Appeal from the United States District Court for the Central District of California Ronald S.W. Lew, Senior District Judge, Presiding D.C. No. 2:96-cr-00115
The opinion of the court was delivered by: Opinion by Judge Milan D. Smith, Jr.
Submitted November 4, 2010*fn1 Pasadena, California
Before: Johnnie B. Rawlinson and Milan D. Smith, Jr., Circuit Judges, and Robert C. Jones, District Judge.*fn2
Kenneth Edward Watson, Jr., appeals the district court's decision revoking his supervised release and sentencing him to three years in prison. Watson, whose original term of supervision was to expire in 1997, concedes that he became a fugitive from federal supervision in October 1995, when he failed to notify his probation officer of his change in residence and stopped submitting required monthly reports. He argues, however, that his eleven arrests by state authorities in Minnesota between 1996 and 2007 marked the end of his fugitive status. Absent fugitive tolling, he contends, his term of supervision ended long before federal authorities arrested him in 2009, and the district court was without jurisdiction to revoke his supervised release.
We hold that Watson's arrests by state authorities neither support an inference that federal authorities had actual knowledge of his presence nor impute constructive knowledge to them. Watson's term of supervision therefore was tolled until federal authorities arrested him in 2009. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 11, 1989, Watson pleaded guilty in the Northern District of West Virginia to possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1), and was sentenced to sixty-three months in prison, followed by a four-year term of supervised release. His term of supervised release began on September 3, 1993, and was set to expire on September 2, 1997. As a condition of his supervised release, Watson was required to notify his probation officer within seventy-two hours of any change in residence, and to submit written monthly reports.
On January 29, 1996, U.S. Probation Officer Ronald J. McPherson requested that the district court transfer jurisdiction over Watson's supervision to the Central District of California and issue a warrant for Watson's arrest. Officer McPherson's unsworn petition alleged that Watson had violated his supervised release by failing to notify his probation officer of his change of residence or to submit monthly reports after October 1995. On February 6, 1996, the district court granted the transfer request, signed the petition, and issued a bench warrant for Watson's arrest.
On May 5, 2005, U.S. Probation Officer Graciela Gudino, ne Corral, submitted a sworn declaration reaffirming the petition and requesting a new bench warrant. Officer Gudino's declaration explained that under our intervening decision in United States v. Vargas-Amaya, 389 F.3d 901 (9th Cir. 2004), the previous warrant was invalid because it was not supported by a sworn affidavit. The district court issued a new bench warrant, and on September 18, 2009, federal authorities arrested Watson in McAllen, Texas.
At the preliminary revocation hearing, Watson denied the allegations in the petition, and the district court set the matter for an evidentiary hearing. While preparing for that hearing, Officer Gudino learned that Watson had been arrested for state crimes in Minnesota eleven times between 1996 ...