John M. Economidy

John M. Economidy is a San Antonio sole practitioner. He graduated with a Bachelor of Journalism degree in 1966 and a Bachelor of Arts degree in Government in 1967 from the University of Texas at Austin, where he was editor-in-chief of The Daily Texan in 1966–67. He served in the Vietnam War with the 8th Tactical Fighter Wing. John got his law degree in December 1973 from Texas Tech University School of Law. The Texas Board of Criminal Specialization has certified John in criminal law since 1986. He has been a TCDLA member for over 25 years.

Federal Supervised Release

Supervised Release (“SR”) is supervision of a federal defendant after a prison term and is part of the total sentence.1 SR has three primary legal sources: 18 U.S.C. § 3583;2 Fed. R. Crim. P. 32.1;3 and U.S. Sentencing Guidelines Manual [hereinafter USSG] §§ 5D1.1–5D1.3; 7B1.17B1.4.4 The court is required to impose a term of supervised release to follow imprisonment if a sentence of imprisonment of more than one year is imposed

or if a term of SR is required by a specific statute.5 Supervised release is also required if the defendant has been convicted for the first time of a domestic relations crime, as defined in 18 U.S.C. § 3561(b).6 Defense attorneys should counsel their federal felony client on SR, its duration, its potential conditions, and the implications of revocation. Counsel also should be prepared to make timely objections to protect the client.

Since November 1, 2011, amended USSG § 5D1.1(c) states that a court should not ordinarily impose SR in a case not required by statute when the defendant is a deportable alien who likely will be deported after imprisonment.7 Failure to object does not lead to plain error reversal.8

Duration of SR

The duration of SR depends on the nature of the crime for which the defendant is convicted. SR for terrorism crimes under 18 U.S.C. § 2332b(g)(5)(B)9 has any term to life.10 SR will carry a term of a minimum three years to life for child kidnapping, sex trafficking, sex crimes, Sex Offender Registration and Notification Act (SORNA), child sex exploitation, buying or selling children, child pornography, sexual depictions of minors, internet traveling with minors, and use of interstate facilities to transmit information on minors.11

The duration of SR in drug offenses generally is variable based upon the type of drug, its quantity, and the existence of prior convictions,12 as follows:

  • At least one kilogram of heroin, five kilograms of cocaine, 50 grams of crack, 100 kilograms of marijuana, or 50 grams of methamphetamine: 5 years SR without prior convictions and 10 years SR with prior convictions;
  • 100 grams or more of heroin, 500 grams or more of cocaine, 5 grams of crack of more, 100 kilograms of marijuana, or 5 grams or more of methamphetamine: 4 years SR without prior convictions and 8 years SR with prior convictions.

Class A felonies13 (those carrying a penalty or life or death) and Class B felonies (those carrying a penalty or 25 years or more) can have no more than 5 years of SR.14

Class C felonies (those carrying a penalty of 10 or more years but less than 25 years) and Class D felonies (those carrying a penalty of 5 or more years but less than 10 years) can have no more than 3 years of SR.15

A Class E Felony (those carrying a penalty of more than 1 year but less than 5 years) or a misdemeanor other than a petty offense can have SR of not more than 1 year.

When a district judge automatically imposes a lifetime SR without engaging in an analysis of the circumstances surrounding the crime, plain error occurs.16

Conditions of Supervised Release

The area that produces most attorney errors in SR proceedings is the lack of awareness of the conditions of supervised release. It is not uncommon for an attorney to be unaware of the conditions that can be imposed. If the attorney fails to timely object, then review on appeal on the imposed conditions is for plain error only.17 The standardized conditions of SR are detailed in USSG § 5D1.3. The court can impose the recommended conditions, statutory conditions, and special conditions. Defense counsel should bring these conditions to the attention of the defendant before sentencing and anticipate problems.

Federal law, 18 U.S.C. § 3583(d), and USSG § 3D1.3(a) require the following mandatory conditions:

  • The defendant shall commit no new crimes or use drugs;
  • A rehabilitation program is mandatory when a domestic violence crime has been committed for the first time;
  • Sex offenders must register under SORNA;18
  • Defendants must provide a DNA sample;19
  • Defendants may be subjected to urinalysis testing unless ameliorated under domestic violence rehabilitation under 18 U.S.C. § 3563(a)(4).

Special Terms. Most problems arise on special terms and conditions ordered by a district judge. SR special conditions may be imposed under 18 U.S.C. § 3583(d)(1)–(3) if the court considers three factors.

The first factor is that the special SR condition must be reasonably related to the sentencing factors in § 3553, which cover these areas:

  • The nature and circumstances of the offense and the history and characteristics of the defendant;20
  • The need for the sentence imposed to afford adequate deterrence to the criminal conduct;21
  • The ability to protect the public from further crimes of the defendant;22 and
  • To provide the defendant with needed educational and vocational training, medical care, or other correctional treatment.23

The second and, from a view point of objections, most important factor is that the SR condition involves no greater deprivation of liberty than is reasonably necessary for these purposes.

The third factor is that the SR special term and condition be consistent with the USSG policy statements.

Inquiry of the conditions before sentencing with the U.S. Probation Officer and in court with the district judge can bring problems to light before sentencing. A sample canned objection is noted in a box on the following page.

Problem Special Conditions. Especially problematic are special terms and conditions related to assessing sex offender registration and counseling, computers, phones, family members, and required counseling.

Conviction for sex offenses draws the special conditions in USSG § 5D1.3(d)(7). This section mandates participation in a treatment and monitoring program, limiting use of a computer or interactive computer service “in cases in which the defendant used such items,” and nonconsensual search of one’s home, computer, computer, and electronic devices.24

Sex offender counseling has been upheld as a condition under plain error review when counsel failed to object when the defendant was never convicted of a sexual offense.25 Such conditions have been imposed in a non-sex-offense case when there is evidence of a sexual misconduct.26

Sexual offender registration as a condition has been attempted when no sex crime was involved. Sexual offender registration cannot be based on a bare arrest record.27 Sex offender registration has been upheld when there was some evidence of sexual misconduct when defense counsel failed to object.28 But sexual offender registration as a condition has been held in error where defense counsel objected that there was no sexual offense.29 Sex offender registration as a condition of SR has been voided in a drug offender case when the condition was not ver­bally pronounced at sentencing.30

Barring access to computers has also been upheld as an SR condition.31 United States v. Tang32 marked a change to this requirement when computers were not part of the original offense. Tang was convicted for failing to register as a sex offender. A computer was not involved in his offense. The sentencing judge imposed an SR condition that Tang not use a computer. The Fifth Circuit held that USSG § 5D1.3(d)(7)(B)(2012) recommends, as a special condition of release for an individual convicted of a “sex offense,” a limitation on the “use of a computer or an interactive computer service in cases in which the defendant used such items.” Instant offense for which Tang was sentenced is his failure to register. Tang’s prior offense—assault with intent to commit sexual abuse, not causing bodily injury—did not involve a computer or the internet. The Fifth Circuit held there was no evidence that Tang has ever used the internet to commit an offense of any sort. The Fifth Circuit agreed with Tang that this condition could not be based on § 5D1.3(d)(7). The court reasoned that the internet ban was not “reasonably relate[d] to the factors set forth in” § 3553(a) and involved a greater deprivation of liberty than reasonably necessary under 18 U.S.C. § 3583(d)(1)–(2). The ban on computers did not relate to the “nature and circumstances” of Tang’s offense, the failure to register as a sex offender.

On March 31, 2014, part of the Tang case was limited by United States v. Segura.33 Segura pleaded guilty to failure to register as a sex offender (“failure to register”) under the Sex Offender Registration and Notification Act (“SORNA”). In a footnote, the Court said that under USSG § 5D1.2 cmt. n.1, “failure to register [as a sex offender] qualifies as a sex offense.”34 Tang, 718 F.3d at 483 n.3. As a result, Segura was placed on lifetime SR. Segura held that the footnote was mere dictum, and that failure to register did not qualify as a sex offense for the purposes of USSG § 5D1.2(b)(2). Because defense counsel did not object at sentencing, Sergura’s lifetime SR was held not to be plain error that required reversal.

SR conditions barring internet access have been upheld.35 The SR condition barring access to computers has also been extended to apply to cell phones with internet connection capability.36

District courts have also upheld testing by penile plethysmograph as an SR condition even though the procedure is a mentally and physically intrusive procedure of disputed scientific validity.37 Until the device is actually used, objections to such testing are often dismissed as being unripe.38

District courts have imposed SR conditions to prohibit a de­fen­dant from having access to his/her own children39 or his/her own spouse in an abusive relationship.40 However, the Fifth Circuit has struck down an SR condition that required the defendant in a drug case to live only with his/her spouse or a blood relative, as the condition imposed a greater deprivation of liberty than was necessary.41

Court-ordered mental health treatment has been upheld as a permissible condition of SR. A condition barring use of alcohol has been held as an abuse of discretion in a non-alcohol offense42 but not plain error.43 However, religious-based treatment in Alcoholics Anonymous as a condition has been struck down as violative of a Buddhist’s religious beliefs.44

The Fifth Circuit has held that conditions may deprive a defendant of constitutional rights and still survive.45

In United States v. Tapia, 564 U.S. __, 131 S. Ct. 2382, 2393 (2011), the U.S. Supreme Court held that a court may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation. Tapia has been extended to sentences on revocation of supervised release.46

Problems also have focused on whether or not the conditions were announced at sentencing. Oral pronouncement of the terms of SR controls overwritten terms of SR.47 Other problems arise when the conditions of supervision were not stated at sentencing and achieve the opposite result when the unpronounced conditions are mandatory, standard, and recommended by the U.S. Sentencing Manual.48 But, “if the district court fails to mention a special condition at sentencing, its subsequent inclusion in the written judgment creates a conflict that requires amendment of the written judgment to conform with the oral pronouncement.”49

Time Issues

Time can be an issue on supervised release. Supervised release starts on the day released from the Bureau of Prisons and runs concurrently with any other state or federal probation, parole, or SR. Supervised release does not run when person is imprisoned for other state or federal confinement unless that period is less than 30 days.50

After the time of SR has run, the defendant cannot be revoked for subsequent misconduct.51 Escape tolls the clock for SR.52

A U.S. District Judge has the authority to terminate SR early;53 however, defense counsel better have the support of the U.S. Probation Officer and the Assistant U.S. Attorney before filing the motion.54 Once SR has been vacated, the U.S. District Court lacks jurisdiction to revoke SR.55 A U.S. District Judge also has authority to increase the duration of SR.56

Revocation of SR

Supervised release can be revoked. The legal authority for revocation is set forth in 18 U.S.C. § 3583(e), USSG §§ 7B1.1 to 7B1.4,57 and Fed. R. Crim. P. 32.1.

Revocation is mandatory under 18 U.S.C. § 3583(g) for defendants with the following circumstances:

  • Possessing drugs or firearm;
  • Failing to comply with drug testing;
  • Testing positive for illegal drugs more than three times over course of one year. Urinalysis results must be confirmed by mass spectrometer testing.58

Revocation can be based on a non-criminal act.59

Revocation normally starts when a U.S. Probation Officer sends written reasons for revocation based on violations of the conditions of SR to the U.S. District Clerk on a Petition for Warrant for Offender under Supervision.60 This petition does not have to be sworn.61 An indictment is not required.62 The warrant must issue before the SR terms expires, but the hearing can be heard after the SR term expires.63

The defendant is arraigned on the revocation petition.64 The Defendant can waive the arraignment.

A defendant may seek bond pending revocation.65 A defendant has no right to a jury trial for revocation.66 An attorney may be appointed for a defendant in a revocation action.67 Defendant can waive counsel in a revocation action.68 A defendant does not have a constitutional right to represent himself at a revocation hearing, but the U.S. District Judge has discretion to allow a defendant to proceed pro se.69 Accordingly, a waiver of the right to counsel in the revocation context need not meet the formal requirements of the Sixth Amendment.70

If the defendant demands a hearing, the hearing has limitations. The Federal Rules of Evidence do not apply.71 In the absence of police harassment, the exclusionary rule does not apply to SR revocation hearings.72 An SR hearing cannot collaterally attack the original conviction.73

A defendant has an allocution right to speak at the revocation hearing.74

A defendant in an SR revocation hearing has limited confrontation rights.75 While due process provides the defendant in a revocation proceeding the right to confront and cross-examine adverse witnesses, the district judge may deny such right if there is good cause to do so.76 The limited confrontation right does not extend beyond revocation to the sentencing context upon the fact of revocation.77 Police reports can be considered as reliable evidence in the sentencing context.78

The evidentiary standard for finding a violation of SR is preponderance of the evidence.79

Defendant can also plead true and sign a plea agreement. If this is done, client and counsel usually do not have further court proceedings. Counsel should carefully scrutinize such a plea agreement as miscalculation on revocation is not plain error.80

A U.S. District Court is not required, by Fed. R. Crim. P. 32.1 or the Due Process Clause,81 to provide the defendant with pre-sentencing notice of all points raised in the revocation sentencing colloquy.82 Where there is an adequate basis for the district court’s discretionary action or revocation action, a reviewing court need not decide a claim of error as to other grounds that had been advanced as a cause for revocation.83

Consequences Upon Revocation

Revocation carries two main consequences: a revocation sentence to prison and assessment of additional SR.

Revocation sentencing is evolving. Initially, counsel determines the grade of supervised release violations in USSG § 7B1.1. Violations are Grade A,84 B,85 or C.86

When multiple violations occur, the violation with the highest grade controls.87

Upon a finding of a Grade A or B violation, the district court shall revoke SR.88 A Grade C violation may draw an extension of the SR or modification of the SR terms.89

The range of punishment applicable upon revocation is found in the table at USSG § 7B1.4. The top line of the table details the defendant’s criminal history category. Use the criminal history category from the defendant’s original sentence to the term of supervision.90 Defense counsel should verify the defendant’s criminal history category by reading the judgment on PACER or by phoning the U.S. Probation Officer assigned to the case.

The left column of the table gives the grade of violation. Where the defendant’s criminal history intersects with the grade of violation, a range of imprisonment is months is displayed.

Consulting the table does not end the quest for a revocation sentence. The Fifth Circuit holds that 18 U.S.C. § 358291 applies to the revocation sentence.92 This reference permits the district judge to apply a reasonable sentence rather than be stuck to the revocation table. However, the Fifth Circuit has gone further and held that 18 U.S.C. § 3553(a)(2)(A)93 does not apply to revocation sentences.94

If the district court imposes a revocation sentence outside the range recommended by the USSG policy statements, the Court must give an explanation.95

Also, the district courts have had statutory authority to impose a new term of SR after revocation since the 1994 Crimes Act added 18 U.S.C. § 3585(h). Adding an additional term of SR after revocation has passed constitutional challenge.96

Computing the duration of the new term of SR can be com­plex. The statute that authorizes a new term of SR, 18 U.S.C. § 3583(h), calculates the maximum term of SR upon revocation by the following formula:

The length of such a term of [SR] shall not exceed the term of supervised release authorized for the offense that resulted in the original term of [SR], less any term of imprisonment that was imposed upon revocation of [SR] [emphasis added].

This formula has a two-step process. First, the district court must identify the term of SR authorized for the defendant’s original offense.

In determining the SR authorized for the defendant’s original offense, remember that the SR statute, 18 U.S.C. § 3583(b), states its provisions apply “except as otherwise provided.” These last four words are a worm hole into a different dimension. Recall that certain statutes, especially statutes involving sex or drugs, set their own SR term. When a statute, such as amended 21 U.S.C. § 841(b)(1)(C),97 sets a lower limit on the SR term but no maximum limit, then the outer limit is life.98

The second step is to subtract from the originally authorized SR term “any term of imprisonment that was imposed upon revocation of [SR].” The courts of appeal have concluded that the term “any term of imprisonment” includes all prior SR terms when there have been multiple revocations.99

Revoking a sentence and adding a new SR term can create a variety of issues.

  • Revocation of SR and prosecution for a new crime is not double jeopardy or collateral estoppel;100
  • Issues arise with respect to concurrent and consecutive sentences. USSG § 7B1.3(f) urges consecutive time. But concurrent sentencing is permissible with 18 U.S.C. § 3553(a) reasonableness.101 Concurrent sentencing is available to a new federal offense, a new state offense, and even an anticipated new state offense.102 Still, federal courts can articulate reasons and make SR terms run consecutively.103

Appeals

Within 14 days of sentencing, counsel can file a motion under Fed. R. Crim. P. 35(a) to correct an SR sentence from arithmetical, technical, or other clear error.104 Failing that, the next step is an appeal.

Federal appeal courts have jurisdiction to hear an appeal in a criminal case under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

A criminal appellant must file a notice of appeal with the U.S. District Clerk within 14 days of judgment.105 Federal appellate rules have certain requirements for the notice of appeal.106 In non-indigent cases in the Fifth Circuit in 2013, a filing fee of $455 must be paid upon filing the notice of appeal.107

Within 10 days of the filing of the notice of appeal, appellate counsel should file a variety of forms to enter one’s appearance with the applicable court of appeals and order the transcript. Such forms are usually available off the court’s webpage. Court-appointed counsel also needs to file an attorney tax identification form with the applicable court of appeals. This form is available off the court of appeals’ webpage.

Waiver of the right to an appeal in a plea bargain is enforceable on SR issues.108 However, the standard appeal waiver in the original appeal agreement may not waive the right to appeal a subsequent revocation of SR.109 Fifth Circuit case law requires defense counsel to ascertain and certify in the appellate brief whether the Government will rely on the defendant’s appeal waiver.110 If the Government does not invoke the appeal waiver provision of a plea agreement, the waiver provision does not bar an appeal.111 Validity of an appeal waiver is reviewed de novo.112

As in all federal cases, jurisdiction is a requirement in appeals involving supervised release. The standard of review for jurisdictional issues is de novo.113 Jurisdiction is lacking when appellant appeals a supervised release issue after the supervised release has been served, as there is no case or controversy as required by Article III, § 2 of the Constitution of the United States.114

A federal prisoner can use 28 U.S.C. § 2255 to be released from custody on a claim the sentence was imposed in violation of the Constitutional and laws of the United States or the Court lacked jurisdiction to impose the sentence or was in excess of the maximum allowed by law. In this regards, a defendant on supervised release is in custody for purposes of 28 U.S.C. § 2255.115

Appellate briefs are required to give the appropriate standard of review. Supervised release issues have the following standards of review.

  • Regular conditions of SR are viewed for abuse of discretion;116
  • Special conditions of SR are reviewed for abuse of discretion;117
  • Decisions to revoke SR are reviewed for abuse of discretion;118
  • A sentence that exceeds the statutory maximum is plain error;119
  • Revocation sentences are reviewed under 18 U.S.C. § 3472(a)’s plainly unreasonable standard.120 If counsel fails to object, then the standard is plain error review.121

Occasionally, a defendant will have a count set aside on appeal or have his sentence reduced under crack cocaine re-sentencing and will have served more time in confinement upon remand than was due after re-sentencing. In such a case, the defendant is not entitled, as a matter of law, to a reduction of his term of supervised release.122

This article cites a number of unpublished cases. Such cases after 2007 may be cited in appeals briefs with certain limitations or requirements.123 Unpublished Fifth Circuit cases issued before January 1, 1996, are precedent in the Fifth Circuit.124

Endnotes

1. United States v. Gonzalez, 250 F.3d 923, 928 (5th Cir. 2001).

2. Section 3583 is the statutory authority for SR and its operation.

3. This rule covers revocation and modification of SR.

4. A defendant must be sentenced under the version of the Guidelines in effect at sentencing, unless doing so would violate the Ex Post Facto Clause of the Constitution. 18 U.S.C. § 3553(a)(4)(A)(ii); USSG § 1B1.11; United States v. Martin, 596 F.3d 284, 286 (5th Cir. 2010). Typically, the guidelines are updated each November.The latest annual edition of the Guidelines Manual can be found on the internet: < http://www.ussc.gov >, click <Guidelines Manual>, click <Current Version> or <Archives>.

5. USSG § 5D1.1. Examples of statutes mandating a term of SR include certain sexual crimes, 18 U.S.C. § 3583(k), and drug offenses, 21 U.S.C. § 841(b)(1)(A)(viii), (B)(viii), (C), and (D).

6. 18 U.S.C. § 3583(a). This statute identifies the victims as spouse, former spouse, intimate partner, former intimate partner, child or former child of the defendant, or any other relative of the defendant.

7. United States v. Cancino-Trinidad, 710 F.3d 601, 607 (5th Cir. 2013).

8. The amendments still give a district judge authority to impose terms of SR for deportable aliens when no statutory minimum SR terms exists if SR is needed as “an additional measure of deterrence and protection.” United States v. Dominguez-Alvarado, 695 F.3d 324, 329-10 (5th Cir. 2012). See also United States v. Bercerril-Pena, 714 F.3d 347, 351 (5th Cir. 2013)(SR for deportable alien upheld on case facts).

9. The list of terrorism crimes is massive. The list covers crimes that may be considered definitional crimes of terrorism (destruction of aircraft, use of chemical or biological weapons) plus acts that might be not be so considered (murder of foreign officials, homicide of U.S. nationals outside the United States, financing terrorism).

10. 18 U.S.C. § 3583(j).

11. 18 U.S.C. § 3583(k). This provision was added in 2003 by the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act [PROTECT Act, Pub. L. 108–21, § 101, 117 Stat. 650, 651]. The PROTECT Act is not retroactive. United States v. Thomas, 600 F.3d 387, 389 (5th Cir. 2010)(ap­plication violated Ex Post Facto Clause).

12. 21 U.S.C. § 841.

13. Felonies are classified by 18 U.S.C. § 3559(a).

14. 18 U.S.C. § 3583(a).

15. 18 U.S.C. § 3583(a).

16. United States v. Alvarado, 690 F.3d 592, 598 (5th Cir. 2012)(“I’ve never given, never not given, since it was authorized, a lifetime, a lifetime supervision in child pornography.”).

17. United States v. Talbert, 501 F.3d 449, 452 (5th Cir. 2007).

18. 42 U.S.C. §§ 16901–962.

19. See standards in DNA—Sample Collection and Biological Evidence Pres­ervation in the Federal Jurisdiction, 73 Fed. Reg. 74932 (Dec. 10, 2008), and 28 C.F.R. § 28.12. DNA collection statutes have withstood constitutional challenge. Groceman v. United States Dep’t of Justice, 354 F.3d 411 (5th Cir. 2004). The U.S. Supreme Court has recently approved collection of DNA samples when a defendant is booked. Maryland v. King, 569 U.S. __, 133 S. Ct. 1958 (2013).

20. 18 U.S.C. § 3553(a)(1).

21. 18 U.S.C. § 3553(a)(2)(B).

22. 18 U.S.C. § 3552(a)(2)(C).

23. 18 U.S.C. § 3552(a)(2)(D).

24. For an excellent review of these conditions, see United States v. Ellis, 720 F.3d 220, 224–28 (5th Cir. 2013).

25. United States v. Ybarra, 289 F. App’x. 726, 733–34 (5th Cir. 2008)(originally a drug case; conditions imposed upon revocation of SR); United States v. Deleon, 280 F. App’x 348, 351 (5th Cir. 2008)(felon with firearm).

26. United States v. Weatherton, 567 F.3d 149 (5th Cir. 2009)(fraud case).

27. District court may not rely on bare arrest record for sentencing. United States v. Harris, 702 F.3d 226, 229 (5th Cir. 2012); United States v. Windless, 719 F.3d 415, 417 (5th Cir. 2013). An arrest record is “bare” when it refers “to the mere fact of an arrest—i.e.[,] the date, charge, jurisdiction & disposition—without corresponding information about the underlying facts or circumstances regarding the defendant’s conduct that led to the arrest.” Id. Due process requires “that sentencing facts . . . be established by a preponderance of the evidence. United State. v. Johnson, 648 F.3d 273, 277–78 (5th Cir. 2011).

28. Ybarra, 289 F. App’x at 733 (suggesting result would have differed if counsel had properly objected and developed a record).

29. United States v. Jimenez, 275 F. App’x 433, 439–41 (5th Cir. 2008).

30. United States v. Diaz, 413 F. App’x 704, 710 (5th Cir. 2011).

31. United States v. Brigham, 569 F.3d 220, 234 (5th Cir. 2009)(also covers prohibitions on pornographic materials, sexually phone services, sexually stimulating materials); United States v. Paul, 274 F.3d 155, 167–70 (5th Cir. 2001); United States v. Ellis, 720 F.3d 220, 225 (5th Cir. 2013) (upholding lifetime ban). See also United States v. Miller, 665 F.3d 114, 126, 133–34 (5th Cir. 2011)(upholding 25-year ban on computer use, subject to approval by the probation officer). Paul and Miller were indorsed in United States v. Esler, 531 F. App’x 502 (5th Cir. 2013).

32. 718 F.3d 476, 483–84 (5th Cir. 2013).

33. (No. 12-11262), 2014 WL 1282759*4 (5th Cir. Mar. 31, 2014).

34. Under a proposed amendment to USSG § 2D1.2, application note 1, set to go into effect on November 1, 2014, failure to register as a sex offender under 18 U.S.C. § 2250 will not be a sex offense. Amendments to Sentencing Guidelines (Preliminary), April 10, 2014.

35. United States v. Paul, 274 F.3d 155, 169 (5th Cir. 2001)(3 years); United States v. Thielemann, 575 F.3d 265, 270, 278 (3d Cir. 2009)(10 years); United States v. Fortenberry, 350 F. App’x 906, 911 (5th Cir. 2009)(for life in child pornography case; deemed harsh but upheld under plain error since defense counsel did not object).

36. United States v. Craig, 383 Fed. App’x 445, 447 (5th Cir. 2010). Such a restriction may seem quite impracticable as various phone services, such as AT&T, abandon hard-line phones and go only to cell phones.

37. United States v. Christian, 344 F. App’x 53, 56 (5th Cir. 2009).

38. See United States v. Carmichael, 343 F.3d 756, 761–62 (5th Cir. 2003). This challenge to a condition of supervised release is, unlike restriction, not contingent on future events or decisions. See, e.g., United States v. Paul, 274 F.3d 155, 164–55 (5th Cir. 2001) (addressing the appeal of several restrictions including no contact with minors). The Fifth Circuit agrees with circuits that dismissed similar challenges to penile plethsymograph testing for lack of ripeness. See United States v. Rhodes, 552 F.3d 624, 628 (7th Cir. 2009); United States v. Lee, 502 F.3d 447, 449–451 (6th Cir. 2007). But see United States v. Weber, 451 F.3d 552, 556–57 (9th Cir. 2006)(need not await violation of SR for appellant review of plethsymograph testing requirement).

39. Christian, 344 F. App’x at 56. The court prohibited “any form of unsupervised contact with minors under the age of 18 at any location . . . without prior permission of the probation officer.” Counsel objected, but the court ruled that the record justified these conditions. When counsel objects to special conditions, review of the district court’s decision is for an abuse of discretion. United States v. Rodriguez, 558 F.3d 408, 412 (5th Cir. 2009). A district court has wide discretion to impose any condition of supervised release it deems appropriate, but the conditions must be reasonably related to three criteria. Id. at 412–13. The Court in Christian noted that similar restrictions have been upheld in cases involving child pornography or sexual contact with minors. United States v. Rodriguez, 558 F.3d 408 (5th Cir. 2009) (pending state charge for sexual assault of a minor); United States v. Buchanan, 485 F.3d 274, 288 (5th Cir. 2007) (convicted of receipt of child pornography); United States v. Paul, 274 F.3d 155, 165–66 (5th Cir. 2001) (prohibition where children congregate for photographer who plead guilty to possession of child pornography). The Court said the defendant was not, however, ineluctably barred from contact with his children. The term of supervised release allowed such contact with the probation officer’s permission. If such permission is unfairly denied, the district court could modify the term under 18 U.S.C. § 3583(e)(2) and Fed. R. Crim. P. 32.1(c). See United States v. Phipps, 319 F.3d 177, 193–94 (5th Cir. 2003)(upholding condition of supervised release and suggesting modification as a possible remedy). But see United States v. Windless, 719 F.3d 415 (5th Cir. 2013)(prohibiting all contact with children was unreasonable).

40. United States v. Balderas, 358 F. App’x 575, 578–81 (5th Cir. 2009)(no objection by counsel).

41. United States v. Wood, 547 F.3d 515, 518–19 (5th Cir. 2008)(creates greater deprivation of liberty than is necessary to meet goals of SR).

42. United States v. Bass, 121 F.3d 1218, 1223–25 (8th Cir. 1997)(drug case without evidence of excessive use of alcohol).

43. United States v. Carrillo, 660 F.3d 914, 930 (5th Cir. 2011).

44. Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir. 2007)(parole condition, not SR).

45. United States v. Woods, 547 F.3d 515, 519 (5th Cir. 2008); see also 18 U.S.C. § 3583(d)(listing standard conditions that inherently infringe a defendant’s liberty and requiring that other conditions involve “no greater deprivation of liberty than is reasonably necessary”). See also Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S. Ct. 3164)(1987) (citing Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593 (1972)); United States v. Stafford, 983 F.2d 25, 28 (5th Cir. 1993)(holding that a condition is “not necessarily invalidated merely because it impairs” enjoyment of constitutional rights). United States v. Brown, 235 F.3d 2, 7 (1st Cir. 2000).

46. United States v. Garza, 706 F.3d 655, 656–58 (5th Cir. 2013). Footnote 5 of Garza states that Tapia casts doubt on the continuing validity; United States v. Giddings, 37 F.3d 1091 (5th Cir. 1994), in which a panel heard an appeal from a sentence of imprisonment that was imposed following mandatory revocation of supervised release pursuant to a prior version of § 3583(g). As a result, the Fifth Circuit joins the majority of Circuits, cited in Garza, applying Tapia to revocation actions. Extended SR for rehabilitation purposes is now plain error. United States v. Meza, No. 11-10565, 2013 WL 3227272, at *2 (5th Cir. Feb. 7, 2013). However, rehabilitation can be considered as a secondary factor rather than as the dominant factor. United States v. Walker, 742 F.3d 614 (5th Cir. 2014).

47. United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006); United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003). The remedy is to reform the judgment to the oral pronouncement. United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001).

48. United States v. Torres-Aguilar, 352 F.3d 934, 938 (5th Cir. 2003).

49. Id. at 936 (emphasis in original).

50. 18 U.S.C. § 3624(e). Sometimes this works to a defendant’s benefit. In United States v. Garcia-Rodriguez, 640 F.3d 129, 133–34 (5th Cir. May 2, 2011), defendant was transferred from the Bureau of Prisons (BOP) to Immigration and Customs Enforcement (ICE). The Fifth Circuit held that administrative detention by ICE did not qualify as imprisonment, and that for purposes of § 3624(e), defendant was “released from imprisonment” the moment he was transferred from BOP to ICE custody to await deportation. Under immigration law, administrative detention of an alien is not the same as imprisonment for a crime. See e.g., 8 U.S.C. § 1226(c)(1); Accord: United States v. Perez, 251 F. App’x 523, 524 (10th Cir. 2007)(defendant’s period of supervised release began once he was transferred to ICE custody).

51. United States v. Lynch, 114 F.3d 61, 63–64 (5th Cir. 1997).

52. United States v. Alvarado, 201 F.3d 379, 381 (5th Cir. 2000).

53. 18 U.S.C. § 3582(e)(1).

54. The defense motion should include the position of the U.S. Probation Officer and the U.S. Attorney.

55. United States v. Naranjo, 259 F.3d 379, 382–83 (5th Cir. 2001).

56. 18 U.S.C. § 3582(e)(2). Defense counsel can propose such an extension as an alternative to revocation.

57. Remember that policy statements under USSG Chapter 7 are advisory only and not mandatory. United States v. Escamilla, 70 F.3d 835, 835 (5th Cir. 1995), adopting reasoning in United States v. West, 59 F.3d 32 (6th Cir. 1995).

58. 18 U.S.C. § 3583(d)(buried at end of text). There is no right to confront lab personnel when the government via affidavit showed good cause for the denial of confrontation. United States v. McCormick, 54 F.3d 214, 220–21 (5th Cir. 1995).

59. Johnson v. United States, 529 U.S. 695, 697, 700 120 S. Ct. 1795 (2000)(case also discusses Ex Post Facto implications of a second term of SR after revocation of the first term of SR).

60. 18 U.S.C. § 3583(f).

61. United States v. Garcia-Avalino, 444 F.3d 444, 446 (5th Cir. 2006).

62. United States v. Williams, 919 F.2d 266, 271 (5th Cir. 1990)(citing United States v. Celestine, 905 F.2d 59, 60–61 (5th Cir. 1990)).

63. United States v. Jimenez-Martinez, 179 F.3d 980, 981 (5th Cir. 1999).

64. A U.S. Magistrate Judge can and usually does hold the preliminary hearing, but only a U.S. District Judge can hold the revocation hearing. Fed. R. Crim. P. 32.1(b). Williams, 919 F.2d at 269. A U.S. District Judge has jurisdiction to reverse a U.S. Magistrate Judge who holds there was no probable cause for SR revocation. United States v. Brigham, 569 F.3d 220, 229 (5th Cir. 2009).

65. Fed. R. Crim. P. 32.1(a)(5). Use 18 U.S.C. § 3143.

66. United States v. Hinson, 429 F.3d 114, 118–19 (5th Cir. 2005)(Booker restrictions do not apply).

67. Fed. R. Crim. P. 32.1(a)(3)(B). Appointment is under 18 U.S.C. § 3006A.

68. United States v. Moore, 116 F.App’x 544, 545 (5th Cir. 2004).

69. United States v. Hodges, 460 F.3d 646, 650 (5th Cir. 2006); see Fed. R. Crim. P. 32.1(b).

70. Hodges, 460 F.3d at 648.

71. Fed. R. Evid.1101(d)(3).

72. United States v. Montez, 952 F.2d 854, 857 (5th Cir. 1992).

73. United States v. Moody, 277 F.3d 719, 721 (5th Cir. 2001). A defendant cannot use the appeal of a revocation of SR to challenge an underlying conviction or original sentence either. United States v. Hinson, 429 F.3d 114, 116 (5th Cir. 2005) (may not challenge original sentence); United States v. Moody, 277 F.3d 719, 721 (5th Cir. 2001) (may not challenge indictment or drug quantity used at sentencing); United States v. Francischine, 512 F.2d 827, 828 (5th Cir. 1975) (may not challenge underlying conviction).

74. Fed. R. Crim. P. 32.1 (b)(2)(E).

75. Apply parole case of Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593 (1972)(limited right to confront on decision to revoke unless hearing officer finds good cause for not allowing); United States v. McCormick, 54 F.3d 214, 219 (5th Cir. 1995). In a revocation hearing, the Sixth Amendment right to confrontation does not apply. In such a hearing , the defendant has the right to confront witnesses under Fed. R. Crim. P. 32.1 and the Fifth Amendment (procedural due process). See United States v. Grandlund, 71 F.3d 507, 510 (5th Cir. 1996).

76. Morrissey, Id., n.72, at 489; United States v. Grandlund, 71 F.3d 507, 510 (5th Cir. 1995); United States v. Minnitt, 617 F.3d 327, 334 (5th Cir. 2010)(Court asserts defendant did not exercise his options: request urinalysis retest, subpoena lab technicians, or present evidence rather than speculation that his medications created false positive).

77. United States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006).

78. United State v. Posado-Rios, 158 F.3d 832, 881 (5th Cir. 1998).

79. Johnson v. United States, 529 U.S. at 700; 18 U.S.C. § 3583(e)(3).

80. United States v. Jimenez, 364 F. App’x 907, 908 (5th Cir. 2010).

81. U.S. CONST. amend. V.

82. United States v. Warren, 720 F.3d 321, 328 (5th Cir. 2013)(noting invalid urine samples). Morrissey v. Brewer, 408 U.S. 471, 480 (1972), a parole revocation case, held that a defendant facing revocation is not owed “the full panoply of rights due a defendant in” a criminal prosecution.

83. United States v. Turner, 741 F.2d 696, 698 (5th Cir. 1984).

84. Grade A violations are conduct constituting (A) a federal, state, or local offense punishable by a term of imprisonment exceeding one year that (i) is a crime of violence, (ii) is a controlled substance offense, or (iii) involves possession of a firearm or destructive device, or (b) any other federal, state, or local offense punishable by a term of imprisonment exceeding 20 years. USSG § 7B1.1 (a)(1).

85. Grade B violations are conduct constituting any other federal, state, or local offense punishable by a term of imprisonment exceeding one year. USSG 7B1.1(a)(2).

86. Grade C violations are conduct constituting (a) a federal, state, or local offense punishable by any term of imprisonment of one year or less; or (b) a violation of any other condition of supervision. USSG § 7B1.1(a)(3). The latter provision covers non-criminal violations of supervision.

87. USSG § 7B1.1(b).

88. USSG § 7B1.3(a)(1).

89. USSG § 7B1.3(a)(2).

90. USSG § 7B1.4 Application Note 1.

91. 18 U.S.C. § 3583 states that in determining whether to impose imprisonment or the length of imprisonment, the Court shall consider the factors in 18 U.S.C. § 3553(a).

92. United States v. Garza, 706 F.3d 655, 656–58 (2013).

93. This subsection that is now excluded from consideration states that in determining the particular sentence to be imposed, the Court shall consider the need for the sentence to be imposed “to reflect the seriousness of the offense, to promote respect for the law, and to provide for just punishment of the offense.”

94. United States v. Miller, 634 F.3d 841, 844 (5th Cir.), cert. denied, 132 S. Ct. 496 (2011).

95. United States v. Whitelaw, 580 F.3d 256, 261–62 (5th Cir. 2009)(citing Rita v. United States, 551 U.S. 338, 356–57, 127 S. Ct. 2456 (2007).

96. Johnson v. United States, 529 U.S. 694 passim, 120 S. Ct. 1795 (2000).

97. This particular subsection involves controlled substances like gamma hydroxybuytric acid and flunitrazepam.

98. United States v. Jackson, 559 F.3d 368 370–71 (5th Cir. 2009). The Jackson court noted that defense counsel had failed to object that the new term of SR was unreasonable. Thus, only plain error review was conducted.

99. United States v. Vera, 542 F.3d 457, 460–61 (5th Cir. 2008); United States v. Marzarky, 499 F.3d 1246, 1250 (11th Cir. 2007); United States v. Maxwell, 285 F.3d 336, 341 (4th Cir. 2002); United States v. Brings Plenty, 188 F.3d 1051, 1054 (8th Cir. 1999). The Vera court cautioned against consideration of other case law in this area prior to 2003, when § 3583(h) was amended. 542 F.3d at 461.

100. United States v. Fleming, 364 F. App’x 915, 915 (5th Cir. 2010). A revocation sentence is not punishment for the charged offenses, but for the offense for which supervised release had been imposed. Thus, a revocation sentence does not involve being punished twice for the same offense. See United States v. Carlton, 534 F.3d 97, 101 (2d Cir.), cert. denied, 129 S. Ct. 613 (2008); United States v. Wyatt, 102 F.3d 241, 245 (7th Cir. 1996). Revocation proceedings are not “essentially criminal.” See Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998); United States v. Whitney, 649 F.2d 296, 298 (5th Cir. 1981). Accordingly, the doctrine of collateral estoppel is inapplicable. See Ashe v. Swenson, 397 U.S. 436, 445, 90 S. Ct. 1189 (1970); Showery v. Samaniego, 814 F.2d 200, 203 (5th Cir. 1987).

101. United States v. Reyna, No. 12-10415, 2013 WL 5274470 (5th Cir. Sept. 19, 2013)(failure to object results in plain error review, though). All federal circuits agree that the sentencing court has discretion to order concurrent sentences. United States v. Schaefer, 107 F.3d 1280, 1285 (7th Cir. 1997).

102. United States v. Setser, 566 U.S. __, 132 S. Ct. 1463 (2012).

103. United States v. Gonzalez, 250 F.3d 923 (5th Cir. 2001); United States v. Dees, 467 F.3d 847 (3d Cir. 2006)(Court sentenced defendant consecutively upon SR revocation even though initial sentences ran concurrently).

104. Vera, 542 F.3d at 459.

105. FED. R. APP. P. 4(b). Counsels who fail to met the deadline may be able to get an extension for an excusable neglect or good cause. Fed. R. Crim. P. 4(b)(4).

106. FED. R. APP. P. 3(c).

107. 5th Cir. R. 3.

108. United States v. Joyce, 357 F.3d 921, 923 (9th Cir. 2004)(plea agreement barring appeal of “any aspect of sentencing” barred appeal of SR); United States v. Walters, 732 F.3d 489, 491 (5th Cir. 2013)(waivers in pure sentencing agreements are enforceable).

109. United States v. Carruth, 528 F.3d 845, 846 (11th Cir. 2008)(per curiam).

110. United States v. Acquaye, 452 F.3d 380, 382 (5th Cir. 2006).

111. United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006).

112. See United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002); United States v. Burns, 433 F.3d 442, 445 (5th Cir. 2005).

113. United States v. Lynch, 114 F.3d 61, 63 (5th Cir. 1997); United States v. Garcia-Avalino, 444 F.3d 444, 445 (5th Cir. 2006).

114. Spencer v. Kemna, 523 U.S. 1, 7, 14, 118 S. Ct. 978 (1998)(parole case).

115. United States v. Scruggs, 691 F.3d 660, 662 n.1 (5th Cir. 2012); Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006). See also Maleng v. Cook, 490 U.S. 488, 491, 109 S. Ct. 1923 (1989)(per curiam)(“Our interpretation of the ‘in custody’ language has not required that a prisoner be physically confined in order to challenge his sentence on habeas corpus.”).

116. United States v. Talbert, 501 F.3d 449 (5th Cir. 2007).

117. United States v. Rodriguez, 558 F.3d 408, 412 (5th Cir. 2009).

118. United States v. McCormick, 54 F.3d 214 (5th Cir. 1996); United States v. Grandlund, 71 F.3d 507, 509 (5th Cir. 1995).

119. United States v. Williams, 602 F.3d 313, 319–20 (8th Cir. 2010); United States v. Rojas-Luna, 522 F.3d 502, 506–07 (5th Cir. 2008); United States v. Moreci, 283 F.3d 293, 300 (5th Cir. 2002).

120. United States v. Miller, 634 F.3d 841, 843 (5th Cir.), cert. denied, 132 S. Ct. 496 (2011). Miller creates a two-step test. First, did the district court commit significant procedural error. Second, if there is no procedural error, the court considers the substantive reasonableness of the sentence.

121. United States v. Whitelaw, 580 F.3d 256, 259–60 (5th Cir. 2009). Plain error review has three steps. The appellant must show (1) an error, (2) that was plain (e.g., clear or obvious), and (3) that affected his substantial rights. United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007). If appellant makes this showing, the appeals court has discretion to correct the error, but only if the error seriously affects the fairness, integrity, and public reputation of judicial pro­ceedings. Puckett v. United States, 556 U.S. 129, 135, 129 S. Ct. 1423 (2009).

122. United States v. Johnson, 529 U.S. 53, 59, 120 S. Ct. 1114 (2000). The remedy is to seek to modify release conditions under 18 U.S.C. § 3583(e)(2) or to terminate supervised release at any time after the expiration of one year under 18 U.S.C. § 3583(e)(1).

123. Fed. R. App. P. 32.1 and 5th Cir. R. 28.7.

124. 5th Cir. R. 47.5.3.