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REVOCATION SENTENCE IS REASONABLE BUT UNRELIABLE
For not the first time, a sentencing decision has reminded me of Fyodor Dostoevsky’s big white bear.
In his Winter Notes on Summer Impressions, an 1863 account of travels in Western Europe, Dostoevsky recounted a childhood club he and his brother formed had as its initiation ritual the requirement that the aspirant to membership stand in the corner for five minutes and not think about a big white bear.
Hassan-Nur Mohamed faced deportation to Somalia when he was released from federal prison in 2013. But deportation was kinder and gentler back then, so he was put on supervised release while his immigration case was pending. But just before his supervised release term expired, he learned that he was about to be deported, so he fled to Canada and sought asylum there.
His probation officer filed a violation for leaving the jurisdiction without permission.
In 2025, Hassan decided to sneak back into the United States (perhaps unaware of how fussy ICE had gotten about people like him). He was convicted of aggravated reentry. At his revocation hearing, the district court counted Hassan’s aggravated reentry conviction as an additional supervised release violation (commission of a new crime), which would make Hassan’s guidelines range 4-10 months instead of the lower 3-9 months, which would have applied if the absconding violation were the only count against him.
At the time, Rico v. United States was pending in the Supreme Court. Recognizing that the Rico court could rule that absconding did not stop the supervised release term from expiring, Hassan’s judge said that while he was counting the aggravated reentry violation, he would only give Hassan 9 months, so that if Rico went against the government, the sentence would be within the lower guideline range.
Rico ultimately held that the Sentencing Reform Act of 1984 does not authorize an automatic extension of supervised release when an individual absconds. This meant that Rico’s 2025 aggravated reentry conviction happened after his supervised release term ended, a conclusion that applied equally to Hassan’s aggravated reentry violation.
On appeal, the 6th Circuit said the district clearly erred in counting the reentry conviction. The Government, however, argued ‘no harm no foul,’ because Hassan’s revocation sentence was within the range for the lower-level absconding violation. But the Circuit disagreed, holding that the Guidelines calculation was not merely academic:
While the district court stated “that this would be the appropriate sentence, whether this is a Grade B or a Grade C violation,” its only stated support for this conclusion was that “the violations are… serious.” And in considering the seriousness of ‘the violations,’ the district court included the April 5, 2025 re-entry and subsequent conviction.
But Mohamed’s 2025 conviction was not a supervised-release violation at all. Therefore, the passing statement that ‘this would be the appropriate sentence, whether this is a Grade B or a Grade C violation’ is not enough to overcome the need for confidence that, even without considering Mohamed’s new conviction to be a supervised-release violation at all, the district court would have imposed the same sentence… Although the ultimate sentence is reasonable, the district court did appear to consider Mohamed’s 2025 conviction a supervised-release violation and to consider that violation in determining his sentence. The Supreme Court has made it clear that this is an error… Even though the district court’s ultimate action appears a quite reasonable resolution given the uncertainty as to the future outcome in Rico, the error is not harmless even if it resulted in only a small difference in the sentencing range.
The District Court said it could sentence Hassan as if the big white bear were not in the room, even while acknowledging that it was. The 6th Circuit said that may work for Fyodor Dostoevsky’s club, but it doesn’t for supervised release revocation sentences.
United States v. Mohamed, Case No. 26-3017, 2026 U.S.App. LEXIS 28783 (6th Cir. September 18, 2026)
~ Thomas L. Root