Supervised Release Violations: How Much Time You Actually Face.

While many people mistakenly think you can only get more supervised-release time if you violate it, the maximum prison term that can result from a revocation depends on several factors, not just the remaining amount of time on your supervision.

Specifically, the maximum period of imprisonment that can be imposed following a revocation is determined by the classification of the offense for which the person was originally sentenced. This means that, in some cases, it is possible to face more time in prison for violating supervised release than you have left on the original term of supervision. If you were convicted of a Class A felony, the statutory maximum period of imprisonment following a revocation is five years. For a Class B felony, the maximum is three years, and for a Class C or D felony, the maximum is two years.

When a defendant is sentenced to prison after a revocation, the judge will determine the length of the prison term based on several factors, including the nature and circumstances of the violation, any factors in mitigation or aggravation, and the defendant’s prior record. In particular, revocation decisions are guided by the U.S. Sentencing Guidelines, which categorize violations into different grades. Depending on the violation grade, the recommended imprisonment range can range from 3 months to 63 months.

Additionally, certain violations carry mandatory revocation sentences, regardless of any aggravating or mitigating factors. For example, if a defendant is found to have committed a federal crime during their supervised release, revocation is generally discretionary under 18 U.S.C. § 3583(e)(3).

Therefore, facing a supervised-release violation does not automatically mean a return to prison. Understanding the factors that influence sentencing and working with an experienced federal criminal defense team can help you develop a targeted defense strategy, that could mitigate or even avoid a prison sentence entirely. If you are facing a supervised-release violation, contact our law firm at Spodek Law Group to learn about the options you have and how we can help.

How Do the Violation Grade and Criminal-History Category Change the Advisory Range?

Grade A violations are categorized as the most serious, and include specified criminal offenses punishable by more than one year of imprisonment, as well as all criminal offenses that are punishable by more than one year of imprisonment and which involve:

• Drug trafficking or sale of controlled substances;
• Theft, fraud, or deception are not automatically Grade A; an offense in those categories can be Grade A if it is punishable by more than twenty years of imprisonment.
• Crimes of violence, as defined in U.S.S.G. § 4B1.2(a), that are punishable by more than one year of imprisonment; and,
• Possession of a firearm or destructive device of a type described in 26 U.S.C. § 5845(a).

Grade B violations include all other criminal offenses punishable by more than one year of imprisonment. Grade C violations involve all other criminal offenses that are punishable by one year or less of imprisonment, and all non-criminal violations of supervised-release conditions.

If a defendant has violated supervised release in multiple ways, the sentencing judge will generally determine the advisory sentence based on the most serious violation. For example, if a defendant has committed two violations and one is a Grade B violation while the other is a Grade C violation, then the Grade B violation will be used to determine the potential prison sentence.

Sentencing judges rely heavily on the U.S. Sentencing Guidelines, specifically Chapter Seven, to make sentencing decisions. The sentencing table in Chapter Seven uses the defendant’s violation grade and criminal-history category to determine a recommended advisory range of imprisonment. The criminal-history category is a number from I to VI based on the defendant’s prior criminal record. The intersection of these two factors, violation grade and criminal-history category, will dictate the defendant’s advisory range of imprisonment, which serves as a recommendation to the sentencing judge. Ultimately, the sentencing judge has the discretion to impose a prison sentence within the statutory maximum for that category of offense, and may rely on aggravating or mitigating factors to make a final sentencing decision.

Which Violations Trigger Mandatory Revocation Under Section 3583(g)?

Section 3583(g) addresses mandatory revocation. A mandatory revocation is one in which the court must revoke the defendant’s supervised release and impose a sentence of imprisonment, as opposed to a discretionary revocation decision. The statute includes several examples of violations that warrant mandatory revocation, and these include:

• Controlled-substance possession;
• Unlawful firearm possession;
• Drug testing refusal; and,
• More than 3 positive tests over the course of 1 year.

A defendant must have their supervised release revoked under Section 3583(g) if the defendant possesses a controlled substance in violation of a condition of supervised release. Additionally, Section 3583(g) mandates revocation if a defendant possesses an unlawful firearm.

Section 3583(g) also mandates revocation if a defendant refuses to take a drug test when the drug test is imposed as a condition of supervised release. Similarly, more than 3 positive tests for controlled substances over the course of 1 year can trigger mandatory revocation under Section 3583(g). However, the statute also states, “undergo available medical, psychiatric, or psychological treatment, including treatment for drug or alcohol dependency, as specified by the court, and remain in a specified institution if required for that purpose;” This creates a potent opportunity for supervised-release violation defense, as it provides a potential alternative to imprisonment.

As you can see, these are just a few examples of the many types of supervised-release violations that can trigger mandatory revocation. Other examples are outlined under Section 3583, and we can assist with all types of supervised-release violation defenses. If you are in danger of having your supervised release revoked, we urge you to contact our team to see what we can do on your behalf.

Most first calls to Spodek Law Group are not from the person under investigation. They come from a mother, a husband, a sister, holding a phone and frightened.

What Happens Between a New Arrest and the Final Revocation Hearing?

It is a common misconception that a new arrest while on supervised release is, by definition, a supervised-release violation. While the new arrest certainly triggers the process of determining whether a violation has occurred, it does not automatically establish one. Importantly, it is possible for a sentencing judge to find a violation, revoke a defendant’s supervised release, and impose a prison sentence even if the case resulting from the arrest is still pending. A conviction for a new criminal offense is not necessary to establish a supervised-release violation.

When a defendant has been arrested and is facing a potential supervised-release violation, several procedural steps must be followed:

• Initial Appearance: Under Federal Rule of Criminal Procedure 32.1, once arrested for a suspected supervised-release violation, a defendant is entitled to a prompt initial appearance. During this initial appearance, the court will generally: (i) read the defendant his or her rights; (ii) explain the nature of the allegations; (iii) assess the defendant’s need for legal counsel; and, (iv) determine whether interim detention is required pending the hearing.
• Preliminary Hearing: Following the initial appearance, the next stage of the process is the preliminary hearing. At the preliminary hearing, the court will typically determine whether probable cause supports the allegation that the defendant violated the conditions of his or her supervised release.
• Revocation Hearing: The final stage is the revocation hearing. At the revocation hearing, the court will make two determinations: (i) whether the defendant violated supervised release, and (ii) if the defendant did violate supervised release, whether to revoke supervision and impose a prison sentence. As discussed, if revocation is mandatory, the judge’s role is largely to determine the length of the sentence.

What Rights and Alternatives Can Matter at the Revocation Hearing?

At the revocation hearing, there are also several protections that are specifically tailored to this process. These include:

• Burden of Proof: Proof that the defendant violated supervised release is required by a preponderance of the evidence. Revocation hearings are not criminal trials, and therefore, proof beyond a reasonable doubt is not required.
• Rule 32.1 Safeguards: Rule 32.1 provides safeguards such as notice requirements, disclosure rights, the right to present evidence, the right to question adverse witnesses, and the right to present the evidence to the sentencing judge in a timely manner.
• Alternatives to Revocation: Absent the requirements of Section 3583(g), federal courts can also impose alternatives to revocation. Under Section 3583(e)(2), instead of revoking supervised release and sentencing the defendant to prison, the court can determine whether: (i) the conditions of supervised release are too lenient, and (ii) if they are too lenient, whether they require modification to be more appropriate. As a result, instead of sentencing the defendant to prison, the court could instead simply impose different or more stringent conditions of supervised release. This is another critical avenue for reducing the risk of prison when facing a supervised-release violation.

The numerous factors and rules discussed in detail above create a range of potential outcomes for defendants facing revocation of their supervised release. However, to achieve a positive outcome, defendants must work closely with their defense counsel to understand their rights, formulate effective arguments, and address all pertinent factors. If you need help, our legal team at Spodek Law Group is here to assist. We encourage you to learn more about our firm and get in touch today so that we can discuss how we can help you as well.

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Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 888 348 8028.