US v. Hernandez-Ferrer

Filing 920100319

Opinion

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var WPFootnote1 = ' In the district court, the appellant asserted that the\
scheduled expiration date was January 9, 2006. In his appellate\
brief, he suggests that January 10, not January 9, would under\
ordinary circumstances have been the last day of the term. Because\
this one-day discrepancy makes no difference to the outcome here,\
we assume an expiration date of January 10.\
'

var WPFootnote2 = ' These ranges and other policy statements were explicitly\
denominated as advisory even before the Supreme Court\'s landmark\
decision in United States v. Booker, 543 U.S. 220, 259 (2005). See\
United States v. Work, 409 F.3d 484, 492 (1st Cir. 2005).\
'

var WPFootnote3 = ' It is not clear whether the appellant can be said to have\
been a fugitive. See, e.g., Murguia-Oliveros, 421 F.3d at 953-54\
(defining "fugitive" for this purpose as one who "abscond[s] from\
serving the terms of [] supervised release" by "depart[ing] the\
place [in which the offender] was authorized by the terms of his\
release to be," and "fail[ing] to contact his probation officer as\
required"). \
'

var WPFootnote4 = ' We note that the Eleventh Circuit reads section 3583(i) as\
an additional tolling provision. See Okoko, 365 F.3d at 964-65. \
This runs counter to the clear weight of authority, which holds\
that, unlike section 3624(e), section 3583(i) is not a tolling\
provision "because tolling requires an actual suspension of the\
running of the period of supervised release, and under § 3583(i)\
there is no suspension, but rather an extension of the period\
during which the government may pursue violations of supervised\
release." Ossa-Gallegos, 491 F.3d at 543 n.5; accord Cole, 567\
F.3d at 114 n.3; United States v. Jordan, 572 F.3d 446, 448 (8th\
Cir. 2009). We therefore reject the Eleventh Circuit\'s view. \
'

var WPFootnote5 = ' Remand is especially desirable in this case because the\
district court calculated the advisory sentencing range based on\
the Grade A violation and imposed a sentence at the high end of\
that range. \
'

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