Appeal from the United States District Court for the Southern District of California. D.C. No. CR-89-3254(K). Judith N. Keep, District Judge, Presiding.
Before: James R. Browning and Jerome Farris, Circuit Judges, and Thomas J. MacBride,*fn* Senior District Judge. Opinion by Judge MacBride.
MacBRIDE, District Judge:
Todd Neville appeals the district court's affirmance of the magistrate's revocation of Neville's term of supervised release and the imposition of a six month sentence of imprisonment under 18 U.S.C. § 3583(e) (Supp. 1991). Neville violated the terms of his supervised release before the supervisory period expired. However, Neville argues that the district court lacked jurisdiction to revoke his supervised release and sentence him to prison under U.S.C. § 3583 because the supervisory period had expired by the time the revocation hearing was held. Neville also claims that a magistrate Judge does not have jurisdiction to revoke a defendant's term of supervised release upon the defendant's withdrawal of consent to be heard by the magistrate Judge.
We affirm the district court's ruling. We find that a court's assumption of jurisdiction under 18 U.S.C. § 3583 is proper to determine whether a defendant not in custody violated the terms of supervised release and remedy the violation by imposing a prison term when an order to show cause is issued during the period of supervised release. We also hold that a defendant's withdrawal of validly given consent to be heard by a magistrate Judge at the supervised release revocation hearing stage is without effect.
On July 27, 1989, after consenting to be tried by a magistrate Judge, Todd Neville pled guilty to possession of a controlled substance in violation of 21 U.S.C. § 844(a) (1988). The magistrate Judge sentenced him to four months in custody and one year of supervised release. Neville's year of supervised release was scheduled to end on January 11, 1991. However, Neville violated the conditions of his supervised release before the end of his supervised release term.*fn1 Neville's Probation Officer subsequently petitioned for an order to show cause why Neville's supervised release should not be revoked. A warrant for Neville's arrest was issued on January 4, 1991.
On January 14, 1991, three days after his term of supervised release expired, Neville contacted his probation officer and was told about the warrant. Neville appeared in the magistrate Judge's court on January 16, 1991. At that proceeding, Neville entered his first objection to the court's jurisdiction arguing that the court no longer had jurisdiction since Neville's year of supervised release had ended on January 11. The court continued the hearing until January 24, 1991 at which time Neville renewed his objection to jurisdiction. Neville also withdrew his consent to appear before the magistrate Judge and requested that his case be heard by the district court.
The magistrate Judge ruled that jurisdiction was proper even though the term of supervised release was scheduled to end on January 11 because the warrant "tolled" the statute. After a hearing, the magistrate Judge revoked the defendant's supervised release and sentenced Neville to six months imprisonment. Neville appealed the magistrate Judge's ruling to the district court.
The district court affirmed the magistrate Judge's ruling that the court had jurisdiction to revoke Neville's supervised release and affirmed the six month sentence. The district court record is silent as to the jurisdictional dispute relating to the magistrate's power.
The only issues on appeal are questions of jurisdiction. Jurisdiction is a question of law subject to de novo review. United States v. Visman, 919 F.2d 1390, 1392 (9th Cir. 1990), cert. denied __ U.S. __, 112 S. Ct. 442, 116 L. Ed. 2d 460 (1991).
A. JURISDICTION AFTER EXPIRATION OF SUPERVISED RELEASE TERM
Neville claims that the magistrate Judge erred in ruling that the warrant issued on January 4, 1991 tolled the supervised release revocation statute because there is no "tolling" provision in 18 U.S.C. § 3583 for an individual not in custody for another criminal offense. Neville argues that the absence of an explicit tolling provision is a clear indication of Congress' intent not to extend the court's power beyond the expiration of a supervised release period. In contrast, the government contends that Congress' reference to the Federal Rules of Criminal Procedure within the text of § 3583(e) is indicative of Congress' intention to treat ...