Alito, 'bemused' and alone, snaps at Gorsuch's 'pointless' commentary on legal 'misnomer' and insists the 'district judge made no error at all'

The U.S. Supreme Court on Wednesday ruled 8-1 that there is "nothing" in the Sentencing Reform Act that authorizes "automatically extending a term of supervised release" in a federal case based on an intervening state offense while on the run, leaving only Justice Samuel Alito to dissent that the "whole debate" about "tolling" was "pointless."

Justice Neil Gorsuch led a majority of everyone but Alito in siding with Isabel Rico, a repeat drug offender who went to prison, violated her supervised release, went back to prison, left prison with 3 1/2 more years of supervised release in late 2017, moved without telling her probation officer in violation of her release conditions, committed state driving and drug possession offenses in 2021 and 2022, and was finally rearrested by the feds in 2023.

As Gorsuch noted at the outset, the 9th U.S. Circuit Court of Appeals ruled that because Rico committed the state crimes during her "abscondment" her 42 months of supervised release "tolled" and did not expire in June 2021 — or until she was caught two years later. It meant a district judge viewed the 2022 drug offense as an "independent supervised release violation," tacking on more prison time and a longer supervised release term.

The majority quickly identified the term "tolling" as a legal "misnomer" in this context, writing that the real-world impact of the 9th Circuit's rule was not pausing Rico's supervised release but ensuring it "continues to run so long as the defendant remains out of contact with [a] probation officer." For Gorsuch, the "preliminary note on terminology [was] warranted."

"In legal settings, the word 'toll' often denotes some stop or pause. But under the Ninth Circuit's approach, a defendant who absconds stops or pauses nothing. Rather, he remains subject to the conditions of his supervised release and can be held accountable for any violations he commits during his abscondment. What the Ninth Circuit's rule really does is extend the period of supervised release beyond what a judge has ordered," Gorsuch wrote.

Citing an "array of textual clues" as proof of the point that the Sentencing Reform Act contains "nothing […] authorizing" automatic extensions of supervised release, Gorsuch next pointed out an "anomaly" at the "heart of the government's theory" — the suggestion that Rico was "off and on supervised release at the same time."

"The government contends that Ms. Rico was not supervised from early 2018 until 2023 and, accordingly, should not have that period counted toward her term of supervised release," the justice summed up. "But in the same breath, the government argues that her January 2021 state offenses and her January 2022 state drug offense count as federal violations because her term of supervised release continued to run during the entire length of her abscondment. In a very real sense, then, the government asks us to imagine that Ms. Rico was both off and on supervised release at the same time. Really, it is quite the puzzle."

Alito found the situation puzzling for an entirely different reason, as Gorsuch recognized in a footnote at the end of the majority opinion. Handwaving away Alito's account of what could have been as "not what happened," Gorsuch slammed the dissent for "hardly" contesting the main textual point that the Sentencing Reform Act "does not authorize a rule automatically extending a defendant's term of supervised release when the defendant absconds."

"At bottom, then, and despite its insistence otherwise, the dissent believes those errors are harmless because, it says, the district court could have accounted for Ms. Rico's January 2022 offense by a different means than the one it employed. We think it inappropriate to engage in that kind of speculation," Gorsuch chided Alito.

Alito had plenty to say of his own, calling the case "much simpler" than Gorsuch and the seven other justices who joined him would make it, and making clear that he believes "no error" — not "harmless error" — occurred.

"[W]e have no need to consider whether petitioner's term of supervised release was 'tolled' when she absconded and evaded supervision," wrote the lone dissenter, sharply stating he was "bemused by the notion that petitioner was on supervised release when she was evading all supervision."

"I suppose she was on 'unsupervised supervised release,'" Alito cracked in a parenthetical. "And it seems strange to regard a crime committed after the expiration of 'unsupervised supervised release' as a non-event."

Asserting that "the District Judge made no error at all," the justice indicated that what Gorsuch saw as a "warranted" terminology note was more an introduction to a "pointless" debate.

"As I see it, however, the whole debate about whether petitioner's term of supervised release continued to run or was 'tolled' while she was on the lam is pointless. The [Sentencing] Guidelines are merely advisory, and this Court has made it clear that a judge is allowed to impose a sentence outside the recommended Guidelines range," Alito concluded. "That is what the judge did here[.]"