LISA publishes a free newsletter intended for inmate subscribers in the Federal system and interested readers in the outside world.

Edited by Thomas L Root, MA JD

Vol 12, No 37

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The Officials Reset the Game Clock

Today is the Monday Before the Monday

The Cure for Bureaucracy is… More Bureaucracy?

Revocation Sentence Is Reasonable But Unreliable

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THE OFFICIALS RESET THE GAME CLOCK

Ever think you’ve finally gotten to a win, only to have some mook put a second back on the clock?  It happened to Western Michigan a few weeks ago in Ann Arbor, letting the Wolverines steal an improbable victory from a team that was supposed to be a cupcake for the mighty U-M football machine.

It doesn’t just happen in the NCAA (which, by the way, admitted its error and said it wouldn’t happen again). It happened last week to Jose Santana-Robles. After Jose did his five years on a drug beef, he began 60 months of supervised release (SR). Jose had a little trouble adjusting to SR: the 3^rd Circuit said he “accumulated violations, including for testing positive for marijuana and leaving the jurisdiction without permission. In February 2024, the District Court issued a warrant for arrest for his violations. Over a year later, he was arrested in Oregon and was transported to Pennsylvania.”

Jose’s SR was revoked, and he was sent back to the BOP for 4 months, to be followed by another 24 months of supervised release. When he finished his 4 months in custody, he moved for early termination of the remainder of his SR term. His district judge declined to do so.

Jose appealed. Last week, the 3^rd Circuit held that he was not even eligible to ask for early termination, leaving alone the question of whether his judge was right to deny it.

Under 18 USC 3583(e), anyone on SR is eligible to ask the court to terminate the remainder of their term after serving one year of SR. The 3^rd Circuit held, however, that Jose’s revocation reset the one-year clock.

“The text, purpose, and history [of 3583] all support the common sense reading that the one-year clock starts from the beginning of the current term of supervised release that a defendant may seek to terminate. Because Appellant filed his motion less than two months into his term of supervised release, his request was foreclosed by Section 3583(e)(1) and the District Court did not have the authority to grant his request.”

Oh, Michigan fans… that final-second Iowa win last Saturday? Karma is a harsh mistress.

US v Santana-Robles, Case No 26-1011, 2026 USAppLEXIS 29233 (3d Cir. Sept 23, 2026)

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TODAY IS THE MONDAY BEFORE THE MONDAY

Everyone knows that the Supreme Court begins its work year on the first Monday in October. But a convincing case can be made that it begins a week before.

Today, the last Monday in September, the Court will hold its annual “long conference,” the first meeting of the nine Justices to consider the pile of petitions seeking review that have accumulated over the three-month summer recess.

Statistically, the likelihood that such a petition for certiorari will be granted is slight, about 1.2 pct for those filed by lawyers and 0.8 pct for those filed pro se.  The odds are usually worse for those considered in the long conference. The Court itself admitted two years ago that 97 pct of the petitions are rejected “without joint discussion by the Justices.”

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, looks forward to the coming term even as he’s disappointed with the Court’s output. He notes that “11 of the 25 cases already granted for review are, by my calculation, criminal law and related… They won’t all be headline-grabbers, but 40% of the court’s docket is a very healthy chunk. And the court will surely grant some more after its Sept. 28 ‘long conference…’ [T]he Supreme Court used to decide as many as 150 cases per term. But during the 2025-26 term the justices heard argument after full briefing in only 58. According to a Federalist Society report… in 2012 Chief Justice John Roberts said that the court could hear ‘100 cases without any stress or strain, but the cases just aren’t there,’ and he ‘emphasized that circuit splits are far and away the most important consideration.’ The capacity of the justices to handle more cases is not an issue – more grants of review to provide national uniformity in criminal cases ought to be a priority.”

Sentencing Law and Policy, Gearing up for another (notable?) SCOTUS term for sentencing fans (Sept 15, 2026)

Pacific Legal Foundation, A Supreme Court preview: PLF cases at the long conference (Sept 25, 2026)

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THE CURE FOR BUREAUCRACY IS… MORE BUREAUCRACY?

Writing in the early 1860s, political scientist John Stuart Mill theorized that bureaucracy is a distinct form of government with certain advantages, the most important being the accumulation of experience in those who actually conduct its affairs. Nevertheless, he wrote that bureaucracy ultimately stifles the mind and that “a bureaucracy always tends to become a pedantocracy,” a system run by people who “annoy others by overly focusing on minor details, trivial errors, and formal rules rather than common sense or the main point.”

The BOP’s management of its First Step Act obligations is hardly bureaucracy at its finest. A Dept of Justice Inspector General’s report issued last May found that the BOP wasted nearly all of the $400 million or so it was given in 2022 to implement the Act. It gave the Dept of Labor $120 million for a grant program the agencies were supposed to implement together, to award money to grantees who developed vocational and skills-building programs for inmates. After transferring the money, the BOP paid no attention to what was going on, with the result that the program proceeded at a snail’s pace.

A better example of BOP incompetence (although it has tinges of actual fraud) is that the Bureau decided, without authorization, to spend $250 million of the FSA budget to reimburse itself for free inmate phone calls offered during the pandemic. The icing on the cake: the money the BOP claimed for the free phone program was $100 more than what it actually cost the agency. The BOP has custody of white-collar inmates whose offenses pale by comparison.

The Inspector General found that unreliable data underpinned many of the BOP’s problems, impairing the Bureau’s ability to determine whether the First Step Act was accomplishing its objectives or even to communicate its implementation progress to Congress accurately.

In July 2025, BOP Director William K. Marshall III established a First Step Act Task Force to address inmate complaints that FSA home-confinement paperwork was not being processed and staff complaints that the software systems they relied upon were not always displaying accurate dates. 

The Task Force was charged with manually identifying and correcting community-placement dates, moving eligible inmates to cheaper home confinement, manually calculating placement dates that combined FSA and Second Chance Act prerelease custody authority, and reviewing prisoners still inside institutions for additional community-placement opportunities. 

Writing in Forbes, Walter Pavlo said, “The Task Force was an intervention designed to solve immediate problems. The new First Step Act Office appears intended to make that intervention permanent.”

The office, starting with a staff of 15, will oversee the administration and calculation of FSA credits, implement programming, develop policy guidance and training materials nationwide, and manage resources and budget allocation for FSA initiatives.

Marshall told Spectrum News last week that the office will also provide answers about FSA and correcting issues with earned time credits and other program factors. Up to now, Marshall said, FSA Task Force staffers were working on FSA issues in addition to other responsibilities. “This is their main focus [now].”

Marshall acknowledged some issues will take long-term planning to fix. “The lack of [halfway house] beds is… a real issue that we have to face,” Marshall explained. “We don’t control the RRC beds, and we don’t control those staffs – the procurement process takes too long. We’re working on the procurement process as far as trying to obtain some of these contracts and get some of these beds, but it does take a lot of money. It takes a lot of money to do those things, but that’s not the reason to not do it…so we still have to push through and get it done.”

If inmates cannot easily bring FSA issues to the new office, which will be physically located in Washington, DC and Grand Prairie, Texas, the First Step Act Office could just become another layer of underperforming bureaucracy.

DOJ Office of Inspector General, Evaluation of the Federal Bureau of Prisons’ Use of First Step Act Funding and Implementation of First Step Act Programs at Its Institutions (Report 26-057, May 2026)

Forbes, Bureau of Prisons Creates Dedicated First Step Act Office (Sept 24, 2026)

Spectrum News, Bureau of Prisons launches First Step Act office (Sept 24, 2026)

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REVOCATION SENTENCE IS REASONABLE BUT UNRELIABLE

Hosni Mahmoud Mohammad faced deportation to Somalia when he was released from federal prison in 2013. But deportation was kinder and gentler back then, so he was put on supervised release (SR) while his immigration case was pending. But just before his SR term expired, he learned that he was about to be deported, so he fled to Canada and sought asylum there.

His probation officer filed a violation for leaving the jurisdiction without permission.

In 2025, Hosni decided to sneak back into the US (apparently not knowing how fussy ICE had gotten about people like him). He was convicted of aggravated reentry.  At his revocation, the district court counted Hosni’s aggravated reentry conviction as an additional SR violation, which would make his guidelines range 4-10 months instead of the lower 3-9 months if the absconding violation were his only count.

At the time, Rico v US was pending in the Supreme Court. Recognizing that the Rico court could rule that absconding did not stop the SR term from expiring, Hosni’s judge said that while he was counting the aggravated reentry violation, he would only give Hosni 9 months, so that if Rico went against the government, the sentence would be within the lower guideline range.

Rico ultimately held that the Sentencing Reform Act of 1984 does not authorize an automatic extension of supervised release when an individual absconds.  This meant that Rico’s 2025 aggravated reentry conviction happened after his SR term ended.

On appeal, the 6^th Circuit said the district clearly erred in counting the reentry conviction. The Government, however, argued ‘no harm no foul,’ because his revocation sentence was within the range for the lower-level absconding violation. But the Circuit disagreed, holding that the Guidelines calculation was not merely academic:

While the district court stated “that this would be the appropriate sentence, whether this is a Grade B or a Grade C violation,” its only stated support for this conclusion was that ‘the violations are… serious.’ And in considering the seriousness of ‘the violations,’ the district court included the April 5, 2025, re-entry and subsequent conviction. But Mohamed‘s 2025 conviction was not a supervised-release violation at all. Therefore, the passing statement that ‘this would be the appropriate sentence, whether this is a Grade B or a Grade C violation’ is not enough to overcome the need for confidence that, even without considering Mohamed‘s new conviction to be a supervised-release violation at all, the district court would have imposed the same sentence… Although the ultimate sentence is reasonable, the district court did appear to consider Mohamed‘s 2025 conviction to be a supervised-release violation and to consider that violation in determining his sentence. The Supreme Court has made it clear that this is an error… Even though the district court’s ultimate action appears a quite reasonable resolution given the uncertainty as to the future outcome in Rico, the error is not harmless even if it resulted in only a small difference in the sentencing range.

US v Mohamed, Case No 26-3017, 2026 USAppLEXIS 28783 (6th Cir. Sep. 18, 2026)

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