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SCOTUS Skeptical About Fugitive Tolling of Supervised Release – Update for November 10, 2025

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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.

THE FUGITIVE

The Supreme Court heard oral argument last week on whether people who flee from supervised release can claim that the term of their supervised release nevertheless continued and expired while they were a fugitive. If the term of supervision can expire while a defendant is a fugitive, and a doctrine called fugitive tolling does not apply to prevent that expiration, then a court could not revoke supervised release for violations of the conditions of supervision after the term’s expiration.

[Explainer:  Supervised release is a period after the defendant is released from prison during which he or she is subject to the supervision of a probation officer and must comply with a long list of standard and special conditions. Violation of the terms of supervised release may result in the imposition of more restrictions, the lengthening of the supervised release term, or even being sent back to prison].

The doctrine, called fugitive tolling, suspends the running of supervised release while the defendant is on the lam. Without fugitive tolling, a district court would lack the authority to revoke supervised release for violations that weren’t charged until after the term of supervision ended.

The justices struggled with how the Dept of Justice scenario aligned with the law and congressional intent over federal court jurisdiction and sentencing on such matters.

The underlying issue stems from the case of Isabel Rico. She lost touch with her probation officer during her 4-year supervised-release term stemming from a drug trafficking conviction, who decided that she had absconded. While she was out of touch, she was convicted by state authorities for evading the police, driving without a license and possessing drug paraphernalia.

She wasn’t arrested until well after the expiration of her supervised release term. The government charged her with two minor violations that occurred during her term, as well as for committing the crimes of evading, no license and drug paraphernalia (which occurred after her supervised release term ended). Isabel objected that the district court lacked jurisdiction to consider the 2022 drug-related offense as a supervised-release violation because her term of supervised release had expired in June 2021.

The government responded that the clock on Isabel’s supervised release term was paused when she absconded in May 2018, with about three years remaining, and did not resume until she was apprehended in January 2023 – meaning that she remained on supervised release when she committed the 2022 state offenses. Isabel argued that the “fugitive tolling” doctrine on which the government relied was inapplicable in the context of supervised release.

It was a big deal because the only violations she committed during the original supervised release term were low-grade ones carrying minor penalties. The 2022 violations were Grade A, however, carrying stiffer punishment under the Sentencing Guidelines.

At the oral argument, Justice Neil Gorsuch observed that the government has already gone to Congress in an effort to amend a section of the Sentencing Reform Act dealing with a violation of supervised release. “Congress has proven pretty solicitous in this area,” he said. But Congress never adopted any fugitive tolling provision, meaning that the government is now asking the Supreme Court to create one. “And the alternative is for us to create a fugitive tolling doctrine pretty [much out of] whole cloth… And so we’re going to have to come up with a whole common law doctrine here to supplement what [the law] already says.”

Justices Ketanji Brown Jackson and Sonia Sotomayor questioned whether the government’s theory of abscondment amounted to extending a period of punishment. “The traditional tolling is that the clock stops with respect to the obligation when you run away, and it picks up again when you’re found again,” Jackson said. “So it seems to me that what you’re actually asking for is an extension rule.”

Fugitive tolling is shaped by one central statutory provision, 18 USC 3583(i), which holds that if a court issues a warrant for a supervised release violation before the term expires, the court will continue to have jurisdiction to revoke supervision and impose punishment for those violations. Thus, if a defendant becomes a fugitive while on supervised release, and the probation officer files a petition to revoke before the term ends, fugitive tolling is unnecessary to revoke the defendant’s term of supervision.

Section 3583(i) gives the court authority to revoke supervision if the defendant becomes a fugitive. A court would not have to rely on any further conduct by the defendant, such as the commission of a new crime, to revoke supervised release. And when the court turns to the appropriate sentence for the revocation, it could simply take into account all of the defendant’s conduct, including new crimes committed after the expiration of the term of supervised release.

The case will be decided by the end of June 2026.

SCOTUSBlog, Court leans against applying fugitive tolling in federal supervised release (Nov 5, 2025)

Bloomberg Law, US Supreme Court Struggles With Dispute Over Supervised Release (Nov 3, 2025)

Rico v United States, Case No 24-1056 (argument held Nov 3, 2025)

~ Thomas L. Root

Big White Bear Banished… Or Is He? – Update for June 24, 2025

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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.

‘DON’T THINK ABOUT THE BIG WHITE BEAR’ IN SENTENCING SUPERVISED RELEASE VIOLATIONS, SCOTUS TELLS JUDGES

When a federal prisoner who is out of prison but serving a term of supervised release (a version of parole after a prison term is served) gets violated for breaching one of the many supervised release conditions, the Court may impose some more time in prison. When doing so, the supervised release statute (18 USC § 3583(e)) directs the Court to consider most of the sentencing factors in the Guidelines.

But not all. Conspicuously missing from the list of permissible factors listed in § 3583(e) is § 3553(a)(2)(A), which directs a district court to consider “the need for the sentence imposed… to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.”

Edgardo Esteras pled guilty to conspiring to distribute heroin. The district court sentenced him to 12 months in prison followed by a 6-year term of supervised release. He did his time and began his supervised release. Eventually, he was arrested and charged with domestic violence and other crimes.

The district court revoked Eddie’s supervised release and ordered 24 months of reimprisonment, explaining that his earlier sentence had been “rather lenient” and that his revocation sentence must “promote respect for the law,” a consideration enumerated in 18 USC § 3553(a)(2)(A) but not authorized to be considered in fashioning a supervised release revocation sentence by § 3583(e).

The 6th Circuit affirmed the sentence, holding that a district court may consider § 3553(a)(2)(A) when revoking supervised release even though it is not one of the listed factors to be considered in 18 USC § 3583(e).

Legend has it that as a boy, Russian author Leo Tolstoy and his brother formed a club. To be initiated, the aspirant was required to stand in a corner for five minutes and not think about a big white bear. Last week, the Supreme Court told district courts to ignore the bear when sentencing supervised release violations.

Writing for the 7-2- majority, Justice Barrett reversed the 6th Circuit in what seemed to be an easy lift for the Court. The decision applied the well-established canon of statutory interpretation “expressio unius est exclusio alterius” (expressing one item of an associated group excludes another item not mentioned). In other words, where a statute provides a list of what can or cannot be considered – the classic example being Section 61 of the Internal Revenue Code,  which lists ten examples of what constitutes “gross income” – that detailed list implicitly excludes anything not listed.

Likewise, the Supreme Court held that where Congress provided in § 3583(e) that the Court should consider a list of eight of the ten sentencing factors from 18 USC § 3553(a) when sentencing on a supervised release violation, “[t]he natural implication is that Congress did not intend courts to consider the other two factors…” Justice Barrett wrote that “Congress’s decision to enumerate most of the sentencing factors while omitting § 3553(a)(2)(A) raises a strong inference that courts may not consider that factor when deciding whether to revoke a term of supervised release. This inference is consistent with both the statutory structure and the role that supervised release plays in the sentencing process.”

But such a Pyrrhic victory! Any judge worth a robe and wig can easily figure out how to throttle a mutt like Eddie — who unquestionably got a real break in his original heroin sentence — with a maxxed out supervised release sentence that will withstand judicial review. The supervised release sentence may still be based on the “nature and circumstances of the offense and the history and characteristics of the defendant” (§ 3553(a)(1)), on the need “to afford adequate deterrence to criminal conduct” (§ 3553(a)(2)(B)) and the need “to protect the public from further crimes of the defendant” (§ 3553((a)(2)(C)). The judge can describe the offender as having the characteristic of “not learning from his mistakes” or as needing a long supervised release sentence because he has not yet been deterred from criminal conduct or as needing to be locked up to protect the public.

Different spirits summoned, but the same result. As long as no one mentions the big white bear, a canny sentencing judge can think about the bruin all he or she wants to and sentence accordingly.

As for Eddie, he finished his supervised release sentence in October 2024, so the Supreme Court decision does little for him.  But maybe it will have some beneficial effect. It seems Edgardo was arrested on a fresh supervised release violation last month and is currently held by the Marshal Service. He will appear in front of Judge Benita Y. Pearson (N.D. Ohio) for a hearing in three weeks.

We’ll see if the bear comes up during that hearing.

Esteras v. United States, Case No. 23-7483, 2025 U.S. LEXIS 2382 (Jun 20, 2025)

– Thomas L. Root

Could SCOTUS Decision in Haymond “Bring Down Supervised Release?” – Update for March 4, 2019

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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.

AN UNSURPRISING WIN AND A PROMISING ORAL ARGUMENT

The Supreme Court last week ruled that even if a defendant’s plea agreement includes an appeal waiver, defense counsel renders ineffective assistance of counsel by not filing a notice of appeal  if the defendant asks for one.

The decision – Garza v. Idaho – is not such a big deal. Every circuit that has considered the question, except for the 3rd and 7th, already follows the rule.

appeal181107Since the 2000 Roe v. Flores-Ortega decision, if a defendant asks defense counsel to file a notice of appeal, and the lawyer does not, it is considered ineffective assistance of counsel (which violates the 6th Amendment) regardless of whether the appeal had any chance of winning. Some courts, however, have wondered whether the Roe rule should apply where a defendant’s plea agreement waiving appeal rights. A few places, including Idaho, have held that in that case, failure to file a notice of appeal would be ineffective assistance of counsel only if the defendant could show a reasonable probability that he or she would have won on appeal.

easyappeal190304Last week, the Supreme Court disagreed. It noted that even a defendant waiving appeal retains the right to appeal limited issues (such as claiming defense counsel was ineffective for ever getting the defendant to sign the plea agreement to begin with). The Supremes said that filing the one-page notice of appeal is very easy (the notice does not even have to list the issues being appealed), and most defendants have a pretty ill-formed idea of what the issues should be before the transcripts are prepared. For those reasons, SCOTUS said, the Roe rule should apply for plea waivers: if your lawyer fails to file a notice of appeal after you ask him or her to, it is ineffective assistance of counsel, even where you waived your appeal rights.

Perhaps more significant, the Supremes heard oral argument last week that could bring down supervised release. The case question the constitutionality of 18 USC 3583(k), which requires convicted sex offenders to return to prison for at least five years if a judge finds they have committed certain crimes. The defendant in the case, Andre Haymond, served time for child porn, and was returned to prison after he violated supervised release. He argued that the law violates his right to have his sentence determined by a jury, rather than a judge, beyond a reasonable doubt.

Eight justices seemed likely to agree with him, even if it was not yet clear how they will remedy the constitutional violation. Several questioned the government’s view that a jury was not required to find the facts leading to a supervised release violation and more prison time. Much of the oral argument focused less on whether the law was unconstitutional and more on how to fix it.

supervisedleash181107Haymond is consequential to all of supervised release. As it is, while on supervised release, a defendant is subject to violation for a variety of technical, non-criminal conduct, and may be returned to prison if the court finds by a mere preponderance of the evidence that the defendant committed the violation. Haymond could upend this, extending the constitutional guarantees of Apprendi v. New Jersey and Blakely v. Washington (that people can lose liberty only upon admissions of guilt or findings of a jury beyond a reasonable doubt) to supervised release violations as well. In fact, Justice Samuel Alito – the only Justice in the government’s corner – complained during argument that a ruling for Haymond could “bring down the entire supervised release system.”

Statistics say one out of three people released on supervised release will be violated, making this case huge.

Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog that “there may now be eight Justices prepared to extend Apprendi/Blakely rights to supervised release revocation. Now we what to see just how big the ultimate opinion will be (and how loudly Justice Alito will complain about more procedural rights for criminal defendants).”

Garza v. Idaho, Case No. 17-1026 (Feb. 26, 2019)

United States v. Haymond, Case No. 17-1672 (argued Feb. 26)

Sentencing Law and Policy, Haymond seemingly to become major Apprendi progeny altering federal supervised release revocations (Feb. 26)

– Thomas L. Root