United States District Court, W.D. North Carolina, Asheville Division
REIDINGER, UNITED STATES DISTRICT JUDGE
MATTER is before the Court on the Defendant's
Motion to Stay Enforcement of Special Conditions of
Supervised Release Pending Appeal [Doc. 44].
January 15, 2014, the Defendant was convicted in the United
States District Court for the Middle District of North
Carolina of failing to register as a sex offender.
[See Doc. 1-2: MDNC Judgment]. He was sentenced to a
term of 15 months' imprisonment, to be followed by five
years of supervised release. [Id.]. The
Defendant's term of supervised release commenced on June
3, 2014. Approximately seven months after the Defendant's
term of supervised release began, jurisdiction of this matter
was transferred to the Western District of North Carolina.
[See Doc. 1: Transfer of Jurisdiction].
Defendant then proceeded to violate the conditions of
supervised release multiple times. In February 2015, the
Defendant left the Western District of North Carolina without
first receiving permission from the Court or his supervising
probation officer. The Defendant was placed on home detention
for a period of two months as a result. [Doc. 2].
August 2016, the Defendant's supervising probation
officer filed a petition for revocation of the
Defendant's supervised release based on ten different
violations, including unauthorized travel, failure to report
contact with law enforcement, failure report to his probation
officer as instructed, and failure to comply with mental
health and sex offender treatment requirements. [Doc. 7]. On
October 27, 2016, the Defendant admitted guilt to six of
these violations and was sentenced to a term of ten
months' imprisonment and sixty months of supervised
release. [Doc. 15].
February 22, 2018, the Defendant's probation officer
filed a second petition for revocation due to the
Defendant's failure to submit to a sex offender risk
assessment, failure to comply with sex offender treatment
requirements, and using internet accessible devices not
approved by his probation officer. [Doc. 19]. On April 12,
2018, the Defendant admitted guilt to failing to submit to a
sex offender risk assessment and to using unauthorized
internet accessible devices. He was sentenced to a term of
nine months' imprisonment to be followed by another term
of sixty months of supervised release. [Doc. 25].
January 17, 2019, the probation officer filed a third
petition for revocation, alleging a total of seven
violations. [Doc. 26]. On February 21, 2019, the Defendant
admitted guilt to five of those violations, including:
failing to comply with location monitoring, failing to
provide truthful answers to his probation officer, leaving
the district without permission, failing to comply with sex
offender treatment, and failing to comply with mental health
treatment requirements. [Doc. 26]. He was sentenced to a
total of eleven months' imprisonment and another 60
months of supervised release. [Doc. 33]. Among the additional
conditions of supervised release imposed were requirements
that the Defendant have no internet access (Additional
Condition 17) and that the Defendant not possess any legal or
illegal pornographic materials, or enter any location where
such materials can be accessed, viewed or obtained
(Additional Condition 18). [Id. at 5].
Defendant has appealed this Judgment to the Fourth Circuit
Court of Appeals on the basis that the additional conditions
imposed violate 18 U.S.C. § 3583(d). [See Doc.
34: Notice of Appeal]. That appeal is currently pending.
Defendant now moves the Court to stay enforcement of the
challenged conditions pending appeal. [Doc. 44]. The Government
opposes the Defendant's request for a stay. [Doc. 46].
Defendant has not cited any statute or Rule of Criminal or
Appellate Procedure which would allow this Court to issue the
requested stay. Rule 8(a) of the Federal Rules of Appellate
Procedure allows a district court to stay a judgment pending
appeal, but this provision applies only to civil judgments.
See Fed. R. App. P. 8(a). Stays in criminal cases
are addressed in Federal Rule of Appellate Procedure 8(c),
which provides that Rule 38 of the Federal Rules of Criminal
Procedure governs the application of stays in criminal
proceedings pending appeal. See Fed. R. App. P.
8(c). Rule 38 in turn provides that a district court may stay
a term of imprisonment; the imposition of a fine; a sentence
of probation; the imposition of restitution; a forfeiture
order; or a civil or employment disability created by a
conviction or sentence. See generally Fed. R. Crim.
P. 38(a)-(g). Nothing in Rule 38 allows for a district court
to stay a condition of supervised release pending appeal.
the lack of any express authority conveyed by statute or
rule, the Defendant argues that this Court can nevertheless
stay the enforcement of release conditions pending appeal,
citing United States v. Smart, 406 Fed.Appx. 14 (6th
Cir. 2010), and United States v. Souser, 405 F.3d
1162 (10th Cir. 2005). In Smart, the Court of
Appeals -- not the district court -- stayed a condition of
release pending appeal. 406 F.3d at 18. In Souser,
the defendant appealed an order from the district court
requiring the defendant to comply with certain probation
policies. The Tenth Circuit noted in its decision that the
district court had stayed the challenged order, without
opposition from the government. 405 F.3d at 1164. Because the
stay was not challenged, however, the Tenth Circuit had no
occasion to pass on the propriety of the district court's
action. These cases, therefore, do not support the
Defendant's argument that this Court has the authority to
stay a condition of supervised release pending appeal.
speaking, the filing of a notice of appeal divests the
district court of jurisdiction over a case. See United
States v. Wooden,230 Fed.Appx. 243, 244 (4th Cir. 2007)
(per curiam). “The filing of a notice of appeal is an
event of jurisdictional significance - it confers
jurisdiction on the court of appeals and divests the district
court of its control over those aspects of the case involved
in the appeal.” Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 58 (1982) (per curiam);
United States v. Christy, 3 F.3d 765, 767 (4th Cir.
1993) (noting that filing of notice of appeal “divested
the district court of its jurisdiction over the case”);
United States v. Perate, 719 F.2d 706, 711 (4th Cir.
1983) (noting that filing of notice of appeal
“terminated the jurisdiction of the district ...