This article is 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 §7B1.4 are advisory, and have been even before Booker.
From the heartland 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.