Tag Archives: revocation

6th Circuit Bans Government Nostrums at Sentencing – Update for October 23, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


After a federal inmate serves a prison sentence, he or she begins a period known as supervised release. SR is a fancy term for “parole,” except that unlike traditional parole, it doesn’t reduce a sentence. Instead, by law, SR is tacked on to every sentence, even life sentences (which end only with a pine box).

wencelausDPRK171023While on supervised release, an offender is under the thumb of a U.S. Probation Service officer, who has great latitude to either leave the offender largely alone or impose oppression that makes Kim Jong Un look like Good King Wencelaus. While the object of SR is to assist the offender in his or her reintegration into society, one supervising probation officer candidly told us a few years that his district violates a third of all offenders under their supervision.

Upon violation, an offender may be continued on supervision, have supervision extended, or sent back to prison. Because the standard of proof for a supervision violation is much lower than the “reasonable doubt” standard of criminal law and the evidentiary standards are loosey-goosey by comparison to a criminal trial, SR is a Sword of Damocles for ex-offenders trying to get back on their feet.

Of course, there are those offenders – like Ernie Adams, a 71-year old who has been addicted to opiates for 40 years – who just cannot conform. Ernie was on supervised release after serving a drug conspiracy sentence. Unsurprisingly for his addiction history, he failed drug tests three times in as many weeks, and got violated.

What do you expect of an addicted person? It’s a disease. You might as well demand that a person with bronchitis not cough.

fake171023Nevertheless, continued drug use is forbidden by the conditions governing supervised release, and Ernie’s supervised release was revoked. Ernie’s Guidelines range for his SR violation was 21-27 months. At sentencing, the judge talked extensively about Ernie’s substance-abuse problems and rehab failures. The government argued at sentencing that long-term heroin addicts like Ernie needed 18 months for their brain chemistry to “reset” in order for future treatment to be effective. The court nodded in sage agreement to this scientific stat, but cut Ernie a break by sentencing him to 18 months, three months below the bottom of the Guidelines range.

You’d think Ernie would figure he’d dodged the bullet, but you’d be wrong. Ernie appealed, arguing the sentence was procedurally and substantively unreasonable. Last week, the 6th Circuit agreed.

It turns out that the government’s talk about the 18-month brain “reset” was fake science. The government countered, however, that while what it told the court was as phony as phrenology, that did not matter, because Ernie had no right to the government telling the court the truth. Actually, the government’s argument was a little more nuanced than that, contending that a defendant does not have a due-process right “to be sentenced based on accurate information… beyond the facts of the defendant’s own actions and criminal record.”

The government’s argument was as fake as its “science.” The 6th Circuit said “the due-process right to be sentenced based on accurate information is not limited to information solely about the defendant’s actions and criminal history.” Instead, if the bad science embraced by the sentencing court was an “important factor” in calculating Ernie’s sentence, Ernie’s rights were violated.

pseudo171023The Circuit held that the government’s 18-month brain “reset” was “an unsubstantiated assertion that has the veneer of accuracy due to its supposed status as a product of scientific research.” And it was persuasive: the district court told Ernie it had chosen the sentence length “because you need that long to reset and maybe get another, maybe get another chance at remaining clean and sober.” The Circuit concluded “the district court, therefore, violated Adams’s due-process right when it incorporated this unreliable information in its sentencing decision, and thus this sentence is procedurally unreasonable.”

The 6th Circuit said that while it presumes that a sentence below or within the sentencing range is substantively reasonable, that’s not invariable. Here, Ernie argued that the district court imposed a substantively unreasonable sentence because it to impose a sentence of imprisonment and extended the length of the sentence in order to rehabilitate him. The Circuit noted that the Supreme Court has held that extending a sentence in order to rehabilitate is prohibited, and concluded that the sentence – even though it was below-guidelines – was substantively unreasonable.

United States v. Adams, Case No. 16-2786 (6th Cir., Oct. 11, 2017)

– Thomas L. Root


Supervised Release: The Neverending Nightmare – Update for January 20, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Bob Cross is doing life by the installment plan. He caught a marijuana case (or marihuana, as the government would put it) 2006, and sentenced to 60 months in prison, followed by four years of supervised release.

groundhog170120In August 2010, Bob got out and started his supervised release term, which – for those of you who have had the enjoyment of crossing swords with the federal criminal justice system – is nothing but glorified parole, and a seemingly endless bad dream to boot. Essentially, during supervised release, an offender has to file a monthly report on a form that is as vague and all-encompassing as the federal criminal code itself, and must adhere to equally spongy conditions. Violating the conditions is as easy as walking out your front door in the morning, leaving an offender’s continued freedom pretty much at the mercy of his or her probation officer (and, of course, the court for which the probation officer works).

You’ve heard the old business aphorism, “The customer is always right?” See how that applies when you’re arguing to a district court that the opinion of a probation officer on whom the court relies for so much – and who is a judicial agency employee to boot – should be overruled. You may as well ask Donald Trump to overrule Melania or Ivanka.

right170120Sometimes, however, the violation is fairly obvious. It was for Bob. During his supervised release term, Bob caught state drug possession and theft cases, both of which of course violated his supervised release conditions.

The district court learned about the drug possession beef first, and revoked his supervised release in April 2013, ordering him to do 8 more months in prison and an additional two years of supervised release. In December 2013, Bob finished the 8 months in the cooler, and resumed his supervised release.

Fifteen months later, the district court finally tumbled to Bob’s 2012 theft conviction, and revoked his supervised release again. Apparently due to the age of the conviction and the fact it could have punished him before, the court sentenced him to a single day in jail and another five years of supervised release.

Bob appealed, arguing that the court had revoked his previous supervised release term when it gave him 8 months in prison, and that because it had revoked it, the court had no jurisdiction to revoke the new term for something – the theft – that had happened in the old term. On Wednesday, the 6th Circuit gave Bob a grammar lesson.

word160208The Circuit explained that, “revocation and termination of supervised release are distinct concepts. Termination discharges the defendant and thereby ends the district court’s supervision of him. Thus, if the district court later discovered that the defendant had earlier violated some condition of his supervised release, the court would lack authority to send him back to prison for that violation qua violation. Revocation, in contrast, means that the defendant must “serve in prison all or part of the term of supervised release. Thus, revocation does not terminate the defendant’s supervised release; quite the contrary, it requires him to serve “all or part” of it in prison… Revocation therefore revokes only the release part of supervised release; the district court’s supervisory authority continues until the defendant’s supervised release terminates or expires.”

The Court held that because the district court’s authority continues throughout an offender’s supervised release term, so too does the court’s ability to police violations of the release’s conditions. Here, Bob’s supervised release term – and the district court’s right to supervise it – had “neither terminated nor expired by June 2015.” Therefore, the district court could revoke Bob’s supervised release a second time based upon its discovery that he had committed a second violation, no matter where in the supervised release term it happened.

sword170120So Bob gets to live under the Sword of Damocles until summer 2020 (unless of course the district court finds another reason to prolong it even more). By then, Bob will be 15 years into a 5-year pot sentence.

United States v. Cross, Case No. 15-5641 (6th Cir. Jan. 18, 2017).

– Thomas L. Root