Eleventh Circuit panel deepens circuit split by holding fugitive status does not serve to toll term of supervised release

LawProf Jacob Schuman made sure via this tweet that I did not forget to blog about last week's notable panel ruling in US v. Talley, No. 22-13921 (11th Cir. Sept. 7, 2023) (available here).  Here is how the unanimous ruling begins:

This appeal requires us to decide whether absconding during a term of supervised release tolls the supervised release period. James Reginald Talley, a convicted felon, appeals the district court’s judgment revoking his supervised release and ordering him imprisoned based in part on a violation committed after his supervised release had lapsed but while he was, based on the district court’s findings, a fugitive from justice.  We hold that the district court erred in tolling Talley’s period of supervised release based on his fugitive status. In doing so, we join the First Circuit and part company with the Second, Third, Fourth, and Ninth Circuits.  Accordingly, we vacate the district court’s judgment and remand for resentencing.

And here are a few paragraphs from the opinion that help highlight why it is blogworthy:

The circuits are divided over the application of “fugitive tolling” to terms of supervised release.  A majority of courts to consider the question apply the doctrine, holding that absconding from supervision equitably tolls the offender’s supervised release period during his truancy.  See United States v. Island, 916 F.3d 249, 251 (3d Cir. 2019); United States v. Barinas, 865 F.3d 99, 108–10 (2d Cir. 2017); United States v. Buchanan, 638 F.3d 448, 455–57 (4th Cir. 2011); United States v. Murguia-Oliveros, 421 F.3d 951, 952 (9th Cir. 2005). But we are convinced that the minority view is the correct one.  Accordingly, we join the First Circuit in holding that “there can be no tolling of the period of supervised release on the basis of fugitive status.” United States v. Hernandez-Ferrer, 599 F.3d 63, 64 (1st Cir. 2010); see also Island, 916 F.3d at 256–59 (Rendell, J., dissenting).

We think the First Circuit has the better position for two reasons. First, the justifications for fugitive tolling in other contexts — such as prison escapes — do not apply to the context of supervised release.  Second, the doctrine is inconsistent with the text of the statute and our caselaw interpreting that statute.

It will be interesting to see if the federal government seeks SCOTUS review of this issue.  If they do, I suspect the Court might take it up but then might just rule against the feds.  With that possible outcome, the feds might just now decide not not seek further review.