Courts Are Expected to Apply Supervised Release Policies, Not Create Them, 6th Circuit Says – Update for April 6, 2026

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6th CIRCUIT SAYS NO TO ARBITRARY TIME ‘POLICIES’ ON SUPERVISED RELEASE TERMINATION

“When I use a word,” Humpty Dumpty told Alice in Through the Looking Glass, “it means just what I choose it to mean — neither more nor less.”

Under the supervised release statute – 18 USC § 3583 – a former prisoner on supervised release can apply to have his supervised release terminated after one year, no matter how long a period of supervised release he’s serving. Although the Sentencing Commission has said that district courts should favor early termination, there is an unfortunate history of district courts and probation officers adopting their own policies that hold the minimum time to be served on supervised release before early termination is what they say it is. No matter that § 3583(e) specifies early termination can be granted “after the expiration of one year of supervised release: to them, ‘one year’ may mean 18 months or two years or 50% or even – as one Probation Officer told me once –the judge she was working believed that everyone should serve their full supervised release term and not a day less.

The statute means what they choose it to mean. Humpty would be proud.

I have run into more than my share of probation officers and district judges who write their own blanket policies on when former prisoners can get off supervised release. It’s maddening that someone’s superlative history in prison and on supervised release means nothing stacked against their “policies.” And last week, the 6th Circuit said as much.

Guy Collins was sentenced to 240 months in 2010 for a methamphetamine offense. After the First Step Act passed, Guy’s sentence was cut to 180 months, with his judge finding that Guy’s “post-sentencing rehabilitation has been extensive, as evidenced by his [prison programming] report and the letter appended to his motion.” Guy was 56 years old at the time and “ha[d] by all accounts turned his life around,” the Court said.

After his release, Guy began an 8-year supervised release term. After a year, Guy moved for early termination of supervised release under 18 USC § 3583(e)(1). The district court denied the first motion despite holding that further supervision appeared “unnecessary.” Nonetheless, the court denied the motion, holding that “the seriousness of [Guy’s] offense—trafficking crack cocaine — and his extensive criminal history,” argued against early termination, and “noted that Congress had mandated a minimum supervision term of eight years for defendants similarly situated” to Guy.

Sixteen months later, Guy tried again. The Court denied him again, applauding Guy’s good conduct but noting that he“has still not completed half of his term of supervision. As Defendant’s counsel is aware, the Court, as a matter of custom, will not consider a defendant’s request for early termination until he has completed at least half of his term of supervision.”

Guy appealed, but then filed a third motion for early termination, which he called a “renewed” motion. He asked the District Court to rule it would grant his renewed motion for early termination of supervised release if it had jurisdiction to do so, that is, if the denial of the prior one wasn’t on appeal. The District Court refused the motions but emphasized that its 50% custom “is precisely that—a custom, not an unbending rule—and the Court applies it with deference and adherence to the individualized inquiry that must accompany any analysis under § 3553(a)’s factors.”

The 6th Circuit reversed the District Court’s denial of Guy’s motion, ruling that “district courts cannot employ a blanket rule requiring defendants to complete a certain proportion of their supervised-release term without conducting an individualized assessment of the relevant § 3553(a) factors,’ and that the district court therefore abused its discretion by failing to consider the relevant § 3553(a) factors in Guy’s case. The Circuit held that the District Court did ‘not explain how, if at all, the proportion of his supervised-release term that Guy has completed pertains to any relevant § 3553(a) consideration. Indeed, it gives no indication that the district court considered the relevant § 3553(a) sentencing factors.”

The 6th held that the

amount of time a defendant has served cannot be the sole animating force behind a court’s early-termination decision—the statute mandates that such decisions flow from individualized inquiries based on the relevant § 3553(a) factors. A blanket rule, or custom, is not individualized. But assuming arguendo that the proportion completed can be considered for its bearing on some relevant § 3553(a) factor(s), a district court would need to be explicit in drawing that connection for a particular defendant: The proportion standing alone is not a relevant consideration… Congress imposed a minimum time requirement of one year, and a court may not add to that time requirement without tying its decision to the relevant statutory factors.

In its last order, the District Court concluded that “the need to adequately deter criminal conduct and protect the public from further crimes” counseled against giving Guy early termination. The Circuit rejected this makeweight: “[T]his finding… directly contradicts the court’s earlier statement in the First Order [that further supervised release was unnecessary]… The district court never explained why it changed its mind. Nor did it offer any other § 3553(a) factor to which the proportion of the term completed is relevant.”

United States v. Collins, Case No. 25-5395, 2026 U.S.App. LEXIS 9438 (6th Cir. April 1, 2026)

~ Thomas L. Root

Dublin Déjà Vu? – Update for April 3, 2026

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IS THE BOP TEEING UP THE NEXT INMATE SEX ABUSE SCANDAL?

The FCI Dublin “rape club” may not be a ‘one-off’.

You may recall that the BOP finally had to close FCI Dublin, a federal women’s prison in Dublin, California (28 miles east southeast of San Francisco), in 2024. The closure came not only because staff-on-inmate sexual abuse was rampant, but because prison management systematically punished female inmates who dared to complain about the harassment.

Lesson: When the warden gets convicted of criminal sexual abuse, you can figure you might have a systemic problem.

Then-BOP director Colette Peters made all the right noises that the agency would not tolerate such abuse, would fully investigate such allegations, and would not immediately disbelieve inmates just because they were inmates.

Last week, a joint NBC News-The Marshall Project investigation reported in detail on FPC Bryan, a Texas minimum-security women’s facility, concluding that inmates and some staff whistleblowers alike “say the minimum-security facility conceals a sinister secret: inescapable sexual misconduct, and punishments for those who try to report the abuse.”

In all, the women interviewed by NBC/TMP reporters accused five staff members of sexual misconduct. Two of the accused still work at Bryan. Three others are no longer BOP employees, including a chaplain accused of sexual abuse against one of the accusers. Reporters reviewed sexual misconduct reports, court records, emails and memos to BOP officials – obtained through Freedom of Information requests – and spoke with staff members and other inmates to corroborate the women’s accounts. Several of the accusers say they have been retaliated against. One was transferred from the camp to Houston FDC. Others say that they fear retaliation.

None of the sexual abuse reports, even by staff members turning in other staff members, has resulted in action.

The warden at Bryan refused to speak to reporters but sent an email saying that the BOP has a zero-tolerance policy on sexual abuse: “We take seriously our duty to protect the individuals entrusted to our care as well as maintain the safety of correctional employees and the community,” she wrote.

Uh-huh.  Heard that one before.

BOP spokesman Donald Murphy said in an email that he could not discuss individual allegations or any related investigations, but the bureau “thoroughly investigates all credible allegations to ensure the safety of inmates.”

Uh-huh.  Heard that one before, too.

These general denials and blandishments should sound familiar to anyone who remembers BOP statements made in response to media reports of the FCI Dublin “rape club” and the $116 million in damages the agency agreed to pay inmate sexual abuse victims there. And the latest accusations from Bryan should not surprise anyone who recalls the Trump Administration’s attempt to renege on the settlement, an effort U.S. District Judge Yvonne Gonzalez Rogers (E.D. Cal.) promptly and unceremoniously shut down.

It is unlikely that we have heard the last of sexual abuse at Bryan.

NBC, A women’s prison conceals a sinister secret: Staff sexual misconduct, accusers say (March 27, 2026)

~ Thomas L. Root

FSA Credits Not Redeemable for Supervised Release, 2nd Circuit Says – Update for April 2, 2026

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TOO GOOD TO BE TRUE

More often than I like, prisoners seeking full use of their First Step Act time credits awarded under 18 USC § 3632(d) insist that if they can’t use them for halfway house/home confinement because there’s not enough time left on their sentence, they can apply them to shorten their time on supervised release.

Lately, they all point me to Rivera-Perez v. Stover, an unpublished District of Connecticut case in which the judge did exactly that: shortened a prisoner’s supervised release term because the Federal Bureau of Prisons had not allowed the inmate to use all of his FSA credits due to space limitations at the halfway house.

My granddaughter Helen loves unicorns. But no matter how hard she tries, she can’t wish them into existence. Last week, the 2nd Circuit said the same is true of using FSA credits to shorten supervised release.

Raul Rivera-Perez filed a 28 USC § 2241 petition for habeas corpus, arguing that the BOP miscalculated his FSA time credits and illegally prevented his transfer from prison to a halfway house. However, while his petition was pending, Raul was transferred to a halfway house, and the BOP thus argued that his petition was moot. The district court, on its own motion, decided that the FSA requires application of credits to reduce a prisoner’s term of supervised release, and it did so.

The BOP appealed.

The 2nd examined “the two critical sentences of § 3632(d)(4)(C): ‘Time credits earned . . . by prisoners… shall be applied toward time in prerelease custody or supervised release. The Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.’ ”

Raul claimed that the language meant that FSA credits had to be used to shorten supervised release. The BOP said it just meant that FSA credits could be applied to get Raul to supervised release more quickly by shortening his sentence.

The Circuit conceded that the statute was ambiguous. However, it ruled, “the context of the phrase ‘applied toward time in… supervised release’ resolves the ambiguity in favor of [the BOP’s] reading of the statute. Recall that the contested phrase immediately precedes the following sentence: ‘The Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under § 3624(g), into prerelease custody or supervised release.’ 18 USC § 3632(d)(4)(C). We conclude that this second sentence confirms [the BOP’s] reading of the statute because it unquestionably contemplates a transfer from prison to prerelease custody or supervised release, not a reduction of time spent in prerelease custody or a term of supervised release.”

Sorry, Helen. There are no unicorns. And FSA credits can’t shorten supervised release.

Rivera-Perez v. Stover, Case No. 25-149, 2026 U.S.App. LEXIS 8819 (2d Cir. March 26, 2026)

~ Thomas L. Root

Shocking News! BOP Grievance Procedure Doesn’t Work – Update for March 31, 2026

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DOG BITES MAN

In journalism, a “dog bites man” story is one about something that is so obvious as to not be newsworthy. Dogs bite people all the time. What would be newsworthy would be a story about a man biting a dog.

Last week, the Prison Policy Initiative published the classic canine-chomping-guy report, a revealing study that will shock no one familiar with the Federal Bureau of Prisons.

PPI studied nearly 66,000 BOP inmate administrative remedy complaints (the so-called BP-9 and its appellate brothers, the BP-10 and BP-11) filed over a 10-year period ending in January 2024. The PPI limited its study to complaints addressing medical care. The results were as sobering as they were unsurprising.

Over the period, 32% of all medical complaints filed by inmates were rejected as “improperly filed” (not enough copies, filed late or raising two issues instead of one).  Another 51% of the complaints had been closed on appeal for similar “administrative reasons.” A scant 14% of all medical grievances made it past administrative procedural hurdles, only to be denied on the merits.

Only 940 cases of the 65,712 complaints PPI studied – 1.4% of the total – were granted relief.

Your odds of buying a winning “scratch-off” are ten times greater.

Complaints about mental health and dental care were the highest percentage of cases denied relief: 78% of dental and 83% of mental health grievances were tossed out for administrative reasons. Complaints about other forced medical treatment and forced psychotropic medication had zero cases that even cleared the procedural hurdles.

PPI said, “In theory, grievance procedures are an important tool for incarcerated people to pursue fair treatment and defend themselves in a system designed to disempower them. This power is particularly important in the context of medical care, where needs are widespread and urgent, and where failure to meet them can lead to injury, illness, and death. In practice, however, the grievance system is a black hole, a time-waster, and a deterrent to complaining at all. It’s a long and winding maze of rules and technicalities that must be cleared before an incarcerated person can get their complaint to a setting that might actually force a change: the courts.”

Prison Policy Initiative, In federal prisons, the grievance system is designed to reject nearly all complaints about medical care (March 24, 2026)

~ Thomas L. Root

On the Lam from Supervised Release Still Runs Out the Clock, SCOTUS Says – Update for March 30, 2026

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BEAT FEET

Isabel Rico has traveled a rocky road. Her federal drug trafficking sentence ended in 2018, but her 48-month supervised release term was revoked pretty quickly for some transgression not recounted in court records. She served two months in prison for that and, upon release, faced another 46 months of supervised release time.

Izzy did no better on that second supervised release stint. At some point, she decided to “beat feet,” moving without telling her Probation Officer and no longer bothering to make monthly visits to the Probation Office. Her disappearing act prompted the judge to issue a revocation warrant. But the warrant went unserved because Izzy could not be found. She thus became an “absconder.”

While wild and free, Izzy got picked up by local police for possession of drugs and fleeing the cops. When her federal Probation Officer finally caught up with her, Izzy was hauled into court for the revocation warrant.

The failure to report her new address was a mere Grade C supervised release violation, which would net her only 8 – 14 months of additional prison time. The fleeing offense likewise was just a Grade C violation. But the drug possession charge was a Grade A violation, with a Guidelines sentencing range of 33-36 months.

The rub: While Izzy was off the grid, that is, an “absconder,” her supervised release term expired. The fleeing and drug possession charges both happened after her supervised release ended. When the district court sentenced her to 16 months in prison for all three supervised release violations, Izzy argued that the fleeing and drug possession couldn’t count because they happened after her supervised release ended.

The district court disagreed. It held that while Izzy was in “absconder” status, her supervised release was tolled, that is, on hold. The clock only started running again when she was found and served with her revocation warrant.

Izzy appealed, but the 9th Circuit agreed with the district court in a terse opinion.

Last week, the Supreme Court reversed.

By an 8-1 decision, SCOTUS held that while the 9th Circuit may think absconding “tolls” supervised release, what it was really saying was that absconding automatically extended supervised release beyond the term imposed by the judge, something that Congress did not provide for in the Sentencing Reform Act’s carefully detailed scheme.

True tolling, the Supremes said, pauses the running of a term, but the 9th Circuit’s approach wants it both ways. It stops the running of supervised release but holds that the defendant is still under supervision and subject to punishment. This, Justice Gorsuch wrote for the 8-1 majority, is not a pause in the supervised release but rather an automatic extension of the term (and the defendant’s exposure to revocation).

The Court anchored its analysis in the clear statutory language of the Act. Under 18 USC 3624(e), supervised release begins “the day the person is released from imprisonment. Section 3583(b) provides that supervised releaselasts for a set term of years, depending on the underlying offense. SCOTUS found “no hint” of an abscondment-based automatic extension, observing that the risk of such a court-made rule would be to let supervised releaseterms exceed statutory maximums. What’s more, the supervised release statute provides for precisely crafted sanctions for violations. Adding an unlisted additional consequence — automatic term extension — would be an unauthorized judicial supplement, the Court ruled.

The supervised release statute allows a district court to extend a period of supervision, but only after a defendant receives a hearing. While a district court can hold a revocation hearing after the supervised release term expires, it can do so only for “matters arising before its expiration” and only if a warrant or summons was issued before expiration. Finally, the fact that the statute provides that the supervised release term “does not run” during imprisonment of 30 consecutive days or more in connection with a conviction, suggests that Congress intended to address when supervised release tolls and when it does not. “To our eyes,” Gorsuch wrote, “the absence of anything like the Ninth Circuit’s rule in all these exacting instructions is striking and strongly suggestive that the Ninth Circuit’s rule more nearly represents an adornment to Congress’s work than a permissible interpretation of it.

Rico suggests prosecutors and probation offices will need to ensure timely issuance of a warrant or summons before a term expires if they wish to preserve revocation jurisdiction for violations “arising before” expiration. That could lead to more supervised release violator warrants being issued in a post-sentencing regime that already “violates” too many people.

Rico v US, Case No. 24-1056, 2026 U.S. LEXIS 1490 (March 25, 2026)

~ Thomas L. Root

‘Random Compassion’ Wasting A Resource, Former DOJ Official Says – Update for March 27, 2026

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COMPASSIONATE RELEASE NEEDS SERIOUS STUDY

Jonathan Wroblewski, a former ex officio member of the US Sentencing Commission, director of Harvard Law School’s Semester in Washington Program, and longtime federal prosecutor and defense attorney, wrote in a Substack column last week that the disparities and under-utilization of compassionate release require comprehensive review by the Sentencing Commission.

Professor Mark Osler wrote a few months ago that President Trump’s use of the pardon power is like a driver who uses a “classic Jag to knock down an old house by slamming it into a wall again and again and again as a crowd gathers, aghast. It is a terrible use of a beautiful machine.”

Wroblewski suggests that compassionate release has similarly always been a beautiful machine, even as it was practiced for more than 30 years following the enactment of the Sentencing Reform Act. Its misuse prior to the First Step Act lay in the Bureau of Prisons’ chary use of the authority. Now, the misuse lies in its inconsistent implementation even as it has morphed into something much more than just a means to send dying prisoners’ home. Wroblewski writes that now, compassionate release serves a broader function,

with the Sentencing Commission authorizing sentence reductions for those suffering from a serious physical or medical condition or a serious functional or cognitive impairment, or experiencing deteriorating physical or mental health because of the aging process. Sentence reductions are authorized for the old, for those with acute challenging circumstances, victims of abuse, and those serving an unusually long sentence that would today be different on account of a change in the law. There’s even a catch-all provision for other circumstances that are “similar in gravity” to those articulated in the Guidelines. Interestingly, there’s nothing about penitence or contrition.

But compassionate release is used seldomly and inconsistently. The BOP is holding than 10,000 people aged 61 or older. The National Council on Aging reports that almost all adults in the United States age 65 or older have at least one chronic medical condition, 40% are obese, and significant numbers have COPD, diabetes, or cancer. Of course, many studies report that older adults in prison are significantly more likely to experience serious medical conditions or disabilities, with cognitive impairments, for example, being twice as prevalent compared to their peers living in community settings. There are undoubtedly many hundreds, if not thousands of federal prisoners who are, as described in the Commission’s policy statement on compassionate release, “suffering from a serious physical or medical condition, a serious functional or cognitive impairment, or experiencing deteriorating physical or mental health because of the aging process that substantially diminishes the ability of the defendant to provide self-care . . .

About one person dies in BOP custody each day. The BOP admit that deaths are due to “cancer,” “pulmonary,” “cardiac,” “blunt trauma,” “hanging,” and “drug overdose.” There almost certainly are dozens — or hundreds — of BOP prisoners “suffering from a terminal illness,” Wroblewski wrote, such as “metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia,” as described by the Commission in its compassionate release policy.

Data show that the longer someone is in BOP custody, the more likely it is that they will be granted compassionate release. The primary reason given by judges for granting compassionate release is rehabilitation, although the Sentencing Commission reports that “[i]n all cases where the court gave rehabilitation as a reason for the granted motion, the court also gave one or more other reasons.”

Subject to a Supreme Court decision in a pending case, thousands of BOP prisoners with long sentences will also be subject to the “changes in law” provision of compassionate release, although the precise number is impossible to calculate. Many will experience changes in family circumstances during their years of incarceration.

Wroblewski wrote that from the data, “I would expect a couple of thousand compassionate release motions would meet the Commission standards each year (an educated guess, really).” Yet Sentencing Commission data for FY 2024 show only about 2,700 inmates filed for compassionate release and of those, only 391 of the motions were granted:

But when you look just a little deeper, the data are quite troubling. They show tremendous disparities in the application of compassionate release, strongly suggesting that compassionate release is not being implemented with the certainty and fairness in meeting the purposes of sentencing required by the Sentencing Reform Act. The disparities evident from the Commission data ought to be studied further by the Commission to determine whether they are indeed unwarranted and whether further adjustments need to be made to compassionate release policy.

Wroblewski noted substantial disparities in compassionate release grants. While the Middle and Southern Districts of Florida processed 11% of the total motions filed nationwide, they only had 4% of the total number of defendants sentenced nationwide that year. Eight districts that sentenced 4.5% all defendants reported zero compassionate release motions filed. These districts collectively sentenced 2,818 defendants in FY 2024 or about 4.5% of the total.

The rate at which motions are granted varies dramatically across the country as well. “Among the districts that reported more than 20 motions filed in FY 2025,” Wroblewski wrote, “the grant rate varied from zero to 56%. In the District of Maryland, for example, judges granted 31 pct of the 95 compassionate release motions filed there, while judges in the Northern District of Ohio granted just 2.5% of the 80 motions filed, and judges in the Eastern District of Wisconsin granted zero motions of the 35 filed there.”

Although the longer a prisoner has been locked up, the greater the chance a compassionate release motion will be granted, the number of motions filed by long-serving prisoners is relatively few. And while the BOP must be asked to bring the compassionate release motion before the prisoner files it himself or herself, the BOP moved for compassionate release only 19 times during the year (out of over 2,700 filed).

Wroblewski argued, “Given the number of elderly, the number of deaths in the Bureau of Prisons, the number of long sentences being served, it seems virtually impossible that the Bureau of Prisons is applying the compassionate release statute consistently as the Commission intended.”

Substack, What’s Really Going on with Compassionate Release? (March 19, 2026)

~ Thomas L. Root

Heckler Avoids Being ‘Hecked’ – Update for March 26, 2026

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WHAT THE HECK?

Gabriel Olivier is a Mississippi street preacher whose brand of persuasion is to yell at people seeking abortions that they were “whores” and Jezebels. The City of Brandon convicted him of refusing to move his protest to a designated area (where his shaming would, apparently, have been less effective). He paid a fine as punishment for his recalcitrance.

Because he still wanted to preach near the amphitheater – where the saving of souls was more fruitful – Gabe filed suit against the City in federal court under 42 USC § 1983, a statute letting folks sue state or local governments and their employees for depriving private citizens of their civil rights.  Gabe alleged that the city ordinance violates the Free Speech Clause of the First Amendment by consigning him and other speakers to the amphitheater’s protest area. The complaint sought a declaration that the ordinance infringes the First Amendment and an injunction preventing city officials from enforcing the ordinance in the future.

Gabe immediately ran into a 1994 decision, Heck v. Humphrey, in which the Supreme Court held that “in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.”

Gabe had been convicted of violating the statute, the lower courts said, so he could not pursue a § 1983 action challenging its constitutionality.

Last week, the Supreme Court threw Gabe a lifeline.  Gabe’s suit, SCOTUS held, only asked for “forward-looking relief—nothing to do with [his] prior conviction.” Therefore, the Court held, Heck v. Humphrey does not bar bars Gabe’s suit. Heck prohibits any challenge the validity of a prior conviction or sentence so as to obtain release from custody or monetary damages. That decision has no bearing on Gabe’s action seeking a purely prospective remedy.

Olivier v. City of Brandon, Case No. 24-993, 2026 U.S. LEXIS 1272 (March 20, 2026)

~ Thomas L. Root

US Attorney’s Office ‘Losing the Trust’ of the Public – Update for March 24, 2026

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‘PANTS ON FIRE,’ FEDERAL JUDGE TELLS AUSA

A remarkable exchange occurred last week in a New Jersey courtroom.

Judge Zahid Quraishi was irate that a US Attorney’s Office made a sweetheart plea deal with a child porn defendant before discovering that he possessed a lot more porn of a much more disgusting nature than the government knew when it negotiated the plea agreement. As a result, the plea agreement allowed for a sentence that would max out at about a third of what the advisory guideline sentencing range turned out to be.

Back to Judge Quraishi: The Judge is the first Muslim to serve as a federal district judge. And he’s hardly the poster child for the “radical left lunatic” judges that President Trump regularly rails against. As an Army captain in the Judge Advocate General’s corps, Judge Quiraishi served in Iraq. Unusual for an Army lawyer, he was awarded a combat action badge, which suggests not only that he never had bone spurs, but that he “actively engag[ed] or [was] engaged by the enemy, and perform[ed] satisfactorily in accordance with prescribed rules of engagement.” Such as being shot at.

In civilian life, the Judge served as a lawyer for Immigrations and Customs Enforcement, as an Assistant US Attorney in the US Attorney’s Office for the District of New Jersey, and then as a US Magistrate Judge. In his spare time, Judge Quraishi taught courses on trial presentation at Rutgers Law School.

The Judge presumably knows his stuff, especially where the proper functioning of the US Attorney’s Office is concerned.

Previously, Judge Matthew Brann (Middle District of Pennsylvania, who brought into New Jersey to hear challenges to the US Attorney’s Office) had ruled that the US Attorney’s office was operating illegally after parking lot lawyer Alina Habba, Trump’s former personal lawyer, had been thrown out of office as US Attorney. Attorney General Pam Bondi appointed a triumvirate of attorneys to run the office in her place. Judge Brann found that appointment illegal, too.

Concerned about Judge Brann’s holding, Judge Quraishi – already furious that the US Attorney’s sloppy plea deal meant that he could not hammer Villafane with a sentence in excess of a half century – demanded that the AUSA be ready to answer questions at the sentencing hearing about who was running things. But the AUSA was able to offer only blandishments not based on personal knowledge, sort of what you might get if you asked a soldier in the trenches who was really managing the war effort back in Washington.

The AUSA’s equivocal answers caused the Judge to demand that the three acting heads of the office appear to testify. Exasperated, the Judge told the AUSA:

What you’ve told me today, what your representation is, which I don’t believe, by the way. I won’t believe it until you testify. That is what has happened to the credibility of your office. Generations of Assistant U.S. Attorneys had built the goodwill of that office for your generation to destroy it within a year.

The extraordinary rebuke came after the Judge told courtroom security officers to remove a supervisory AUSA from the courtroom because he hadn’t filed a notice of appearance and he just wouldn’t shut up. (In an in-your-face response, the AUSA – Mark Coyne, head of the Office’s Appellate Division – filed a notice of appearance the next day).

A DOJ spokesman said, “Unfortunately some judges are more interested in courtroom theatrics and constitutional overreach than promoting public safety. It is an especially troubling moment when a court chooses to sideline a case involving child exploitation.” This disingenuous criticism – the judge is angry that a US Attorney error prevents him from sentencing the defendant to a sentence three times longer than the deal the plea agreement includes – will probably only fan the flames.

So much for the presumption of regularity that US Attorneys have enjoyed from the courts for over 225 years.  As Judge Quirashi put it to the AUSA, ““You have lost the confidence and the trust of this court. You have lost the confidence and the trust of the New Jersey legal community, and you are losing the trust and confidence of the public.”

A final note: Yesterday, the New Jersey federal judges appointed a new interim US attorney, Robert Frazer, “a career prosecutor who federal court veterans said could bring some stability to an office that has been in chaos for much of the past year,” according to The New York Times.

According to a court filing, the Times said, Frazer’s appointment came after consultations between district court judges and the DOJ’s senior leadership.  Justice officials “reportedly welcomed his selection. That response itself represented a shift; other U.S. attorneys appointed by judges around the country during President Trump’s second term have been fired.”

Transcript, Doc 36, United States v. Villafane, Case No. 3:25-cr-00232 (March 16, 2026)

New York Times, Judge Ejects Federal Prosecutor From Court and Orders Bosses to Testify (March 17, 2026)

~ Thomas L. Root

Bo, Beer and Beatdowns: ‘How Dangerous is 922(g)(1) Defendant? – Update for March 23, 2026

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6th CIRCUIT EXPANDS ABILITY TO CHALLENGE FELON-IN-POSSESSION CONSTITUTIONALITY

Bo Hostettler is not a quick learner.  After doing 48 months in prison for being a felon in possession of a gun, a violation of 18 USC § 922(g)(1), Bo got caught while on supervised release with, you guessed it, a gun.

Charged again as a felon in possession, Bo argued that 922(g)(1) violated his 2nd Amendment rights, both on its face and as applied to his circumstances. His District Court agreed and dismissed the charges.

The Government appealed to the 6th Circuit. While the appeal was pending, the Circuit re-examined its 2nd Amendment jurisprudence in light of Bruen and Rahimi. The result of that was United States v. Williams, a 2024 decision in which the 6th upheld § 922(g)(1)’s constitutionality  “on its face and as applied to dangerous people. However, we explained that when the government disarms people on a class-wide basis, like it does for felons under § 922(g)(1), individuals must have a reasonable opportunity to prove that they don’t fit the class-wide generalization.”

The Williams court focused on the defendant’s prior convictions for aggravated robbery and attempted murder as “most probative of the defendant’s dangerousness... because they require violence against another person [and] provide at least strong evidence that the individual is dangerous. But even where a defendant has committed those types of crimes, we recognized that 922(g)(1) might be susceptible to an as-applied challenge depending on the unique circumstances of the offenses committed.”

In Bo’s case, the 6th said, the burden lies with him to show he is not dangerous. The district court must consider hisentire criminal history,  not just his felony convictions; and the fact that he was caught with a gun while on supervised release is “potentially relevant.”

The government argued that Bo’s criminal history recited in his Presentence Report was sufficient to prove Bo was dangerous. But the Circuit said that the PSR criminal history contained no information about the underlying circumstances or details of his criminal conduct in those convictions. “Without that information,” the 6th held, “the district court was unable to make the ‘individualized assessment of dangerousness’ that our precedent requires.”

The Circuit remanded Bo’s case to the district court ‘to engage in the requisite factfinding,’ where Bo will have the opportunity to essentially retry all of his prior convictions – misdemeanor and felony – to prove his lack of dangerousness.

Still, this case is important, because the Circuit has provided defendants a roadmap to prove lack of dangerousness, and that map suggests that mere labels – such as “theft” or “assault” yield to the facts of the offense. 

I recall an out-of-town man visiting my hometown about 30 years ago who had the bad luck to be black while enjoying a beer in one of our seedier establishments. Five not-so-black patrons who had consumed too much beer and not enough lessons in racial tolerance harassed him, finally calling him out back to teach him a lesson.

Sadly for the harassers, the black patron was a Marine Corps Force Recon veteran. All five tough guys were whimpering on the ground by the time the police arrived.

Our local prosecutor, understanding that the black out-of-towner did not vote in county elections, but the families of the five attackers did, charged the Marine vet with five counts of assault. The vet finally pled to one Ohio 5th-degree felony assault and got no prison time.

He also undoubtedly never came to this county again.

Hostettler seems to suggest that if the veteran wanted to own a gun, defending himself in a three-to-one contest (if you’re thinking ‘five-to-one’, see this) should be the kind of facts that convince the court that the Marine just wanted to drink his beer.

United States v. Hostettler, Case No 24-3403, 2026 USAppLEXIS 8328 (6th Cir. March 20, 2026)

United States v. Williams, 113 F.4th 637 (6th Cir. 2024)

~ Thomas L. Root

A Justice’s Plea for Sentence Fairness – Update for March 19, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

GORSUCH ARGUES FOR SUPERVISED RELEASE FAIRNESS

The Supreme Court last week denied review to Jaron Burnett, now serving a supervised release violation. Almost 20 years ago, Jaron pled guilty to an offense with a 10-year statutory maximum. He was sentenced to 105 months in prison, followed by 15 years of supervised release (either to assist him in reacclimating to society or to languish under the thumb of a heartless probation officer, depending on your point of view).

Six years after getting out, Jaron was charged with violating the terms of his supervised release (a little supervised release background here) and received a 13-month sentence. That new term brought his total time in prison to 118 months, just two fewer than the maximum Congress authorized for his underlying conviction. In 2022, Jaron got out and resumed supervised release.

In 2024, Jaron was violated again. This time, he argued that because prison time for the supervised release violation would take the total time for all of his sentence to more than the statutory maximum term of 120 months for the underlying offense, Jaron had a 6th Amendment right to have the government prove its case to a jury beyond a reasonable doubt.

The district court disagreed, applying a preponderance standard and finding that Jaron had committed some of the alleged violations. Based on that, the court sentenced him to 14 more months in prison, bringing his total term of incarceration to 132 months—12 more than the statutory maximum for his underlying crime. The court of appeals affirmed that result, and last week, the Supreme Court denied review.

Justice Neil Gorsuch disagreed. He wrote,

Mr. Burnett does not ask for much… All [he] claims is the right to have a jury decide any contested facts under the reasonable doubt standard where, as here, a court seeks to impose a sentence that will cause a defendant’s total time in prison to exceed the statutory maximum Congress has authorized for his underlying conviction.

I would have taken this case to consider that argument… [U]nder the logic of the decision below, defendants like these can effectively wind up losing for decades (and sometimes forever) the right to receive a federal jury trial to resolve charges against them under the reasonable doubt standard… Bypassing juries, trials, and the reasonable doubt standard in this way may hold some obvious advantages for prosecutors… The Court’s failure to grant review to address whether what happened to Mr. Burnett complies with th[e] 6th Amendment… is unfortunate. I can only hope we will take up another case like his soon—and that, in the meantime, lower courts will more carefully consider the 6th Amendment’s application in this context.”

Burnett v. United States, Case No. 25-5442, 2026 U.S. LEXIS 1196 (March 9, 2026)

~ Thomas L. Root