Respondents Brief — Johnson v. United States
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CORNELL JOHNSON, PETITIONER
*.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
PAUL R.Q. WOLFSON
x Assistant to the Solicitor
General
RICHARD A. FRIEDMAN
Attorney
Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the Ex Post Facto Clause precluded the district
court, upon revoking petitioner’s supervised release, from
ordering petitioner, under 18 U.S.C. 3583(h), to serve a term
of reimprisonment followed by additional supervised release
outside prison.
(I)
TABLE OF CONTENTS
Opinion below
Jurisdiction
Constitutional and statutory provisions involved
Statement
Summary of argument
Argument:
The district court's order under 18 U.S.C. 3583(h)
requiring petitioner to serve a renewed period of
supervised release outside prison after his period
of reincarceration does not violate the Ex Post
Facto Clause
A. Even before Section 3583(h) was enacted, district
courts had the authority, when revoking super-
vised release, to order an offender to serve a re-
newed period of supervised release outside pri-
son after a period of reincarceration
1. In determining the state of the law before
Section 3583(h) was enacted, this Court
Circuit’s prior construction as controlling
2. Section 3583(e) as in effect at the time of
petitioner’s offense authorized the district
court to order reincarceration followed by
renewed supervised release
a. The text of Section 3583(e)
(IID
17
17
18
IV
Table of Contents—Continued:
B. If the court concludes that Section 3583(e)(3) did
not authorize a renewed term of supervised re-
lease, then the entire sanction imposed on peti-
tioner for violating supervised release ud be
vacated and the case remanded for furtier pro-
ceedings
1. The application of a new statute that raises
the maximum possible penalty but does not
raise the minimum possible penalty or narrow
the district court’s discretion to impse that
minimum penalty may not violate the Ex Post
Facto Clause where the offender is sentenced
within the range authorized under prison
law
2. The actual sanction imposed on petitioner
following revocation of his supervised release
cannot confidently be said to be less onerous
than that available under prior law ...................
3. If application of Section 3583(h) to petitioner
violated the Ex Post Facto Clause, the proper
remedy is a remand for the district court to
apply former Section 3583(e) to petitioner .......
Conclusion ....
TABLE OF AUTHORITIES
Cases:
Artuso v. Hall, 74 F.3d 68 (5th Cir. 1996)
Billis v. United States, 83 F.3d 209 (8th Cir.), cert.
denied, 519 U.S. 900 (1996)
Bouie v. City of Columbia, 378 U.S. 347 (1964)
ee 88
8 E
Cases Continued:
5
Bousley v. United States, 523 U.S. 614 (1998)
Brown v. GSA, 425 U.S. 820 (1976)
California Dep't of Corrections v. Morales, 514 U.S.
499 (1995) 42,
Chapman v. California, 386 U.S. 18 (1967)
Cisneros v. Alpine Ridge Group, 508 U.S. 10 (1993)
Deal v. United States, 508 U.S. 129 (1993)
Evans v. United States Parole Comm n, 78 F.3d 262
(7th Cir. 1996)
Fowler v. United States Parole Comm n, 94 F.3d 835
E FRE 28
(3d Cir. 1996) 34
Gozlon-Peretz v. United States, 498 U.S. 395 (1991) 11
Lindsey v. Washington, 301 U.S. 397 (1937) 37, 38, 40
Lockhart v. Fretwell, 506 U.S. 364 (1993) 21
Lynce v. Mathis, 519 U.S. 433 (1997). 17, 35, 38, 39
Marks v. United States, 430 U.S. 188 (1977) 22
Memoirs v. Massachusetts, 383 U.S. 413 (1966) 22
Miller v. California, 413 U.S. 15 (1973) 22
Miller v. Florida, 482 U.S. 423 (1987) 38, 39
Moody v. Daggett, 429 U.S. 78 (1976) 43
Rivers v. Roadway Express, Inc., 511 U.S. 298
(1994) 19, 20
Robles v. United States, 146 F.3d 1098 (9th Cir.
1998) 34
State v. Callahan, 109 La. 946 (1903) 40
Tome v. United States, 513 U.S. 150 (1995) 43
United States v. Barton, 26 F.3d 490 (4th Cir. 1994) ...... 7
1994) 43
United States v. Behnezhad, 907 F. 2d 896 (9th Cir.
1990)
United States v. Boling, 947 F. 2d 1461 (10th Cir.
~
1991) x
United States v. Brady, 88 F.3d 225 (3d Cir. 1996),
cert. denied, 519 U.S. 1094 (1997) 37
United States v. Cooper, 962 F. 2d 339 (4th Cir.
1992) 7, 30
VI
Cases Continued: Page
United States v. Davis, 151 F.3d 1304 (10th Cir.
1998) . 11
United States v. Davis, 187 F.3d 528 (6th Cir. 1999) 31
United States v. Edgin, 92 F.3d 1044 (10th Cir. 1996),
cert. denied, 519 U.S. 1069 (1997) 27
United States v. Eng, 14 F.3d 165 (2d Cir.), cert.
denied, 513 U.S. 807 (1994) 3
United States v. Feinberg, 631 F.2d 388 (5th Cir.
1980) 11
United States v. Garcia, 112 F.3d 395 (9th Cir. 1997) 3
United States v. Good, 25 F.3d 218 (4th Cir. 1994) 3
United States v. Holmes, 954 F.2d 270 (5th Cir.
1992) 7
United States v. Kelly, 974 F.2d 22 (5th Cir. 1992) ......... 3
United States v. Koehler, 973 F.2d 132 (2d Cir. 1992) .... 7
United States v. Lanier, 520 U.S. 259 (1997) 22
United States v. LeMay, 952 F.2d 995 (8th Cir. 1991) .... 3
United Statees v. Malesic, 18 F.3d 205 (3d Cir. 1994) ..... 7
United States v. McGee, 981 F.2d 271 (7th Cir. 1992) ...... 7
United States v. Morales, 45 F.3d 693 (2d Cir. 1995) 43
United States v. Neville, 985 F.2d 992 (9th Cir.), cert.
denied, 508 U.S. 943 (1993) 43
United States v. O'Neil, 11 F.3d 292 (Ist Cir. 1993) . 7, 24,
25, 32, 33
United States v. Oroaco- Rodrigues, 60 F.3d 705 (10th
Cir. 1995) 3
United States v. Page, 131 F.3d 1173 (6th Cir. 1997),
cert. denied, 119 S. Ct. 77 (1998) 13, 17
United States v. Robinson, 106 F.3d 610 (4th Cir.
1997) 34
United States v. Rockwell, 984 F.2d 1112 (10th Cir.),
cert. denied, 508 U.S. 966 (1993) 7,8
United States v. Rodgers, 466 U.S. 475 (1984) 22
United States v. Schechter, 13 F.3d 1117 (7th Cir.
1994) 27
VII
Cases Continued: Page
United States v. Schrader, 973 F. 2 623 (8th Cir.
1992) 7,8
United States v. Shorty, 159 F.3d 312 (7th Cir. 1998),
cert. denied, 119 S. Ct. 2024 (1999) 3
United States v. St. John, 92 F.3d 761 (8th Cir. 1996) .... 20
United States v. Tatum, 998 F.2d 893 (11th Cir.
1993) 7,8
United States v. Truss, 4 F.3d 437 (6th Cir. 1993) 7, 8,
19, 23, 24
United States v. Williams, 2 F.3d 363 (11th Cir.
1993) 8, 23
United States v. Withers, 128 F.3d 1167 (7th Cir. 1997),
cert. denied, 119 S. Ct. 79 (1998) 45
United States Parole Comm'n v. Williams, 54 F.3d
820 (D.C. Cir. 1995) 32, 34
Weaver v. Graham, 450 U.S. 24 (1981) 18, 37, 38, 39
Constitution, statutes, regulations and rules:
U.S. Const. Art. I, § 9, Cl. 3 (Ex Post Facto
Clause) passim
Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690,
Tit. VII, § 7108(b), 102 Stat. 4419 6
ve Crime Control Act of 1984, Pub. L..
No 98-473, Tit. II, § 212(a)(2), 98 Stat. 1999 2
Narcotics Penalties and Enforcement Act of 1986, Pub.
L. No. 99-570, Tit. I. § 1006(a)(1), 100 Stat. 3207-6 .......... 6
Sentencing Act of 1987, Pub. L. No. 100-182, § 25,
101 Stat. 1272 6
Public Safety and Recreational Firearm Use Protection
Act, Pub. L. No. 103-322, Tit. XI, 108 Stat. 2016:
§ 110505, 108 Stat. 2016
§ 110505, 108 Stat. 2016-2017
§ 110505, 108 Stat. 2017
18 U.S.C. 1001
18 U.S.C. 1029%b)(2)
18 U.S.C. 102%¢)(1 Ai)
18 U.S.C. 3553
18 U.S.C. 3559(a)
©
wom S SSN
VIII
Statutes, regulations and rules Continued:
18 U.S. C. 35590649. —.—L——.—.———
18 U.S. C. 35630b) ...
18 U.S. C. 356306b (14) . —
BB 040. 8 ..——————7—§—
18 U.S.C. 3583 (1988 & Supp. IV 1992) .......
18 U.S.C. 3583(a) ........... — :
18 U.S.C. 35830b) ... —
18 U.S.C. 35830d 0 ———.———.—
18 U.S.C. 3583(e) (1988 & Supp. IV 1992)
18 U.S.C. 3583(e)(1) —
18 U.S.C. 3583(e)(2) (1988 & Supp. IV 1992)
18 U.S.C. 3583(e)(3) (1988 & Supp. IV 1992)
18 U.S.C. 3583(e)(4) . ,
18 U.S.C. 3583(g) (1988 & Supp. IV 1992) .........
18 U.S.C. 35830h)
eee eeeeeeeeeeee
18 U.S.C. 360302) ......
18 U.S.C. 3653 (198 2—2w.e.—————):——1———.——
A UC. 8640)
21 U.S. C. SaicbK Id ——.———.—b
21 U.S.C. 841(b)(1)(B) —
———25ͤũ•ikü¹
21 U.S.C. 841(b)(1)(C) (1994 & Supp. III 1997
21 U.S.C. 841(b)(1)(D) (1994 & Supp. III 1997)
21 U.S.C. 841(C) (1982) seccorseenee
28 C. F. R. 2.57(c) (1984)
28 C. F. R.:
Section 2.52 App.
Section 2.57 (a)
Fed. R. Crim. P.:
Rule 32. 10a)
Rule 32.1(b) 7 —
Rule 52. (a)
United States Senteneing Guidelines:
§ 7B1.3(a)(1)
§ 7B1.4
Miscellaneous:
Black's Law Dictionary (6th ed. 1990)
S. Rep. No. 225, 98th Cong., Ist Sess. (1983)
passim
In the Supreme Court of the United States
No. 99-5153
CORNELL JOHNSON, PETITIONER
D.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES
OPINION BELOW
The order of the court of appeals (J.A. 48-49) is unpub-
lished, but the decision is noted at 181 F.3d 105 (Table).
JURISDICTION
The judgment of the court of appeals was entered on April
29, 1999. The petition for a writ of certiorari was filed on
July 2, 1999, and was granted on October 18, 1999. J.A. 50.
The jurisdiction of this Court rests on 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
The Ex Post Facto Clause of the United States Consti-
tution, Article I, Section 9, Clause 3, provides that Ino
* * * ex post facto Law shall be passed” by Congress.
Reproduced in Appendix A to this brief is the version of
18 U.S.C. 3583 in effect on October 22, 1993, when petitioner
committed his offense. Appendix B reproduces the version
of 18 U.S.C. 3583 in effect on April 30, 1998, when the district
(1)
2
court revoked petitioner’s supervised release, and also cur-
rently in effect.’
STATEMENT
After his three-year term of supervised release was
revoked by the United States District Court for the Eastern
District of Tennessee, petitioner was ordered to serve 18
months in prison, followed by another 12 months on super-
vised release. Petitioner also lost all credit for the time he
had already spent outside prison on supervised release. J.A.
38-41. The court of appeals affirmed. J.A. 48-49.
I. a. This case involves a claim that the Ex Post Facto
Clause precluded the district court, on revoking petitioner’s
supervised release, from ordering petitioner, under 18
U.S.C. 3583(h), to serve a term of reimprisonment followed
by additional supervised release outside prison. Section
3583(h) was enacted by Congress after the date of peti-
tioner’s offense, October 22, 1993. Accordingly, it is neces-
sary to compare the pertinent statutes as they were in effect
on the date of petitioner’s offense and on the date on which
his supervised release was revoked, April 30, 1998.
b. Supervised release was introduced into the federal
criminal justice system as part of the Sentencing Reform Act
of 1984. See Pub. L. No. 98-473, Tit. II, § 212(a)(2), 98 Stat.
1999. The Sentencing Reform Act provides that a district
court, “in imposing a sentence to a term of imprisonment for
a felony or a misdemeanor, may include as a part of the sen-
tence a requirement that the defendant be placed on a term
of supervised release after imprisonment.” 18 U.S.C.
3583(a). The statute sets forth maximum permissible
periods of supervised release, generally connected to the
1 Unless otherwise indicated, all citations in this brief to Title 18 of the
United States Code without further edition information are to the version
in effect on April 30, 1998. Citations in this brief to 18 U.S.C. 3583 as in
effect on the date of petitioner’s offense are set forth as 18 U.S.C. 3583
(1988 & Supp. IV 1992).
3
class of the offense for which the defendant was convicted,
see 18 U.S.C. 35830b); the class of the offense in turn is
defined by the maximum term of imprisonment authorized
by statute for the offense, see 18 U.S.C. 3559(a). Although
supervised release is therefore part of an offender’s criminal
sentence, and the duration of the term of supervised release
is tied to the seriousness of the offense, the “primary goal” of
supervised release is nonetheless not punishment, but rather
“to ease the defendant’s transition into the community after
the service of a long prison term for a particularly serious
offense, or to provide rehabilitation to a defendant who has
spent a fairly short period in prison for punishment or other
purposes but still needs supervision and training programs
2 Under Section 3583, as in effect both at the time of petitioner’s of-
fense and at present, an offender convicted of a Class A or Class B felony
is subject to a maximum supervised release term of five years; one con-
victed of a Class C or Class D felony is subject to a maximum supervised
release term of three years; and one convicted of a Class E felony or mis-
demeanor (other than a petty offense) is subject to a maximum supervised
release term of one year. See 18 U.S.C. 3583(b).
There is an important exception that is not at issue in this case.
Certain narcotics offenses defined in Title 21 require minimum terms of
supervised release. See, e.g., 21 U.S.C. 841(b)(1)(A) (flush paragraph)
(minimum terms of five and ten years’ supervised release); 21 U.S.C.
841(b)(1)(B) (flush paragraph) (minimum terms of four and eight years’
supervised release); 21 U.S.C. 841(b)(1)(C) (1994 & Supp. III 1997) (flush
paragraph) (minimum terms of three and six years’ supervised release); 21
U.S.C. 841(b)(1)(D) (1994 & Supp. III 1997) (minimum terms of two and
four years’ supervised release). The courts of appeals have reached differ-
ing conclusions as to whether and in what circumstances those provisions
requiring “at least” the specified minimum terms of supervised release
might override the maximum periods set forth in Section 3583(b) and
authorize a maximum of life supervised release. Compare United States v.
Good, 25 F.3d 218, 220-221 (4th Cir. 1994), and United States v. Kelly, 974
F. 2d 22, 24 (5th Cir. 1992), with United States v. LeMay, 952 F.2d 995, 998
(8th Cir. 1991), United States v. Eng, 14 F.3d 165, 172-173 (2d Cir.), cert.
denied, 513 U.S. 807 (1994), United States v. Orozco-Rodriguez, 60 F. 3d
705, 707-708 (10th Cir. 1995), and United States v. Garcia, 112 F.3d 395,
397- 398 (9th Cir. 1997); see also United States v. Shorty, 159 F.3d 312, 316
n.6 (7th Cir. 1998), cert. denied, 119 S. Ct. 2024 (1999).
4
after release.” S. Rep. No. 225, 98th Cong., Ist Sess. 124
(1983).
Section 3583 requires the district court to impose, as a
condition of supervised release, a requirement that the
offender not commit any federal, state, or local crime during
the term of supervision. 18 U.S.C. 3583(d).* Congress also
granted the district court authority to impose certain
discretionary conditions on an offender’s supervised release
(generally those also authorized as discretionary conditions
of probation), to the extent that such conditions satisfy
certain policy objectives identified in the Sentencing Reform
Act as proper sentencing factors“ 18 U.S.C. 3583(d). In
addition to those discretionary conditions, Section 3583(d)
permits the court to impose “any other condition it considers
to be appropriate.” 18 U.S.C. 3583(d).
Congress has also required that the offender not unlawfully possess
any controlled substance. 18 U.S.C. 3583(d).
4 Section 3583(d) identified permissible discretionary conditions of
supervised release by cross-referencing some of the discretionary condi-
tions authorized for probation under 18 U.S.C. 3563(b). One permissible
condition of probation (and, by cross-reference, supervised release as well)
is that the offender “remain within the jurisdiction of the court, unless
granted permission to leave by the court or a probation officer.” 18 U.S.C.
3563(b)(14).
5 Under Section 3583(d), a discretionary condition of supervised re-
lease is authorized to the extent that such a condition “(1) is reasonably
related to the factors set forth in section 3553(a)(1) [‘the nature and cir-
cumstances of the offense and the history and characteristics of the defen-
dant’), (a(2)(B) [‘to afford adequate deterrence to criminal conduct’),
(a)(2)(C) [‘to protect the public from further crimes of the defendant’}, and
(a)(2)(D) [‘to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most effec-
tive manner’ ]; (2) involves no greater deprivation of liberty than is reason-
ably necessary for the purposes set forth in section 3553(a(2)(B), (a2)(C),
and (a)(2)(D); and (3) is consistent with any pertinent policy statements
issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a).” 18
U.S.C. 3583(d) (interpolating cross-referenced language of 18 U.S.C. 3553).
Section 3553 sets forth factors that the court is to consider in determining
the particular criminal sentence to be imposed in any case.
5
Congress also provided the district court with authority to
review an offender’s compliance with the conditions of a
term of supervised reiease, and to adjust those conditions
based on that review. Under Section 3583(e) as in effect at
the time of petitioner’s offense, a district court, based on its
review of the offender’s record of compliance, could take any
of the following actions:
(1) terminate a term of supervised release and dis-
charge the person released at any time after the expira-
tion of one year of supervised release, pursuant to the
provisions of the Federal Rules of Criminal Procedure
relating to the modification of probation, if [the court] is
satisfied that such action is warranted by the conduct of
the person released and the interest of justice;
(2) extend a term of supervised release if less than the
maximum authorized term was previously imposed, and
[the court] may modify, reduce, or enlarge the conditions
of supervised release, at any time prior to the expiration
or termination of the term of supervised release, pur-
suant to the provisions of the Federal Rules of Criminal
Procedure relating to the modification of the probation
and the provisions applicable to the initial setting of the
terms and conditions of post-release supervision;
(3) revoke a term of supervised release, and require
the person to serve in prison all or part of the term of
supervised release without credit for time previously
served on postrelease supervision, if [the court] finds by
a preponderance of the evidence that the person violated
a condition of supervised release, pursuant to the pro-
visions of the Federal Rules of Criminal Procedure that
are applicable to probation revocation and to the provi-
sions of applicable policy statements issued by the Sen-
tencing Commission, except that a person whose term is
6
revoked under this paragraph may not be required to
serve more than 3 years in prison if the offense for which
the person was convicted was a Class B felony, or more
than 2 years in prison if the offense was a Class C or D
felony;’ or
(4) order the person to remain at his place of resi-
dence during nonworking hours and, if the court so
directs, to have compliance monitored by telephone or
electronic signaling devices, except that an order under
this paragraph may be imposed only as an alternative to
incarceration.
18 U.S.C. 3583(e) (1988 & Supp. IV 1992).
c. As noted above, Section 3583(e)(3) as it existed at the
time of petitioner’s offense authorized the district court to
“revoke a term of supervised release, and require the person
to serve in prison all or part of the term of supervised re-
lease without credit for time previously served on post-
Section 3583(e)(3) was originally enacted as Section 3583(e)(4). An
earlier Section 3583(e)(3), authorizing the district courts to treat a viola-
tion of supervised release as a contempt of court, was deleted before peti-
tioner committed his offense. See Pub. L. No. 99-570, Tit. I, § 1006(a)(1),
100 Stat. 3207-6; Pub. L. No. 100-182, § 25, 101 Stat. 1272; Pub. L. No. 100-
690, Tit. VII, § 7108(b), 102 Stat. 4419.
Congress initially placed no specific statutory cap on the permissible
period of reimprisonment for Class A felony offenders. See Pub. L. No.
100-182, § 25, 101 Stat. 1272. All offenders were, however, always subject
to the original, generally applicable limit that the term of reimprisonment
be no greater than the offender’s term of supervised release. See 18
U.S.C. 3583(e)(3) (1988 & Supp. IV 1992) (district court authorized to re-
quire the person to serve in prison all or part of the term of supervised
release”). In 1994, Congress enacted a five-year limitation on the permis-
sible period of reimprisonment for Class A felony offenders. Pub. L. No.
103-322, Tit. XI, § 110505, 108 Stat. 2016-2017. Congress also at that time
permitted the district court to order any defendant to serve in prison on
all or part of the period of supervised release authorized by statute for his
offense (as opposed to the term of supervised release actually imposed by
the district court at the defendant’s initial sentencing). Ibid.; see p. 9 n.8,
infra.
7
release supervision” (subject to further maximum periods of
reincarceration). The courts of appeals reached conflicting
views on whether Section 3583(e) authorized a district court
to order an offender who violated the conditions of his super-
vised release to serve a new period of supervised release
following completion of any term of reincarceration imposed
upon revocation of the initial term of supervised release.
Some courts of appeals agreed with the government that,
when a district court revoked an offender’s initial term of
supervised release, it could order the offender to serve time
in prison and also, after the prison term, further time on
supervised release. Other courts, however, concluded that,
if a district court revoked a defendant’s supervised release
and ordered him to serve time in prison, the court was
required to discharge him upon completion of the prison
term without any further restraints on his liberty outside
prison.
A division of authority had already emerged by the time
of petitioner’s offense. The Sixth Circuit had ruled that “a
district court does not have the power to impose an addi-
tional term of supervised release following a defendant’s
incarceration for violating the conditions of his original
7 The First and Eighth Circuits ruled that sentencing courts had the
power, upon revocation of supervised release, to order the person to serve
part of the original term of supervised release in prison followed by con-
tinued supervised release, but other circuits disagreed and found no
authority to order the person to serve continued supervised release after
release from prison. Compare United States v. O'Neil, 11 F.3d 292, 293
(Ist Cir. 1993), and United States v. Schrader, 973 F.2d 623, 625 (8th Cir.
1992), with United States v. Koehler, 973 F.2d 132, 134-136 (2d Cir. 1992),
United States v. Malesic, 18 F.3d 205, 206 (3d Cir. 1994), United States v.
Cooper, 962 F.2d 339, 341-342 (4th Cir. 1992), United States v. Holmes, 954
F. 2d 270, 272-273 (5th Cir. 1992), United States v. Truss, 4 F.3d 437, 439
(6th Cir. 1993), United States v. McGee, 981 F.2d 271, 274-276 (7th Cir.
1992), United States v. Behnezhad, 907 F. 2d 896, 898-899 (9th Cir. 1990),
United States v. Rockwell, 984 F.2d 1112, 1116-1117 (10th Cir.), cert.
denied, 508 U.S. 966 (1993), and United States v. Tatum, 998 F. 2d 893, 895-
896 (11th Cir. 1993).
8
release.” United States v. Truss, 4 F.3d 437, 439 (1993). The
Eighth Circuit, however, had already held that, “if a district
court finds that an offender has violated the terms of his
supervised release, the district court can * * * require the
offender to serve a portion of the time remaining on the term
of supervised release in prison and the remaining time on
supervised release.” United States v. Schrader, 973 F.2d
623, 625 (1992). The Tenth Circuit had already changed its
position, first agreeing with the government, see United
States v. Boling, 947 F.2d 1461 (1991), and then disagreeing,
see United States v. Rockwell, 984 F.2d 1112, cert. denied,
508 U.S. 966 (1993). One panel of the Eleventh Circuit had
disagreed with the government, see United States v. Tatum,
998 F.2d 893 (1993), but another panel, writing only two
weeks later, agreed with the government, described the
Tatum holding as “contrary to common sense,” but accepted
Tatum as binding precedent and declined to request en banc
consideration because Congress was “in the process of
curing the problem caused by the interpretation placed upon
[Section 3583(e)(3)] by the several circuit courts of appeal,”
see United States v. Williams, 2 F.3d 363, 365 (1993).
d. To resolve the conflict among the courts of appeals
over the district court’s authority to impose both prison time
and renewed supervised release upon revoking an offender’s
supervised release, Congress enacted Section 3583(h) on
September 13, 1994. Section 3583(h) provides:
When a term of supervised release is revoked and the
defendant is required to serve a term of imprisonment
that is less than the maximum term of imprisonment
authorized under subsection (e)(3), the court may include
a requirement that the defendant be placed on a term of
supervised release after imprisonment. The length of
such a term of supervised release shall not exceed the
term of supervised release authorized by statute for the
offense that resulted in the original term of supervised
9
release, less any term of imprisonment that was imposed
upon revocation of supervised release.
Pub. L. No. 103-322, Tit. XI, § 110505, 108 Stat. 2017. Sec-
tion 3583(h) makes clear that, when a court revokes an
offender’s supervised release, it may order him to serve part
of the term authorized for supervised release in prison and
may also order him to serve further time on continued su-
pervised release after he is released from reincarceration.*
The limitations on that authority to order renewed super-
vised release following a period of reincarceration are that
(a) the period of reincarceration imposed must be less than
the maximum that could have been imposed, and (b) the total
period of restraint on the offender’s liberty following revo-
cation of supervised release—-the term of reimprisonment
plus the term of renewed supervised release—must be no
greater than the term of supervised release authorized by
statute for the offense. In effect, Section 3583(h) makes
clear that, when a court revokes a term of supervised re-
lease, it resets the conditions of supervised release as if ab
initio, and may divide the period authorized by statute for
8 In 1994, Congress also amended Section 3583(e)(3) to authorize the
district court to order that an offender whose supervised release is re-
voked to serve in prison all or part of the term of supervised release
“authorized by statute for the offense,” rather than the term of supervised
release initially imposed on a particular offender by the district court in its
initial sentence. That change has no relevance for this case, because the
term of supervised release imposed in petitioner's initial sentence, three
years, was also the maximum authorized by statute for his offense.
Congress also amended an earlier version of Section 3583(g), which had
required the district court to “terminate” an offender’s supervised release
if he is found to be in unlawful possession of a controlled substance. As
amended, Section 3583(g) now requires the district court to “revoke,”
rather than “terminate,” supervised release in such a case. Section
3583(g) also broadened the triggering circumstances for mandatory revo-
cation of supervised release to include circumstances in which the defen-
dant unlawfully possesses a firearm or refuses to comply with drug testing
requirements. See 18 U.S.C. 3583(g).
10
supervised release between time in prison and time outside
prison.“
2. a. On or about October 22, 1993 before Section 3583(h)
was enacted—petitioner committed the offense of conspiracy
to produce, use, and traffic in one or more counterfeit access
devices, with intent to defraud, in violation of 18 U.S.C.
1029(b)(2). Petitioner’s offense was a Class D felony.”
On March 8, 1994, after a guilty plea, petitioner was con-
victed of the conspiracy offense in the United States District
Court for the Eastern District of Tennessee. J.A. 4-8. The
district court sentenced petitioner to 25 months’ imprison-
ment, to be followed by three years’ supervised release (the
maximum amount of supervised release permitted under
Section 3583(b) for a Class D felony). J.A. 9-10. Among the
conditions of petitioner’s supervised release was a require-
ment that he not commit any federal, state, or local crime
while on release (J.A. 10) and a requirement that petitioner
not leave the judicial district without the permission of the
court or the probation officer (J.A. 12).
Petitioner began to serve his sentence on the date of sen-
tencing. He was released from imprisonment (after receiv-
ing good-conduct credits) on August 14, 1995, and upon
release began to serve his three-year term of supervised re-
lease. Had petitioner not violated the conditions of his su-
pervised release, it would have expired on August 13, 1998.
JA. 18.
On March 3, 1996, less than seven months after com-
mencing his term of supervised release, petitioner was
arrested in Virginia on state charges of fraud and uttering a
9 Both before and after the 1994 amendments, Section 3583(e)(3) pro-
vided that a defendant whose supervised release is revoked loses credit
for all time previously served on postrelease supervision.
10 The penalty applicable to petitioner's conspiracy offense is pre-
scribed in 18 U.S.C. 1029(b)(2) and (c)(1)A)(i) as up to five years’ impris-
onment. That penalty classifies the conspiracy offense as a Class D felony.
See 18 U.S.C. 355%a)(4).
11
forged instrument. J.A. 18-19. Petitioner remained in state
custody from the time of his arrest throughout his state trial.
See J.A. 34. On July 25, 1996, petitioner was convicted of the
state offenses of forgery and uttering a forged instrument,
and on the following day he was convicted of the state
offenses of obtaining money by false pretenses and larceny
by false pretenses. J.A. 33-34. The state court sentenced
him to terms of imprisonment of ten years for each of the
first two offenses and one year for each of the latter two
offenses, but suspended execution of nine years of the first
ten-year sentence and nine and one-half years of the second
ten-year sentence. Ibid.
On March 5, 1996, two days after petitioner’s arrest on
state charges in Virginia, the United States Probation Office
filed a Petition for Warrant or Summons for Offender Under
Supervision against petitioner, which was the first step
toward revoking his supervised release. J. A. 17-19. The
violations of supervised release alleged in the petition were
the commission of the Virginia offenses and leaving the
Eastern District of Tennessee without permission. J.A. 18-
19. A federal detainer was lodged in Virginia against peti-
The district court may initiate a revocation proceeding on its own
motion based on information obtained from any source. See Gozlon-Peretz
v. United States, 498 U.S. 395, 400-401 (1991) (“Under the Sentencing Re-
form Act’s provisions for supervised release, the sentencing court, rather
than the Parole Commission, would oversee the defendant's postconfine-
ment monitoring.”). The matter is usually initiated by the offender’s pro-
bation officer, who has the responsibility to “keep informed, to the degree
required by the conditions specified by the sentencing court, as to the con-
duct and condition of a probationer or a person on supervised release, who
is under his supervision, and report his conduct and condition to the sen-
tencing court.” 18 U.S.C. 360302). The United States Attorney's Office
usually participates in the proceeding, but there is no requirement that
revocation of supervised release be initiated by the federal prosecutor.
See United States v. Davis, 151 F.3d 1304, 1307 (10th Cir. 1998); United
States v. Feinberg, 631 F. 2d 388, 390-391 (5th Cir. 1980).
12
tioner, who remained in state custody until March 31, 1998,
when he was released to federal authorities. J.A. 34.
The dispositional report prepared by the Probation Office
for the hearing on the revocation of petitioner’s supervised
release noted that petitioner had been originally convicted of
a Class D felony, and that he had a criminal history of
category V. Under the pertinent statutory provision limit-
ing the amount of time that the district court could order
petitioner to serve in prison after revoking his supervised
release, see 18 U.S.C. 3583(e)(3) (two years maximum reim-
prisonment for Class D felony), and non-binding Policy
Statements issued by the Sentencing Commission address-
ing prison terms following revocation of supervised release,
see Sentencing Guidelines §§ 7B1.3(a)(1), 781.4, petitioner
was subject to a term of imprisonment following revocation
of supervised release of 18-24 months. J.A. 31-32. The
Probation Office’s report also observed that the district
court was authorized under Section 3583(h) to “reimpose
supervised release after revocation, * * * provided that
any term of imprisonment that the defendant is ordered to
serve is less than the maximum term of imprisonment
authorized by statute under [Section] 3583(e)(3).” J.A. 31-32.
On April 30, 1998, at a hearing on the revocation of his
supervised release in the Eastern District of Tennessee
before the original se:tencing judge, petitioner admitted the
alleged violations of hiv supervised release. J. A. 21-22. The
district court thereupon revoked petitioner’s supervised
release. The court noted that, under the Sentencing Com-
mission’s Policy Statements, the term of imprisonment
applicable to petitioner’s case was 18-24 months. J.A. 23.
The court also remarked that “there is a need, at least a
short one, to protect the public from the kind of activity that
{petitioner has] engaged in.” J. A. 25. The court therefore
ordered petitioner to serve the minimum amount of that
range, 18 months, in prison, to be followed by 12 months of
13
further supervised release outside prison. J. A. 26, 40-41.”
Petitioner began to serve his term of prison immediately.
b. Petitioner appealed the revocation of his supervised
release, contending that the application of Section 3583(h) to
his case violated the Ex Post Facto Clause. The court of
appeals affirmed. J.A. 48-49. The court relied (J.A. 49) on
circuit precedent which had held that the application of
Section 3583(h) to the case of an offender whose underlying
crime was committed before Section 3583(h) was enacted
was not retroactive at all. That precedent had reasoned that
Section 3583(h) “does not alter the punishment for defen-
dant’s original offenses; [Section 3583(h) instead imposes
punishment for defendants’ new offenses for violating the
conditions of their supervised release—offenses they com-
mitted after [SJection 3583(h) was passed.” United States v.
Page, 131 F.3d 1173, 1176 (6th Cir. 1997), cert. denied, 119 S.
Ct. 77 (1998).
e. After receiving good-conduct credits, petitioner was
released from prison on July 7, 1999, and began serving his
12 months of renewed supervised release. In the absence of
further action by the district court, petitioner’s term of
supervised release will be completed on July 6, 2000.
12 district court did not expressly refer to Section 3583(h) as
„ guiieane to clove ̃ DV
release outside prison. In context, however, it does appear that the court
relied on Section 3583(h), rather than Section 3583(e)(3), which had pre-
viously been construed by the Sixth Circuit not to authorize sentencing
courts, upon revoking supervised release, both to order the offender to
serve a term of imprisonment and to require additional supervised release
outside. See pp. 7-8, supra. Defense counsel lodged an objection based on
the Ex Post Facto Clause to the order imposing 12 months of further
release, and the district court noted that that Ex Post Facto
Clause challenge (presumably, given the context, to Section 3583¢h)) had
already been rejected by the Sixth Circuit. J.A. 27-28.
14
SUMMARY OF ARGUMENT
A. The Ex Post Facto Clause did not preclude the district
court, upon revoking petitioner’s supervised release, from
exercising its authority under 18 U.S.C. 3583(h) to order
petitioner to serve a new term of supervised release outside
prison after his term of reimprisonment. To fall within the
proscription of the Ex Post Facto Clause, a new law must
disadvantage the offender by making him subject to a
punishment that is more onerous than the punishment for
the offense under prior law. Section 3583(h) does not con-
travene that proscription, because even before it was en-
acted, district courts had the authority under 18 U.S.C.
3593(e)(3) (1988 & Supp. IV 1992) to order offenders to serve
a term of reimprisonment followed by a renewed term of
supervised release.
Although, by the time petitioner committed his offense,
the Sixth Circuit had ruled that district courts revoking
supervised release did not have the authority under Section
3583(e)(3) to impose both reimprisonment and renewed
supervised release, this Court is not bound by that deter-
mination. Petitioner’s claim under the Ex Post Facto Clause
requires the Court to compare federal law at two different
times. That comparison should be made between two
correct determinations of the state of the law. This Court’s
construction of Section 3583(e)(3) is necessarily the correct
one, even if the Sixth Circuit had ruled to the contrary
before the offense took place. Nor would it be unfair to
apply this Court’s accurate construction of Section 3583(e)(3)
to petitioner, because even at the time of his offense, the
circuits had reached differing conclusions about the district
courts’ authority, and petitioner thus had fair notice of the
possibility that this Court might resolve the conflict and
render a ruling unfavorable to him.
The text, purpose, and background of Section 3583(e)(3) as
in effect at the time of petitioner’s offense show that district
15
courts had the authority, when revoking supervised release,
to order both reimprisonment and renewed supervised
release. Congress’s use of the term “revoke” in this context,
which is to be contrasted with its use elsewhere of the term
“terminate” (there meaning “extinguish”), indicates that
Congress did not believe that a “revoked” term of super-
vised release was entirely annulled. Rather, Congress
authorized the district courts to call back the term of
supervised release and reimpose it as if ab initio. Congress
also directed the district courts to order the offender to
“serve in prison all or part of the term” of supervised release
after it was revoked. That locution indicates that Congress
understood that, even after an offender’s supervised release
term was “revoked,” a term of supervised release existed,
even though “all or part” of that term had to be serveld] in
prison.” That construction also makes sense of Congress’s
direction that offenders whose supervised release was
revoked should lose credit for all time spent on supervised
release before its revocation.
Our construction also accords with the dominant purpose
of supervised release, to afford offenders assistance in rein-
tegration into society and rehabilitation. The authority to
revoke supervised release and impose new sanctions is
among a range of powers granted to the district courts to
oversee an offender’s progress on supervised release. A dis-
trict court may, for example, intensify the conditions of su-
pervised release if it believes the offender is having trouble
readjusting to society, or it may terminate supervised
release early if it believes the offender has made a successful
transition. So too here, a district court may determine that
an offender needs a brief period of reincarceration, followed
by a new opportunity for successful reintegration with the
assistance of probation officers. It would ill serve Congress’s
policies to deny the district courts discretion to impose
supervised release on those offenders who need it the most.
16
The background of supervised relersc, in probation,
parole, and special parole before enactment of the Sentenc-
ing Reform Act of 1984, confirms our construction. Under all
three forms of nondetentive monitoring, a court, after
revoking the supervision and directing reincarceration, could
order a new period of similar nondetentive monitoring.
Nothing in the supervised release statute indicates that
Congress intended to depart from that practice.
B. If the Court concludes that Section 3583(e)(3) did not
authorize the district court to order petitioner to serve a
renewed term of supervised release outside prison after
revoking his supervised release, then the case should be
remanded to the district court. This Court’s ex post facto
decisions have generally looked to the standard of punish-
ment imposed by penalty provisions, rather than the actual
penalty imposed on an offender, to determine whether the
new law is more onerous than old law and thus inapplicable
to pre-enactment offenses. The Court’s previous cases,
however, involved situations where the legislature increased
the minimum penalty authorized for an offense, not a case
like this one, where the minimum penalty remained the same
but the maximum penalty authorized was elevated. The ex
post facto considerations in the latter situation may be
different where the offender is sentenced within the range
authorized under prior law.
Nonetheless, this case does not present a circumstance for
the Court to determine whether any different ex post facto
analysis should be applied in such a case. It cannot be stated
with confidence that petitioner received a sanction within
the range authorized under petitioner’s version of prior law.
Although the total amounts of supervised release and reim-
prisonment that petitioner has actually served are less than
the maximum amounts he might have expected to serve
when he committed his offense, he has served them in a
sequence not authorized under prior law. And when the
17
district court revoked petitioner’s supervised release, it
imposed a total restraint on petitioner’s liberty (combined
reimprisonment and supervised release) longer than the
total duration of reimprisonment authorized under prior law.
Accordingly, if the Court accepts petitioner’s construction of
Section 3583(e)(3), the proper remedy is for the Court to
order the case remanded to the district court.
ARGUMENT
THE DISTRICT COURT’S ORDER UNDER 18 U.S.C.
3583(h) REQUIRING PETITIONER TO SERVE A
RENEWED PERIOD OF SUPERVISED RELEASE
OUTSIDE PRISON AFTER HIS PERIOD OF REIN-
CARCERATION DOES NOT VIOLATE THE EX POST
FACTO CLAUSE
A. Even Before Section 3583(h) Was Enacted, Dis-
trict Courts Had The Authority, When Revoking
Supervised Release, To Order An Offender To
Serve A Renewed Period Of Supervised Release
Outside Prison After A Period Of Reincarceration
“To fall within the ex post facto prohibition, a law must be
retrospective—that is, it must apply to events occurring
before its enactment—and it must disadvantage the offender
affected by it, by altering the definition of criminal conduct
or increasing the punishment for the crime.” Lynce v.
Mathis, 519 U.S. 433, 441 (1997) (internal quotation marks
and citation omitted). This case concerns only the second of
those conditions; we do not contend here that Section 3583(h)
is not “retrospective” in the sense of not applying to peti-
tioner’s original criminal conduct.” We do submit, however,
13 We therefore do not agree with the reasoning of the Sixth Circuit
that Section 3583(h) satisfies Ex Post Facto Clause scrutiny in this case
simply because it was passed before petitioner violated the conditions of
his supervised release. See J.A. 49; Page, 131 F.3d at 1175. In our view,
the Sixth Circuit’s statement in Page (ibid.) that Section 3583(h) “imposed
a new sentence for the later misconduct of violating the terms of the
18
that Section 3583(h) does not disadvantage petitioner,
because even before that provision was enacted, the district
courts already had the authority, when revoking an of-
fender’s supervised release, to order the offender to serve a
term of incarceration followed by a renewed period of
supervised release, if the combined period was no greater
than the original period of supervised release imposed on the
offender. Thus, even under prior law, the district court could
have ordered petitioner to serve a combined period of rein-
carceration (subject to a maximum of two years) followed by
further supervised release, totaling three years (the period
of supervised release initially imposed on petitioner, and the
statutory maximum period as well).
1. In Determining The State Of The Law Before
Section 3583(h) Was Enacted, This Court Should
Make An Independent Construction Of Section
3583(e), Rather Than Accept The Sixth’s Circuit's
Prior Construction As Controlling
A challenge to a statute under the Ex Post Facto Clause
requires the Court to compare the state of the law before
passage of the challenged statute and that afterwards, to
determine whether the new provision has altered the law in
a way to make it the criminal penalty applicable to the
defendant’s offense more onerous. See Weaver v. Graham,
450 U.S. 24, 30-31 (1981) (a new law violates the Clause “if it
is both retrospective and more onerous than the law in effect
on the date of the offense”). This Court should make an
supervised release, and therefore it did not extend the original sentence
for the original offense,” is inaccurate. Whether or not the application of
Section 3583(h) in a case like this one to require a new period of super-
vised release outside prison might be described as imposing a “new sen-
tence” for a post-enactment violation of supervised release (which need
not be a criminal offense), it also constitutes part of the penalty for the
original offense. Indeed, imprisonment for a violation of supervised
release (which is established ure the district court by a preponderance
of the evidence, see 18 U. S. C. .63(e)(3)), is justified only on that basis.
19
independent determination whether, even before enactment
of Section 3583(h), Section 3583(e) itself authorized the dis-
trict courts to order an offender to serve both a period of re-
imprisonment and a subsequent period of renewed super-
vised release; it should not simply accept the Sixth Circuit’s
position—which had already been announced at the time
petitioner committed his offense—that district courts in that
circuit did not have such authority under Section 3583(e).
See pp. 7-8, supra (discussing Sixth Circuit’s decision in
United States v. Truss, 4 F.3d 437 (1993)).
Before Congress enacted Section 3583(h), this Court had
not decided whether other provisions of the supervised
release statute, including Section 3583(e), authorized the
district courts to order both a period of imprisonment and a
new period of supervised release outside prison when re-
voking supervised release. Moreover, the lower courts had
already registered disagreement on that question by the
time petitioner committed his offense. See pp. 7-8, supra.
At the time of the offense, therefore, there was no definitive
judicial construction of Section 3583(e) answering that ques-
tion. Only this Court can finally resolve whether Section
3583(e) provided the district courts with such authority: “It
is this Court’s responsibility to say what a statute means,
and once the Court has spoken, it is the duty of other courts
to respect that understanding of the governing rule of law.”
Rivers v. Roadway Express, Inc., 511 U.S. 298, 312 (1994).
If this Court now concludes that Section 3583(e) provided
the district courts with authority to order both reimprison-
ment and renewed supervised release, it will be irrelevant
that the Sixth Circuit might have previously concluded to
the contrary. Once this Court renders a definitive construc-
tion of Section 3583(e), that construction “is an authoritative
statement of what the statute meant before as well as after
the decision of the case giving rise to that construction.”
Rivers, 511 U.S. at 312-313. “(W]hen this Court construes a
20
statute, it is explaining its understanding of what the statute
has meant continuously since the date it became law.” Id. at
313 n.12; see also Bousley v. United States, 523 U.S. 614, 625
(1998) (Stevens, J., concurring in part and dissenting in part).
A contrary approach, requiring this Court to accept the
Sixth Circuit’s construction of Section 3583(e), would have
undesirable consequences. First, it would prevent the uni-
form application of Section 3583(h) across the country.
Because the First and Eighth Circuits had previously
accepted the government’s construction of Section 3583(e),
there can be no Ex Post Facto Clause objection to the appli-
cation of Section 3583(h) in those circuits to an offender
similarly situated to petitioner, convicted of the same offense
and initially sentenced to the same terms of prison and
supervised release. But either Section 3583(h) is an ex post
facto law as applied to one in petitioner’s situation or it is
not; the constitutionality of the law cannot depend on the
offender’s location.” And either the law before Section
3583(h) was enacted permitted both a period of imprison-
ment and a new period of supervised release outside prison
or it did not. The answer depends on this Court’s construc-
tion of Section 3583(e) as in effect at the time of petitioner’s
offense.
Second, if (as we submit) the law before Section 3583(h)
was enacted did authorize the district courts to order both
14 See United States v. St. John, 92 F.3d 761, 765-767 (8th Cir. 1996)
(holding that Section 3583(h) is not an ex post facto law because it did not
change the law in that circuit).
15 Moreover, it would be unclear what rule should be applied in the case
of an offender who, during his initial period of supervised release, moved
(with the district court’s permission) from a circuit that had previously
rejected the government's construction of Section 3583(e) to one that had
accepted it (or vice versa), and then violated a condition of his supervised
release. One such case is pending before the Court. See U.S. Br. at 5-6,
Marlow v. United States, No. 99-6879 (noting that defendant moved from
Sixth Circuit to Eighth Circuit while on supervised release).
21
reimprisonment and renewed supervised release, then a rule
requiring this Court to accept the lower courts’ prior con-
trary interpretations of Section 3583(e) would result in a
windfall to defendants in those circuits that had construed
Section 3583(e) incorrectly." Since the Ex Post Facto
Clause requires a comparison between the states of the law
at two different times, defendants should not be allowed to
rely on a decision about the state of prior law that is, in fact,
incorrect. Rather, the Court should make a comparison
between two accurate and definitive determinations about
the state of the law before and after enactment of Section
358 0h).
16 Cf. Lockhart v. Fretwell, 506 U.S. 364, 370 (1993) (Sixth Amendment
should not be construed to grant the defendant “a windfall to which the
law does not entitle him”; ineffective assistance of counsel claim could not
be based on counsel’s failure to make objection that would have been sup-
ported by lower court decision that was subsequently overruled); id. at
373 (O’Connor, J., concurring) (ineffective assistance of counsel claim
should not be “based on considerations that, as a matter of law, ought not
inform the inquiry”).
17 The Court followed a somewhat analogous approach in Cisneros v.
Alpine Ridge Group, 508 U.S. 10 (1993). In that case, the Ninth Circuit
initially construed a standard contract between the federal government
and private landlords covering rent increases for government-subsidized
housing for low-income tenants in a manner adverse to the government,
prohibiting the government from using independent market comparability
studies to limit payments to landlords to prevailing market rents for
comparable housing. This Court denied the government’s petition for a
writ of certiorari. Congress then enacted a statute expressly permitting
the government to limit rent adjustments to prevailing market rents as
determined by comparability studies. The Ninth Circuit invalidated the
statute under the Due Process Clause, concluding that it impermissibly
impaired the landlords’ vested rights to rent increases under that court's
previous interpretation of the contract. This Court reversed. In doing so,
the Court rejected the premise of the Ninth Cireuit's decision, that the
contract between the government and the landlords prohibited the use of
market comparability studies to limit rent increases. Id. at 17-21. Having
rejected that premise, the Court had no occasion to determine whether
the challenged statute unconstitutionally affected any vested rights.
Thus, this Court did not defer to the court of appeals’ prior, incorrect
22
It is true that, by the time petitioner committed his
offense, the Sixth Circuit, where that offense took place, had
already rejected the government’s construction of Section
3583(e). The Court has stated that “due process bars courts
from applying a novel construction of a criminal statute to
conduct that neither the statute nor any prior judicial deci-
sion has fairly disclosed to be within its scope.” United
States v. Lanier, 520 U.S. 259, 266 (1997); see Bowie v. City
of Columbia, 378 U.S. 347, 353 (1964) (due process prevents
retroactive application of “an unforeseeable judicial enlarge-
ment of a criminal statute”). But when petitioner com-
mitted his offense, one circuit had already accepted the gov-
ernment’s construction, one circuit had initially done so but
had then changed position, and one circuit had issued con-
flicting decisions, first rejecting the government’s position
and then endorsing it as well-reasoned but not adopting it
because of circuit precedent. See pp. 7-8, supra. The lan-
guage of the statute itself (as we explain, pp. 24-26, infra)
also gave petitioner notice of the government’s construction.
Petitioner therefore cannot complain that he would be un-
fairly surprised by a decision of this Court definitively con-
struing Section 3583(e) in a manner different than the Sixth
Circuit’s decision in Truss.”
determination of the contractual obligation between the government and
the landlords, even before the curative statute was enacted, but construed
the contract independently.
18 This Court has also held that its cases overruling its own past
decisions and expanding the permissible basis of criminal liability are not
to be applied retroactively. See Marks v. United States, 430 U.S. 188, 194-
195 (1977) (holding that Miller v. California, 413 U.S. 15 (1973), which
overruled Memoirs v. Massachusetts, 383 U.S. 413 (1966), and permitted
greater criminal proscription of obscenity, could not be applied retro-
actively). This case, of course, does not involve such a situation.
19 See United States v. Rodgers, 466 U.S. 475, 484 (1984) (after accept-
ing government’s construction of 18 U.S.C. 1001, Court rejected argument
that applying that construction to the case before it would be unfair, even
though the court of appeals had rejected the government’s construction
23
2. Section 3583(e) As In Effect At The Time Of
Petitioner's Offense Authorized The District Court
To Order Reincarceration Followed By Renewed
Supervised Release
Section 3583(e)(3), as in effect at the time of petitioner’s
offense, authorized a district court, upon finding that an of-
fender violated a condition of supervised release, to “revoke
a term of supervised release, and require the person to serve
in prison all or part of the term of supervised release without
credit for time previously served on postrelease super-
vision.” 18 U.S.C. 3583(e)(3) (1988 & Supp. IV 1992). The
authority to revoke supervised release was one of four kinds
of powers provided to the district courts overseeing a
defendant’s supervised release, stated in the disjunctive.
The Sixth Circuit concluded in Truss that, when a district
court “revoke[d]” an offender’s initial term of supervised
release under Section 3583(e)(3), it was required to annul the
defendant’s supervised release entirely and to order the
defendant to serve all or part of his term of supervised re-
lease in prison, without the possibility of ordering the defen-
dant to submit to a relatively short period in prison followed
by a renewed period of supervised release. See 4 F.3d at
439. The Sixth Circuit reached that conclusion even though
it recognized that “an additional term of supervised release
may be in the best interests of an orderly administration of
justice,” ibid.; see also id. at 442 (acknowledging its construc-
tion produced an “anomalous result”), and even though a
panel of the Eleventh Circuit had found that construction of
Section 3583(e)(3) to be “contrary to common sense,”
Williams, 2 F.3d at 365. As we now show, the text, purpose,
and background of Section 3583(e) contradict the Sixth Cir-
before the crime took place, because “the existence of conflicting cases
from other Courts of Appeals” at the time of offense “made review of that
issue by this Court and decision against the position of the [defendant]
reasonably foreseeable”).
24
cuit’s construction in Truss. See generally United States v.
O’Neil, 11 F.3d 292 (Ist Cir. 1993) (offering persuasive con-
struction of Section 3583(e).
a. The text of Section 3583(e)
The Sixth Circuit’s construction of Section 3583(e) in
Truss was based largely on its view that, when a court
“revokes” a defendant’s supervised release, the term of
supervised release must be entirely terminated, and the
court’s power to order supervised release for that particular
defendant is extinguished. See 4 F.3d at 439-441. Although
“revoke” in some contexts does mean “terminate” or “extin-
guish,” the word can assume a different meaning in other
contexts. Cf. Deal v. United States, 508 U.S. 129, 132 (1993)
(“the meaning of a word cannot be determined in isolation,
but must be drawn from the context in which it is used”).
The statutory context of Section 3583(e)(3) favors the inter-
pretation that “revoke” as used there means “to call back” or
“to undo.” See Black’s Law Dictionary 1322 (6th ed. 1990)
(defining “revoke” as tjo annul or make void by recalling or
taking back”); O Neil, 11 F.3d at 295-296. And if a term
has been called back, it may be reimposed.” Ibid. Section
3583(e)(3) therefore authorizes the court to undo the course
of supervised release thus far followed and to reformulate it,
as if ab initio, including a condition that the person serve “all
or part of the term of supervised release” in prison and the
rest outside of prison under continued supervision.
The first indication that Congress intended “revoke” to
mean something other than “terminate” is that Congress
separately used the word “terminate” in Section 3583(e)(1),
where it granted the court authority to “terminate a term of
supervised release and discharge the person released at any
time after the expiration of one year of supervised release.”
Had Congress intended that the effect of revocation under
Section 3583(e)(3) would be to extinguish completely the
initial term of supervised release and substitute imprison-
25
ment, then it more likely would have used the term,
“terminate,” or a close synonym, instead of “revoke.”™
A second indication of Congress’s meaning is found in its
description of the consequence of a revocation under Section
3583(e)(3): the court may “require the person to serve in
prison all or part of the term of supervised release.” 18
U.S.C. 3583(e)(3) (1988 & Supp. IV 1992) (emphasis added).
The reference to “the term” of supervised release would be
meaningless if the act of revocation had entirely eliminated
the district court’s authority to place the offender on
supervised release; in that event, “the term” of supervised
release could no longer exist. See O’Neil, 11 F.3d at 295
(observing that “the supervision term recommenced upon
revocation—else there would be no term then in existence”
before the offender to serve in prison). The implication of
Congress’s use of the phrase “the term” of supervised
release is that such a term continues to exist even after the
district court has “revoke[d]” the initial term of supervised
release.
20 Congress also used the word “terminate” in the original version of
Section 3583(g), which was in effect when petitioner committed his under-
lying offense. That version of Section 3583(g) provided that, if the person
on supervised release is found to possess a controlled substance, “the
court shall terminate the term of supervised release and require the
defendant to serve in prison not less than one-third of the term of super-
vised release.” 18 U.S.C. 3583(g) (1988 & Supp. IV 1992). Subsequently,
however, Congress apprehended that the term “terminate” was inap-
propriate in that context, for it amended Section 3583(g) to change the
terminology from “terminate” to “revoke.” See Pub. L. No. 103-322, Tit.
IX. § 110505, 108 Stat. 2017.
21 As noted above (p. 9 n.8, supra), in 1994 Congress amended Section
3583(e)(3) to provide that the district court, on revoking supervised re-
lease, may require an offender to serve in prison all or part of the term of
supervised release “authorized by statute for the offense” for which he
was convicted, not just all or part of “the term” of supervised release to
which the offender had originally been sentenced. See Pub. L. No. 103-
322, Tit. XI. § 110505, 108 Stat. 2016.
26
Third, Congress provided that a district court may order a
defendant whose supervised release is revoked to “serve in
prison” all or part of the term of supervised release. 18
U.S.C. 3583(e)(3) (1988 & Supp. IV 1992). If Congress had
intended the revocation proceeding to end supervised re-
lease completely, Congress would more likely have provided
that the district court should “order the person imprisoned.”
The implication of Section 3583(e)(3) as in effect in 1993,
therefore, is that the defendant was to be ordered to serve
his term of supervised release, which term was still in
existence, in prison, not that the supervised release term
was to be extinguished.
Fourth, Congress specified that a defendant whose super-
vised release was revoked would lose “credit for time previ-
ously served on postrelease supervision.” 18 U.S.C.
3583(e)(3) (1988 & Supp. IV 1992). If the intended effect of
revocation was to extinguish the original supervised-release
term and substitute a term of imprisonment, then there
would be no reason to specify that the person lost credit.
The extinguishment of the original term of supervised
release would eliminate the question of credit. But if the dis-
trict court has the authority to call back and reformulate the
term of supervised release, then it is important to specify
whether the defendant should receive credit for the time al-
ready spent on supervised release.
All of these features of Section 3583(e)(3) readily make
sense if the meaning of “revoke” is that the court calls back
the original term of supervised release and requires the
person to redo it, starting with a condition that he serve part
of his supervised-release term in prison. Those features do
not make sense if “revoke” in this context must be read to
mean “extinguish.”
b. The purpose of supervised release
Our construction of Section 3583(e)(3) is consistent with
the dominant purpose of supervised release, which is to pro-
27
vide assistance to an offender released from prison in his
reintegration into society and rehabilitation. See pp. 3-4, su-
pra. In this respect Section 3583(e)(3) should be considered
together with the other powers granted to the district court
in Section 3583(e), all of which are designed to ensure a suc-
cessful transition for the defendant from prison to society
outside prison. Those other powers show that the district
court was granted a continuing supervisory authority, dur-
ing the entire period of supervised release, to monitor the
progress of the offender and to adjust the conditions of su-
pervised release to assure his successful reentry into the
community. Under Section 3583(e)(2), for example, the
court, “at any time prior to the expiration or termination of
the term of supervised release,” may “extend a term of
supervised release if less than the maximum authorized term
was previously imposed, and may modify, reduce, or enlarge
the conditions of supervised release.” 18 U.S.C. 3583(e)(2)
(1988 & Supp. IV 1992). There is no triggering requirement
that the court find a violation of the conditions of supervised
release. Rather, the court may, in its discretion, extend the
term or enlarge the conditions “at any time. Likewise,
under Section 3583(e)(1), the court may “terminate a term of
supervised release and discharge the person released at any
time after the expiration of one year of supervised release” if
the court “is satisfied that such action is warranted by the
2 Section 3583(e)(2) requires that any extension of a term of super-
vised release be made “pursuant to the provisions of the Federal Rules of
Criminal Procedure relating to the modification of probation.” Federal
Rule of Criminal Procedure 32.1(b) does not require a violation of proba-
tion as a predicate to the modification (including extension) of probation,
although Rule 32.1(a) does require a violation as a predicate to the revoca-
tion of probation. The district court’s action to modify the conditions of
supervised release is subject to review on appeal for abuse of discretion.
See, e. g., United States v. Edgin, 92 F.3d 1044, 1047 (10th Cir. 1996), cert.
denied, 519 U.S. 1069 (1997); United States v. Schechter, 13 F.3d 1117,
1118-1119 (7th Cir. 1994).
28
conduct of the person released and the interest of justice.”
18 U.S.C. 3583(e)(1) (1988 & Supp. IV 1992).
Section 3583(e) thus gives the court broad and flexible
authority to monitor the offender’s progress on supervised
release and to adjust the conditions of the release as appro-
priate in light of the offender’s situation. It is fully con-
sistent with the tenor of those provisions to conclude that,
when an offender has shown his unwillingness to comply
with the conditions of supervised release, he may be re-
quired to start the term over again under Section 3583(e)(3)
and to serve a part of that term in prison and the rest
outside prison under continued supervision. But it would be
inconsistent with the statutory theme of continued super-
vision to construe Section 3583(e)(3) to require that the per-
son be discharged without supervision after serving time in
prison, when that person has demonstrated by his violation
that he is most in need of continued supervision in order to
achieve successful return to productive society.
Under petitioner’s (and the Sixth Circuit’s) contrary con-
struction of Section 3583(e)(3), if an offender on supervised
release violated his conditions, and the district court con-
cluded that both a limited period of reincarceration and
intensification of the degree of supervision of the offender
were necessary to promote his reintegration into society, the
district court would nonetheless be precluded from achieving
both of those objectives. The court would have to choose
between the two. That construction leads to the peculiar
result of requiring the district court to choose between
exercising the greater power of ordering reincarceration or
the lesser power of intensifying the conditions of supervised
release, even for the same period of time, while denying the
court the authority to combine those two powers. Thus, in
the case of a Class A felony offender who was originally
sentenced to five years’ supervised release and who violated
the conditions of supervised release, the district court could
require that offender to serve the remainder of the five-year
term in jail, or it could substantially increase the offender’s
reporting requirements and limit his movements for the
remainder of those five years, but it could not do both: it
could not, for example, order the defendant to serve half of
the remainder of the five-year term in jail and serve the
second half outside prison, but subject to close supervision
by a probation officer. There is no evident reason why
Congress would have wanted to deny the district courts that
option.
Petitioner’s construction leads to particularly anomalous
results in those cases where the defendant was initially sen-
tenced to a term of supervised release that was less than the
statutory maximum. Assume, for example, that an offender
was a Class B felon and was therefore subject to a statutory
maximum term of supervised release of five years. See 18
U.S.C. 3583(b). Assume further that the district court, when
initially sentencing that defendant, concluded that three
years of supervised release would be sufficient for his rein-
tegration into society. If the offender violated his super-
vised release, but if that violation was not extremely serious,
the district court might conclude that a limited period of
reincarceration was necessary but that the offender needed
further supervision after the period of reincarceration for his
reintegration to be successful, and that he should be
required to serve the two additional years of supervised -
release to which the district court could have initially
sentenced him. In petitioner’s view and that of the Sixth
Circuit, the district court would not have the power to
impose such an order. The district court would be required
to choose between extending the term of supervised release
to five years and foregoing reimprisonment, cnd ordering
30
reimprisonment and abandoning the policy of supervised
release altogether.”
The construction of Section 3583(e)(3) we have advanced
grants the district court the full flexibility contemplated by
Congress for the court to adjust supervised release to assure
the person’s successful reentry into the community. If it
appears that the person has successfully reintegrated into
the community and does not need further supervision, the
court may terminate the term of supervised release anytime
after one year and discharge the person. 18 U.S.C.
3583(e)(1). If a modification during the term of supervised
release is appropriate to assure the person’s successful re-
entry into the community, a change can be made to the
conditions of supervised release or its duration (within the
statutory limit) as an exercise of the court’s sound discretion.
18 U.S.C. 3583(e)(2). When a person has shown maladjust-
3 A possible example of such a case is United States v. Cooper, 962
F. 2d 339 (4th Cir. 1992). In that case, the defendant, who was convicted of
a relatively minor narcotics offense under 21 U.S.C. 841(a)(1), involving
less than one ounce of cocaine, was initially sentenced to five months of
incarceration, to be followed by five years’ supervised release, including
drug treatment. (Because the conviction involved a narcotics offense, the
maximum periods of supervised release in Section 3583(b) did not apply.
See p. 3 n.2, supra.) When on supervised release he violated one of the
conditions by seeing his girlfriend, who was a convicted felon. The district
court revoked his supervised release and sentenced him to two months of
intermittent confinement in a jail facility, to be followed by four and one
half years of further supervised release. The court of appeals concluded
that the renewed term of supervised release was not authorized by
Section 3583(e)(3), because the district court had revoked the initial term
of supervised release. 962 F.2d at 341-342. A district court operating
under such a regime—forced to choose between ordering the defendant to
serve additional time in prison but forfeiting the possibility of continued
supervised release thereafter, and keeping the defendant on supervised
release but foregoing the use of a short period of reimprisonment—might
well order the defendant to serve a relatively lengthy period in prison
since a short period in prison, without continued supervised release there-
after, might be insufficient to satisfy the purposes of supervised release in
such a situation.
31
ment by his inability or unwillingness to comply with the
previous conditions of release, the court has the additional
option of revoking the term, and requiring the offender to
serve a short period of reimprisonment, followed by a new
opportunity for the offender to achieve successful reintegra-
tion into the community through a renewed period of
supervised release outside prison.
In accordance with our construction of Section 3583(e)(3),
the district court had authority before Section 3583(h) was
enacted to revoke petitioner’s three-year term of supervised
release and to require that he start over, serving up to the
first 24 months in prison and the remaining 12 months on
continued supervised release outside prison. Section 3583(h)
did not give the district court any greater authority. Indeed,
Section 3583(h) cabined the district court’s authority in one
respect; it provided that renewed obligation to serve super-
vised release outside prison may not be imposed unless the
district court orders the offender to serve less than the
maximum term of reimprisonment authorized by prison. See
18 U.S.C. 3583(h); United States v. Davis, 187 F.3d 528 (6th
Cir. 1999) (remanding for district court to impose less than
two-year maximum to be followed by continued supervised
release).
24 Applying the terms of Section 3583(e)(3), a district court would have
authority based on continued violations of the conditions of supervised re-
lease to revoke a person’s supervised release a second time, or any num-
ber of subsequent times, and require him to start over each time, limited
only by the abuse of discretion standard. That approach is consistent with
the purpose of supervised release to ensure the person’s successful
integration into the community. Since on each occasion of revocation the
offender must lose credit for time previously served on postrelease
supervision, see 18 U.S.C. 3583(e)(3), the revocation process necessarily
contemplates the possibility that a defendant will end up serving more
time on supervised release than the maximum statutory term of super-
vised release that might originally have been imposed for his underlying
offense.
32
e. Background of supervised release
Our construction also finds support in the practice of
probation, parole, and special parole predating the introduc-
tion of supervised release into the federal system. See
O’Neil, 11 F.3d at 298-300. A similar question arose under
the old probation statute, which empowered the court to
“revoke the probation * * * and * * * impose any sen-
tence which might originally have been imposed.” 18 U.S.C.
3653 (1982). The majority of courts concluded that a new
term of probation was a “sentence” that might be imposed
after the court’s revocation of the initial term of probation.
See O’Neil, 11 F.3d at 298-299 (collecting cases).
As to parole, “[tJhere was never any question that non-
detentive monitoring could follow a prison sentence imposed
in consequence of the revocation of a term of parole or spe-
cial parole.” O’Neil, 11 F.3d at 299; see also United States
Parole Comm’n v. Williams, 54 F.3d 820, 824 (D.C. Cir.
1995) (noting “the established pre-Guidelines sentencing
principle that parole is available unless expressly pre-
cluded”) (internal quotation marks omitted); 28 C.F.R. 2.52
App. (Parole Commission Policy Statement, referring to “an
adequate period of renewed supervision following release
from reimprisonment”). Congress, moreover, was aware of
That does not mean, however, that an offender faces the prospect of
endless returns to prison shouid he violate the conditions of his supervised
release each time he is placed on supervised release. In our view, the
maximum terms of reimprisonment authorized by Section 3583(e)(3) apply
to the totality of the offender’s history on supervised release after con-
viction for a particular offense, and not to each occasion on which he is
placed on supervised release based on that conviction (including each time
his supervised release might be revoked). Thus, an offender like peti-
tioner who was convicted of a Class D felony faces only a maximum of two
years’ reimprisonment for all of his possible violations of supervised
release based on that particular offense. At some point the district court’s
authority over an offender comes to an end. Cf. United States Parole
Comm in v. Williams, 54 F.3d 820, 823 (D.C. Cir. 1995) (reaching similar
conclusion about old special parole statute, 21 U.S.C. 841(c) (1982)).
33
this practice, for the legislative history to the Sentencing
Reform Act specifically noted that under pre-Guidelines law,
“if a parolee violates a condition of parole that results in a
determination to revoke parole, the revocation has the effect
of requiring the parolee to serve the remainder of his origi-
nal term of imprisonment, subject to periodic consideration
for re-release as required for any prisoner who is eligible for
parole.” O’Neil, 11 F.3d at 299 (quoting S. Rep. No. 225,
supra, at 123) (emphasis added in O’Neil opinion). Congress
therefore understood that the concept of “revoking” non-
detentive monitoring like parole was fully consistent with
the possibility that the offender would again be eligible for
and subject to such monitoring even if the offender was also
required to return to prison.
The practice under special parole, which before enactment
of the Sentencing Reform Act was a part of the sentence
required for certain narcotics offenses under Title 21, further
supports our construction. Special parole is similar to super-
vised release in that it is a part of the criminal sentence
required to be served after the defendant’s completion of his
prison term (or any other form of nondetentive supervision,
such as probation), rather than in lieu of the prison term.
See 28 C.F.R. 2.57(a). Under the old special parole statute,
which was worded similarly to Section 3583(e)(3), when an
offender’s special parole term was revoked, his original term
of imprisonment was increased by the period of the special
parole term (without credit for the time spent on special
parole outside prison), and “[a] person whose special parole
term has been revoked [might] be required to serve all of
part of the remainder of the new term of imprisonment.” 21
U.S.C. 841(c) (1982). But although the special parole statute
did not expressly provide for the reimposition of special
parole after revocation of the initial term of special parole
and reimprisonment, the Parole Commission required such
reparole: “Should a parolee violate conditions of release
34
during the Special Parole Term he will be subject to revo-
cation on the Special Parole Term * * * and subject to re-
parole or mandatory release under the Special Parole Term.”
28 C.F.R. 2.57(c).™ Moreover, like an offender whose super-
vised release is revoked and who loses credit for time spent
outside prison, “a special parole term violator whose parole
is revoked shall receive no credit for time spent on parole
pursuant to 21 U.S.C. 841(c).” 28 C. F. R. 2.57(c).
Although the Sentencing Reform Act undoubtedly broke
new ground in sentencing practices, including the introduc-
tion of supervised release, Congress did not completely dis-
card past practice under probation, parole, and special parole
( »pecially the last, of which supervised release was an
2 A conflict in the circuits has recently developed as to whether the
Parole Commission, upon revoking an offender’s special parole, may law-
fully impose another special parole term after a period of reincarceration.
Compare Billis v. United States, 83 F.3d 209, 211 (8th Cir.) (Parole Com-
mission does have such authority), cert. denied, 519 U.S. 900 (1996), and
United States Parole Comm'n v. Williams, 54 F.3d at 823-824 (same),
wiih United States v. Robinson, 106 F.3d 610, 611-613 (4th Cir. 1997) (Pa-
reie Commission does not have such authority; relying on court’s earlier
decision holding that court revoking supervised release could not impose
new term of supervised release under Section 3583(e)(3)), Artuso v. Hall,
74 F.3d 68, 71-72 (5th Cir. 1996) (same), Robles v. United States, 146 F. 3d
1098 (9th Cir. 1998) (Parole Commission may not impose second term of
special parole; when it releases offender from reincarceration, it releases
him on regular parole), Fowler v. United States Parole Comm'n, 94 F.3d
835, 840-841 (3d Cir. 1996) (same), and Evans v. United States Parole
Comm 'n, 78 F.3d 262, 264-265 (7th Cir. 1996) (same). None of those cases
had been decided, however, when Congress enacted the supervised re-
lease provisions in the Sentencing Reform Act of 1984. At that time, the
Parole Commission’s thereto unchallenged regulations clearly stated, as
they do now, that an offender whose special parole term is revoked and
who is ordered to serve a period of reimprisonment may also be ordered to
serve a new term of special parole. See 28 C.F.R. 2.57(c) (1984). That was
the legal background against which Congress enacted Section 3583(e)(3).
Cf. Brown v. GSA, 425 U.S. 820, 828 (1976) (relevant inquiry for congres-
sional intent is what Congress’s understanding of the law was at the time
of legislative enactment, not whether that understanding is eventually
proven correct).
35
expansion). That past practice made abundantly clear that
an offender whose nondetentive supervision was revoked
could be required to serve another such period of supervision
after serving a period of reincarceration. Neither the text
nor the legislative history of the Sentencing Reform Act
gives any indication that Congress intended to depart from
that settled practice. “A party contending that legislative
action changed settled law has the burden of showing that
the legisiature intended such a change.” Tome v. United
States, 513 U.S. 150, 163 (1995). That showing has not been
made here.
B. If The Court Concludes That Section 3583(e)(3) Did
Not Authorize A Renewed Term Of Supervised Re-
lease, Then The Entire Sanction Imposed On Peti-
tioner For Violating Supervised Release Should Be
Vacated And The Case Remanded For Further Pro-
ceedings
If the Court were to reject our submission that, at the
time of petitioner’s offense, Section 3583(e)(3) authorized the
district court to order petitioner to serve a renewed term of
supervised release after revoking his supervised release, the
question would then arise whether the application of Section
3583(h) in this case violates the Ex Post Facto Clause
because it “disadvantage[d] the offender affected by it by
* * * increasing the punishment for the crime.” Lynce, 519
U.S. at 441 (citation omitted). On the assumption that our
construction of Section 3583(e)(3) is wrong, we agree that
the sanction imposed on petitioner for violation of his super-
vised release in this case must be vacated and the case
remanded, because the district court relied on Section
3583(h) to impose a sanction on petitioner that is not within
the standard of punishment to which he could have been
exposed under prior law.
36
1. The Application Of A New Statute That Raises The
Maximum Possible Penalty But Does Not Raise The
Minimum Possible Penalty Or Narrow the District
Court’s Discretion To Impose That Minimum
Penalty May Not Violate The Ex Post Facto Clause
Where The Offender Is Sentenced Within The
Range Authorized Under Prior Law
The framework for identifying whether petitioner was
disadvantaged by application of Section 3583(h) must begin
with a precise description of the range of options available to
the sentencing judge under old law, as compared to the new.
Petitioner was convicted of a Class D felony. Under peti-
tioner’s construction of prior law, the district court, upon
revoking supervised release for a Class D felon, could order
the offender to serve a term of reimprisonment of up to two
years. 18 U.S.C. 3583(e)(3) (1988 & Supp. IV 1992). Under
current law, the district court, upon revoking supervised
release, may order a Class D felon to serve up to three years
of a combination of imprisonment and supervised release,
provided that the term of imprisonment is less than two
years. See 18 U.S.C. 3583(a), (e)(3), and (h). Thus, the dis-
trict court retains the authority to order petitioner to serve
the minimum sanction available under prior law, namely one
day of reimprisonment alone.“ But under current law, it
would also have been possible for the district court to order
petitioner to serve two years less one day of imprisonment,
followed by one year and one day of supervised release.
26 The district court’s authority under Section 3583(h) to order an of-
fender to serve a renewed term of supervised release as well is dis-
cretionary. See 18 U.S.C. 3583(h) (“the court may include a requirement
that the defendant be placed on a term of supervised release after impris-
onment”) (emphasis added). Section 3583(h) therefore did not raise the
minimum sanction for violation of supervised release.
37
That penalty is greater than the maximum available under
prior law, two years’ imprisonment.”
If the sole issue is whether the standard of punishment
increased, Section 3583(h) would be considered an ex post
facto law in all applications to pre-enactment offenders.
While language in this Court’s decisions suggests such an
analysis,” the Court’s holdings do not squarely address the
precise situation presented where a new law raises the
maximum sanction authorized by prior law, but does not
raise the minimum sanction or narrow the sentencing court’s
discretion to impose it, and a particular offender is sentenced
27 As to some classes of offenders, however, Section 3583(h) is almost
certainly no more onerous than prior law in all its applications. For exam-
ple, under petitioner’s construction of prior law, a Class A felony offender
who violated his supervised release could be ordered to serve a maximum
of five years in prison, but no time on renewed supervised release. See 18
U.S.C. 3583(e)(3) (1988 & Supp. IV 1992). Under cuvrent law, however,
certain Class A felony offenders whose supervised release is revoked can
be ordered to serve a combination of prison and supervised release, up to a
total of five years. See 18 U.S.C. 3583(b) (five years’ maximum supervised
release for Class A felons) and (h) (period of additional supervised release
must be no more than the term of supervised release authorized for of-
fense by statute, less any term of reimprisonment actually imposed); but
ef. p. 3 n.2, supra (discussing life supervised release available for certain
drug offenders). Section 3583(h) therefore did not increase the maximum
permissible period of restraint to be imposed on those Class A felony
offenders. Moreover, the actual conditions of the restraint are likely to be
less onerous, because supervised release is a less intrusive restraint on an
offender’s liberty than incarceration. See United States v. Brady, 88 F.3d
225, 228-229 (3d Cir. 1996), cert. denied, 519 U.S. 1094 (1997). Nor wovid
the mere potential for reimprisonment for a violation of supervised release
make Section 3583(h) an ex post facto law as applied to such a case. See p.
44 n.34, infra.
% See Lindsey v. Washington, 301 U.S. 397, 401 (1937) (“the ex post
facto clause looks to the standard of punishment prescribed by a statute,
rather than to the sentence actually imposed”); Weaver, 450 U.S. at 33 (ex
post facto inquiry “looks to the challenged provision, and not to any special
circumstances that may mitigate its effect on the particular individual”).
38
within the maximum sanction permitted under prior law.”
None of this Court’s ex post facto sentencing cases has in-
volved that situation. See Lynce, supra; Miller v. Florida,
482 U.S. 423 (1987); Weaver, supra; Lindsey v. Washington,
301 U.S. 397 (1937).
In Lindsey, the Court concluded that the Ex Post Facto
Clause precluded application of a new sentencing statute for
grand larceny that fixed a mandatory 15-year prison sen-
tence, with the possibility of parole during that term. At the
time of the petitioner’s offense, the applicable statute had
imposed a maximum sentence of 15 years in prison, with a
minimum term of six months, for the same offense. 301 U.S.
at 398. The Court held that the new law could not be applied
because it “ma[dje mandatory what was before only the
maximum sentence,” 15 years in prison. Id. at 400. The
Court rejected the argument that the petitioner suffered no
disadvantage from the new law because he might have
received a 15-year sentence under the old law; the new law
was more onerous, the Court held, because it removed “the
possibility of a sentence of less than fifteen years. * It
is plainly to the substantial disadvantage of petitioners to be
deprived of all opportunity to receive a sentence which
would give them freedom from custody and control prior to
the expiration of the 15-year term.” Id. at 401-402.
In Miller, the Court invalidated, under the Ex Post Facto
Clause, the application of a change in Florida’s statutory
2° Nor has the Court ever decided a case involving a new sentencing
law that both lowers the minimum sentence and raises the maximum sen-
tence from that under prior law—for example, where a statute authorizing
a prison term of 5-10 years for an offense is replaced by one authorizing a
prison term of 2-12 years. Cf. Weaver, 450 U.S. at 34 (considering, but
rejecting, argument that the “net effect of all [new] provisions increased
{rather than decreased] availability of gain-time deductions”); Miller v.
Florida, 482 U.S. 423, 432 (1987) (noting that the State was not “able to
identify any feature of the revised guidelines law that could be considered
ameliorative”).
39
sentencing guidelines that raised the presumptive sentence
applicable to the petitioner. At the time of his offense, the
petitioner’s presumptive sentence was 3 1/2 to 4 1/2 years,
but at the time of sentencing, the guidelines directed a pre-
sumptive sentence of 5 1/2 to 7 years, and the court actually
imposed a sentence of seven years. See 482 U.S. at 424-425.
There was a theoretical possibility that the petitioner might
have received a seven-year sentence under the earlier law.
But the Court observed that, to depart from the presump-
tive sentence under the guidelines, the sentencing judge was
required to provide clear and convincing reasons in writing
for the departure, on facts proved beyond a reasonable
doubt, and the defendant would have had the right to appeal.
See id. at 432-433. Because the petitioner had enjoyed none
of those rights, the Court concluded that he “therefore was
‘substantially disadvantaged’ by the retrospective applica-
tion of the revised guidelines to his crime.” Id. at 433.
In Weaver, the State repealed a statute that had made
available gain-time credits of five, ten, and fifteen days per
month, depending on the length of the prisoner’s incarcera-
tion, and replaced it with a new statute that made available
credits of only three, six, and nine days per month respec-
tively. See 450 U.S. at 26. The new statute was indisputably
more onerous than prior law; as the Court explained, (on
its face, the statute reduces the number of monthly gain-
time credits available to an inmate who abides by prison
rules and adequately performs his assigned tasks. By defini-
tion, this reduction in gain-time accumulation lengthens the
period that someone in [the inmate’s] position must spend in
prison.” Id. at 33. Similarly, in Lynce, the statute under re-
view retroactively canceled prison-overcrowding early-
release credits that had been available under the law at the
time the offender (and any other inmate convicted of murder
or attempted murder) committed his offense. See 519 U.S.
at 436. Every offender who fell within the class covered by
40
the law lost the opportunity to accumulate good-time credits
that had been available under prior law, and indeed many
lost credits that had already been accumulated.
All of those cases involved a situation where the new law
eliminated or significantiy reduced the possibility, available
under prior law, that the offender might have received a
more lenient sentence than was actually imposed. None of
those cases addressed the situation presented here, where
the new law does not raise the minimum authorized sen-
tence, or alter a judge’s discretion to impose it, but does
raise the maximum authorized sentence. In Lindsey, the
Court did allude to that situation, stating that “(t]he Consti-
tution forbids the application of any new punitive measure to
a crime already consummated, to the detriment or material
disadvantage of the wrongdoer,” and that “(i]t is for this rea-
son that an increase in the possible penalty is ex post facto,
regardless of the length of the sentence actually imposed,
since the measure of punishment prescribed by the later
statute is more severe than that of the earlier.” 301 U.S. at
401 (citations and internal quotation marks omitted).” But
3° Lindsey cited State v. Callahan, 109 La. 946 (1903), in which a new
statute raised the maximum penalty but not the minimum penalty above
that authorized under prior law. In Callahan, the defendant was con-
victed for selling liquor without a license. The old law, in effect at the time
of the offense, established a penalty of a fine of $100-$500, and in default of
payment the convicted defendant was to be imprisoned to not less than 30
days nor more than four months. The new law provided alternative penal-
ties: under one alternative, the fine remained the same ($100-$500), but in
default of payment, the defendant was to be imprisoned “for a term within
the discretion of the court”; under the second alternative, the defendant
was to “suffer fine and imprisonment as the court may deem proper.” /d.
at 947. The defendant in that case was ordered under the new law to pay a
fine of $350, but was not ordered to serve any term of imprisonment. The
State argued that the new law was not ex post facto because the penalty
imposed on the defendant was within the limit of both the old and the new
laws. The Louisiana Supreme Court disagreed, stating that, “[e]ven
though a penalty is only possible, and not necessary, the law is ex post
facto as to past offenses.” Id. at 948.
41
Lindsey s observation as to increases in the maximum pen-
alty was dictum, and it is not necessarily the case that
application of a new law that elevates a statutory maximum
term, but does not alter the minimum or restrict the sen-
tencing court’s discretion to impose it, imposes the sort of
“detriment” that this Court has required to find an ex post
facto violation.
The elevation of a minimum sentence is somewhat differ-
ent from the elevation of the statutory maximum. In the
former situation, all defendants are denied at least the
possibility of being considered for a sentence below the
minimum authorized under the new law.” The same is not
inexorably true when the statutory maximum is raised.
There may be circumstances in which the fact that the
legislature has increased the maximum sentence authorized
for an offense, by itself, should not render the new statute an
ex post facto law in certain applications where the defendant
was sentenced within the range authorized by prior law.
When a sentencing judge has all the sentencing options
that were available under prior law, but has as well a higher
statutory maximum, and the judge imposes a sentence with-
in the prior maximum term, the defendant has not experi-
enced a detriment from the new law in a direct sense, i. e.,
the imposition of a more onerous sentence than was available
under prior law. It is conceivable that the defendant might
have experienced an indirect detriment, i.e., the imposition
3! If the court’s sentencing options are restricted
guidelines, however, a defendant may not — —
from application of such a law. For example, if Congress elevated the
statutory minimum for an offense but the Sentencing Guidelines applica-
ble to a particular defendant's crime were not changed, and the district
court made clear on the record that the defendant would not receive a
downward departure from the Guidelines range in any event, it is difficult
to see how the defendant would be prejudiced based on deprivation of the
entirely theoretical possibility that the district court might have departed
— and imposed a sentence authorized under old law but not new
iw.
42
of a greater sentence within the preexisting range because
the judge was influenced by the higher maximum penalty.
But legal boundaries on the judge’s discretion or the sen-
tencing record itself may make any such possibility remote
or nonexistent. Assume, for example, that, between the time
of a defendant’s crime and his sentencing, Congress in-
creased the penalty for the defendant’s offense from 5-10
years to 5-12 years, but that the Sentencing Guidelines appli-
cable to the defendant’s individual circumstances were not
changed before the defendant was sentenced, and that the
district court made clear that no upward departure would be
warranted on the facts of the case before it. If the defendant
was sentenced below the statutory maximum authorized
under prior law and within the Sentencing Guidelines range,
it is not clear that the defendant should receive any relief.
There would have been, at most, a theoretical possibility
that, if the district court had found reason for an upward
departure, then the sentence would have been above that
authorized under prior law, and a speculative possibility that
the district court might have sentenced him at the high end
of the Guidelines range based on Congress’s elevation of the
maximum penalty. Those forms of harms from the change
might be deemed so “speculative and attenuated,” Califor-
nia Dep't of Corrections v. Morales, 514 U.S. 499, 514 (1995),
as to defeat any ex post facto claim or render it, at worst,
harmless error. See Fed. R. Crim. P. 52(a); Chapman v.
California, 386 U.S. 18 (1967).
2. The Actual Sanction Imposed On | etitioner Fol-
lowing Revocation Of His Supervised Release
Cannot Confidently Be Said To Be Less Onerous
Than That Available Under Prior Law
This case, however, does not present an occasion for the
Court to consider the possibility that the mere increase in a
statutory maximum sentence does not violate the Ex Post
Facto Clause as applied to a defendant sentenced within the
43
range authorized under prior law. If our construction of
Section 3583(e)(3) is rejected, it is not sufficiently clear that
the sanction that the district court imposed on petitioner for
violating his supervised release could be said to be within
the range of sanctions available under prior law.
There are at least two ways of considering whether Sec-
tion 3583(h) was applied to petitioner’s detriment, compared
to prior law. The first is to look at petitioner’s expectations
at the time he committed his offense. At that time, it is
undisputed that the law authorized the court to require peti-
tioner to serve as much as three years’ supervised release,
followed by two years’ reimprisonment if his supervised
release were revoked at the end of that period. Petitioner
might not have violated the conditions of his supervised
release until the end of his term, and even if his violation
occurred earlier, his supervised release might not have been
revoked until the end of his term.” Under either cir-
cumstance, petitioner could have been required to serve the
maximum possible periods of restraint on his liberty, both in
the form of supervised release and reimprisonment, that
were authorized by statute.
The actual periods of supervised release and reimprison-
ment that petitioner was required to serve in this case are
% Petitioner had no statutory or constitutional expectation that his
supervised release would be revoked immediately after his violation or at
any time before the expiration of his three-year term of supervised re-
lease. See Moody v. Daggett, 429 U.S. 78, 87-89 (1976) (no constitutional
right to parole-revocation hearing immediately upon issuance of the viola-
tion warrant, even when warrant had been outstanding for more than ten
years; right to hearing accrues only when violator is taken into custody on
the violation warrant). Indeed, under settled law, supervised release may
be revoked and the offender returned to prison after the term of super-
vised release has expired, provided that the revocation warrant was filed
during the period of supervised release. United States v. Morales, 45 F. 3d
693, 700-701 (2d Cir. 1995); United States v. Barton, 26 F.3d 490, 492 (4th
Cir. 1994); United States v. Neville, 985 F.2d 992, 995 (9th Cir.), cert.
denied, 508 U.S. 943 (1993).
44
significantly less than these authorized by statute under
prior law. After his initial release from prison, petitioner
spent about seven months on supervised release before he
committed his violations. Then (putting aside the time peti-
tioner spent in state prison), after his supervised release was
revoked, petitioner actually spent about 14 months in pri-
son,” and was also required to serve 12 months’ further
supervised release. Thus, after his release from his initial
term of imprisonment, petitioner has been required to serve
a total of about 14 months in prison and about 19 months on
supervised release. Each of those periods is less than the
maximum he unquestionably might have been ordered to
serve under prior law-24 months in prison and 36 months on
supervised release.
Nevertheless, we do not believe it can be said with confi-
dence that the measure of punishment in Section 3583(h) did
not cause petitioner aetual disadvantage. If old law had been
applied, the judge very likely would not have deferred
revocation of petitioner’s supervised release to the end of its
term, and then imposed the maximum period of reimprison-
ment. And under the old law, all of petitioner’s potential
supervised release would be served before his reimprison-
ment; under the new law, petitioner served supervised re-
lease both before and after reimprisonment. Even setting
aside the potential for reimprisonment on the renewed pe-
riod of supervised release,“ the sequence of serving
33 When his supervised release was revoked, petitioner was ordered to
serve 18 months of reimprisonment, but he was released early. See p. 13,
supra.
34 If the offender were to violate the conditions of his renewed term of
supervised release, then current law would authorize the district court to
revoke his supervised release again and order him to serve an additional
term in prison, provided that the total amount of reimprisonment imposed
on the offender for violating his supervised release both times was no
more than two years. The possibility that an offender’s supervised release
might be revoked a second time and that the offender might be sent back
to prison again, however, must be considered entirely speculative before
45
supervised release, then prison time, then additional super-
vised release may be viewed as a more onerous feature of
petitioner’s actual sanction under new law compared to his
exposure under old law.
Alternatively, the degree of the sanction imposed on peti-
tioner may be viewed from the vantage point of petitioner’s
legal exposure at the time his supervised release was re-
voked. At that time, under petitioner’s understanding of
prior law, the maximum exposure petitioner had was 24
months’ reimprisonment, after which he would have been
released without restraint. In fact, the total restraint on pe-
titioner’s liberty imposed by the district court upon revoking
his supervised release was 30 months, consisting of 18
months’ reimprisonment to be followed by 12 months’ super-
vised release. To be sure, petitioner might be said to have
received a benefit from application of Section 3583(h) to his
case, because if the district court had lacked the authority to
impose a renewed term of supervised release, it might well
have ordered petitioner to serve the maximum term of reim-
prisonment available under prior law, 24 months, rather than
the 18 months’ reimprisonment that it actually imposed on
petitioner. Despite that point, however, it cannot be said
that the 30-month sanction imposed on petitioner was within
such a second revocation occurs. At the time that an offender is placed on
supervised release, there is no reason to believe that he will violate the
conditions of his supervised release; nor is there reason to believe that,
even if such a violation occurs, the district court will necessarily revoke his
supervised release and order him to serve a term of reimprisonment
rather than act under Section 3583(e)(2) to intensify the conditions of his
supervised release. See United States v. Withers, 128 F.3d 1167, 1170-
1172 (7th Cir. 1997), cert. denied, 119 S. Ct. 79 (1998). The Court has made
clear that the Ex Post Facto Clause is not violated by “the most specula-
tive and attenuated risk of increasing the measure of punishment attached
to the covered crimes.” California Dep't of Corrections v. Morales, 514
U.S. at 514. Should a defendant violate his supervised release a second
time, the district court can consider at that time whether the Ex Post
Facto Clause would prevent it from imposing additional prison time on the
46
the range of sanctions available under petitioner’s version of
prior law.
3. If Application Of Section 3583(h) To Petitioner
Violated The Ex Post Facto Clause, The Proper
Remedy Is A Remand For The District Court To
Apply Former Section 3583(e) To Petitioner
If Section 3583(h) cannot be applied in this case because of
ex post facto concerns, then the case should be remanded to
the district court. “The usual remedy for an ex post facto
violation in sentencing is a remand for resentencing under
the law in place at the time the defendant committed his
crime.” United States v. Lominac, 144 F.3d 308, 316 (4th
Cir. 1998); see Weaver, 450 U.S. at 36 n.22. In this case, the
district court should consider application of that law in the
first instance, in light of petitioner’s particular circum-
stances.
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
PAUL R.Q. WOLFSON
Assistant to the Solicitor
General
RICHARD A. FRIEDMAN
Attorney
JANUARY 2000
APPENDIX A
The pre-amendment version of 18 U.S.C. 3583 was as
follows:
§ 3583. Inclusion of a term of supervised release after
imprisonment
(a) In general.—The court, in imposing a sentence to a
term of imprisonment for a felony or a misdemeanor, may
include as a part of the sentence a requirement that the
defendant be placed on a term of supervised release after
imprisonment, except that the court shall include as a part of
the sentence a requirement that the defendant be placed on
a term of supervised release if such a term is required by
statute.
(b) Authorized terms of supervised release.—
Except as otherwise provided, the authorized terms of
supervised release are—
(1) for a Class A or Class B felony, not more than five
years;
(2) for a Class C or Class D felony, not more than three
years; and
(3) for a Class E felony, or for a misdemeanor (other
than a petty offense), not more than one year.
(e) Factors to be considered in including a term of
supervised release.—-The court, in determining whether to
include a term of supervised release, and, if a term of super-
vised release is to be included, in determining the length of
the term and the conditions of supervised release, shall con-
sider the factors set forth in section 3553(a)(1), (a)(2)(B),
(a)(2)(C), (a(2)(D), (a)(4), (a)(5), and (a)(6).
(la)
2a
(d) Conditions of supervised release.—The court
shall order, as an explicit condition of supervised release,
that the defendant not commit another Federal, State, or
local crime during the term of supervision and that the
defendant not possess illegal controlled substances. The
court may order, as a further condition of supervised release,
to the extent that such condition—
(1) is reasonably related to the factors set forth in
section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than is
reasonably necessary for the purposes set forth in
section 3553(a)(2)(B), (a(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy statements
issued by the Sentencing Commission pursuant to 28
U.S.C. 994(a);
any condition set forth as a discretionary condition of
probation in section 3563(b)(1) through (b)(10) and (b)(12)
through (b)(20), and any other condition it considers to be
appropriate. If an alien defendant is subject to deportation,
the court may provide, as a condition of supervised release,
that he be deported and remain outside the United States,
and may order that he be delivered to a duly authorized
immigration official for such deportation.
(e) Modification of conditions or revocation.—The
court may, after considering the factors set forth in section
3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), and
(a)(6)—
(1) terminate a term of supervised release and dis-
charge the person released at any time after the
expiration of one year of supervised release,
(2)
(3)
(4)
3a
pursuant to the provisions of the Federal Rules of
Criminal Procedure relating to the modification of
probation, if it is satisfied that such action is
warranted by the conduct of the person released and
the interest of justice;
extend a term of supervised release if less than the
maximum authorized term was previously imposed,
and may modify, reduce, or enlarge the conditions of
supervised release, at any time prior to the
expiration or termination of the term of supervised
release, pursuant to the provisions of the Federal
Rules of Criminal Procedure relating to the modi-
fication of probation and the provisions applicable to
the initial setting of the terms and conditions of
post-release supervision;
revoke a term of supervised release, and require the
person to serve in prison all or part of the term of
supervised release without credit for time
previously served on postrelease supervision, if it
finds by a preponderance of the evidence that the
person violated a condition of supervised release,
pursuant to the provisions of the Federal Rules of
Criminal Procedure that are applicable to probation
revocation and to the provisions of applicable policy
statements issued by the Sentencing Commission,
except that a person whose term is revoked under
this paragraph may not be required to serve more
than 3 years in prison if the offense for which the
person was convicted was a Class B felony, or more
than 2 years in prison if the offense was a Class C or
D felony; or
order the person to remain at his place of residence
during nonworking hours and, if the court so directs,
4a
to have compliance monitored by telephone or
electronic signaling devices, except that an order
under this paragraph may be imposed only as an
alternative to incarceration.
(f) Written statement of conditions.—The court
shall direct that the probation officer provide the defendant
with a written statement that sets forth all the conditions to
which the term of supervised release is subject, and that is
sufficiently clear and specific to serve as a guide for the
defendant’s conduct and for such supervision as is required.
(g) Possession of controlled substances.—If the
defendant is found by the court to be in the possession of a
controlled substance, the court shall terminate the term of
supervised release and require the defendant to serve in
prison not less than one-third of the term of supervised
release.
— ee = = "
2 K»
5a
The post- amendment version of 18 U.S.C. 3583 is as follows:
§ 3583. Inclusion of a term of supervised release after
imprisonment
(a) In general.—The court, in imposing a sentence to a
term of imprisonment for a felony or a misdemeanor, may
include as a part of the sentence a requirement that the
defendant be placed on a term of supervised release after
imprisonment, except that the court shall include as a part of
the sentence a requirement that the defendant be placed on
a term of supervised release if such a term is required by
statute or if the defendant has been convicted for the first
time of a domestic violence crime as defined in section
3561(b).
(b) Authorized terms of supervised release.—
Except as otherwise provided, the authorized terms of
supervised release are—
(1) for a Class A or Class B felony, not more than five
years,
(2) for a Class C or Class D felony, not more than three
years; and
(3) for a Class E felony, or for a misdemeanor (other
than a petty offense), not more than one year.
(c) Factors to be considered in including a term
of supervised release.—The court, in determining whether
to include a term of supervised release, and, if a term of
supervised release is to be included, in determining the
length of the term and the conditicns of supervised release,
6a
shall consider the factors set forth in section 3553(a)(1),
(a)(2)(B), (a C), (a; 2) D), (a)(4), (a)(5), and (a)(6).
(d) Conditions of supervised release. The court
shall order, as an explicit condition of supervised release,
that the defendant not commit another Federal, State, or
local crime during the term of supervision and that the
defendant not unlawfully possess a controlled substance.
The court shall order as an explicit condition of supervised
release for a defendant convicted for the first time of a
domestic violence crime as defined in section 3561(b) that the
defendant attend a public, private, or private nonprofit
offender rehabilitation program that has been approved by
the court, in consultation with a State Coalition Against
Domestic Violence or other appropriate experts, if an
approved program is readily available within a 50-mile
radius of the legal residence of the defendant. The court
shall order, as an explicit condition of supervised release for
a person described in section 4042(c)(4), that the person
report the address where the person will reside and any
subsequent change of residence to the probation officer re-
sponsible for supervision, and that the person register in any
State where the person resides, is employed, carries on a
vocation, or is a student (as such terms are defined under
section 170101(a)(3) of the Violent Crime Control and Law
Enforcement Act of 1994). The court shall also order, as an
explicit condition of supervised release, that the defendant
refrain from any unlawful use of a controlled substance and
submit to a drug test within 15 days of release on supervised
release and at least 2 periodic drug tests thereafter (as
determined by the court) for use of a controlled substance.
The condition stated in the preceding sentence may be
ameliorated or suspended by the court as provided in section
3563(a)(4). The results of a drug test administered in
accordance with the preceding subsection shall be subject to
7a
confirmation only if the results are positive, the defendant is
subject to possible imprisonment for such failure, and either
the defendant denies the accuracy of such test or there is
some other reason to question the results of the test. A drug
test confirmation shall be a urine drug test confirmed using
gas chromatography/mass spectrometry techniques or such
test as the Director of the Administrative Office of the
United States Courts after consultation with the Secretary
of Health and Human Services may determine to be of
equivalent accuracy. The court shall consider whether the
availability of appropriate substance abuse treatment
programs, or an individual’s current or past participation in
such programs, warrants an exception in accordance with
United States Sentencing Commission guidelines from the
rule of section 3583(g) when considering any action against a
defendant who fails a drug test. The court may order, as a
further condition of supervised release, to the extent that
such condition—
(1) is reasonably related to the factors set forth in
section 3553(a)(1), (a)(2)(B), (a(2)(C), and (a(2)(D);
(2) involves no greater deprivation of liberty than is
reasonably necessary for the purposes set forth in
section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy statements
issued by the Sentencing Commission pursuant to 28
U.S.C. 994(a);
any condition set forth as a discretionary condition of
probation in section 3563(b)(1) through (b)(10) and (b)(12)
through (b)(20), and any other condition it considers to be
appropriate. If an alien defendant is subject to deportation,
the court may provide, as a condition of supervised release,
that he be deported and remain outside the United States,
8a
and may order that he be delivered to a duly authorized
immigration official for such deportation.
(e) Modification of conditions or revocation.—The
court may, after considering the factors set forth in section
3553(a)(1), (a)(2)(B), (a) 2 (C), (a(2)(D), (a)(4), (a)(5), and
(aX(6)—
(1) terminate a term of supervised release and
discharge the defendant released at any time after
the expiration of one year of supervised release,
pursuant to the provisions of the Federal Rules of
Criminal Procedure relating to the modification of
probation, if it is satisfied that such action is
warranted by the conduct of the defendant released
and the interest of justice;
(2) extend a term of supervised release if less than the
maximum authorized term was previously imposed,
and may modify, reduce, or enlarge the conditions of
supervised release, at any time prior to the
expiration or termination of the term of supervised
release, pursuant to the provisions of the Federal
Rules of Criminal Procedure relating to the modi-
fication of probation and the provisions applicable to
the initial setting of the terms and conditions of
post-release supervision;
(3) revoke a term of supervised release, and require the
defendant to serve in prison all or part of the term of
supervised release authorized by statute for the
offense that resulted in such term of supervised
release without credit for time previously served on
postrelease supervision, if the court, pursuant to the
Federal Rules of Criminal Procedure applicable to
revocation of probation or supervised release, finds
9a
by a preponderance of the evidence that the defen-
dant violated a condition of supervised release, ex-
cept that a defendant whose term is revoked under
this paragraph may not be required to serve more
than 5 years in prison if the offense that resulted in
the term of supervised release is a class A felony,
more than 3 years in prison if such offense is a class
B felony, more than 2 years in prison if such offense
is a class C or D felony, or more than one year in any
other case; or
(4) order the defendant to remain at his place of resi-
dence during nonworking hours and, if the court so
directs, to have compliance monitored by telephone
or electronic signaling devices, except that an order
under this paragraph may be imposed only as an
alternative to incarceration.
(f) Written statement of conditions.—The court
shall direct that the probation officer provide the defendant
with a written statement that sets forth all the conditions to
which the term of supervised release is subject, and that is
sufficiently clear and specific to serve as a guide for the
defendant’s conduct and for such supervision as is required.
(g) Mandatory revocation for possession of con-
trolled substance or firearm or for refusal to comply
with drug testing.—If the defendant—
(1) possesses a controlled substance in violation of the
condition set forth in subsection (d);
(2) possesses a firearm, as such term is defined in
section 921 of this title, in violation of Federal law,
or otherwise violates a condition of supervised
10a
release prohibiting the defendant from possessing a
firearm; or
(3) refuses to comply with drug testing imposed as a
condition of supervised release;
the court shall revoke the term of supervised release and
require the defendant to serve a term of imprisonment not to
exceed the maximum term of imprisonment authorized
under subsection (e)(3).
(h) Supervised release following revocation.—
When a term of supervised release is revoked and the
defendant is required to serve a term of imprisonment that
is less than the maximum term of imprisonment authorized
under subsection (e)(3), the court may include a requirement
that the defendant be placed on a term of supervised release
after imprisonment. The length of such a term of supervised
release shall not exceed the term of supervised release
authorized by statute for the offense that resulted in the
original term of supervised release, less any term of
imprisonment that was imposed upon revocaticn of
supervised release.
(i) Delayed revocation.—The power of the court to
revoke a term of supervised release for violation of a
condition of supervised release, and to order the defendant
to serve a term of imprisonment and, subject to the
limitations in subsection (h), a further term of supervised
release, extends beyond the expiration of the term of
supervised release for any period reasonably necessary for
the adjudication of matters arising before its expiration if,
before its expiration, a warrant or summons has been issued
on the basis of an allegation of such a violation.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.