USA v. Brown

Filing 41

Order

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

UNITED STATES OF AMERICA,
Plaintiff,
vs.
LAWRENCE JAY BROWN,
Defendant.

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3:04-cr-00119 JWS
ORDER AND OPINION
[Re:

Petition at Docket 31]

I. MATTER PRESENTED
At docket 31, the government petitions to modify defendant Lawrence Brown’s
conditions of supervision, requiring him to complete a residential sex-offender treatment
program, or in the alternative, to attend an outpatient treatment program because no
residential sex offender treatment program is available in Alaska. At docket 38,
Mr. Brown filed a brief opposing continued supervised release. At docket 39, the
government filed its brief supporting continued supervised release. The issue of
whether Mr. Brown has completed his term of supervised release is ripe for the court’s
review.
II. BACKGROUND
On December 9, 2004, Lawrence Brown pleaded guilty to and was convicted of
three courts of attempt to transfer obscene material to a minor in violation of 18 U.S.C.
§ 1470. On February 18, 2005, Mr. Brown was sentenced to 30 months imprisonment
and three years supervised release. The special conditions of supervision required in

part that Mr. Brown “participate in and fully comply with the recommendations of a sex
offender treatment program assessment/evaluation approved by the United States
Probation Office to include the successful completion of any recommended treatment.”
Mr. Brown was incarcerated in Victorville Federal Correctional Institution (“FCI”) in
California. Mr. Brown’s good conduct time release date was January 31, 2007.1
On January 30, 2007, one day before Mr. Brown’s term of imprisonment expired,
the government filed a “Certification of a Sexually Dangerous Person” against Brown
pursuant to 18 U.S.C. § 4248(a). The certification contained the assertion of the Interim
Chairperson of the Federal Bureau of Prisons (“BOP”) Certification Review Panel that
Mr. Brown “is a sexually dangerous person as defined by 18 U.S.C. § 4247(a)(5), and
sexually dangerous to others as defined by 18 U.S.C. § 4247(a)(6).”2 The certification
was based on information found in BOP records, including Brown’s prior conviction for
sexual abuse of a minor in the second degree in the late 1980's and his conviction for
second degree rape in 1978.3 At some point, Mr. Brown was transferred to FCI Butner
in North Carolina, which has a treatment program for sex offenders. It is not clear from
the record whether Mr. Brown was provided any sex offender or other treatment during
his detention pending civil commitment proceedings. Mr. Brown did not have a hearing
on the certification during the 46 months he was in BOP custody after the expiration of
his sentence.
In June 2010, Mr. Brown filed a motion to dismiss the 18 U.S.C. § 4248 civil
commitment proceeding. In a supplemental memorandum in support of his motion,
Brown challenged the constitutionality of the § 4248 certification and the consequences
of that certification on his term of supervised release.4 On December 13, 2010, the
government and Mr. Brown’s counsel signed and filed a stipulation of dismissal with
prejudice in which the government agreed to dismiss the civil commitment proceedings
1

Doc. 38-1 at p. 3.

2

Id. at p. 3.

3

Id. at pp. 3-4.

4

Doc. 39-2.

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against Brown pursuant to § 4248(a) and release him from custody, and Brown agreed
to dismiss his petition for habeas corpus under 18 U.S.C. § 2241. The stipulation
further provided that Mr. Brown’s term of supervised release “will be deemed to have
begun as of the date of his actual release from custody.”5 The United States District
Court for the Eastern District of North Carolina entered an order dismissing with
prejudice the § 4248 action against Brown on December 13, 2010.
After his release, Mr. Brown returned to Alaska. On February 17, 2011, at the
request of the Probation Office, Mr. Brown underwent a sex-offender evaluation which
recommended that he participate in a residential treatment program.6 The government
requests the court to modify Mr. Brown’s conditions of supervision to require defendant
to complete a residential sex-offender treatment program. Mr. Brown contends that he
has completed his 36-month term of supervised release. If this court determines that
Brown’s term of supervised release was tolled by the § 4248 proceedings, Mr. Brown
requests “a second independent treatment evaluation before he is required to move
away from his family and community support in Alaska.”7
IV. DISCUSSION
At issue is whether Mr. Brown’s post-sentence detention pursuant to a
“certification of sexually dangerous person” filed under 18 U.S.C. § 4248 operated to toll
his term of supervised release under 18 U.S.C. § 3642(e), which provides for tolling
during a period in which the person is imprisoned in connection with a conviction.
Mr. Brown argues that he “completed his term of supervised release while under pretrial
detention pursuant to a civil commitment petition” under § 4248(a) because detention
pursuant to § 4248 does not constitute imprisonment as contemplated in § 3624(e). In
support, Mr. Brown cites United States v. Morales-Alejo,8 where the Ninth Circuit held
that “‘pretrial detention does not constitute an ‘imprisonment’ within the meaning of
5

Id.

6

Doc. 31 at p. 2.

7

Doc. 38 at p. 1.

8

193 F.3d 1102 (9th Cir. 1999).

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§ 3624(e) and thus does not operate to toll a term of supervised release.”9 Mr. Brown
also cites United States v. Sullivan,10 where the Ninth Circuit concluded that a
defendant’s supervised release term was not tolled while in a pre-release center
because detention in a pre-release center was not an “imprisonment” under § 3624(e).11
The government argues that Brown’s term of “supervised release was tolled
until his release from [BOP’s] custody.”12 The government acknowledges that
Mr. Brown’s term of imprisonment expired on January 31, 2007, but argues that his term
of supervised release did not commence while he was in BOP custody under § 4248
because he had not been “released from imprisonment” within the meaning of
§ 3624(e).13 In support, the government cites United States v. Johnson.14 In Johnson,
the defendant’s sentence was reduced to a term less than that already served after two
of the defendant’s convictions were vacated. The defendant moved for a reduction of
his supervised release term by the amount of time he served on the vacated
convictions. The Supreme Court concluded that § 3624(e), “by its own necessary
operation, does not reduce the length of a supervised release term by reason of excess
time served in prison.”15 In so concluding, the Supreme Court reasoned that § 3624(e)
“directs that a supervised release term does not commence until an individual ‘is
released from imprisonment.’”16

9

Morales-Alejo, 193 F.3d at 1106. See also, United States v. Garrett, 253 F.3d 443, 446
(9th Cir. 2001).
10

504 F.3d 969 (9th Cir. 2007).

11

Sullivan, 504 F.3d at 971-72.

12

Doc. 39 at p. 4.

13

Id. at p. 6.

14

529 U.S. 53 (2000).

15

Johnson, 529 U.S. at 60.

16

Id. at 57.

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There is no controlling authority on whether a term of supervised release is tolled
under § 3264(e) while a defendant is detained pursuant to a certification filed by the
government under § 4248. “In construing a statue as a matter of first impression, we
first look to the statutory language: ‘The starting point in interpreting a statute is its
language, for if the intent of Congress is clear, that is the end of the matter.’”17
The first relevant statutory provisions are those involving supervised release. “[I]n
imposing a sentence to a term of imprisonment for a felony or misdemeanor, [the court]
may include as a part of the sentence a requirement that the defendant be placed on a
term of supervised release after imprisonment.”18 Pursuant to 18 U.S.C. § 3624(a), “[a]
prisoner shall be released by the Bureau of Prisons on the date of the expiration of the
prisoner’s term of imprisonment, less any time credited toward the service of the
prisoner’s sentence as provided in subsection (b).” Section 3624(e) further provides in
pertinent part:
The term of supervised release commences on the day the person is released
from imprisonment and runs concurrently with any Federal, State, or local term of
probation or supervised release or parole for another offense to which the person
is subject or becomes subject during the term of supervised release. A term of
supervised release does not run during any period in which the person is
imprisoned in connection with a conviction for a Federal, State, or local crime
unless the imprisonment is for a period of less than 30 consecutive days.19
The other relevant statute is 18 U.S.C. § 4248, which provides for the civil
commitment of “sexually dangerous persons.” Section 4248(a) provides:
In relation to a person who is in the custody of the Bureau of Prisons, or who has
been committed to the custody of the Attorney General pursuant to section
4241(d), or against whom all criminal charges have been dismissed solely for
reasons relating to the mental condition of the person, the Attorney General or
any individual authorized by the Attorney General or the Director of the Bureau of
Prisons may certify that the person is a sexually dangerous person, and transmit
that certificate to the clerk of the court for the district in which the person is

17

United States v. Morales-Alejo, 193 F.3d 1102, 1105 (9th Cir. 1999) (quoting Good
Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993)).
18

18 U.S.C. § 3583.

19

18 U.S.C. § 3624(e).

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confined. The clerk shall send a copy of the certificate to the person, and to the
attorney for the Government, and, if the person was committed pursuant to
section 4241(d), to the clerk of the court that ordered the commitment. The court
shall order a hearing to determine whether the person is a sexually dangerous
person. A certificate filed under this subsection shall stay the release of the
person pending completion of procedures contained in this section.
The issue of tolling of supervised release is governed by § 3624(e), which
provides in relevant part that “[a] term of supervised release does not run during any
period in which the person is imprisoned in connection with a conviction for a Federal,
State, or local crime unless the imprisonment is for a period of less than 30 consecutive
days.”20 “Section 3624(e) focuses the [court’s] attention on the words ‘imprisonment’
and ‘imprisoned’ to describe the type of confinement that controls commencement and
tolling of supervised release time.”21 As such, the question is whether Mr. Brown’s
detention pending civil commitment proceedings under § 4248(a) constitutes
imprisonment within the meaning of § 3624(e).22
Like the Ninth Circuit in Morales-Alejo, this court concludes that Congress’s
intent is apparent from the language of § 3624(e), which provides for tolling when a
person is “imprisoned in connection with a conviction.”23 “A plain reading of this
language suggests that there must be an imprisonment resulting from or otherwise
triggered by a criminal conviction.”24 Like pretrial detention, detention pursuant to
§ 4648(a) pending civil commitment proceedings after a defendant’s term of
imprisonment has expired does not fit this definition.25 Just as a person in pretrial
detention is not “imprisoned” in connection with a conviction, a person detained

20

Morales-Alejo, 193 F.3d at 1105.

21

Sullivan, 504 F.3d at 971.

22

Morales-Alejo, 193 F.3d at 1104.

23

Id. at 1105 (quoting 18 U.S.C. § 3624(e)).

24

Id.

25

Id.

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pursuant to § 4248 pending the outcome of a civil commitment hearing is not
“imprisoned” in connection with a conviction.
Had Congress intended the issuance of a certificate under § 4248 to toll the
running of a term of supervised release it could have included language in § 3624(e)
that explicitly stated that a term of supervised release “does not run during the
pendency of civil commitment proceedings under 18 U.S.C. 4248(a).” Congress also
could have included language in § 4248 explicitly stating that a certificate filed under
§ 4248(a) tolls a person’s term of supervised release pending completion of civil
commitment procedures. Congress did neither when it adopted § 4248.
The government cites Johnson for the proposition that supervised release does
not run while an individual remains in the custody of the Bureau of Prisons. However,
Johnson does not address detention under § 4248(a), and is factually distinguishable
because it dealt with a defendant who was “imprisoned in connection with a conviction”
when he served extra time after two convictions were vacated. Here, Mr. Brown was in
BOP custody pursuant to civil commitment proceedings under § 4248(a), not in
connection with a conviction.
The government explicitly acknowledges that “[b]ecause Brown’s term of
imprisonment expired, his federal detention was under the authority of Section
4248(a).”26 The government further asserts that Mr. Brown’s detention under § 4248(a)
after his term of imprisonment expired “was ‘no longer penal in nature,’ because
detention under Section 4248 is civil and not punitive.”27 The United States Supreme
Court has also recognized the civil nature of proceedings under § 4248. In United
States v. Comstock,28 the Supreme Court held that Congress had the power to enact
§ 4248 under the Constitution’s Necessary and Proper Clause in part because § 4248
“constitutes a modest addition to a set of federal prison-related mental-health statutes
that have existed for many decades” and have “authorized the postsentence detention

26

Doc. 39 at p. 5.

27

Id.

28

___ U.S. ___, 130 S. Ct. 1949 (2010).

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of federal prisoners who suffer from a mental illness and who are thereby dangerous
(whether sexually or otherwise).”29 A postsentence detention under a mental health
statute does not constitute imprisonment as contemplated by federal criminal statutes,
particularly § 3624(e).30
The government next cites an advisory letter on this issue to Mr. Brown’s former
counsel, in which Assistant General Counsel Joe Gergits, Administrative Office of the
United States Courts, opined that Ҥ 3624(e) does not toll supervised release when an
offender is civilly committed under § 4248” because civil commitment does not
constitute imprisonment. Mr. Gergits further opined, however, that if BOP files a
certificate under § 4248 on the eve before a defendant’s term of imprisonment expires,
supervised release cannot begin because the defendant has not been “released from
imprisonment.”31 The Assistant General Counsel’s opinion, which is not controlling, is
also not persuasive because it conflates the meaning of “release” from the custody of
BOP or the Attorney General under § 4248(a) with “release from imprisonment” under
§ 3624(e).
Section 4248(a) allows the government to stay the release of three categories of
individuals after certifying them as “sexually dangerous”: 1) “a person who is in the
custody of the Bureau of Prisons,” 2) a person “who has been committed to the custody
of the Attorney General; pursuant to section 4241(d),” which authorizes limited civil
commitment of a person found not competent to stand trial, and 3) a person “against
whom all criminal charges have been dismissed solely for reasons relating to the mental
condition of the person.” As such, § 4248(a) stays the release of a person from the
custody of BOP or the Attorney General pending completion of civil commitment
procedures in § 4248. Staying a person’s “release” from the custody of BOP or the
Attorney General under § 4248(a) is distinct from staying a person’s “release from

29

Comstock, 130 S. Ct. at 1961.

30

Morales-Alejo, 193 F.3d at 1105 (“The term ‘imprisonment’ consistently is used to refer
to a penalty or sentence.”)
31

Doc. 38-4 at pp. 2-3.

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imprisonment” under § 3624(e).32 Moreover, construing § 4248(a) as staying a person’s
release from imprisonment in effect allows the government’s filing of a certificate under
§ 4248(a) to increase a person’s term of imprisonment, thus modifying a court-ordered
criminal judgment, a judgment which only the court of imposition has the power to
modify.33
For the above reasons, the court concludes that Mr. Brown’s 46-month detention
under § 4248(a) after his sentence expired does not amount to imprisonment “in
connection with a conviction” under the meaning of § 3624(e). Accordingly, Brown’s
term of supervised release was not tolled during the 46 months he remained in BOP
custody after his sentence expired, and his term of supervised release ended on
January 31, 2010.
In the alternative, the government argues that Mr. Brown “knowingly and willingly
waived any challenges to supervised release” because he gave his counsel authority to
sign a stipulation which stated in part that “[t]he term of his supervised release will be
deemed to have begun as of the date of his actual release from custody.”34 The
government contends that “[a]lthough Brown did not sign the stipulation, he understood
that he would ‘be released forthwith upon the signing of this stipulation by all parties.’”35
The government’s argument is unavailing. Because Mr. Brown’s term of supervised
release had expired by the time he entered the stipulation with the government on
December 13, 2010, he could not have stipulated to an additional three-year term of
supervised release, which was not part of his original sentence.
Even if one were to posit that Mr. Brown and the government by agreement
somehow had the power to create a new date for the commencement of supervised

32

But see United States v. Bolander, 2010 WL 5342202 (S.D. Cal. Dec. 21, 2010);
United States v. Combe, 2011 WL 976892 (D.Utah March 18, 2011).
33

Hill v. United States ex rel. Wampler, 298 U.S. 460, 464-65 (1936) (“The only sentence
known to the law is the sentence of judgment entered upon the records of the court.”)
34

Doc. 39 at p. 4 (quoting Doc. 38-3 at p. 1).

35

Id.

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release, the government’s position would still be untenable. This is because
Mr. Brown’s agreement to dismiss his habeas corpus petition and to acquiesce in a term
of supervised release in exchange for the government’s dismissal of the civil
commitment proceeding cannot reasonably be considered a voluntary act. Brown’s
“agreement” was the only way he could extricate himself from continued (and seemingly
endless) confinement.
V. CONCLUSION
For the reasons set out above, the court concludes that Mr. Brown’s term of
supervised release expired on January 31, 2010. Accordingly, the government’s
petition at docket 31 to modify conditions of supervision is DENIED. Mr. Brown is no
longer subject to supervision.
DATED at Anchorage, Alaska, this 12th day of May 2011.

/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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