Revoking Federal Supervised Release

This article is a bit old, but we dug it up out of the archives from the Kansas Federal Defender Blog. Sentences handed down after revoking federal supervised release and probation can be run consecutively, even if the court re-starts supervision post-release.

However, this isn’t necessary, as revocation sentences for supervised release and probation violations are not mandatory. Just like regular sentences after U.S. v. Booker, these guidelines in USSG §7B1.3(f) are advisory, and have been even before Booker.

Here is the meat of the article:

Here are a couple of points about supervised release revocations, some good and some bad:

Concurrent sentences are allowed. The ‘mandatory’ part: the violation report will say that a SRV sentence “shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving,” whether or not related to the SRV, citing §7B1.3(f). Sounds kinda mandatory, doesn’t it? But not so.

The ‘advisory’ part: Even before Booker, the revocation guidelines were only advisory because the Commission issued only policy statements rather than actual guidelines (the SRV report usually notes this when advising that the Court that it can go ‘outside’ the range without notice, citing the upward departure case of Burdex). Still, the question often arises whether concurrent sentences are permissible. The Tenth Circuit says yes , the district court has discretion to impose concurrent sentences, not withstanding the advisory mandate of §7B1.3(f), as this is allowed by 18 USC §3584.

Timing is Everything. Nice published opinion from the 10th Cir this week in US v. Crisler , which rebuffed the Court/USPO’s attempt to revoke a defendant after supervision had expired, even though revocation proceedings were pending. Citing 18 U.S.C. § 3565(c),

“the court cannot revoke probation after the term of probation has expired unless (1) the delay in revocation was reasonably necessary and (2) a warrant or summons issued before the expiration date. Neither condition was met here. It is undisputed that the amended petition for revocation was filed after the probation term had expired. And even if the “amended” petition is deemed to relate back to the original petition of April 5, 2006, with respect to the alcohol-related allegation, it was not “reasonably necessary” to delay revocation until after expiration of the term of probation.”

The same language applies to SRV’s, per 18 USC §3583(e) and (i).

Not so nice. A recent guideline amendment, effective 11.1.2006, imposed or perhaps clarified, that three offense levels should be added when an offense was committed on PRETRIAL release, USSG §3C1.3. (Btw, to avoid confusion, USSG here refers to the guidelines, not the other USSG, United Skates School Group.) This attempts conformance with 18 USC §3147, usually referenced at the Rule 5 when released on bond. Remember, ‘appropriate sentencing notice’ must be provided before this three levels applies, but the Rule 5 advice may serve as notice, US v. Browning. 61 F3d 752 (10th Cir 1995).

This article is a bit more legally technical than the average blog post here at PCR Consultants, but the content is good and can be very important.

Avoiding violations is always best, but not always easy. E-mail us if you need some solid information regarding supervised release, and how to keep out of trouble.

Ending Federal Probation in the Age of Sequestration

Update: 4/21/14

It seems as though Sequestration changed the way many probation departments handled early release requests. For most of Summer/Fall 2013, probation officers were ending federal probation early for their supervisees on their own request. However, it seems that this trend is waning and there is a heightened need for do-it-yourself motions. E-mail us or give us a call to find out how to do this!

Ending Federal Probation Early – The New Game

The topic of the federal budget sequestration hasn’t arisen much in the news much since early Spring. However, it is important to know that these distasteful budget cuts are still in effect, and will seemingly remain in effect for the near future.

In a time where government budgets are stretched, nowhere is this more apparent than in the federal justice system. Dated August 13, 2013 a letter was sent to congress signed by 87 Chief District Judges that dealt specifically with the budget cuts the Sequestration has made to the federal judiciary.

Here’s the most interesting part for those seeking federal probation termination:

“As a result of sequestration, funding allocations sent out to court units were cut 10 percent below the fiscal year 2012 level. Clerks of court and probation and pretrial services offices will downsize by as many as 1,000 staff during fiscal year 2013 due to this reduction in funding. Staffing in these same offices has been reduced by nearly 2,100 staff between July 2011 and July 2013, representing a 10 percent staffing loss to the Judiciary over this two-year period. Our current staffing level is the lowest it has been since 1999 despite significant workload growth during this same period of time. In addition to downsizing, the courts have already incurred 4,500 furlough days as of June 2013, and an additional, 4,100 furlough days are projected by the end of the fiscal year.”

. . . and later:

“Funding cuts to the Judiciary have also put public safety at risk. The Judiciary employs nearly 6,000 law enforcement officers—probation and pretrial services officers—to supervise individuals in the community after they have been convicted of a crime and subsequently released from prison, as well as defendants awaiting trial. The number of convicted offenders under the supervision of federal probation officers hit a record 187,311 in 2012 and is on pace to reach 191,000 by 2014. At a time when the workload in our probation and pretrial offices continues to grow, budget cuts have reduced funding allocations to these offices by 10 percent. Staffing in probation and pretrial services offices is down nearly 600 (7 percent) since 2011.”

Hit ‘Em Where it Hurts

No matter the political leaning of a specific judge, the fact that 87 out of 94, or 92.5%, Chief judges signed this letter1 shows that budget problems have their attention.

The one place judges can agree, and where a probationer (or those on federal supervised release) can focus on, is the Court’s pocketbook. Want to hit ’em where it hurts? Try the wallet.

 

PCR Consultant’s Probation Termination service

This, like many other current issues that affect the federal courts, is used to its maximum effectiveness in each of our client’s services. When the goal is ending federal probation early, using as many arguments like this as possible only helps. If you want to get started on the road to terminating federal supervised release early, click here.

  1. When, as federal district judge Richard G. Kopf (NE) said in this article about the letter “As a former Chief District Judge, I know that you can almost never get 87 Chief District Judges to agree about when the sun comes up. The fact that 87 of them wrote the foregoing letter to Congress ought to make clear that the federal district courts are inches away from disaster. Congress is on the brink of intentionally wrecking the federal trial courts. Will sanity prevail?” []