XI. Probation & Supervised Release
Sixth Circuit Decisions
• Booker - Standard of ReviewU.S. v. Johnson, 04-1538 (4/15/05)
> Defendant violated his supervised release by testing positive for THC, failing to attend AA/NA meetings, and falsifying documents to hide his failure to attend the meetings. The recommended sentencing guideline range for his violation was 4-10 months, and the probation officer recommended a sentence of 6 months. The district court imposed a sentence of 18 months incarceration. Defendant appealed, and during the pendency of the appeal, Booker was decided.
* Holding: The court held that, because defendant had failed to object to the 18 month sentence, it would review for plain error. The court found no plain error in the district court’s sentence and noted that a court is only required to sentence a defendant in a manner that reflects consideration of the factors listed in 18 U.S.C. § 3553. Further, the court discussed the issue of whether Booker altered the standard of review for supervised release violations. Pre-Booker, the court reviewed sentences on supervised release violations to determine whether the sentence was “plainly unreasonable.” Other circuits have held that Booker now requires that courts instead apply a new “reasonableness” standard. In the end, the court ruled that it did not have to decide the issue of which standard was appropriate because defendant’s sentence was neither unreasonable, nor plainly unreasonable. Thus, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Carr, 04-1983 (8/31/05)
> Defendant’s probation officer filed a supervised release violation petition charging that defendant had failed to make restitution as required and that he had failed to report a new arrest to his probation officer. The district court gave defendant a period of a few months to keep a journal of his daily activities and his expenditures in order to determine if the restitution payment amount was too high. During this time period, the probation officer observed defendant at a casino, which prompted the government to subpoena casino records that showed that defendant had lost thousands of dollars at the casino over the last few years. Defendant did not report any casino visits in his journal for the district court. The district court revoked defendant’s supervised release and sentenced him to 16 months in prison (7 months higher than the recommended guideline range) and 44 months of supervised release to follow. Defendant appealed.
* Holding: In sentencing a defendant for a supervised release violation, the sentence will be affirmed if the district court considered the statutory factors under 18 U.S.C. § 3553, and if the sentence is not plainly unreasonable. The court found that the district court had made a sufficient statement showing that it considered the appropriate statutory factors, and ruled that 16 months was not plainly unreasonable given defendant’s conduct.
• Reasonableness of Sentence
U.S. v. Yopp, 05-1807 (7/19/06)
> Defendant pled guilty to a violation of his supervised release and the district court sentenced him to serve a 24 month period of incarceration. The basis for the 24 month sentence was the district court’s conclusion that defendant needed to participate in the 500 hour residential drug program while in prison and the probation officer’s recommendation that it would take three months to get into the program and nine months to complete it. Defendant appealed.
* Holding: Prior to Booker, the standard of review for supervised release violation sentences was “plainly unreasonable.” The court opined that Booker may have changed the standard to reasonableness, but held that it was not deciding the issue because the court found the sentence to be both unreasonable and plainly unreasonable. The court found that the district court had not properly exhibited its consideration of the policy statements of Chapter Seven of the guidelines and the factors under 18 USC § 3553. Thus, the district court had not met the procedural reasonableness requirement. Further, the court held that the 24 month sentence was substantively unreasonable because it was “greater than necessary” to comply with the statutory purposes. In remanding the case, however, the court stated that the district court may impose the same 24 month sentence if it provided an articulated basis as to why such a sentence was necessary given the guideline and statutory purposes of sentencing.
• Reasonableness of Sentence
U.S. v. Lewis, 06-6011 (8/13/07)
> Defendant was convicted of drug trafficking. Upon being released from incarceration, he violated his supervised release conditions for failing to notify his probation officer of contact with the police, submit monthly reports, follow instructions of the probation officer, and permit visits by the probation officer. The recommended guideline range for the violations was 5-11 months in prison, but the district court imposed a sentence of 6 months of home incarceration, and 2 more years of supervised release. Defendant appealed the reasonableness of the sentence.
* Holding: First, the court noted that it is an open question whether the standard of review for supervised release sentences is “plainly unreasonable,” or the Booker standard of reasonableness. The court concluded that it did not have to reach the issue because defendant’s sentence would be affirmed under either standard. Second, the court ruled that it is not reversible error for a district court to consider a factor under 18 USC § 3553(a) that is not specifically referenced under § 3583(e). Specifically, § 3583(e) indicates that, on a supervised release violation, the district court must consider certain § 3553(a) factors. Excluded from the list are the factors listed in § 3553(a)(2)(A), namely the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment. The court ruled that the district court’s specific consideration of those factors in the case did not render the sentence unreasonable or plainly unreasonable. Because the district court took into account appropriate considerations, and in fact sentenced defendant below the recommended guideline range, the sentence was affirmed.
• Reasonableness of Sentence
U.S. v. Brown, 06-2249 (9/4/07)
> Defendant was found guilty of his third probation violation before the district court and the court calculated his sentencing guideline range to be 8-14 months. The court revoked defendant’s supervised release and sentenced him to serve 24 months in prison. Defendant appealed.
* Holding: The court noted that it is an open question in the Sixth Circuit as to whether the “plainly unreasonable” standard or the Booker “reasonableness” standard applies to review of violations of supervised release. The court decided not to answer the question because defendant failed under either standard. First, the court found that the sentence was procedurally reasonable. The district court adequately considered both the sentencing guidelines and the factors under 18 USC § 3553(a). Further, the court ruled that the sentence ten months above the guideline range was substantively reasonable based upon defendant’s history and the fact that it was his third supervised release violation. Accordingly, the sentence was affirmed.
• Parole Revocations
Vershish v. Commission, 04-5122 (5/2/05)
> Defendant was arrested based upon a Parole Commission warrant. Seventeen days after his arrest, defendant was charged with new federal crimes for being a felon in possession of a firearm and possession of false identification. Because of the new charges, the Commission decided to treat the arrest warrant as a detainer, and the Commission declined to provide defendant with a revocation hearing within 90 days of his arrest, as required by 18 U.S.C. § 4214(c). Defendant subsequently filed a habeas petition claiming that he was denied due process by the failure of the Commission to hold a revocation hearing within 90 days because he was denied the opportunity for a concurrent sentence with his new conviction. The district court denied the petition, and defendant appealed.
* Holding: The court held that the 90 day rule of § 4212(c) is unequivocal. Once a Commission warrant has been executed, the Commission must comply with the requirements of the rule. Accordingly, the court ordered the district court to grant the writ unless the Commission accorded defendant a revocation hearing, and credited him with all of the time he served in custody since the execution of the warrant.
• Parole Hearings
Wilkins v. Timmerman, 07-3339 (1/14/08)
> Defendant raped a ten year old while on parole to the State of Ohio. Defendant was convicted of the rape after trial, but the conviction was reversed on appeal. The parole board proceeded with revocation proceedings, and allowed the child victim and several other witnesses to testify by live video conference. Defendant objected to the process as violating his due process and confrontation rights. Defendant’s parole was revoked, defendant lost his state court proceedings, and filed a federal habeas petition. The district court denied the petition and defendant appealed.
* Holding: The minimum due process requirements for a parole revocation hearing are as follows: (1) written notice of the violations; (2) disclosure of the evidence; (3) opportunity to be heard in person and to present evidence; (4) the right to confront and cross examine witnesses, unless good cause requires otherwise; (5) a neutral and detached hearing body; and (6) written findings of fact and reasons for revocation. Relying on the diminished rights retained by parolees, the court held that the live video conference utilized by the parole board was “sufficiently similar” to live testimony to satisfy the minimum due process and confrontation requirements. Accordingly, the district court’s ruling was affirmed.
• Testimony of Probation Officer
U.S. v. Kirby, 04-6226 (8/15/05)
> Defendant’s probation officer filed a petition to violate defendant’s supervised release, and at the violation hearing, the probation officer testified about defendant’s illegal activities while on supervision. The probation officer had conducted an independent investigation, reviewed video tapes, and talked to police officers who had investigated defendant. The district court revoked defendant’s supervised release and sentenced defendant to the statutory maximum sentence of 20 months. Defendant appealed.
* Holding: The court held that the district court appropriately relied on the testimony of the probation officer in revoking defendant’s supervised release. A court may rely on the testimony of a probation officer as long as it is not lacking in indicia of reliability. Because the probation officer had conducted an independent investigation and provided the factual basis for his testimony, the court found the probation officer’s testimony reliable. Further, the court found that the length of the sentence was appropriate. Where a court sentences a defendant above the recommended guideline range, the decision will be affirmed if the court showed consideration of the relevant statutory factors and the sentence is not plainly unreasonable. Given defendant’s history, the court found that the sentence of 20 months was appropriate.
• 18 U.S.C. § 3583(e)(3) - Revocation
U.S. v. VanHoose, 05-3290 (2/7/06)
> Defendant was convicted in February of 1994 of a drug conspiracy. Upon being released on supervised release, defendant was violated and sentenced by the district court to 2 years in prison (the maximum under § 3583(e)(3)) and a new supervised release term of 24 months. Defendant challenged on appeal that the additional supervised release term was not authorized by § 3583(e)(3) where a maximum sentence was imposed.
* Holding: Relying on the Supreme Court’s decision in Johnson v. U.S., the court held that the version of § 3583(e)(3) that was in effect at the time of defendant’s original conviction did not prohibit the reimposition of supervised release where a maximum prison term was imposed. Thus, the sentence was affirmed. The court acknowledged that this rule was “odd” given that, if defendant violated the new supervised release term, no jail time could be imposed. The court also noted that the Sixth Circuit case of U.S. v. Marlow was likely wrongly decided, although it is still binding precedent in this Circuit. The Marlow court held that a district court may, upon revocation of supervised release, impose a period of incarceration plus a new term of supervised release that exceeds the length of the original supervised release term. Finally, the court noted that § 3583(h), enacted in September 1994, now governs reimposition of supervised release after revocation.
• Violation of Supervised Release
U.S. v. Lewis, 06-6011 (8/13/07)
> Defendant was convicted of a drug trafficking offense. One of the conditions of his supervised release required him to “permit a probation officer to visit him . . . at any time at home or elsewhere and [to] permit confiscation of any contraband observed in plain view of the probation officer.” After defendant started his term of supervised release, he gave his probation officer his home address, but refused to give the officer the address where his daughters resided, even though he spent several nights a week there. As a result, the probation officer filed a supervised release violation. The district court found that defendant violated his supervised release, in part, for failing to allow the probation officer access to his daughters’ residence, and sentenced defendant to six months of home confinement and an additional term of supervised release. Defendant appealed.
* Holding: First, the court held that defendant could not challenge the condition of supervised release itself. A defendant may not attempt to “invalidate his original conviction at a supervised release hearing.” Second, the court held that defendant’s conduct constituted a violation of his supervised release. The condition required defendant to allow access to his “home or elsewhere.” There was nothing unreasonable about probation requesting access to a residence where defendant spent several nights each week. Accordingly, the court affirmed the violation of supervised release.
• Supervised Release Violation
U.S. v. Bolds, 07-5062 (12/20/07)
> Defendant was charged with a violation of her supervised release for repeatedly missing urine screens and for committing new criminal conduct while her supervised release violation was pending. Defendant then failed to appear for both her supervised release hearing and her underlying state criminal case. Defendant was later arrested and her supervised release revoked. The district court determined that her guideline range was 4-10 months, but instead imposed an upward variance to a sentence of 24 months incarceration, which was 12 months below the statutory maximum. Defendant appealed and argued only that the sentence was procedurally unreasonable.
* Holding: The court first determined that the standard of review for supervised release violation sentences should be the Gall reasonableness standard. (See XII. Appeal). Second, the court held that defendant’s sentence was procedurally reasonable. The court found that the district court accurately determined the appropriate guideline range, considered the factors under 18 USC § 3553, analyzed defendant’s arguments for a lower sentence, and adequately explained its reasons for a higher sentence. The court noted that defendant did not challenge the substantive reasonableness of the sentence but opined that the sentence was substantively reasonable. Accordingly, defendant’s sentence was affirmed.
• Supervised Release Violation - Jurisdiction
U.S. v. Madden, 05-4304 (1/15/08)
> A warrant was issued against defendant for a supervised release violation, but the district court did not sentence defendant for the violation until four years after the supervised release period expired. During this four year period, defendant was subject to several indictments and superceding indictments for various charges, and was in the custody of another jurisdiction for two of the four years. Upon defendant’s sentencing for the violation, he appealed.
* Holding: Pursuant to 18 USC § 3583(i), a district court’s power to revoke a term of supervised release extends beyond the expiration of the supervised release term for a period “reasonably necessary for the adjudication of the matters,” if a warrant or summons has been issued prior to the expiration of the term. In the case, the court held that the four-year delay was reasonable because during the entire four-year period defendant was either in custody elsewhere or was constantly being brought up on charges. The court noted that the new charges arose out of incidents related to the facts underlying defendant’s supervised release violation. Further, the court emphasized that defendant could show no prejudice from the delay. Finally, the court found that the warrant that was entered against defendant for the violation was filed prior to expiration of defendant’s term and that it was sufficient. The court noted a split of authority regarding the issue of whether a warrant for a supervised release violation must be sworn and supported by probable cause, but because defendant did not raise the issue in the district court, the court found no plain error. Accordingly, defendant’s sentence was affirmed.
• Tolling of Supervised Release
U.S. v. Ossa-Gallegos, 05-5824 (6/21/07)
> Defendant was convicted of illegal reentry by a deported alien and as a condition of defendant’s supervised release, the district court held that defendant’s supervised release would be tolled as long as defendant was out of the country after being deported. Defendant raised on appeal the district court’s authority to toll the supervised release period on this basis. The original panel affirmed the district court’s sentence and defendant requested rehearing en banc.
* Holding: The en banc court held that a district court may not toll supervised release while defendant is out of the country after being deported. This finding was based upon the court’s conclusions that tolling of supervised release is not properly considered a “condition” of supervised release under 18 USC § 3583(d) and that tolling of supervised release is not consistent with legislative intent. Accordingly, the tolling provision was vacated and the case remanded for resentencing.
• Supervised Release - Tolling of Period
U.S. v. Goins, 07-3341 (2/13/08)
> Defendant was placed on a five year period of supervised release based on a conviction for bank fraud. During the period of supervision, defendant absconded to another state, and was charged with new felony offenses. Defendant was held in pretrial detention on the new offenses for 63 days, then posted bond and absconded again. Defendant was later rearrested and convicted for the new offenses. Defendant’s probation officer filed a petition to violate his supervised release, but did not file until 18 days after defendant’s supervised release was originally schedule to expire. At the violation hearing, the district court found that defendant’s supervised release period was tolled for 63 days while defendant was incarcerated in pretrial detention on the new felony charges, and thus that the violation petition was timely. Defendant appealed.
* Holding: Pursuant to 18 USC § 3624(e), a term of supervised release is tolled for any period during which the defendant is “imprisoned in connection with a conviction” for a period 30 days or more. Answering an open question in the Sixth Circuit, the court held that the phrase “imprisoned in connection with a conviction” included pretrial detention when the pretrial detention is later credited as time served in connection with a subsequent conviction. Accordingly, because the 63 days that defendant was in pretrial custody was eventually credited against his sentence on the new felony charges, his supervised release was tolled during that time period, and the violation petition was therefore timely. Thus, defendant’s sentence for his supervised release violation was affirmed.
• Conditions of Supervised Release
U.S. v. Lee, 06-5848 (9/13/07)
> Defendant was convicted of traveling across state lines to have sex with a minor. At sentencing, the district court imposed a sentence of 188 months in prison, and lifetime supervised release. As a condition of supervised release, the probation department was given the discretion to require defendant to submit to “penile plethysmograph testing.” Defendant appealed the imposition of this condition.
* Holding: Although ordinarily conditions of supervised release may be challenged on direct appeal, the court held that the “penile plethysmograph testing” was not ripe for review. First, the court found that the supervised release condition was discretionary, and thus, defendant may never be subjected to the condition. Second, the court noted that defendant would be in prison for 15 years. Given the questionable scientific validity of “penile plethysmograph testing,” the court held that such testing may not being accepted at the time defendant was released from prison. Accordingly, the court dismissed the appeal without prejudice, holding that defendant may file a motion to amend his supervised release conditions if he ever were subjected to the testing.
• Conditions of Supervised Release
U.S. v. Brogdon, 06-5548 (9/27/07)
> Defendant was convicted of being a felon in possession of a firearm. At sentencing, based upon defendant’s seven prior sex offense convictions, the district court imposed conditions of release that included participation in a sex offender program, a prohibition on possessing pornography, a no-contact order with children, and an order not to loiter or live near places frequented by children. Defendant appealed.
* Holding: In assessing the reasonableness of special conditions of supervised release, the court must consider the following: (1) whether the district court adequately stated its rationale for the special conditions; and (2) whether the special condition is reasonably related to the dual goals of rehabilitation of the defendant and the protection of the public. If the district court fails to adequately state its reasons for the condition, the error may be deemed harmless if sufficient supporting reasons are evident from the overall record. In the case, the court held that the district court had not sufficiently justified the special conditions on the record, but that the record nonetheless justified the conditions. Although defendant’s most recent conviction for a sex offense was twelve years prior, the quantity of sex offenses (7) and the seriousness of some of them (involving minors and multiple victims) led the court to conclude that the special conditions of supervised release were reasonable. Thus, defendant’s sentence was affirmed.
• Conditions of Supervised Release
U.S. v. Alexander, 07-1432 (12/7/07)
> After repeated violations of defendant’s supervised release, the district court sentenced defendant to 12 months incarceration and 24 months of supervised release. A condition of release required defendant to live in Grand Rapids instead of his home, Hannahville. Defendant appealed the geographical restriction.
* Holding: In imposing supervised release, 18 USC §§ 3583(h) and 3563(b)(13) specifically allow a district court to order that a defendant “reside in a specified place or area.” In reviewing a condition of supervised release, the condition must satisfy the following factors: (1) be reasonably related to the circumstances of the offense and defendant’s history, the need to provide deterrence, protect the public, and rehabilitate the defendant; (2) involve no greater deprivation of liberty than is reasonably necessary to deter criminal conduct, protect the public, and rehabilitate the defendant; and (3) be consistent with the policy statements of the Sentencing Commission. In the case, the court held that the condition requiring defendant to live in Grand Rapids was reasonable and necessary to assist defendant’s rehabilitation, protect the public and his family, and respond to defendant’s prior violations of supervised release. Accordingly, the geographical restriction was affirmed.
• Conditions of Release
Wilson v. Collins, 07-3428 (2/22/08)
> Defendant was convicted in Ohio state court for felonious assault. As a result, defendant was required to submit to DNA testing, pursuant to Ohio law requiring the testing of felons. Defendant filed an action under 42 USC § 1983 challenging the DNA testing of offenders under various provisions of the Fourth and Fifth Amendment. The district court granted summary judgment to the state and defendant appealed.
* Holding: The court held that DNA testing of convicted felons did not violate the following provisions: (1) Fourth Amendment unreasonable searches and seizures; (2) Fifth Amendment substantive due process; (3) Fifth Amendment procedural due process; (4) Fifth Amendment privilege against compulsory self-incrimination; and (5) the Equal Protection Clause. Accordingly, the district court ruling was affirmed.
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