Tag Archives: supervised release

5th Circuit Knows Improper Delegation of Authority to Probation Officer When It Sees It – Update for January 16, 2026

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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

Prison Fellowship Backs Safer Supervision Bill – Update for November 28, 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.

PRISON FELLOWSHIP THROWS SUPPORT TO SAFER SUPERVISION ACT

(And, no, I am not even going to comment in passing about the President’s annual turkey-pardoning spectacle last Tuesday, which President Trump managed to make even more cringeworthy than normal by using the occasion to take yet another swipe at former President Biden).

Prison Fellowship, the nation’s largest faith-based nonprofit serving currently and formerly incarcerated people, announced last week that its staffers –including 18 former prisoners – will blitz congressional offices to encourage lawmakers to support the Safer Supervision Act (S. 3077 and H.R. 5883).

The legislation aims to modernize federal supervised release by requiring courts to make individualized determinations at sentencing whether supervision is appropriate and allowing FTCs – earned time credits during incarceration – to be applied toward conditional release.

Supervised release has become almost universal in federal sentencing. In 2024, it was imposed in nearly 99% of cases involving black defendants, 98% for white defendants, and 83% for Hispanic defendants. The average term of supervised release in 2024 was 47 months, following an average prison term of just over five years.

Senator Mike Lee (R-UT) introduced the Senate version and Representative Laurel Lee (R-FL) – no relation to Mike – introduced the House bill. Both bills have Democratic Party co-sponsors.

S. 3077, Safer Supervision Act

H.R. 5883, Safer Supervision Act

Daily Reflector, Prison Fellowship Urges Congress To Pass Safer Supervision Act With Day of Action on Capitol Hill (November 18, 2025)

~ Thomas L. Root

Congress May Again Try for Supervised Release Reform – Update for November 13, 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.

SUPERVISED RELEASE BILL INTRODUCED IN SENATE AND HOUSE

The government may only now be reopening, but the business of Congress has ground on nonetheless. Last week, the Safer Supervision Act – intended to clean up supervised release – was introduced simultaneously in the Senate (S. 3077) and the House (H.R. 5883).

The bills would lock in some changes to the Guidelines that just became effective at the beginning of this month – such as guiding the courts to impose supervised release only on defendants who need it – and creating a presumption that supervised release should terminate early unless there’s a compelling reason to continue it. Beyond that, the bill would make appointed counsel available to people seeking early termination and let courts overlook minor supervised release R violations such as drug possession and use.

Sen Mike Lee (R-UT) introduced the Senate version and Representative Laurel Lee (R-FL) – no relation to the Senator – introduced the House bill. Both bills have Democrat co-sponsors.

About 110,000 people are currently on federal supervised release, about 70% of the total BOP population. Probation officers can have caseloads of over 100 people. The Administrative Office of U.S. Courts has explained that “excessive correctional intervention for low-risk defendants may increase the probability of recidivism by disrupting prosocial activities and exposing defendants to antisocial associates.”

This is not the Safer Supervision Act’s first rodeo. The same bill was introduced in the Senate in 2022 (117th Congress) and in both the Senate and House in 2023 (118th Congress), but did not come up for a vote before those Congresses ended.

The current version is supported by both law enforcement and prison reform groups, including the Conservative Political Action Conference, Federal Law Enforcement Officers Association, Major Cities Chiefs Association, National District Attorneys Association, Right on Crime, Americans for Prosperity, Faith and Freedom, Prison Fellowship, R Street Institute, Texas Public Policy Foundation, and REFORM. The measure has been introduced early enough in the life of the current Congress, which does not end until January 2, 2027, that it may stand a chance of passage.

S. 3077, Safer Supervision Act

H.R. 5883, Safer Supervision Act

Reason, Federal Supervised Release Is a Wasteful Mess. A Bipartisan Bill in Congress Is Trying To Fix That. (June 4, 2024)

~ Thomas L. Root

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

A New November… Same Old Laws – Update for November 3, 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.

NOVEMBER 1ST IS HERE… SO WHAT?

Quick quiz: What new laws benefitting inmates became effective on November 1st?

If you said ‘none,’ you win. Any other guess means you lose. If you said the ‘65% law went into effect,’ go to the back of the class.

In a few weeks, I will have been writing this newsletter every week for 10 years. And for the past 10 years, I have been waging a lonely campaign to stamp out the never-ending myth that Congress just passed (or is about to pass) a law that says that some or all federal offenders will only have to serve 65% of their sentences.

So I again repeat myself. There is NO 65% bill, 65% law or 65% anything. There is NO proposal to cut federal sentences so that everyone will only serve 65% of his or her time. There is NO bill, law, NO directive from Trump, and NO anything else that will give inmates extra time off because things were so bad during COVID.

Nothing. Nada. Zilch. Bupkis.

The genesis of the pernicious 65% rumor is a longing for the bad old days of parole, where federal prisoners served between one-third and two-thirds of their sentences. People seem to think that if parole – abolished in the Sentencing Reform Act of 1985 – only came back, that means that prisoners would only serve two-thirds of their current Sentencing Guidelines sentences. But back then, there were no Guidelines sentences. Courts would just hand out statutory sentences of 5 years, 10 years, 20 years, or whatever. The U.S. Parole Commission would then apply its own guidelines to determine where – between one-third and two-thirds of that time – you’d actually be locked up.

So that meant on a sentence with a statutory range of zero to five years, the court would usually give you five years. You would serve between 20 months and 40 months, but you wouldn’t know how long you’d serve until you finally had your parole hearing (in front of a board of non-judges who were notoriously pro-prosecution).

The Sentencing Guidelines moved that analysis to the front of the sentencing process and applied standards that were much more detailed and subject to due process protections.  The parole hearing process was opaque and – while it could be challenged with a 28 USC § 2241 habeas petition – was nearly bulletproof. I have seen both systems, and for all of its shortcomings, the Sentencing Guidelines are better for prisoners by an order of magnitude.

The 65% rumor gained legs because the late Rep. Sheila Jackson-Lee (D-TX) introduced a bill in every Congress since 2003 (except for the 116th in 2019) to increase 18 USC § 3624(b) good time from 15% to 35% for nonviolent offenders. None of those bills ever collected a single co-sponsor, had a committee hearing, or came up for a vote.

Congresswoman Jackson Lee died in June 2024 of pancreatic cancer. Her last effort at a 65%-type law was the Federal Prison Bureau Nonviolent Offender Relief Act of 2023 (H.R. 54), which called for nonviolent offenders who were at least 45 years old and had zero criminal history points and no incident reports to serve only 50% of their sentences. This bill, like her prior efforts, failed.

There is NO legislation pending in Congress – a legislative body unable to even keep the government open – that provides any sentencing relief for federal prisoners. I predict that there is no stomach in this Republican-controlled Congress to entertain any such legislation. If there were, President Trump – who has been pushing the trope that America is overrun with crime – is unlikely to sign it.

However, the 2025 Guidelines amendments did become effective on November 1st. The most significant is that for the first time in 37 years, departures have been eliminated (except for substantial assistance to the government, its own category with three decades of precedent on its frequent application). Another, a new drug amendment, expands the use of the mitigating role adjustment and caps the drug quantity table for such people at a maximum of 32. Another change encourages courts to impose supervised release only on people needing such structure and asks courts to terminate such supervised release early.

The supervised release change will benefit anyone subject to current or future supervised release. None of the other changes, however, is retroactive.

US Sentencing Commission, Amendments in Brief (October 31, 2025)

~ Thomas L. Root

District Court Can Come For You Well After You Think It’s Over – Update for July 29, 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.

PAY THE MAN, SHIRLEY

In 2014, Mikel Mims was convicted of conspiracy to commit wire fraud.  The district court sentenced her to probation and ordered her to pay $255,620 in restitution.  After Mikey completed probation in 2017, she stopped paying restitution despite her still owing about $200,000.

After all, she was beyond her criminal sentence. The court had nothing to hold over her. Right?

Wrong. Five years later, the district court – acting within Mikey’s original criminal case – ordered her to bring her payments current. Citing the Mandatory Victims Restitution Act and the Federal Debt Collection Procedures Act of 1990, the district court concluded that it still had jurisdiction to enforce restitution in the underlying criminal case. The district court ordered Mike to pay up.

Mikel appealed, arguing that she had completed her probation and that the district court no longer had jurisdiction in her original criminal case to order compliance. She contended that she was off scot-free! Two weeks ago, the 11th Circuit disagreed.

No one contested that the district court had jurisdiction over Mike’s underlying criminal offense and could order her to pay restitution as part of her criminal judgment. Starting there, the 11th Circuit applied the ancillary jurisdiction doctrine, which “recognizes federal courts’ jurisdiction over some matters (otherwise beyond their competence) that are incidental to other matters properly before them,” to hold that the district court’s hold on Mikel extended far beyond the end of Mikel’s criminal sentence. 

The ancillary jurisdiction doctrine “enable[s] a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees,” the Circuit ruled.  “We have historically recognized that district courts have “inherent power to enforce compliance with their lawful orders through civil contempt… Here, the district court lawfully entered the restitution order as part of Mims’s criminal judgment… Accordingly, we conclude that the district court had ancillary jurisdiction to enforce the restitution order it had included in Mims’s criminal sentence via the compliance order.”

The district court can’t impose prison time or extend probation in the criminal case. Rather, its enforcement power is limited to the civil contempt power, but the Circuit nonetheless held that the district court can continue to hold sway over a defendant far beyond the end of supervised release or probation.

United States v. Mims, Case No. 22-13215 (11th Cir., July 15, 2025)

~ Thomas L. Root

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

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‘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

Unintended Consequences for a Meritorious Sentencing Commission Proposal – Update for February 21, 2025

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THE NAVARRO CONUNDRUM

Sharp-eyed reader Drew wrote last week to ask about the United States Sentencing Commission’s proposal to change the supervised release guidelines.

supervisedleash181107Supervised release – a term of post-incarceration control over a former prisoner by the US Probation Office during which the ex-inmate can be sent back to prison for violations of a whole list of conditions – is imposed as a part of nearly every sentence, despite the fact that “it is required in fewer than half of federal cases,” according to one federal judge. No one subjected to it especially likes it, which is why many have cheered the Sentencing Commission’s proposal to reduce its usage.

The proposed amendment now being considered would amend USSG § 5D1.1 to remove the requirement that a court reflexively impose a term of supervised release whenever a sentence of imprisonment of more than one year is imposed, so a court would be required to impose supervised release only when required by statute. For cases in which the decision to impose supervised release is discretionary, the court would be directed to impose it “when warranted by an individualized assessment of the need for supervision,” which the court would be expected to explain on the record.

Who could possibly complain about avoiding a term of supervised release, a period of post-incarceration control that, by some accounts, violates one-third of the people subjected to it?

Remember Peter Navarro, once a confidante of first-term President Trump and currently his Senior Counselor for Trade and Manufacturing? Petey suffered hideously as a federal prisoner for four whole months at FCI Miami in between his last and current White House gigs, doing time after being convicted of contempt of Congress.

You’re wondering, of course, who could possibly hold Congress in contempt?  Besides almost all of America, that is? Well, Pete did by refusing to testify before the House January 6th Committee.  He was sentenced to four whole months of incarceration. Last summer, as his endless sentence drew to a close, Pete petitioned his sentencing court for compassionate release under 18 USC § 3582(c)(1)(A), asking not that his sentence be cut but instead that the court add a few days of supervised release.

It was subtraction by addition. Pete wanted a few days of supervised release added to his sentence because of a quirk in the First Step Act. Under the Act, FSA credits – time credits that are earned for successful completion of programming intended to reduce recidivism – can be used for early release or halfway house/home confinement benefits. The Bureau of Prisons credits the initial FSA credits a prisoner earns to decrease the length of his or her sentence by up to a year under 18 USC § 3624(g)(3), but only if the prisoner has had a term of supervised release imposed as part of his sentence.

magahat250221Generally, the supervised release condition has not been a problem for prisoners because courts hand out supervised release like red MAGA caps at a Trump rally. However, a few sentences don’t have supervised release added to the tag end, such as very short ones or cases where an alien will be deported at the end of his term.

That happened to Pete, whose court imposed a four-month prison sentence without any supervised release afterward. This left Pete unable to use any of the 14-odd days of FSA credit he had earned to go home a couple of weeks early.

Pete’s creative legal team filed for the sentence non-reduction under § 3582(c)(1)(A), asking that the sentence be modified to add a little supervised release after Mr. Navarro’s four months in hell ended. The court didn’t bite, holding that the sine qua non of a sentence reduction motion was a request for an actual sentence reduction. Pete had asked for a sentence increase, and that could not be granted.

As a result, Pete barely made it out of his personal Devil’s Island in time to be flown by private jet to the Republican Convention in Milwaukee. (Incidentally, he emerged from prison as a dedicated BOP reformer, but that commitment seems to have waned since he made it back to 1600 Pennsylvania Avenue NW).

The Navarro episode illustrated Drew’s question: If supervised release were to be no longer imposed for many offenses, would that not also hobble a prisoner’s ability to earn the up-to-one-year-off that § 3624(g)(3) offers? Darn right – just ask President Trump’s Special Counselor on Trade and Manufacturing. Is this the USSC sneakily trying to take benefits away from some prisoners? Might the result of the proposed amendment’s adoption be a repeat of year-and-a-day sentences where judges impose a day of supervised release in order to allow defendants the full benefit of their FSA credits?

I suspect the Commission simply has not focused on the effect that its proposal would have on prisoners using FSA credits for shorter sentences under 18 USC § 3624(g)(3). The arcane FSA credit regime is not a matter that’s necessarily in the Sentencing Commission’s wheelhouse. The USSC’s proposal to encourage more judicious imposition of supervised release terms is generally laudable: it conserves US Probation Office resources to be spent on people who really need the post-prison supervision while will improve – rather than limit – rehabilitation for many.

adultsupervision240711(Examples: I had a fellow on supervised release tell me last week that a major trucking firm had been happy to hire him as a long-haul trucker despite his 20 years served for a drug offense until it learned he was still on supervised release. The company told him it could not hire him as long as he was on a US Probation Office tether but to call them the second he was done with supervised release, whereupon they’d be glad to put him in one of their rigs. I had another guy tell me that he couldn’t get life insurance to protect his wife and kids until he was off supervised release. Neither of these limitations helps a former prisoner re-integrate.)

We’ll have to see whether USSC tweaks its proposal to account for the unforeseen Navarro consequence when the final amendment package is adopted in April.

United States Sentencing Commission, Guidelines for United States Courts, 90 FR 8968 (February 4, 2025)

United States v. Thomas, 346 FSupp3d 326 (EDNY 2018)

Order, United States v. Navarro, ECF 176, Case No 22-cr-0200 (DDC, May 15, 2024)

– Thomas L. Root

Sentencing Commission Proposes Drug Table, Meth, Supervised Release Changes – Update for January 27, 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.

‘ICE’ MAY BE MELTING

In December, the United States Sentencing Commission announced proposed Sentencing Guidelines amendments for public comment on the sweeping if rather tedious topics of guideline simplification, criminal history, firearm offenses, circuit conflicts and retroactivity. 

drugdealer250127At the time, Sentencing Commission Chairman, Judge Carlton W. Reeves (Southern District of Mississippi) hinted that the USSC could be announcing some additional proposed amendments this month.

Last Friday, the Commission provided an upbeat end to a tough week for federal criminal justice, proposing defendant-friendly amendments to Guidelines on supervised release, the drug quantity tables, and enhanced offense levels for “ice” and pure methamphetamine.

The draft amendments, released for public comment, also propose cracking down on distribution of drugs laced with fentanyl as well as an increased enhancement for packing a machine gun during a drug crime.

The biggest surprise is a proposed change to adopt one of three options, any of which would reduce the top base offense level for drug quantity in the Guidelines. A Guidelines sentence for a drug offender is driven by the weight of the drugs attributed to him or her.  If Tom the Trafficker, with no prior convictions, was involved in a cocaine conspiracy that sold 1,000 lbs of cocaine (10 lbs. a week) over two years – even if he only sold an 8-ball a day five days a week for two years (about 4 lbs) – his Guidelines base offense level would be 38 with a sentencing range starting at 20 years in prison.

The three options the Sentencing Commission is considering would drop the levels in the drug quantity table to Level 30, 32 or 34 instead of the current 38.  At Level 30, our hypothetical Tom would be looking at an advisory sentencing range of 8 years instead of 20.

The Commission said it “has received comment over the years indicating that [Guideline] 2D1.1 overly relies on drug type and quantity as a measure of offense culpability and results in sentences greater than necessary to accomplish the purposes of sentencing.”

meth240618The second proposed amendment would essentially wipe out the drug quantity table’s 10-to-1 focus on meth purity and eliminate any enhanced penalty for crystal meth, known as “ice.” Commission data show that in the last 22 years, the offenses involving meth mixtures has remained steady while the number of offenses involving “meth (actual)” and “ice” have risen substantially. A recent Commission report found that today’s meth is “highly and uniformly pure, with an average purity of 93.2% and a median purity of 98.0%.”

In other words, if all meth is pure, applying the higher base offense level for pure meth becomes the norm rather than the exception. This is a drug-crime equivalent of the Lake Wobegon effect, humorist Garrison Keilor’s representation that in Lake Wobegon, all the children are above average.

The meth purity change could decrease Guideline base offense levels by up to 4.

A note: Judge Reeves, wearing his district court hat instead of USSC hat, wrote a thoughtful opinion two years ago in which he refused to apply the purity enhancement on the same grounds that the Commission cites now as a rationale for changing the Guidelines.

supervisedleash181107The other significant change is to supervised release, which would dramatically reduce the cases in which it is added to the end of a sentence. Among its many changes – focused on making supervised release more about rehabilitation and less about punishment – the proposed amendment would also adopt inmate-friendly standards for early termination of supervised release, making getting off supervised release after a year much easier to do.

The Sentencing Commission proposal says nothing about whether the drug quantity table reduction or meth changes – if they are adopted – would be retroactive. Retroactivity would be decided in a separate proceeding, and the USSC is in the middle of a painful re-evaluation of when and whether retroactivity should be allowed.

For now, the proposed amendments will be out for public comment until March 3, 2025, with reply comments due by March 18, 2025. The Commission will decide what it will adopt as final amendments by May 1, and those will become effective (absent Congressional veto) on November 1, 2025.

US Sentencing Commission, Proposed Amendments to the Sentencing Guidelines (Preliminary) (January 24, 2025)

– Thomas L. Root

Supremes to Decide Sentencing Factors That Apply to Supervised Release Violations – Update for October 22, 2024

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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.

SCOTUS GRANTS CERT TO SUPERVISED RELEASE CASE

The Supreme Court justices often don’t decide to grant review (certiorari or “cert”) to a case after just one Friday conference. Petitions may be “re-listed,” that is, deferred for additional consideration at the next conference.

scotus161130Generally, a re-list or two increases a cert petition’s odds of being granted. Interestingly, the odds of being granted start to fall with more than two re-lists. That was proven with yesterday’s grant of certiorari in Esteras v. United States, a case that examines what factors a court may consider in holding that a person has violated a supervised release term and ordering him or her back to prison

The supervised release statute, 18 USC § 3583(e) requires a court to consider some but not all of the 18 USC § 3553(a) sentencing factors in deciding whether to send a violator back to prison (and for how long). The statute omits reference to § 3553(a)(2)(A) — which lists the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense, as legitimate considerations when imposing an initial sentence on people.

Five courts of appeals have concluded that district courts may rely on § 3553(a)(2)(A) factors even though they’re excluded from the list. Four other appellate have concluded that they may not. The government argues that courts can properly consider such factors and that “[a]ny modest disagreement among the courts of appeals on the question presented has no practical effect.”

The decision will be handed down by the end of next June.

Esteras v. United States, Case No 23-7483 (certiorari granted October 21, 2024)

SCOTUSBlog.com, Fourteen cases to watch from the Supreme Court’s end-of-summer “long conference” (October 10, 2024)

– Thomas L. Root