The probation officer isn't a government employee?

The probation officer is a member of the judicial branch, but you're pleading constraints

for the government in whatever form it may be. And I appreciate those constraints, but the

government's always been able to go to Congress and in fact did to amend I once already.

Congress has proven pretty solicitous in this area. And the alternative is for us to create a

fugitive tolling doctrine, pretty whole cloth, and there appear to be at least two circuit splits,

one about what is required to abscond. Is it just not showing up, or is it actually being

completely unavailable for supervision? Another circuit split over what it means to be an abscond,

or does it start when the status arises? Does it start later? And so we're going to have to come

up with a whole common law doctrine here to supplement what I already says. Thoughts about that?

Well, Justice Gorsuch, I disagree on the circuit case law on what constitutes abscondment.

I think that the courts of appeals that have adopted are.

I thought the ninth circuit said it's merely failing to appear in the fourth circuit,

says you have to act in a way that precludes the government from supervising.

So I think 20 years ago, the ninth circuit had one case that said that it could be any failure

to appear, or like anything that violated a release condition. Since then, they have clarified

in Ignacio Juarez that it is actually a pattern of conduct that prevents supervision,

that precludes supervision. I think that is fully consistent with what the fifth circuit said in

Swick and the fourth circuit. That's one courts view. I think the point that Justice Gorsuch is

making is that we would have to decide, as a matter of common law, which of those approaches

is right. Well, Justice Sotomayor, the only point that I'm making is that I believe there is

actually a consensus on what constitutes abscondment in the courts of appeals that have adopted

our view of how the statutory scale works. Statutarily, supervised release can't go on for

more than five years. Under your theory of this case, you're saying supervised release in part

continues during the time of abscondment, because they're subject to the terms of that they've

violated, and yet it doesn't run out. That's, isn't that us by common law extending a period of

punishment? No, Your Honor. Are you? Tell me how not. If you can, if during the five years,

you violate those terms, you're still under supervised release terms. If you violate them,

you're claiming that violation subjects you to a new warrant. How are we not extending the period?

So, Justice Sotomayor, a term of supervised release requires that the supervised

is both subject to-

It's actually a fact. In fact, it doesn't. The way the statute is written, it's up to the

sentencing judge on whether actual supervision by the probation department is necessary.

I grant you that I think in virtually all cases, most judges require it, but it's not legally

required. Well, Your Honor, I think if we read supervision out of supervised release, that essentially

renders 18 U.S.C. 30601 and 30603. The problem, but then what happens to the defendant who

is reporting every week, doing what he receives supposed to do in terms of reporting to the agent,

but is out there running a criminal enterprise every single day. That person in my judgment

is not being adequately supervised. That person is violating the essence of the supervision.

And yet, you would claim he hasn't upscounded. Yes, that person is certainly violating his

release conditions. And I want to be very clear that we do not view-

But a bad person, that person could be not evading the entire spirit of supervised

release, but that doesn't subject them to an extended period of supervised release.

Does it- Well, I think that the distinction there is that if that person is actually

being supervised, if they're whereabouts are known to their probation officer, if they

are checking in with their probation officer as required by the terms of their supervision,

then their violent of conduct is much likelier to actually be detected and to result in

a revocation hearing and a new sanction. The reality is that it really is. I don't know. I mean,

failing to show up is a pretty obvious way to detect a violation, seems to me,

more so than a lot of other criminal enterprises that might be going on. I do

tofully show up, but I'm running a murder of Mayhem ink over here. You just don't find it.

That's hard to find. You got to go find that. Somebody doesn't show up. I notice.

Yes, I mean, I agree with that, Justice Gorsuch, but I think that not showing up to a meeting

is going to get you maybe a grade C violation at the most. It probably in most instances will not

even be reported to the district court. If you are out there running, murder mayhem ink or

something like that. I mean, that is obviously much more serious, egregious misconduct that we think

if you are actually checking in with your probation officer, if your probation officer knows where

you live and where you work and is able to conduct warrantless searches as is one of the standard

conditions of supervised release, that is much likelier for the probation officer to actually detect

that misconduct, report it to the district court, and for that to result in the revocation.

Council, you say when she abscons, Ms. Rico, supervision term doesn't run, but she's still

subject to the requirements and can violate requirements such as that she has to report.

Now, why isn't that just like a prisoner who escapes and you would say, okay, you're going to be

not get the prison sentence time during that period, but he also violated the rule about prison

inmates can only wear a particular type of clothing. It seems to me that is sort of a double,

double counting. Well, I don't think so, Mr. Chief Justice. I mean, I would point out that when

prisoners escape, whether it's from a physical BOP institution or from one of these other forms

of confinement, the BOP has developed like home confinement, furlough, halfway house,

something like that. They can be obviously at the moment of their escape, the clock stops on

service of their term, and they will have to fulfill the undischarged portion of the term when

they are recaptured, but they can also face institutional consequences for the behavior that

they engage in when they are on escape status. Not for the same reason. I mean, I think both

Justice sort of my or and the chief might be pointing out that what you are suggesting is not

really a tolling rule, because the traditional tolling is that the clock stops with respect to

the obligation when you run away, and it picks up again when you're found again, and what happens

in between, you can't be held liable for under that same framework because the clock has stopped.

So it seems to me that what you're actually asking for is an extension rule, one that allows for

the obligations to curve throughout the whole period. When you're away, when you've absconded,

you say she still held to account for what happens in the context of supervised release.

So that means those conditions are extending, not told, right?

So, respectfully, Justice Jackson, I disagree with that characterization of it as an extension rule.

I think that tolling in every circumstance is about stopping the clock, but tolling has never

guarantee you that you're not asking for stopping the clock. That's my point. You're saying the

clock is still going, because that's what allows you to hold her accountable for the things that

happen during the period when she's away. We're saying that the clock stops on service of the term,

on discharging the term of supervised release. But tolling has never meant an immediate cessation

of any attendant disabilities or restrictions that run with the sentence, right? I mean, this is true.

One big difference is that, you know, your fugitive prisoner from B.O.P. on the lamb,

he might commit a crime, and if he commits a crime, he's going to get a jury and a trial.

Whereas if on supervised release in the EBSCOM and scenario, your government would assert

the right for a judge rather than a jury and under a preponderance of the evidence standard

rather than under reasonable doubt standard address any misconduct during that period, correct?

Not quite, Justice Gorsuch. So I think, I mean, obviously you are correct, that anytime

someone commits a new crime, if they are going to be tried for that crime, they get a jury and,

you know, all of the attendant protections of the 6th and 7th amendments. But I think, with the example

of the B.O.P. prisoner who's out on the lamb, to the extent we are applying B.O.P. institutional

consequences for the behavior that he needs.

But that's separate. I think the point is that separate from the tolling rule that we apply to

prisoners who are on the lamb. That's separate.

Well, I think we view it as, you know, there is the tolling.

And the supervised release power that you say continues, but doesn't continue.

I think it's the same thing. I think we are we are tolling the service of the term,

but there still may be additional consequences that attach for the behavior that occurs during that

sub-sconment period. And I'm sorry, Justice Alito.

Well, I was just going to ask whether you think that the petitioner's argument is inconsistent

with or at least in tension with our decision-last term in a steris, which discuss the factors that

are relevant in deciding whether to revoke supervised release and what to do if supervised

release is revoked. Now, I recognize that the factors are discretionary, but still the petitioner's

argument is that what occurred after the 37 months is off the table. And I don't understand

where it is of lesser significance. It can be taken into account only through the mechanism

of the departure. But I don't see why what happened after 37 months is any less relevant than

what happened before 37 months. I agree, Justice Alito. And I think that what this court said in

the steris is that courts at a supervised release revocation hearing can and should take into

account all of the forward-looking interests that criminal sentences serve, which includes

deterrence and capacitation, things like that. I think that giving supervised release the effect

that Congress wanted, meaning that it is actually supervision, that it is the kind of post-confignment

monitoring and post-confignment assistance that this court recognized in Cornell Johnson and

Roy Lee Johnson, serves those interests that the court recognized in the steris. And I don't

quite understand. I mean, I think there is certainly some tension in the idea that a person who

violates their supervised release by absconding is going to be subject to a sanction derived from

the full breadth of their conduct, post-abskonement, but that the guidelines are limited to just a

substance.

What that suggests to me is that this is really, tolling is a misnomer. If this were purely tolling,

by analogy to what to the fugitive tolling role, Petitioner would not have been on supervised

release at all during the whole period, during the whole period when she was absconding, but that

she wouldn't be satisfying her term, she also wouldn't be subject to the terms of supervised

release. But you don't want that role. So this doesn't seem to me to be really about tolling at

all. Neither party really wants a pure tolling role. It's about what is relevant, what should inform

the decision about what should be done when there is a revocation?

So, just as we know, we think that that is a distant second best rule. We would prefer that

rule to a rule of no tolling at all, because as I was discussing, I believe, with Justice

Gorsuch earlier, our primary concern here is the idea that defendants will be able to

abscond from supervision, wait out the expiration date of their term, and if warrant or summons

does not issue under 3583I, they will be able to render the supervision component of their judgment

annulity. That is the worst outcome here. That does not serve the system that Congress

enacted. But it's not exactly what Congress wanted. I mean, the reason why we have, I think,

is because Congress suggests that it's only in the situation in which a warrant does issue

under those circumstances that the court's authority can extend to allow for a revocation.

So, I think what you're asking for seems diametrically opposed to the policy choice that

Congress has made about the circumstances under which the person can be held accountable for

something. So, Justice, oh, I'm sorry. Yeah, yeah.

I think I, I part ways with you on the history and purpose of subsection I, so I would point out,

you know, petitioner puts a lot of marbles in the 3583I bucket, because that is essentially the

only way that she's able to get around this idea. But that's because that's what Congress says

about when this can be extended, when the power can be extended to hold her accountable.

Well, you know, I would point out just as a matter of history that subsection I was not enacted

until a decade after the sentencing reform act. So, in order to buy into her view, you have to

accept the idea that the Congress that enacted the sentencing reform act wanted supervisees

to be able to entirely defeat the supervision component of their judgment through fugitivity

and waiting out the expiration date of the sentence. I don't think that that's possible.

No, what they did was they put the burden on the government or the probation office

to alert the court and get a warrant during the time when the person absconded.

But, Justice Jackson, there was no 3583I at that time. There was no 3583I. There was no warrant or

summons extension mechanism for the first ten years that the sentencing reform act was,

in effect, that was not enacted in 1999.

And your conclusion is then that we have to, now that 3583I exists, interpret it consistent

with the pre-existing state of affairs.

Well, I have additional reasons that I think 3583I is in submission, but I do think it's

important to look at the history and think about what the Congress that enacted the sentencing reform act

was trying to do. And I think, you know, if Congress gave district courts for the first ten years

of the supervised release system, gave district courts no tools whatsoever to go after absconding

supervisors who were able to wait out the expiration date of their term.

I think that that is very strong evidence that Congress anticipated that traditional

ideas of fugitive tolling would be incorporated into the new supervised release system

that they were enacting. But in terms of, you know, what I think 3583I was going after,

I mean, as I think Patricia acknowledged on page six of her opening brief, and as the

second circuit recognized in the Jean-Vier case, this was really about a very narrow subset of

late breaking violations, where there was not time left on the clock for the district court

to conduct the revocation hearing required by rule 32.1. Every court to have passed on 3583I

has talked about this as being a provision that is designed just for those very late end-of-term

violations. It is not a general fugitive tolling provision.

I guess Mr. Handel, though, the question to you is in what provision do you put your marbles?

I mean, in addition to 3583I, Mr. Unicowski would say back to you, look, there is no fugitive tolling

provision in this statute of the kind that the government wants. There is a tolling provision

in this statute. It applies to prisoners. It does not apply in this situation. And there is

an addition, a fairly granular, detailed instructions about what to do with a person like the petitioner

here. In other words, there should be a revocation. There should be a new sentence of imprisonment

with a term of supervised release attached to it. So the statute offers a solution for what

to do with prisoners like Ms. Rico. So where are we supposed to look in this statute for your

solution? Right. So I think there are a couple of analytical questions based into this case.

And the first one is just, are you serving a term of supervised release when you're unsupervised?

And if you agree with us on that, that is just about the basic fundamental essence of supervised

release, looking at the full range of statutes that Congress enacted here, 3601, 3603, 3624E,

and saying, yes, Congress anticipated that when someone is sentenced to a term of supervised

release, they will actually be supervised by a probation officer. If you agree with us,

that you have to actually be supervised to be discharging a term of supervised release,

then you've already disagreed with petitioner's position. And then we just get to the secondary

question of, okay, what do we do with these release conditions after abscondment? I'm happy

to talk about that and why I think that abscondment should not. If I take your argument, right,

that suggests that the only statutory provision you're pointing to is the one that identifies

the person who actually does the supervision. Is that correct? I think 3601 imposes an obligation

on a supervisee to be supervised and 3603 imposes an obligation on the probation officer

to supervise. I think that those work together. It's pretty bare bones, yeah?

You know, respectfully, I disagree with that characterization, Justice Kagan. And you know,

I think I will acknowledge that there is not an explicit fugitive tolling provision in the

sentencing reform act or any of the amendments akin to the carceral tolling.

Nor is there a lot of detail about what the supervision looks like. So to the extent that you're

putting all your marbles in this idea of supervision, I mean, the statute basically says go get supervised.

I mean, I think 18 U.S.C. 3603 actually puts some meat on the bones of what supervision

should look like. I grant that that is oriented toward probation officers rather than the supervisee

herself. But, you know, I think that that tells us what Congress thought supervision

would look like in practice and what kinds of requirements for monitoring, reporting,

assistance, Congress was trying to bake into this system.

Thank you.

Yeah. Just to get to the 3624 E carceral tolling provision, I think as we pointed out in our brief,

Congress had a very good reason for explicitly addressing that. And it's because there was

a disagreement in the case law as to whether you would toll for terms of incarceration

that arose during a period of supervision, but we're based on conduct that predated

the term of supervision, so they couldn't quite be tethered to a violation of supervision

in the way that, you know, this Court treated the interruption in Anderson versus

Carral and Zerp's versus Kidwell. Congress resolved that judicial disagreement

in favor of more tolling. I don't think that that tells us much of anything about,

you know, what they thought about fugitive tolling. Certainly, it doesn't foreclose

the existence of fugitive tolling in the sentencing reform.

Just ask you one quick question about your supervision issue. Suppose we have a defendant

who's in a coma. Are they being supervised? Is abscond meant the only thing that triggers

your argument that the person is not being supervised?

Right. So I think there are, you know, any number of situations we could imagine, a

comato supervisee, you know, a lazy or incompetent probation officer, anything like this, where

supervision is not occurring in the way that Congress-

In that, your view would it would warrant an extension of the supervised release?

No, Your Honor. And this is because of, you know, I do think, I think the text gets us

like 98% of the way. It gets us to the two yard line in terms of what counts as supervision

or not. And then the last couple of yards have to incorporate background principles

from the preexisting case law. And there, I think you would look at, you know, against whom

do we tax this failure of supervision? We recognize that this is not the system operating

as Congress designed it. Maybe the probation officer is not meeting the duties imposed

on him in 3603. Maybe the supervisee is not doing what, you know, she's technically required

to do under the terms of the judgment. But how do we tax that failure? And I think that

the lower courts that have adopted our view of this statutory scheme have gotten it right

when they've said that a supervisee obscans that a supervisee is told for her undistarched

term of supervised release when she deliberately renders supervision impossible. You would not

be able to satisfy the taxpayer requirement as to a comato supervisee or as to any situation

in which the probation officer, rather than the supervisee, was at fault for the lack of supervision.

Thank you. Thank you, Council.

Any further? Thank you. Thank you.

Unikowski, rebuttal?

Thank you, Mr. Chief Justice. I first want to address Justice Alito's question about the

possibility of true tolling under which during the abscondment period the person wouldn't be

subject to the conditions at all. First of all, if that were the rule, then Ms. Rico would prevail

in this case, because the government's case hinges on Ms. Rico having violated the conditions

of supervised release during that period. But second, we respectfully disagree with that rule

as inconsistent with the judgment. The judgment does say that when the sentence expires,

Ms. Rico will be subject to X number of months of supervised release. So I think what that means

is that when Ms. Rico was released from prison, she serves X number of months of supervised release,

and that doesn't stop because Ms. Rico makes the unilateral decision to abscond.

I'd like to talk about Section 3583i. As Council mentioned, that statute was enacted in

1994, and the reason it was enacted is that there were administration problems prior to the

enactment of that statute. Several courts invented these judge-made rules to try to get around them.

Finally, Congress solved the problem of Section 3583i, but I think it's notable that Congress enacted

the statute with a very reticulated language that self-consciously departed from the parole

equivalent, Section 4210c. It specifically required that the warrant issue during the term,

and only then was jurisdiction extended until after the term. So that would have been a

perfect opportunity for Congress to enact the same type of fugitive toll and rule that already

existed for parole. Congress's decision not to do that. I do think Shed's light on the question

presented here. I want to say a word about Section 3601, the statute that says that the supervisee

shall be supervised, which Council characterized as getting the government 98% there to the two

yard line. I don't think that statute is very helpful to the government. All it says is that the

person shall be supervised. Moreover, that's just a prefectory provision in a portion of the US

code addressing the duties of probation officers. That appears in Section 3601. The next section is

about how probation officers are appointed, and then the next section after that concerns the

duties of probation officers. So I think it's hard to read that as recognizing a fugitive toll

doctrine, it says nothing about to tolling, nothing about extending the sentence in court's

jurisdiction, nothing about stripping people of credit, and those are all topics that are addressed

in other portions of the Sentencing Reform Act that do not enact the government's proposed rule.

Ultimately, this case boils down to the proposition that there's just no statutory support for

the government's claim that Miss Rico could have been simultaneously on supervised release

for purposes of finding a violation of the conditions, but off the supervised release for

purposes of determining whether she was serving her sentence. Because there's no textual support

for fugitive tolling, we would ask the court to reverse the judgment below. Thank you.

Thank you, Council. The case is submitted.