Tag Archives: Probation Officer

5th Circuit Knows Improper Delegation of Authority to Probation Officer When It Sees It – Update for January 16, 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.

5th CIRCUIT SAYS IMPROPER DELEGATION OF COURT’S AUTHORITY “DEPENDS”

About 15 years ago, Brent Dubois got 151 months in federal prison for a drug trafficking offense. When he was released, he began a three-year term of supervised release, one condition of which was that he participate in a substance abuse program. The court authorized Brent’s probation officer to decide whether the program would be inpatient or outpatient.

The PO put him in an outpatient substance abuse program, but Brent turned out to be less than a model student. Almost immediately, he had difficulty staying enrolled, leading to several supervised release revocation petitions and different substance abuse programs.

The court tried in vain to adjust his conditions to foster success. When Brent’s probation officer filed a fourth petition for revocation in late 2024, Brent admitted that he had quit his latest substance abuse program and was using methamphetamine. The district court reluctantly sentenced him to ten months in prison followed by 32 months of supervised release, and again ordered that he “participate in a program (inpatient and/or outpatient) approved by the probation office for treatment of narcotic or drug or alcohol dependency…”

On appeal, Brent complained that allowing the probation officer to decide whether his substance abuse program should be inpatient or outpatient was an impermissible delegation of the court’s sentencing authority that violated Brent’s rights.

Last Monday, the 5th Circuit agreed.

A district court must always have “the final say on whether to impose a condition,” the Circuit ruled. While a “probation officer’s authority extends to the modality, intensity, and duration of a treatment condition, it ends when the condition involves a significant deprivation of liberty.” Confinement in an inpatient program implicates “significant liberty interests,” the 5th held, meaning that “the decision to place a defendant in inpatient treatment cannot be characterized as one of the managerial details that may be entrusted to probation officers.”

But there are exceptions. When the prison sentence is short, a sentencing court, with “relative clarity because supervision is to commence relatively soon,” can forecast which kind of treatment – inpatient or outpatient – will better suit a defendant.” While “the precise line dividing permissible and impermissible delegations may be unclear, our opinions conclusively establish (1) ten months is sufficient to show an impermissible delegation and (2) ten years is insufficient to make the same showing.”

Here, Brent’s revocation sentence was only ten months, “a sufficiently short sentence to demonstrate an impermissible delegation.” The Circuit set aside the delegation of authority to the probation officer.

Despite its self-congratulatory claim to having done so, the Circuit strained to harmonize two inconsistent Circuit precedents (Martinez and Medel-Guadalupe, issued the same day). One declared a delegation to decide substance abuse program decisions to the probation office was permissible and the other decided it was not.

The takeaway is that the 5th believes that a deprivation of liberty on supervised release without involvement of the sentencing court isn’t as much of a big deal when the defendant has been in prison for a long time first. The dividing line of what is too short a sentence and too long a sentence isn’t clear, but – like Justice Potter Stewart’s famous explanation of what is obscenity – the sentencing judge is expected to be able to say I “know it when I see it.”

The Supreme Court’s repeated emphasis that supervised release is not punishment but rather an aid to the defendant’s reintegration into the community should make deprivations of liberty on supervised release a bigger deal rather than a lesser one.  Just two months ago, Justice Jackson asked during an oral argument (at page 4) whether

isn’t the whole — the reason why supervised release is sort of fundamentally different than parole or — or probation or imprisonment is because it’s not imposed for punishment. It’s supposed to be about helping this person reintegrate into society…

That suggests that the standard adopted by the 5th Circuit – that is, ‘it depends on how long you’ve been locked up’ – is not very defensible.

United States v. Dubois, Case No. 24-11046, 2026 U.S. App. LEXIS 831 (5th Cir. Jan. 13, 2026)

Rico v. United States, Case No. 24-1056, Oral Argument Transcript

United States v. Martinez, 987 F.3d 432 (5th Cir. 2021)

United States v. Medel-Guadalupe, 987 F.3d 424 (5th Cir. 2021)

Jacobellis v. Ohio, 378 U.S. 184 (1964)

~ Thomas L. Root

Only a Matter of Time: Supervised Releasees Are Set Up to Fail – Update for June 6, 2018

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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. 

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SUPERVISED RELEASE IS “SHADOW CRIMINAL JUSTICE SYSTEM”

A Federal public defender from Philadelphia last week blasted the statutorily-required supervised release system for pulling “tens of thousands of former inmates back into prison without a fair trial.”

probation180607Noting that one-third of all former inmates on supervised release are violated sometime during their term, author Jacob Schuman wrote that famous former inmate and now law professor Shon Hopwood told him that despite his going to law school and writing a book while on supervised release, there was still “a prevailing attitude among the probation officers that it was only a matter of time before I messed up and went back.” Hopwood said that probation officers “seemed more interested in policing violations than offering support.”

Schuman writes that supervised release “is incredibly strict, and that its reach is vast. Between 2005 and 2009, federal judges imposed supervised release in approximately 300,000 cases, with an average term lasting over 40 months. By 2010, more than 10,000 federal inmates were locked up for violating their supervised release.

Schuman called for Congress to limit supervised release only to those defendants who need it most and by reducing the punishments for violations,” and on judges to “stop sending people to prison for violations that are merely symptoms of an underlying drug addiction, not bad intent. To encourage this practice, Congress should end mandatory revocations for drug possession and prohibit imprisonment for drug-related technical infractions.”

Our experience with the arbitrary and standardless supervised release system is consistent with Schuman’s article. (Example: Any contact with a person with a criminal record – estimated to be one out of three American adults – is to be reported to the Probation Officer, an impossible standard to meet but one that can easily be used to violate).

Any system that reincarcerates one out of three participants has a problem, and it’s not with the people being supervised.

The New Republic, America’s Shadow Criminal Justice System (May 30, 2018)

– Thomas L. Root
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Counting Angels on Pins in the Guidelines – Update for July 26, 2017

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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.

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WHY SHOULD IT MATTER?

Consumers of the Federal Sentencing Guidelines – the courts that apply them, the lawyers that argue them, and the defendants that suffer under them – all have experience with the Byzantine nature of the code: enhancements are many and malleable, timelines are flexible as needed, and the quantum of evidence needed to jack up offense levels seems to fluctuate like political approval ratings.

emperor170726A refreshing 7th Circuit decision handed down Monday declared emphatically that the Guidelines emperor has no clothes. Crane Marks, who had pled guilty to conspiring to distributing heroin, was sentenced to 108 months, a sentence that was “either well above or well below the advisory range under the Sentencing Guidelines, depending on one issue,” the Court said. The district court decided the issue against Crane, but did so in a way that was both legally and factually defective.

Most of us who have spent any time at all in courtrooms have heard judges disgustedly ask parties – either the plaintiff or defendant, and sometimes both – “why are you here?” It hardly ever is asked as eloquently as it was in this case. The Circuit complained,

In all candor, [the] one issue [in this case] seems astonishingly technical and trivial. It has nothing to do with Marks’ culpability or the larger goals of sentencing. As we explain below, the issue is whether, when Marks was imprisoned on his fourth state drug conviction in 2000, he also had his state parole revoked on any of his earlier state drug convictions and was re‐imprisoned on that revocation as well. From this description of the issue, we hope readers will agree that this is one of those guideline issues that should prompt the sentencing judge to ask why the judge or anyone else should care about the an‐swer.

Because the issue seems so technical and trivial, we have examined the record in this case for any signs that the judge would have given Marks the same sentence regardless of how the technical criminal history issue was resolved. We found no such signs, however, so we have considered the technical guideline issue on the merits.

The issue was straightforward enough. Crane had enough prior state drug convictions to be a career offender under USSG Sec. 4B1.1, which would subject him to a dramatically higher sentencing range. However, for a prior drug sentence to count, it had to be otherwise eligible for criminal history points, meaning that Crane would have had to have been in prison for it within 15 years of the current offense.

guidelines170530The government and Crane agreed he was not a career offender, because he got out of prison on one of his qualifying priors, from 1994, more than 15 years before his current crime. This would have set his sentencing range at 51-63 months. But the Probation Officer writing the presentence report found some handwritten state prison records saying Crane had had his parole revoked on the 1994 case in 2000, which would put imprisonment on the offense within the 15-year window and make the 1994 case countable. The records showed that his parole was revoked, and he was “in the custody” of the state department of corrections. The Probation Officer – and the court – concluded Crane was a career offender. His career offender guidelines were 151-188 months, but the court sentenced him well below that at 108 months.

Probation officers work for the U.S. Probation and Pretrial Services, a judicial agency. They are often considered by the district court judges to be their trusted employees. This unhealthy familiarity, in our opinion, leaves judges way too willing to accept anything the probation officer says, even when both the government and the defendant disagree. So it was in this case.

The Court of Appeals was not wearing the same blinders. It concluded “that the court made both a legal error and a factual error. The legal error was that the court did not make the finding needed to treat Marks as a career offender under the Guidelines. The factual problem is that the court was not presented with reliable evidence from which it could have found that Marks was imprisoned on a revocation of parole on any earlier conviction. That means that Marks does not qualify, technically, as a career offender. His advisory guideline sentencing range is lower than the range found by the district court.”

checkoff170726The legal problem was that the state department of corrections treated anyone on home confinement, electronic monitoring or in prison as being “in custody.” This meant that the notation that Crane was “in custody” was irrelevant: only if he was actually locked up within the 15 years would the prior offense count. As the Circuit put it, “The broad concept of “custody” is not enough under Sec. 4A1.2(k)(2). The focus is “incarceration.” Proving that Marks’ parole terms did not expire until 2000 was not enough—the government had to show that Marks was incarcerated on at least one of those convictions.”

The factual problem was that the district court lacked reliable evidence to support application of the career‐offender Guideline. As a general rule, a sentencing judge may rely on a presentence report if it “is well‐supported and appears reliable,” the Circuit said. “But if a presentence report contains nothing but a naked or unsupported charge,” the defendant’s denial will suffice to call the report’s accuracy into doubt. Similarly, if the presentence report “omits crucial information, leaving ambiguity on the face of that document,” the government has the burden of independently demonstrating the accuracy of the report.”

Here, the records contained no narrative showing that Crane was given a new term of imprisonment for violating parole, or whether he was merely noted as being in custody on a potential parole violation. The fact that his sentence on 1994 conviction “was discharged only a few months after he pled guilty to the 2000 charge,” the Circuit said, “suggests that no revocation occurred. And it is difficult to understand why, if Marks’ parole was actually revoked, the government could not have supported the presentence report with a copy of the order of revocation.”

angels170726It seems so much like counting angels on the heads of pins. Had the trial judge stated on the record that his sentence would be 108 months with or without the career offender finding, the 7th would have simply called it a day. But without being able to tell from the record how the faulty career offender status influenced the trial court, the Circuit had no option but to remand the case for resentencing.

United States v. Marks, Case No. 15-2862 (7th Cir., July 24, 2017)

– Thomas L. Root

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