We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
LET’S MAKE A DEAL
After completing a child pornography sentence, Dan Barton began supervised release by violating a couple of conditions, such as leaving the jurisdiction without permission and checking out adult porn on a computer he wasn’t supposed to have.
His Probation Officer filed a notice of violation, and Dan found himself in front of the judge.
His judge, clearly reluctant to send Dan back to prison but wanting to make an impression on the defendant, offered Dan a deal:
You’ve got two options here. You can do 6 months, or I can keep you on supervision with additional conditions and if you do one thing wrong, I mean one thing, I will max you, 2 years. 2 years. 6 months now or keep you on supervision and you don’t spit on the sidewalk. If you do, I will send you for 2 years… Because you made the choice. You’re wearing the robe. You understand me?
Dan understood. He selected curtain two, continuing on supervision with a Sword of Damocles dangling overhead.
Obviously, Dan didn’t stay on the straight and narrow. If he had, there’d be nothing to write about. Instead, Dan got caught with an iPad – a violation of his supervised release – and got slapped with the promised 2-year sentence.
Last week, the 6th Circuit reversed Dan’s sentence as both procedurally and substantively unreasonable.
A district court is always supposed to begin a sentencing by calculating the correct Guidelines range. Then, the court is to apply the 18 USC 3553(a) sentencing factors to create an individualized sentence. However, the Circuit said, “the sentence-in-advance method inherently results in non-individualized terms of imprisonment… [T]here is no way that the district court could have known at the first violation hearing that any future violation, regardless of the circumstances, would warrant a specific term of imprisonment, let alone the statutory maximum… While it is true that Article III cloaks federal judges with considerable powers, clairvoyance is not one of them. Barton’s term of imprisonment, therefore, did not result from consideration of the relevant 3553(a) factors—it was simply a product of the district court’s promise.”
The 6th said that it was not suggesting “that district courts cannot pair leniency towards supervisees with admonishments that future violations will not be tolerated. When a district court chooses to continue supervision rather than revoke it, the district court places trust in the defendant. A future violation breaches that trust, and that breach of trust may serve as one factor that the district court uses to calibrate an appropriate sanction for the defendant’s violation conduct… What a district court may not do is what the district court did here—rely solely on a previous promise to impose a specified sentence to go ahead and impose that sentence.”
United States v. Barton, Case No. 25-3364, 2026 U.S.App. LEXIS 13153 (6th Cir., May 6, 2026)
~ Thomas L. Root