United States District Court, D. Montana, Helena Division
CHARLES C. LOVELL, DISTRICT JUDGE.
moves to dismiss the revocation petition pending before the
Court on the ground that this Court lacks jurisdiction to
entertain the petition. Defendant cites Rule 12(b)(2), Fed.
R. Crim. P., for the proposition that the jurisdiction of the
Court may be challenged at any time while the case is
pending. The motion is opposed by the government and has been
fully briefed, and the Court is prepared to rule.
was sentenced to serve 12 months in custody followed by four
years of supervised release for the offense of manufacturing
marijuana, in violation of 21 U.S.C. 841(a)(1). Defendant was
released from the custody of the Bureau of Prisons on January
18, 2013, and according to statute, his term of supervised
release is deemed to have commenced on that date.
See 18 U.S.C. 3264(e).
U.S. Probation Office submitted its petition for revocation
of supervised release to the Court on January 13, 2017, which
was a Friday. The petition contained the probation
officer's sworn allegations that the Defendant had
committed violations of his supervised release beginning in
October 2015. The Court was closed on Monday, January 16,
2017, for a federal holiday. The undersigned signed and filed
the petition on Tuesday, January 17, 2017. (ECF No. 99.) The
Clerk issued a summons on January 17, 2017. (ECF No. 100.)
Pursuant to statute,
[t]he power of the court to revoke a term of supervised
release for violation of a condition of supervised release .
. . extends beyond the expiration of the term of supervised
release for any period reasonably necessary for the
adjudication of matters arising before its expiration if,
before its expiration, a warrant or summons has been issued
on the basis of an allegation of such a violation.
18 U.S.C. 3583(i). A revocation hearing was set down on April
7, 2017, but it was vacated on the joint motion of the
parties (ECF No. 109). The parties desired a continuance to
allow a state court to decide a suppression motion in
Defendant's criminal case (arising from the same general
facts as alleged in the petition for revocation). The
suppression motion was decided against the Defendant in late
May, 2017. In June, Defendant filed the instant motion to
dismiss for lack of jurisdiction, and the parties requested
that the Court continue the revocation hearing set down on
June 14, 2017, to permit briefing and decision of the motion
to dismiss. (ECF No. 116.)
Defendant's motion is predicated upon his assertion that
when the Clerk issued a summons on January 17, 2017,
Defendant's four-year term of probation had already
expired on the previous day. Defendant claims that one year
is defined to mean 365 days. Because 2016 was a leap year
(366 days), Defendant's four-year term is claimed to have
ended one day early. Thus, while usually a four-year term
commencing on January 18 would expire at the end of the day
on January 17 four years later, in this case-Defendant
argues-a four-year term commencing on January 18, 2013,
should end on January 16, 2017, because 2016 contains an
extra day due to being a leap year.
admits that “[i]n Lagandaon v. Ashcroft, 383
F.3d 983 (9th Cir. 2004), the Ninth Circuit holds
that one year equals 365 days, except in leap years when it
equals 366 days. Lagandaon, 383 F.3d at 985 and 992,
n.10.” (ECF No. 115 at 3.) Nevertheless, Defendant
rejects Lagandaon in favor of Habibi v.
Holder, 673 F.3d 1082 (9th Cir. 2011), which
he cites for the proposition that “one year [is] 365
days, regardless of leap years, for purposes of §
1101(a)(43)(F).” Habibi, 673 F.3d at 1085.
Habibi, the court needed to define the phrase
“at least one year” in section 1101(a)(43)(F),
which defines an “aggravated felony” to include
“a crime of violence . . . for which the term of
imprisonment [is] at least one year....” 8 U.S.C.
§ 1101(a)(43)(F). The question, then, in Habibi
was, ‘if an individual receives a actual sentence of
365 days of custody, which he actually serves during a leap
year (consisting of 366 days), has the individual served at
least one year?' If not, does the prior conviction serve
as a predicate offense for an aggravated felony pursuant to
§ 1101(a)(43)(F)? The Ninth Circuit answered the
question yes, holding that, for purposes of determining
whether an alien has a prior conviction for a crime of
violence pursuant to § 1101(a)(43)(F), one year equals
365 days, ignoring leap years. Defendant Leland applies this
holding to his own four-year term of supervision, and
therefore subtracts one day from the time that he served on
supervision in 2016 (366 days, because it was a leap year).
The result is that Defendant Leland would have completed his
four-year term of supervision at the end of the day on
January 16, 2017, one day before the Clerk issued a summons
on the petition for revocation.
Lagandaon case involves an immigration statute that
permits cancellation of removal if an alien has been present
in the United States for not less than 10 years immediately
preceding the date of application. 8 U.S.C. 1229b(b)(1)(A).
The date upon which Lagandaon received his Notice of Removal
was May 13, 1997. Therefore, the court calculated that the
ten-year presence requirement would begin on May 14, 1987
(the ten-year period then ending on May 13, 1997). By
coincidence, Lagandaon had arrived in the United States on
May 14, 1987. A question arose whether fractions of the
beginning and ending days should be considered, and the panel
decided that fractions of days should not be considered--that
“the span from January 1 to December 31 constitutes one
year, regardless of the time of day on January 1 or December
31 that the relevant events occurred.” In addition,
citing Griffith v. Bogert, 59 U.S. 158, 159, 18 How.
158, 15 L.Ed. 307 (1855), the panel determined that “a
year runs from one date to the prior date in the
next year-365 days, the equivalent of the period from January
1 to December 31, and not that from January 1 to the
next January 1, which would be 366 days, or a year and a
day.” And, “[o]f course, in leap years, one
additional day would be added.” Langadoan, 383
F.3d at 992 n.10.
response to Defendant's argument, the government cites
United States v. Tawab, 984 F.2d 1533, 1534
(9th Cir. 1993). There, a defendant moved to
dismiss an indictment against him on statute of limitations
grounds. The alleged criminal conduct was completed on
February 15, 1986. An indictment was filed on February 15,
1991. The United States Supreme Court has held that the day a
tax return is filed should not be included in the requirement
that any tax assessment be made “within five years
after the return....” Burnet v. Willingham Loan
& Trust Co., 282 U.S. 437, 439, 51 S.Ct. 185, 75
L.Ed. 448 (1931). Thus, the day of the offense conduct (or
the last day) should not be counted, and this rule applies in
both civil and criminal cases. See Wiggins v. United
States, 64 F.2d 950 (9th Cir. 1933). Tawab
argued that there are 365 days in one year, and because 1988
was a leap year containing 366 days, the leap day should be
subtracted so that the statute of limitations applicable to
his offense conduct would have expired on February 14, 1991,
one day before the indictment was filed. The Ninth Circuit
panel rejected this argument, deciding that the term
“year” means a calendar year, not 365 days.
Tawab, 984 F.2d at 1534. Therefore, a
‘year' means one calendar year, whether it is or is
not a leap year. Defendant Leland was sentenced to be placed
on supervised release “for a term of: four (4)
years.” (ECF No. 74, Judgment of Conviction at 3.) The
Summons was issued by the Clerk on January 17, 2017, on the
last day of Defendant Leland's term of supervised
release, that term being calculated as January 18, 2013,
through January 17, 2017.
to the Merriam-Webster dictionary, a “year” is
defined to be “the period of about 365¼ solar
days required for one revolution of the earth around the
www.merriam-webster.com/dictionary/year. This is the
reason that the calendar is corrected every fourth year and
adds an extra day. A calendar year, on the other hand, is
defined as running from a beginning date to the
previous day of the next year. Thus, a calendar year
ignores leap years entirely. See Yokley v. Delaski,
982 F.2d 423, 424 (10th Cir. 1992) (holding that a
‘year' for sentencing purposes refers to calendar
year and ignores the inmate's service of an extra day
during leap years) (citing City of Las Vegas v. Kitchell
Contractors, Inc. of Arizona, 768 F.Supp. 742, 746 (D.
Court agrees with the Defendant that, with limited exception,
a defendant must be given credit for each day served on
supervised release. However, a term of calendar years should
be calculated using both 365-day and 366-day (leap) years, as
appropriate. Another way to calculate a term of years is to
define a ...