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United States of America v. Lawrence Jay Brown

May 12, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
LAWRENCE JAY BROWN,
DEFENDANT.



The opinion of the court was delivered by: John W. Sedwick United States District Judge

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.*fn1

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)."*fn2 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.*fn3 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.*fn4 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 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."*fn5 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.*fn6 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."*fn7

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,*fn8 where the Ninth Circuit held that "'pretrial detention does not constitute an 'imprisonment' within the meaning of § 3624(e) and thus does not operate to toll a term of supervised release."*fn9 Mr. Brown also cites United States v. Sullivan,*fn10 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).*fn11

The government argues that Brown's term of "supervised release was tolled until his release from [BOP's] custody."*fn12 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).*fn13 In support, the government cites United States v. Johnson.*fn14 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."*fn15 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.'"*fn16

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 ...


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