- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Criminal Law
- Date Filed: 09-13-2012
- Case #: 11-30140
- Judge(s)/Court Below: Circuit Judge Tashima for the Court; Circuit Judge Nelson; Dissent by Circuit Judge Callahan
- Full Text Opinion
The government appealed the district court’s judgment dismissing defendant Anthony Burke’s indictment for “escaping from custody” under 18 U.S.C. § 751(a). The district court determined that living in a residential reentry center to satisfy conditions of a supervised release was not within the meaning of “custody” under § 751(a). Upon completion of his prison sentence, Burke was to reside in a residential reentry center for 180 days as a condition of his 28-month supervised release. In March 2010, Burke moved into the Spokane Residential Reentry Center (“SRRC”). In April, Burke checked out of SRRC and failed to return, resulting in an indictment for violating § 751(a). Burke moved to dismiss, challenging the meaning of the word “custody” in the statute. After reviewing the conditions of Burke’s release and the SRRC handbook, the district court granted the motion, stating that “restrictions at a halfway house are significantly less than those at a custodial facility.” The Court concluded that the supervised release “was by no means a custodial order of the Court” and did not constitute “custody” under § 751(a). The Ninth Circuit cited United States v. Baxley to support the proposition that the conditions of Burke’s release were “more analogous to probation than they were to imprisonment.” By failing to return to SRRC, Burke did violate the terms of his release, but the punishment is revocation of the release, and not an escape from custody under § 751(a). AFFIRMED.