Several months ago, this writer posted about the Sixth Circuit's position that the district court has authority to order that a term of supervised release may be tolled while a defendant is out of the United States after being deported. See US v. Isong, 111 F.3d 428 (6th Cir. 1997). Today, in US v. Ossa-Gallegos, No. 05-5824 (6/30/06) (appeal by attorneys Jennifer Coffin and Ron Small of M.D. Tenn), the Court reviewed this issue in detail. The Court noted the strength of Judge Moore's dissent in Isong and "the weight of authority" from the 2nd, 8th, and 11th Circuits, which all found that such tolling is unauthorized. The Court nonetheless found that it was bound by the holding in Isong, but noted that Mr. Ossa might want to seek en banc review.
At sentencing in cases where the client is to be deported, practitioners should continue to object to a special condition tolling supervised release while deported, raise it on appeal and then in an en banc petition and/or cert. petition to the Supreme Court.