Tag Archives: supervised release

3rd Circuit Says Nothing Extraordinary in Supervised Release Early Termination – Update for October 20, 2020

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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.

WE MAY HAVE MISREAD THAT, THE COURT SAYS…

supervisedrelease180713Supervised release is a period after a federal inmate completes his or her prison sentence – a lot like parole and kind of like probation – during he or she is subject to a series of reporting conditions and limitations imposed by the court. A U.S. Probation Officer supervises the former inmate, and holds the power to seek revocation of supervised release and return to prison under evidentiary and procedural standards that are rather lax, to say the least.

Fortunately for the former inmate, under 18 USC § 3583(e), someone on supervised release can get that supervision term ended early. The statute requires the court, in deciding whether to terminate early, to apply the 18 USC § 3553(a) sentencing factors. No surprise there, but many courts have been buying into the government’s argument that just being good while on supervision isn’t enough: the movant has to show something extraordinary or exceptional justifying saving the government money and the former inmate aggravation.

supervisedleash181107Aggravation? Well, yes. The former inmate must make monthly filings detailing his or her finances, purchases and employment. He or she cannot leave the federal district without permission of the Probation Officer. Often, he or she cannot change jobs without the Probation Officer’s OK, and woe betide anyone who has an unreported contact with someone who has a criminal record (that would be one out of three adult Americans). Oh, yes, the Probation Officer can search the former inmate’s home at any time without a warrant.

supervisedrevoked181106Nationally, the rate of violations that result in a hearing before the judge (where return to prison is a possibility) is about 17%.  The prevalence of supervision violations, however, varies considerably among the federal judicial districts. In a July 2020 U.S. Sentencing Commission study, more than a third of individuals on supervision risked reimprisonment in violation hearings in the Southern District of California (42.1%), District of Minnesota (37.4%), Western District of Missouri (34.3%), District of Arizona (33.7%), and District of New Mexico (33.4%). In contrast, violations accounted for less than five percent of individuals on supervision in the Districts of Connecticut (4.5%) and Maryland (4.7%).

No wonder people on supervised release want to “get off paper,” as they put it. But few can meet the “extraordinary or exceptional reason” for early termination standard many courts impose.

Last week, the 3rd Circuit traced the twisted history of this “extraordinary or exceptional reason” requirement, and found no support for the standard.

The 3rd acknowledged that its prior non-precedential decisions had required “something exceptional or extraordinary” to warrant early termination, relying on the Second Circuit’s United States v. Lussier decision. “But this was a misreading of Lussier,” the 3rd Circuit said, in a rare acknowledgement that it had previously been wrong:

As the Second Circuit explained more recently, ‘Lussier does not require new or in order to modify conditions of release, but simply recognizes that changed circumstances may in some instances justify a modification’. In other words, extraordinary circumstances may be sufficient to justify early termination of a term of supervised release, but they are not necessary for such termination. We think that generally, early termination of supervised release under § 3583(e)(1) will be proper only when the sentencing judge is satisfied that new or unforeseen circumstances warrant it. That is because, if a sentence was ‘sufficient, but not greater than necessary’ when first pronounced, we would expect that something will have changed in the interim that would justify an early end to a term of supervised release. But we disavow any suggestion that new or unforeseen circumstances must be shown.”

Got that? “Extraordinary or exceptional reasons” no longer necessarily apply, except when they generally do.

money160118Each person being supervised costs the government about $4,400.00, according to the Administrative Office of United States Courts. You’d think that saving that money might be a factor for more courts, especially where there is no discernible benefit to the supervisor or supervisee by continued oversight.  

But then, what’s $4,400 a year, even when multiplied by the 133,000 people under supervision?  Answer: a half billion a year, a mere flyspeck to Uncle Sam.

United States v. Melvin, 2020 U.S. App. LEXIS 32683 (3rd Cir. October 16, 2020)

– Thomas L. Root

One Court Gives, Another Takes on Supervised Release – Update for February 26, 2020

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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.

P.O. KNOWS BEST, AND OTHER STORIES

A pair of supervised release condition cases last dramatically broadened defendants’ protections against probation officers running amok, but greatly narrowed the window defendants have to challenge those conditions.

supervisedrelease180713First, a little background: In the Sentencing Reform Act of 1984, Congress decreed that virtually all persons convicted of a federal criminal offense who were sentenced to prison would also serve a term of supervised release – during which they would be subject to limitations on travel and association, to regular reporting requirements, and to oversight by a probation officer – after the prison sentence ended.

Thus, supervised release is similar to what used to be parole. The conditions of supervised release are imposed by the district judge at sentencing, at which time the defendant – focused entirely on the impending prison term – hardly ever pays attention to the many ambiguities and indignities that the supervised release terms (a number of which are of dubious constitutionality) will impose on him or her after prison is but an unpleasant memory.

Now back to the live action: One of the supervised release conditions imposed on Shawn Lee, who was convicted of settling meth, prohibited him from “knowingly meeting, communicating, or otherwise interacting with any person whom she knows to be a convicted felon… unless granted permission to do so by the probation officer.” He appealed the supervised release condition, arguing that it was an improper delegation of Article III power by the court to the probation officer, and that – because Shawn’s two sons were also convicted felons (it appearing to run in the family) – it meant the PO could keep Shawn from seeing his own offspring.

Federal judges are known as “Article III judges,” because they are appointed by the president and confirmed by the Senate under Article III of the constitution, which give them (and only them) the power and duty of imposing punishment on a defendant. While an Article III judge may task a probation officer (who is not an Article III judge) with “performing ministerial acts or support services related to the punishment imposed,” the non-delegation rule prohibits the judge from allowing a probation officer to decide the nature or extent of a defendant’s punishment.”

supervisedleash181107Last week, the 7th Circuit ruled the supervised release condition went too far. “The probation officer’s future task, then, is not merely to manage or supervise, but to determine whether, when, and how a particular component of Lee’s punishment is imposed.” The condition “anoints the probation officer with the sole authority for deciding if” Shawn can even see his own kids.

“Article III does not confer upon the probation officer the authority to release a convict from a component of his or her sentence, either,” the court said. “The clause ‘unless granted permission to do so by the probation officer’ violates this principle and must be stricken… only the district judge can permit or deny association.”

Supervised release conditions are usually chock-a-block with delegations of power to the PO. This decision suggests that most of those are constitutionally flawed. But before inmates fire up their law library typewriters, they should consider a 6th Circuit decision, also from last week.

Robert Faber complained that his supervised release conditions did not let him live with his Wiccan religion “spouse.” He filed an 18 USC § 3583(e)(2) motion to modify the condition, arguing it violated the Religious Freedom Restoration Act.

The district court denied the motion, and Bob appealed.

Last week, the 6th Circuit held that it lacked jurisdiction. Under § 3583(e)(2), a district court may modify or rescind a condition of supervised release after considering certain enumerated factors, including “the circumstances of the crime, the characteristics of the defendant, deterrence, protecting the public, providing the defendant with training and education, and others,” the Circuit said. “Not included: illegality of the condition.”

time161229Under the Sentencing Reform Act of 1984, the right to challenge an illegal sentence under F.R.Crim.P. 35(a) was cut, requiring defendants to move for such relief within just 14 days after sentence. “Construing § 3583(e)(2) as allowing district courts to eliminate an allegedly illegal condition at any time would disregard the plain text of the statute and frustrate Congress’s intent to encourage timely challenges.”

Bob could have appealed the condition, claiming illegality. He could have filed a timely Rule 35(a) motion. But he did not. He can argue under 18 USC § 3582(e)(2) that the supervised release condition should be set aside for any number of reasons, but the condition’s illegality is not one of them.

United States v. Lee, 2020 U.S. App. LEXIS 4944 (7th Cir. Feb. 18, 2020)

United States v. Faber, 2020 U.S. App. LEXIS 5063 (6th Cir. Feb. 19, 2020)

– Thomas L. Root

Retroactive Crack Law Applies to Some Completed Sentences, 6th Says – Update for February 11, 2020

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ANOTHER CIRCUIT RULES SUPERVISED RELEASE DEFENDANT ELIGIBLE FOR RETROACTIVE FAIR SENTENCING ACT CUTS

The 6th Circuit joined the 4th last week in ruling that a defendant now serving a prison term for violating supervised release could apply for a retroactive sentencing cut under the Fair Sentencing Act, despite the fact he had completed serving the underlying crack cocaine sentence.

supervisedrevoked181106Aaron Woods served 120 months after being convicted in 2001 for distributing crack. After he was released, he was on supervised release for five years, during which time he caught a state marijuana case. His SR was violated, and he was sent back to federal prison for another 37 months for the revocation.

Aaron applied under the First Step Act for retroactive application of the 2010 Fair Sentencing Act sentence cut. The district court held he was ineligible because his current sentence was for violating SR, not for crack.

The 6th disagreed. “Postrevocation penalties relate to the original offense,” the Circuit held. Treating “revocation and reimprisonment as punishment for the violation of the conditions of supervised release” instead of a continuation of the original offense would raise “serious constitutional questions, such as double jeopardy concerns.” Therefore, Aaron was eligible for an FSA sentence cut.

United States v. Woods, 2020 U.S. App. LEXIS 3462 (6th Cir. Feb. 4, 2020)

– Thomas L. Root

Fifth and 11th Circuits Give and Take on Supervised Release – Update for January 8, 2020

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A PAIR OF DECISIONS, GOOD AND BAD, ON SUPERVISED RELEASE

supervisedleash181107Worrying about supervised release may seem a waste of time for inmates more concerned with getting released from federal prison, but virtually everyone with a sentence of less than life will be on federal supervised release sooner or later. A full one-third of those people will have their probation officers seek to revoke their terms (and send them back to prison) before their supervised release term ends.

Supervised release is a term of years, something like parole, imposed after imprisonment. During this period, the released prisoner is subject to a series of conditions – such as holding a job, paying restitution, refraining from new criminal conduct – and reports regularly to a U.S. Probation Officer.

Anthony Foley was on federal supervised release when he was charged with a couple of state drug cases. He neglected to tell his probation officer about them, and – when he was found out – Tony was violated for the failure to report the matter. Tony faced 7-13 months under the supervised release Guidelines. He argued for seven months; the government asked for 13.

The district judge gave him 24 months, saying that Tony’s “criminal history category of five — and his willful failure to notify the probation office within 72 hours of arrest, and I believe, based upon these pending — just pending charges, he’s a continued threat to the community. I believe an upward variance is appropriate.”

Last week, the 5th Circuit reversed. The appellate court held that “a district court errs when it relies on a bare allegation of a new law violation contained in a revocation petition unless the allegation is supported by evidence adduced at the revocation hearing or contains other indicia of reliability, such as the factual underpinnings of the conduct giving rise to the arrest.” Where, as here, “the revocation petition included only bare allegations of new violations of law, and the allegations were not supported by evidence at the revocation hearing and do not have other indicia of reliability,” they were impermissible factors for the district court to consider.”

supervisedrevoked181106Meanwhile, in the 11th Circuit, Jeffrey Hill likewise caught a state drug case while on supervised release. During his revocation proceeding, he filed a motion to suppress evidence he said resulted from an illegal search. The district court ruled that suppression of evidence because of a 4th Amendment violation – the exclusionary rule – does not apply to supervised release revocations.

Last week, the 11th Circuit agreed. Because suppression of evidence imposes “substantial social costs,” including “its toll on ‘the truthfinding process, its incompatibility with the traditionally flexible, administrative procedures of parole revocation, and its frequent necessity for extensive litigation to determine whether particular evidence must be excluded,” the Supreme Court has held the exclusionary rule does not apply in state parole hearings. The Circuit said in light of that, it could see no reason why the exclusionary rule should not apply to supervised release revocation hearings.

United States v. Foley, 2020 U.S. App. LEXIS 61 (5th Cir. Jan. 3, 2020)

United States v. Hill, 2020 U.S. App. LEXIS 51 (11th Cir. Jan. 3, 2020)

– Thomas L. Root

4th Circuit Drops Two Huge Pro-Defendant First Step/Fair Sentencing Act Opinions – Update for November 25, 2019

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The ever-surprising Fourth Circuit last week handed down two blockbuster opinions on application of the retroactive Fair Sentencing Act of 2010. For those of you new to this blog, the Fair Sentencing Act changed the 100-to-1 ratio of crack to powder cocaine, dropping it to a more (but not completely rational) 18-to-1 ratio. That dramatically affected the sentences of people in federal prison for crack (94% of whom are black), but the change only applied to people who had not yet been sentenced. Those already in prison would continue to languish under the oppressive (and now discredited) sentences.

The First Step Act, passed eight years later, finally extended retroactivity to the Fair Sentencing Act. Finally, people sentenced before August 2010 – the effective date of the Fair Sentencing Act – could get a break. But the devil has been in the details. Last week, the 4th Circuit delivered a reason some federal prisoners might be extra thankful this Thanksgiving season.

THE 4TH CIRCUIT GOES UNITARIAN

One of the perks of writing this newsletter (besides long hours over the weekend and no pay) is that I get to be wrong so often.

After the First Step Act made the Fair Sentencing Act (FSA) retroactive, a lot of people serving supervised release (SR) violations after finishing crack sentences wondered whether they could get their crack sentences reduced even though they had already been served. It seemed to me that the law said “Hell, no”.

Last week, the 4th Circuit said, “Hell, yes.”

Bobby Venable, who was serving an SR violation sentence, filed an FSA sentence reduction motion applicable to his prior crack sentence. Bobby claimed he would no longer face a statutory minimum 10-year term of imprisonment, and he wanted to be resentenced to 63 months. Bobby claimed this sentence would allow the Bureau of Prisons to credit him for overserved time, to be applied to his current term of imprisonment for revocation of supervised release.

The district court summarily denied his motion, holding that because Bobby “has finished his term of incarceration and is currently in custody following revocation of his supervised release[,] no reduction is authorized.”

unitary191125No court of appeals has yet considered whether a defendant on SR can get an FSA reduction for a sentence already served, but the 4th Circuit decided that “the plain language of the relevant statutes and the unitary theory of sentencing” permitted Bobby a reduction. The Circuit said that because Bobby’s original offense was for crack cocaine, “so long as he is serving any part of his sentence for that offense, he is eligible for a reduction. His offense (possession of 12.1 grams of cocaine base) was originally classified as a Class B felony, but under the Fair Sentencing Act’s provisions, it is now classified as a Class C felony. This reclassification corresponds with a lower range of statutory penalties.”

Relying on yet another Johnson case, this one Johnson v United States, a 2000 Supreme Court decision, the 4th “adopted a unitary sentence framework… stating that treating custodial and supervised release terms as components of one unified sentence appropriately recognizes the interdependent relationship between incarceration and supervised release.” The Circuit said Bobby’s “revocation sentence is a component of his underlying original sentence for the drug conviction.” Thus, Bobby “is still serving his sentence for a “covered offense” for purposes of the First Step Act. Thus, the district court had the authority to consider his motion for a sentence reduction, just as if he were still serving the original custodial sentence.”

United States v. Venable, 2019 U.S. App. LEXIS (4th Cir. Nov. 20, 2019)

STATUTORY CHARGE, NOT THE PSR FINDING, COUNT FOR FSA

FSA resentencings have bogged down recently over the issue of what amount of crack should count for resentencing purposes.

Comparativecrack190425

The issue is a simple one: a defendant was charged with distribution of “50 or more grams of cocaine base,” which carries a 10-year sentence. But at sentencing, the presentence report prepared by the U.S. Probation Office goes wild (usually based on the prosecutor’s say-so), and finds the defendant was involved with 1.2 kilos of crack.

When the defendant, twenty years later, goes for resentencing, the district court denies the motion because the 1.2 kilos would still carry a 10-year mandatory minimum under the post-FSA law.

We’ve been waiting for the issue of which one counts – the indictment accusation or the sentencing finding – and last week, we got our first circuit ruling… and it’s a good one.

Ten years ago, Dan Wirsing was charged with possession with intent to distribute more than 5 grams of crack. He struck a plea deal with the government in which he admitted that the crack amount was 60 grams, and he got 188 months.

When Dan filed for a reduced sentence under the newly-retroactive FSA, his district court denied him for being ineligible, because the amount he admitted to – 60 grams – had the same statutory sentence now that 5 grams had before the FSA. Because there was no change in the punishment, the district court said, Dan had nothing coming under the FSA.

Last week, the 4th Circuit reversed. The First Step Act provides that a sentencing court “may… impose a reduced sentence as if sections 2 and 3 of the FSA were in effect at the time the covered offense was committed.” A “covered offense” is “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the FSA that was committed before August 3, 2010.”

onething191125It does not matter, the 4th says, what Dan pled to or what the presentence report found or what the district court held at sentencing was the amount of crack involved in the offense. All that matter is that “the covered offense” was changed by the FSA, the 4th Circuit said, and the “covered offense” is what the indictment alleged, nothing more.

Other circuits will weigh in on this, no doubt, but the 4th’s unanimous and well-reasoned 22-page decision is bound to get a lot of deference when other courts decide the issue.

United States v. Wirsing, 2019 U.S. App. LEXIS (4th Cir. Nov. 20, 2019)

– Thomas L. Root

Court Reminds That Some Supervised Release Provisions Are Constitutional Duds – Update for November 22, 2019

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SLEEPERS

A 9th Circuit decision last week reminded me that countless defendants have judgments in their cases that contain some sleeper supervised release terms of dubious constitutionality.

sleeper191122Until Guidelines Amendment 803 in November 2016, standard conditions of supervised release included a requirement that a defendant “support his… dependents and meet other family responsibilities,” that he “work regularly at a lawful occupation,” and that he “notify third parties of risks that may be occasioned by [his] criminal record or personal history or characteristics.” Both the 7th and 9th Circuits have struck those standard conditions as being unconstitutionally vague under United States v. Evans, 883 F.3d 1154, 1162-64 (9th Cir. 2018) and United States v. Thompson, 777 F.3d 368, 379 (7th Cir. 2015).

Those conditions still purportedly apply to tens of thousands of prisoners when they are released, and can probably be addressed on or near release with a motion under 18 USC § 3583(e).

United States v. Ped, 2019 U.S. App. LEXIS 34092 (9th Cir. Nov. 15, 2019)

– Thomas L. Root

Futile Arguments of the Week – Update for October 31, 2019

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CAPTAIN OBVIOUS

obvious191031Two cases decided last week serve as reminders that some arguments are so obviously futile as to constitute a waste of everyone’s time.

Anthony Shockey violated supervised release by using methamphetamine. Use of a controlled substance is a Grade C violation, but new criminal conduct is a Grade B or A violation. His probation officer charged him with possession of meth, a violation of state law. Tony argued to the judge that he had not possessed the meth, just used it.

Guess how that turned out.

burger191031The district court found a Grade B violation, and imposed a prison term. On appeal, Tony Shockey contended that his use of meth did not require a finding that he also possessed it. The 7th Circuit would entertain none of that. “The district court reasonably could infer possession from use,” the Circuit said. “Inferring possession of a drug from the consumption of that drug is just as sensible as inferring, from the statement ‘I ate a hamburger for lunch,’ that the person possessed the hamburger before wolfing it down.”

Meanwhile, in the Western District of New York, George Moses had a proffer deal with the government. The government says that he lied through his teeth, so much so that it obtained a superseding indictment accusing him of making false statements to federal agents.

George moved to dismiss the new counts, arguing that the proffer agreement was ambiguous about whether the government could prosecute him for any lies he told, and the ambiguity should be resolved in his favor. Last week, the district court refused to throw out the counts.

The Court noted that in the proffer agreement, George had “agreed to provide complete and truthful information regarding any and all criminal matters of which the witness may have knowledge.” Under the agreement, the government could demand George take a polygraph. And paragraph 5 provided that while the information he provided could not be used against him, “any statements… provided by the witness may be used against the witness in a prosecution for perjury, making false statements or obstruction of justice.”

liar151213The district court said that plainly, the parties’ intention gleaned from the the proffer agreement was that George would tell the truth during the proffer session. “The agreement repeatedly makes it clear that Defendant must be truthful at the proffer session,” the district judge wrote. “That was the bargain struck by the parties. To interpret the agreement in the manner urged by Defendant would constitute a tortured reading of the proffer agreement that would ultimately permit Defendant to lie with impunity at the proffer session in direct contravention of the purpose of the agreement.”
Yeah, that was pretty obvious.

United States v. Shockey, 2019 U.S. App. LEXIS 31474 (7th Cir. Oct. 22, 2019)

United States v. Moses, 2019 U.S. Dist. LEXIS 181823 (WDNY Oct. 21, 2019)

– Thomas L. Root

Waive Your Supervised Release Termination ‘Goodbye’ – Update for August 14, 2019

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3RD CIRCUIT USES PLEA WAIVER TO BAR SUPERVISED RELEASE EARLY TERMINATION

pleadeal180104Almost all of the 97% of federal criminal defendants who take guilty pleas do so pursuant to a plea agreement. And these days, most of those plea deals prohibit the defendant from appealing or otherwise attacking the conviction and sentence.

But up to now, no one ever thought waiver extended to supervised release. Instead, it has always been a tenet of faith that a defendant could petition the court under 18 USC § 3583(e)(1) to terminate supervised release after a year if everything had gone well.

Congress decreed that virtually every sentence of incarceration would include a post-release sentence of supervised release. Under supervised release, the post-release defendant is subject to a bevy of reporting, travel, social and financial restrictions, all overseen by a U.S. Probation Officer. On the average, a third of all former prisoners are found by courts to have violated some supervised release requirement. Given the squishy and vague conditions, not to mention the arbitrary power wielded by the Probation Officer, it’s little wonder.

Last week, the 3rd Circuit broke unwelcome new ground, holding that a plea agreement waiver of the right to challenge the sentence in any way extended even past release. Ronald Damon, according to the appeals court, “signed a plea agreement with the United States accepting responsibility for a federal crime. He served time in custody and left prison. Now, having reentered society, he wants a fresh start, free from further oversight by the federal government. So Damon asked to end his term of supervised release a few years early. He offered facts and circumstances justifying his request, and highlighted the hardships imposed by restrictions on his activities. But Damon’s present desires are controlled by a past decision: his contract with the government containing the terms and conditions of his guilty plea. Because his plea agreement precludes challenges to his sentence, and because any shortening of his supervision would amount to a change in his sentence, we will affirm the decision of the District Court.”

Waivers160215The Court said that “in the agreement, Damon waived the right to file any motion or appeal that challenges the sentence imposed… Supervised release is part of the sentence that Damon received… Damon’s motion… questions his original sentence by seeking to shorten the term of his supervised release. By its very nature, it is a challenge to the sentence imposed.”

United States v. Damon, Case No. 18-2444, 2019 U.S. App. LEXIS 23466, 2019 WL 3559045 (3rd Cir. Aug. 6, 2019)

– Thomas L. Root

SCOTUS Remands Haymond With Muddled Opinion – LISA Update for June 27, 2019

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SUPREME COURT BADLY SPLIT ON SUPERVISED RELEASE REVOCATION

The Supreme Court today fractured badly on whether a supervised release revocation requires a jury finding beyond a reasonable doubt.

The issue was an extreme one: Under 18 USC § 3583(k), a supervised release violation involving certain statutes prohibiting child sex abuse or pornography requires a mandatory five-year additional term. The Tenth Circuit had declared the provision unconstitutional, raising the question whether ANY supervised release violation that included a prison term could be found unless a jury did so beyond a reasonable doubt.

scotussplit190627Yesterday, four justices found that supervised release violations that led to prison terms had to be found by a jury beyond a reasonable doubt. Justice Neil Gorsuch wrote, “The lesson for this case is clear: Based solely on the facts reflected in the jury’s verdict, Mr. Haymond faced a lawful prison term of between zero and 10 years. But just like the facts the judge found at the defendant’s sentencing hearing in Alleyne, the facts the judge found here increased “the legally prescribed range of allowable sentences” in violation of the Fifth and Sixth Amendments.”

However, four Justices are not a majority. Justice Breyer, in a concurring opinion, agreed that the particular provision at issue, 18 USC § 3583(k), is unconstitutional. But because the role of the judge in a typical supervised-release proceeding is consistent with traditional parole and because Congress clearly did not intend the supervised release system to differ from parole in this respect, he did not agree with the other four that the Apprendi line of cases applied in the supervised-release context.

Four other justices dissented sharply.

Under precedent, § 3583(k) is declared unconstitutional, but Justice Breyer’s narrower decision controls. Thus, for now, traditional supervised release violations remain free of a reasonable-doubt Apprendi v. New Jersey requirement.

A final opinion day for the Supreme Court’s year is set for today. We expect the decision in Carpenter v. Murphy at that time.

United States v. Haymond, Case No. 17–1672 (June 26, 2019)

– Thomas L. Root

Ask Not For Whom the Supervised Release Term Tolls – Update for June 4, 2019

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SUPREME COURT HOLDS THAT PRETRIAL DETENTION LATER CREDITED TO NEW SENTENCE TOLLS SUPERVISED RELEASE

Jason Mont was on five years’ supervised release after doing time for a federal drug offense, scheduled to end on March 6, 2017. With nine months to go, Ohio arrested him for a marijuana trafficking conspiracy and locked him in the beautiful, high-rise Mahoning County jail.

supervisedrelease180713Four months later, Jason pled guilty to the pot charge in state court, and then admitted in federal court that he had violated his supervised-release conditions by virtue of the new state convictions. The federal district court finally got around to issuing a supervised release violations warrant on March 30, 2017, four months later, right after Ohio sentenced him to six years in prison for the pot, with credit for the 10 months he had spent in Mahoning County jail.

When Jason finally had his supervised release revocation hearing in June 2017, he challenged the district court’s jurisdiction on the ground that his supervised release had expired on March 6. he argued that the expiration of his supervised release deprived the district court of jurisdiction to issue the warrant on March 30. The court rejected the argument, and ordered him to serve 42 months’ federal imprisonment, to run consecutive to his state sentence.

The Sixth Circuit held that Jason’s supervised-release period was tolled under 18 USC § 3624(e), which provides that a “term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a . . . crime unless the imprisonment is for a period of less than 30 consecutive days.” Because the roughly 10 months of pretrial custody was held to be “in connection with [Jason’s] conviction,” the appellate court said, his supervised release was tolled in June 2016, and had not yet resumed running as of the time the warrant issued. Thus, there was ample time left on the supervised release term when the warrant issued.

Yesterday, the Supreme Court narrowly agreed. In a 5-4 decision, the Court ruled that pretrial detention later credited as time served for a new conviction is “imprison[ment] in connection with a conviction” and thus tolls the supervised-release term under 18 USC § 3624(e), even if the court must make the tolling calculation after learning whether the time will be credited.

The Court said the text of § 3624(e) compels its conclusion. First, dictionary definition of the term “imprison,” both now and at the time Congress created supervised release, encompasses pretrial detention. Second, the phrase “in connection with a conviction” encompasses a period of pretrial detention for which a defendant receives credit against the sentence ultimately imposed. Congress, like most states, instructs courts calculating a term of imprisonment to credit pretrial detention as time served on a subsequent conviction.

supervisedrevoked181106The statute undeniably requires courts to retrospectively calculate whether a period of pretrial detention should toll a period of supervised release, as evidenced by its inclusion of the 30-day minimum jail stay needed to trigger tolling. The statute does not require courts to make a tolling determination as soon as a defendant is arrested on new charges or to continually reassess the tolling calculation throughout the pretrial-detention period. Inasmuch as the statute does not count jail for less than 30 days as tolling supervised release, it clearly anticipates that the tolling decision need be made only once at the end of the period in question.

The statutory context also supports the Court’s interpretation. The Supreme Court said it “would be an exceedingly odd construction of the statute to give a defendant the windfall of satisfying a new sentence of imprisonment and an old sentence of supervised release with the same period of pretrial detention. Supervised release is a form of punishment prescribed along with a term of imprisonment as part of the same sentence. And Congress denies defendants credit for time served if the detention time has already ‘been credited against another sentence’.”

Mont v. United States, Case No. 17-8995 (Supreme Court, June 3, 2019)

– Thomas L. Root