Proposed Amendment to Fifth Circuit Rule Addresses Loss of Quorum After Grant of Rehearing En Banc

Yesterday the clerk's office issued this notice soliciting public comment on a proposed change to Fifth Circuit Rule 41.3.  Here's a redline:

41.3 Effect of Granting Rehearing En Banc. Unless otherwise expressly provided, the granting of a rehearing en banc vacates the panel opinion and judgment of the court and stays the mandate. If, after voting a case en banc, the court lacks a quorum to act on the case for 30 consecutive days, the case is automatically returned to the panel, the panel opinion is reinstated as an unpublished (and hence nonprecedential) opinion, and the mandate is released. To act on a case, the en banc court must have a quorum consisting of a majority of the en banc court as defined in 28 U.S.C. § 46(c).

Comments are due by July 25, 2011.
 
If you're wondering what might have prompted this proposal, see this post by Professor Aaron Bruhl post over at Prawfsblawg.

UPDATE: More commentary from the professoriate at the Volokh Conspiracy.

Cert Grant: Is Filing a False Statement on a Corporate Tax Return an Aggravated Felony?

Today the Supreme Court granted certiorari in Kawashima v. Holder, No. 10-577, which presents this question:

Whether, in direct conflict with the Third Circuit, the Ninth Circuit erred in holding that Petitioners’ convictions of filing, and aiding and abetting in filing, a false statement on a corporate tax return in violation of 26 U.S.C. §§ 7206(1) and (2) were aggravated felonies involving fraud and deceit under 8 U.S.C. § 1101(a)(43)(M)(i), and Petitioners were therefore removable.

Alien Is "Released from Imprisonment," for Supervised Release Purposes, When He Is Transferred from BOP to ICE Custody to Await Removal

United States v. Garcia-Rodriguez, Nos. 09-20406 & 09-40635 (5th Cir. May 2, 2011) (per curiam) (Smith, DeMoss, Owen)

Title 18 U.S.C. § 3624(e) instructs that a "term of supervised release commences on the day the person is released from imprisonment."  Seems straightforward enough.  But what if the person is an alien, completes his sentence, and is transferred from BOP to ICE custody and remains in administrative detention pending his removal from the country?  When is he released from imprisonment?

The court holds that "a straightforward reading of the applicable statute [§ 3624] shows that administrative detention by ICE is not the same as imprisonment by the BOP."

The statutory language of subsections (a) and (e) makes several things clear. First, imprisonment ends upon a prisoner’s release from the custody of “the Bureau of Prisons.” See id. § 3624(a), (e). Second, any other term of imprisonment must be “in connection with a[separate] conviction” for a “crime” if such imprisonment is to toll the term of supervised release. Id. § 3624(e). Third, the release shall be made “to the supervision of a probation officer.” Id. And finally, only the specific terms “imprisonment” or “imprisoned” are used, not the term administrative detention or other specific types of custody. Id. § 3624(a), (e).

"Moreover," the court added, "it is clear under federal immigration law that administrative detention of an alien is not the same as imprisonment for a crime."  Consequently, "administrative detention by ICE does not qualify as imprisonment and that, for purposes of § 3624(e), Garcia was 'released from imprisonment' the moment he was transferred from BOP custody to ICE custody to await deportation."

Why does this matter?  Because of the tolling provision found in § 3583(i), which permits a court to revoke a term of supervised release within a reasonably necessary period after the term expires, if a warrant or summons issued before the expiration of the term.  In this case, Garcia's 3-year term of supervsised release was revoked after it expired.  The question was whether the revocation warrant issued before the term expired, a question which turned on when he was released from imprisonment.  As it happens, it wasn't clear from the record exactly when Garcia was transferred from BOP to ICE custody, so the court remanded for findings on that point.