United States v. Anthony Burke

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 11-30140 Plaintiff-Appellant, v.  DC No.

CR 11-0044 EFS

ANTHONY EDYLE BURKE,

OPINION

Defendant-Appellee.  Appeal from the United States District Court for the Eastern District of Washington Edward F. Shea, District Judge, Presiding

Argued and Submitted April 10, 2012—Seattle, Washington

Filed September 13, 2012

Before: Dorothy W. Nelson, A. Wallace Tashima, and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Tashima; Dissent by Judge Callahan

11219 UNITED STATES v. BURKE 11221

COUNSEL

Joseph H. Harrington, Assistant United States Attorney, Spo- kane, Washington, for the plaintiff-appellant.

Peter S. Schweda, Spokane, Washington, for the defendant- appellee.

OPINION

TASHIMA, Circuit Judge:

The government appeals the district court’s dismissal of an indictment charging Anthony Edyle Burke with escape from custody in violation of 18 U.S.C. § 751(a). The district court concluded that Burke was not in “custody” within the mean- ing of § 751(a) when he left the residential reentry center where he was…

Opinion by Judge TASHIMA; Dissent by Judge CALLAHAN.

*1063 OPINION

The government appeals the district court’s dismissal of an indictment charging Anthony Edyle Burke with escape from custody in violation of 18 U.S.C. § 751 (a). The district court concluded that Burke was not in “custody” within the meaning of § 751(a) when he left the residential reentry center where he was residing as a condition of his supervised release. We agree and affirm.

I.

In 2008, Burke pleaded guilty to a violation of 18 U.S.C. § 922 (g)(4) and was sentenced to 37 months in prison, followed by 3 years of supervised release. Upon his release from the custody of the Bureau of Prisons (“BOP”), Burke violated the terms of his supervised release when he failed to report to his probation officer to commence a 180-day stay in a residential reentry center. After a revocation hearing, Burke was sentenced to be incarcerated for another 7 months and 21 days, followed by a 28-month term of supervised release. Burke’s conditions of supervised release ordered:

Burke completed his prison term and commenced supervised release on March 19, 2010. In compliance with the conditions of his supervised release, he began…

dissenting:

I respectfully dissent because I would hold that Burke was in custody. Our decisions have determined “custody” in contexts such as Burke’s by examining two factors: (1) the circumstances of the release, and (2) the extent of the restrictions on the defendant’s freedom. See, e.g., United States v. Baxley, 982 F.2d 1265, 1269 (9th Cir.1992); United States v. Jones, 569 F.2d 499 (9th Cir.1978); see also United States v. Sack, 379 F.3d 1177, 1179 (10th Cir.2004). Here, Burke was afforded supervised release to the Residential Reentry Center (the “RRC”) as part of his sentence. Moreover, the restrictions on his freedom at the RRC “approached those of incarceration.” See Baxley, 982 F.2d at 1269 . Accordingly, I would hold that Burke escaped from “custody under or by virtue of any process issued under the laws of the United States by any court, judge, or magistrate judge,” 18 U.S.C. § 751 (a), and would affirm.

I. Analysis

A. “Custody” in the Residential Reentry Center Context

The issue presented by this appeal is whether Burke was in “custody” at the RRC as that term is used in 18 U.S.C. § 751 (a). 1 The government has the burden of establishing probable cause that a…