Revocation of Probation and Supervised Release

Ms. Pratt was a staff attorney with the Defender Services Division Training Branch from July

1995 toMarch2002. She is now an attorney with the Office of the Federal Public Defender in the Eastern

District of Virginia.

OFFICE OF DEFENDER SERVICES TRAINING BRANCH

Administrative Office of the United States Courts

One Columbus Circle, NE, Suite G-430

Washington, DC 20544

(800) 788-9908

www.fd.org

REVOCATION OF PROBATION AND SUPERVISED RELEASE

Frances H. Pratt

October 2004

INTRODUCTION

This outline addresses revocation of probation and supervised release. Revocation of probation

and revocation of supervised release are, in many ways, treated identically. See, e.g.,Fed.R.

Crim. P.32.1 (entitled “Revocationor Modification of Probation or Supervised Release”); U.S.S.G. Ch.

7, Pt. B (entitled “Probation and Supervised Release Violations”); id.

intro. comment. (“Because these

policy statements focus on the violation of the court-ordered supervision, this chapter, to the extent

permitted by law, treats violations of the conditions of probation and supervised release as functionally

equivalent.”). However, the statutory provisions concerning sentencing for each differ in some significant

ways.

Consequently, this outline is organized as follows: Part I addresses the issues common to both

revocationof probation and revocation of supervised release. Part II focuses on those issues peculiar to

probation revocation, and Part III onthose issuespeculiar to supervised release revocation. (For another

take on manyof the same issues, see U.S. Sentencing Commission, Office ofGeneralCounsel, Probation

and Supervised Release Violations (February2002),available at http://www.ussc.gov/training/educat.htm;

for an article written for probation officers, see David N. Adair, Jr., Revocation Sentences: A Practical

Guide, Fed. Probation, Dec. 2000, at 67.)

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Revocation (October 2004) Page 2

I. REVOCATION OF PROBATION AND OF SUPERVISED RELEASE:

CONSIDERATIONS COMMON TO BOTH

A. Jurisdiction of the District Court

1. To have jurisdiction to revoke probation or supervised release, a district court must issue

a warrant or summons that is based on analleged violationof a condition of probation or

supervised release prior to the expiration of the period of supervision. United States v.

Morales, 45 F.3d 693 (2d Cir. 1995) (supervised release); United States v. Barton, 26

F.3d 490 (4th Cir. 1994) (supervised release); United States v. Naranjo, 259 F.3d 379

(5th Cir. 2001) (supervised release); United States v. Neville, 985 F.2d 992 (9th Cir.

1993) (supervised release); United States v. Schmidt

, 99 F.3d 315 (9th Cir. 1996)

(probation).

2. OnSeptember 13, 1994, Congressamendedthe statutoryrevocationprovisions to permit

courts to exercise their power to revoke probation or supervised release even after the

expirationof the supervision period as long as the warrant or summons was issued before

the expiration of the supervision period. 18 U.S.C. § 3565(c) (probation); 18 U.S.C.

§ 3583(i) (supervised release); United States v. Lominac

, 144 F.3d 308 (4th Cir. 1998)

(supervised release); United States v. Garrett, 253 F.3d 443 (9th Cir. 2001) (supervised

release). However, any delay must be “reasonably necessary”; a two-year delay caused

bythe government was not reasonably necessary, so the court did not have jurisdictionto

revoke probation. United States v. Dworkin

, 70 F. Supp. 2d 214 (E.D.N.Y. 1999); cf.

Garrett. For cases addressing the constitutional dimensions of delay, see Section I.H.2.

3. Jurisdictionand tolling of supervised release

: Supervised release is tolled when a defendant

is on fugitive status, United States v. Crane, 979 F.3d 687 (9th Cir. 1992), or when a

defendant is incarcerated in connection with a conviction, 18 U.S.C. § 3624(e); United

States v. Garrett, 253 F.3d 443 (9th Cir. 2001). However, pre-trial detention does not

qualify as imprisonment for purposes of § 3624(e). Id.

, citing United States v. Morales-

Alejo, 193 F.3d 1102 (9th Cir. 1999).

B. Use of a Magistrate Judge

1. Where the original offense is a misdemeanor for which the defendant consented to trial,

judgment, and sentencing by a magistrate judge, the magistrate judge has authority to

revoke probation or supervised release. 18 U.S.C. § 3401(b), (d) (probation), (h)

(supervisedrelease);UnitedStatesv.Colacurcio

,84 F.3d 326 (9thCir.1996) (probation;

noting that 18 U.S.C. § 3401(h) was implemented to overrule United States v. Williams

919 F.2d 266 (5th Cir. 1990)); United States v. Raynor, 764 F. Supp. 1067 (D. Md.

1991) (supervised release); United States v. Crane, 979 F.2d 687 (9th Cir. 1992)

(supervised release).

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Revocation (October 2004) Page 3

2. In other cases, the district court may refer revocation proceedings to a magistrate judge,

who must file proposed findings and recommendations. 18 U.S.C. § 3401(i) (added

1992); United States v. Rodriguez

, 23 F.3d 919 (5th Cir. 1994); see United States v.

Waters,158F.3d933(6thCir.1998). However, the language of section 3401(i) appears

to be limited to supervised release cases.

C. Probation Officers May File Petition

: Three appellate courts have held that the filing of petitions

seeking warrants and revocationproceedings byprobationofficers does not exceed the probation

officers’ statutoryauthorityunder 18 U.S.C. § 3603, was not an improper delegationofa judicial

function, and was not the unauthorized practice of law. United States v. Cofield, 233 F.3d 405

(6th Cir. 2000); United States v. Mejia-Sanchez, 172 F.3d 1172 (9th Cir. 1999); United States

v. Davis, 151 F.3d 1304 (10thCir. 1998); see alsoUnited States v. Burnette, 980 F. Supp. 1429

(M.D. Ala. 1997). Contra United States v. Jones, 957 F. Supp. 1088 (E.D. Ark. 1997)

(invalidating practice); see also United States v. Waters, 158 F.3d 933 (6th Cir. 1998) (noting

district court criticism of Jones, but finding claim waived).

D. Contents of Warrant

: Rule 32.1(a)(2)(A); 18 U.S.C. § 3565(c); United States v. Gordon, 961

F.2d 426 (3rd Cir. 1992); United States v. Kirtley, 5 F.3d 1110 (7th Cir. 1993); United States

v. Tham, 884 F.2d 1262 (9th Cir. 1989); United States v. McAfee, 998 F.2d 835 (10th Cir.

1993); see also Section I.H.1.

E. The Probable Cause Hearing

: Fed. R. Crim. P. 32.1(a)(1) provides that if a defendant is held in

custodyonthe basis of a violation of probation or supervised release, he must be given a prompt

hearing to determine if there is probable cause to hold him. The defendant must be given notice

ofthe hearing, anopportunityto appear and present evidence,anopportunityto questionopposing

witnesses (if requested), and notice of the right to counsel. However, where a defendant has a

hearing limited to the issue ofdetentioninthe course of whichthe alleged violationis described, the

defendant waives his right to a probable cause hearing unless he specifically requests one. United

States v. Whalen, 82 F.3d 528 (1st Cir. 1996). Further, where a defendant is not held in custody

solely onprobationor supervised release violations (e.g., he is held for committing another offense

that also violates his release conditions), he is not entitled to a probable cause hearing under

Rule 32.1. United States v. Pardue

, 363 F.3d 695 (8th Cir. 2004).

1. Disclosure ofevidence required: United States v. Ramos-Santiago, 925 F.2d 15 (1stCir.

1991); United States v. Ayers,946F.2d 1127 (5thCir. 1991); United States v. Donaghe,

924 F.2d 940 (9th Cir. 1991); United States v. Tham

, 884 F.2d 1262 (9th Cir. 1989).

Be wary of probation officers testifying to information received but not disclosed.

F. The Revocation Hearing

: Rule 32.1(a)(2) requires that a revocation hearing be held within a

reasonable time inthe district of jurisdiction. The defendant must be accorded various rights and

opportunities: written notice of the alleged violation; disclosure of evidence; the opportunity to

appear and present evidence; the opportunity to question opposing witnesses; and notice of the

right to counsel. See Section I.H for cases addressing the constitutional dimensions of these rights.

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Revocation (October 2004) Page 4

G. Evidentiary Issues

1. Discovery: Rule 16 (discovery) applies by virtue of the fact that it is not excluded by Rule

54. See generally Bobbi J. Anello, Annotation, Availability of Discovery at Probation

Revocation Proceedings, 52 A.L.R.5th 559 (1997).

2. ApplicabilityofJencks Act

: Rule 32.1(c) provides for the application of Fed. R. Crim. P.

26.2, concerningwitness statements, to revocationproceedings. Allowing defense counsel

only nine minutes to review Jencks materials is not an abuse of discretion. United States

v. Stanfield, 360 F.3d 1346 (D.C. Cir. 2004).

3. Applicability of evidentiary rules

a. Federal Rules of Evidence: Rule 1101(d)(3) provides specifically that the Rules

ofEvidence do not apply to sentencing or to the granting or revoking ofprobation.

See also

United States v. McCallum, 677 F.2d 1024 (4thCir.1982). Rule 1101,

however, does not mentionrevocation of supervised release. In United States v.

Frazier, 26 F.3d 110 (11th Cir. 1994), aff’g807 F. Supp.119 (N.D. Ga. 1992),

the Eleventh Circuit held that the Rules of Evidence do not apply to supervised

release revocations, because supervised release is comparable to probation and

parole. See also

United States v. Portalla, 985 F.2d 621 (1st Cir. 1993); United

States v. Walker, 117 F.3d 417 (9th Cir. 1997).

b. Exclusionaryrule: The Supreme Court has held that the exclusionary rule does not

apply to state parole revocation proceedings. Pennsylvania Bd. of Probation &

Parole v. Scott, 524 U.S. 357 (1998) (5-4 decision); see United States v.

Armstrong, 187 F.3d 392 (4th Cir. 1999); United States v. Hebert, 201 F.3d.

1103 (9thCir.2000). Prior to this decision, the majority of courts addressing the

issue had held that the exclusionary rule does not apply to federal revocation

proceedings unless there is policeharassment ofthe defendant. E.g.

,UnitedStates

v. Montez, 952 F.2d 854 (5th Cir. 1992); United States v. Finney, 897 F.2d

1047 (10th Cir. 1990).

4. Use ofhearsay

: Hearsay testimony is admissible as long as it is reliable. United States v.

Stephenson, 928 F.2d 728 (6th Cir. 1991); United States v. Pratt,52F.3d671(7thCir.

1995); United States v. Burkhalter

, 588 F.2d 604 (8thCir.1978);UnitedStates v. Miller,

514 F.2d 41 (9th Cir. 1975); cf. U.S.S.G. § 6A1.3, comment. (court may consider any

information “so long as it has ‘sufficient indicia of reliability to support its probable

accuracy,’” and specifically permitting consideration of reliable hearsay). If the hearsay

is reliable, the court mustweigh the need for it against the defendant’s right to confront and

examine adverse witnesses. United States v. Waters

, 158 F.3d 933 (6th Cir. 1998) (use

of reliable hearsay not barred byRule 32.1(a)(2)(D)); United States v. O’Meara

,33F.3d

20 (8thCir. 1994); United States v. Reynolds, 49 F.3d 423 (8thCir 1995); United States

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Revocation (October 2004) Page 5

v.Walker,117F.3d 417 (9thCir. 1997); United States v. Frazier, 26 F.3d 110 (11thCir.

1994); see

Section I.H.4.

5. Standard of proof

a. To revoke a defendant’s supervised release, the court must find by a

preponderance of the evidence that the defendant violated a condition of

supervised release. 18 U.S.C. § 3583(e)(3); see also

United States v. Whalen,

82 F.3d 528 (1st Cir. 1996); United States v. Marshall, 371 F.3d 42 (2nd Cir.

2004); United States v. Poellnitz, 372 F.3d 562 (3d Cir. 2004); United States v.

Alaniz-Alaniz, 38 F.3d 788 (5th Cir. 1994); United States v. Goad,44F.3d580

(7th Cir. 1995); United States v. Copeland

, 20 F.3d 412 (11th Cir. 1994).

b. Preponderance of the evidence is also the standard applied to probation

revocation. United States v. Bujak, 347 F.3d 607 (6thCir. 2003); United States

v. Hooker, 993 F.2d 898 (D.C. Cir. 1993).

6. Evidence of drug possession: Most circuits have held that drug use (typically proven by

a defendant’s admission or by urinalysis test results) can constitute evidence of drug

possession. United States v. Dow

, 990 F.2d 22 (1st Cir. 1993); United States v. Wirth,

250 F.3d 165 (2nd Cir. 2001); United States v. Blackston, 940 F.2d 877 (3d Cir. 1991);

United States v. Clark

, 30 F.3d 23 (4thCir.1994); United States v. Courtney, 979 F.2d

45 (5thCir. 1992); United States v. Hancox, 49 F.3d 223 (6thCir. 1995); United States

v. Young, 41 F.3d 1184 (7th Cir. 1994); United States v. Oliver, 931 F.2d 463 (8thCir.

1991); United States v. Baclaan

, 948 F.2d 628 (9th Cir. 1991); United States v.

Rockwell, 984 F.2d 1112 (10th Cir. 1993), overruled on other grounds by Johnson v.

United States, 529 U.S. 694 (2000); United States v. Granderson, 969 F.2d 980 (11th

Cir. 1992), aff’d on other grounds, 511 U.S. 39 (1994).

7. Sufficiency of evidence

: United States v. Brennick, 337 F.3d 107 (1st Cir. 2003)

(corroborated confession sufficient to establishviolation); United States v. Alaniz-Alaniz,

38 F.3d. 788 (5th Cir. 1994) (testimony of single witness sufficient); United States v.

Levine, 983 F.2d 785 (7th Cir. 1993) (evidence sufficient to establish defendant’s

commissionoftheftbydeception); United States v. Huusko, 275 F.3d 600 (7thCir.2001)

(court entitled to rely on state conviction as proof ofviolationof state law); United States

v. Iversen, 90 F.3d 1340 (8th Cir. 1996) (evidence sufficient where defendant admitted

to two violations and store securityofficer testified indetail about defendant’s shoplifting);

United States v. Hall, 984 F.2d 387 (10th Cir. 1993) (evidence sufficient to establish

defendant’s involvement incocaine distribution); United States v. Copeland

,20F.3d412

(11th Cir. 1994) (police officer’s testimony sufficient to establish that person selling

cocaine to officer was defendant;althoughdefendant presented evidencetocontrary, court

entitled to find officer’s testimony more credible).

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Revocation (October 2004) Page 6

8. Nolo contendre pleas: While a nolo plea does not necessarily establish a factualbasis or

admission to a violation, see

United States v. Poellnitz, 372 F.3d 562 (3d Cir. 2004), it

does not violate due process for a court to relyupona certified judgment froma nolo plea

to establish a violation, United States v. Verduzco, 330 F.3d 1182 (9th Cir. 2003).

H. Constitutional Concerns

: In Morrisey v. Brewer, 408 U.S. 471 (1972), and by extension in

Gagnon v. Scarpelli

, 411 U.S. 788 (1973), the Supreme Court held that a defendant must be

accorded a minimumofdue processbeforehisparole or probationcanbe revoked. Fed. R. Crim.

P. 32.1, added in 1979, incorporates the Court’s requirements. This section covers the most

frequently litigated of those due process requirements, as well as some arising under other parts

of the Constitution.

1. Notice

: Rule 32.1(b)(1)(B) requires that a defendant be given notice of the probable

cause hearing and of the alleged violation. Rule 32.1(b)(2)(A) requires that a defendant

be given written notice of the alleged violation. A petition alleging a defendant’s use of

drugs in violation of a condition of supervised release instructing the defendant not to

purchase, possess, use, distribute, or administer any drug was found to give sufficient

notice of an allegation of possession of drugs to trigger mandatory revocation. United

States v. McAfee, 998 F.2d 835 (10th Cir. 1993); see also Section I.G.6 (evidence of

drug use as evidence of drug possession).

Where the violation consists of committing “another federal, state, or local crime,” the

petition for revocation must clearly specify a statutory provision that the defendant’s

conduct is alleged to violate. United States v. Chatelain

, 360 F.3d 114 (2d Cir. 2004);

United States v. Havier

, 155 F.3d 1090 (9th Cir. 1998).

2. Delay: Rule 32.1(b)(1)(A) requires the preliminary hearing to be held promptly. Rule

32.1(b)(2) requires the revocation hearing to be held “within a reasonable time.” United

States v. Sanchez, 225 F.3d 172 (2d Cir.2000) (four-year delaybetweenoccurrence of

violation and issuance of summons did not violate due process where summons and

revocation hearing took place before termofsupervised release ended); United States v.

Poellnitz, 372 F.3d 562 (3d Cir. 2004) (two-year delay due to prosecution of state

charges not unreasonable); United States v. Tippens, 39 F.3d 88 (5th Cir. 1994) (30-

month delay); United States v. Throneburg, 87 F.3d 851 (6th Cir. 1996) (holding

revocationhearingnearly two years after issuance of violation warrant neither violation of

due process nor abuse of discretion where warrant issued eight months into term of

supervised release and hearing held before expirationoftermof supervision; due process

concerns implicated only where delay prejudices defendant’s ability to challenge validity

ofrevocation, not where delay affects defendant’s ability to have revocationsentence run

concurrently with state sentence); United States v. Shampang

, 987 F.2d 1439 (9th Cir.

1993) (although unreasonable delay betweentime of violationand revocation proceeding

may violate due process, five-month delay in this case was acceptable).

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Revocation (October 2004) Page 7

3. Presence

a. Revocation hearing: Rule 32.1(b)(2)(C) requires that the defendant be given the

opportunity to appear at the revocation hearing. If the defendant chooses,

however, to waive a revocation hearing, that waiver must be knowing and

voluntary. United States v. Pelensky

, 129 F.3d 63 (2d Cir. 1997); United States

v. LeBlanc, 175 F.3d 511 (7thCir. 1999); United States v.Stocks,104F.3d 308

(9th Cir. 1997).

b. Sentencing: The Fifth Circuit vacated a revocation sentence where the district

court sentenced the defendant in absentia. The appellate court found that the

lower court’s adoption of the magistrate judge’s proposed findings and

recommendations violated the defendant’s right to be present and to have

allocution pursuant to Fed. Crim. R. 43(a) and 32(a)(1)(C). United States v.

Rodriguez, 23 F.3d 919 (5th Cir. 1994); see also United States v. Waters, 158

F.3d 933 (6th Cir. 1998).

4. Confrontation

: Rule 32.1(b)(2)(C) gives the defendant the opportunity to question adverse

witnesses “unless the court determines that the interest of justice does not require the

witness to appear.” The confrontation issue arises most frequently in the context of the use

of positive drug tests as evidence of drug possession without presenting the person who

processed the urine or blood sample used for testing. The right includes the ability to

impeach the accuracy of test results. The court must balance the defendant’s right to

confrontation against the government’s “good cause” to deny the right. The court must

also consider the reliabilityofthe evidence. Good cause for the government is typically the

difficultyand expense ofprocuring witnesses. See, e.g.

, United States v. McCormick,54

F.3d 214 (5th Cir. 1995) (no violation where testimony of lab technician would be of

limited value and where defendant failed to pursue even one of various alternative means

of challenging test results); United States v. Kindred, 918 F.2d 485 (5th Cir. 1990)

(defendant’s confrontation rights were not violated by admissionof urinalysis test through

testimony of probation officer); United States v. Martin

, 371 F.3d 466 (8th Cir. 2004)

(finding some hearsay inadmissible

because government explanation for not producing

witness suggested statements were not reliable); United States v. Comito, 177 F.3d 1166

(9th Cir. 1999) (use of witness’s testimony regarding defendant’s girlfriend’s unsworn

verbal statements without performing balancingtest violated confrontationclause); United

States v. Martin, 984 F.2d 308 (9th Cir. 1993) (although right to confrontation not as

strong in revocation proceeding as in trial setting, defendant’s right violated in this case

where district court refused to allow defendant to retest urine samples that were the only

evidence of drug possession); United States v. Penn

, 721 F.2d 762 (11th Cir. 1983).

Following Crawford v. Washington, 124 S. Ct. 1354 (2004), courts have considered the

the application of that decisionto revocationproceedings and found that it does not apply

because it involves the Sixth Amendment right to confrontation in a criminal prosecution

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Revocation (October 2004) Page 8

whereas Rule 32.1 provides a limited due process right to confront witnesses. United

States v. Martin, 382 F.3d 840, 844 n.4 (8th Cir. 2004); United States v. Barraza, 318

F. Supp. 2d 1031 (S.D. Cal. 2004); see alsoUnited States v. Taveras, 380 F.3d 532 (1st

Cir. 2004) (avoiding consideration of Crawford issue).

5. Voluntary and Knowing Nature of Plea

: Unlike Rule 11, Rule 32.1 does not require the

district court to make specific inquiries of a defendant who wishes to admit to violations

and waive the procedural rights provided under that rule. Four courts of appeals,

however, have found that, to comply with the dictates of the due process clause, a

defendant’s admission of violations and waiver ofRule 32.1 rightsmustbe knowingly and

voluntarily made, and that the record must reflect such a waiver. See

United States v.

Correa-Torres, 326 F.3d 18 (1st Cir. 2003); United States v, LeBlanc, 175 F.3d 511

(7th Cir. 1999); United States v. Pelensky, 129 F.3d 63, 68 n.9 (2d Cir. 1997); United

States v. Stocks, 104 F.3d 308, 312 (9thCir.), cert. denied, 522 U.S. 904 (1997). The

Fourth Circuit has this issue presently under review. United States v. Farrell,

No. 04-4196.

6. Defendant’s right to speak

a. At the revocation hearing: The Sixth Circuit found that a defendant was denied

due process when the district court prohibited the defendant from testifying as a

witness at the final probation revocation hearing and allowed the defendant only

tomakeunswornoralstatements unassisted by counsel. United States v. Dodson

25 F.3d 385 (6th Cir. 1994).

b. At the sentencing

: Among the circuits addressing the issue, there is a split as to

whether Rule 32 applies to sentencing in revocation cases.

i. Probation: Because section 3565(a) requires the court to “resentence the

defendant under subchapter A,”the better viewis thatRule 32 does apply

to sentencinghearings held after revocation of probation. However, only

the Fifth Circuit applies Rule 32. United States v. Anderson

, 987 F.2d

251 (5th Cir. 1993). The Sixth Circuit does not apply Rule 32. United

States v. Coffey, 871 F.2d 39 (6th Cir. 1989) (but see United States v.

Waters, 158 F.3d 933 (6th Cir. 1998)). The Eighth Circuit addressed,

but did not decide, the issue. United States v. Iversen

, 90 F.3d 1340 (8th

Cir. 1996).

ii. Supervised release

: The Fifth, Eighth, and Ninth Circuits apply Rule 32

to sentencinghearings held after revocationofsupervised release. United

States v. Reyna, 358F.3d 344 (5th Cir. 2004) (en banc); United States

v. Patterson, 128 F.3d 1259 (8thCir. 1997); United States v. Carper,24

F.3d 1157 (9thCir.1994). The Sixth Circuit, while not applying Rule 32,

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Revocation (October 2004) Page 9

invoked its supervisory powers to require district courts to provide

defendants with an opportunity to allocute before imposing sentence for

a violationof supervised release. United States v. Waters

, 158 F.3d 933

(6th Cir. 1998). The Eleventh Circuit has agreed with the Sixth Circuit.

United States v. Frazier, 283 F.3d 1242 (11th Cir. 2002). The Third

Circuit has also concluded that a defendant has a right to allocution at a

supervised release revocationhearing. United States v. Plotts

, 359 F.3d

247 (3rd Cir. 2004) (collecting cases).

7. Double jeopardy: Using the same conduct as the basis for a probation or supervised

release violationand as the basis for criminalprosecutiondoes notviolate double jeopardy

principles. United States v. Wyatt

, 102 F.3d 241 (7th Cir. 1996); United States v. Soto-

Olivas, 44 F.3d 788 (9th Cir. 1995). Similarly, because the punishment for violating a

conditionofprobationorsupervised release bycommitting a criminaloffense is punishment

for the offense for which probation or supervised release was imposed, the Double

Jeopardy Clause does not preclude punishment for the new criminal conduct. United

States v. Meeks, 25 F.3d 1117 (2d Cir. 1994); United States v. Woodrup,86F.3d359

(4th Cir. 1996).

8. Self-incrimination

: Where the defendant appeared voluntarily at the probation office for

an appointment, she was not “in custody” for purposes of Miranda; consequently, the

failure to give warnings against self-incrimination did not preclude use of her statements

against her in revocation proceedings. United States v. Nieblas

, 115 F.3d 703 (9th Cir.

1997).

A defendant is not denied his Fifth Amendment privilege whena district court conducts a

hearingto revoke the defendant’s supervised release before the adjudication ofunderlying

state charges against him, inasmuch as the defendant is not compelled to testify at the

hearing. United States v. Jones

, 299 F.3d 103 (2d Cir. 2002).

9. Ex Post Facto Clause

a. Bases for mandatory revocation

i. On November 18, 1988, Congress added the provisions for mandatory

revocation based on drug possession found in 18 U.S.C. § 3565(a)

(subsection (b) after September 13, 1994) and 18 U.S.C. § 3583(g).

Section7303(d) of Public Law 100-690, 102 Stat. 4464, provided that

the provisions applied “with respect to persons whose probation,

supervised release, or parole begins after December 31, 1988.” In

keeping withthat provision, the SixthCircuit uses the date of the violation

leading to revocation as the critical date for ex post facto purposes.

United States v. Reese

, 71 F.3d 582 (6th Cir. 1995). In contrast, the

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Revocation (October 2004) Page 10

Second, Fourth, and Ninth Circuit use the date of the original offense as

the critical date. United States v. Meeks

, 25 F.3d 1117 (2d Cir. 1994);

United States v. Parriett, 974 F.2d 523 (4th Cir. 1992); United States v.

Paskow, 11 F.3d 873 (9th Cir. 1993).

ii. On September 13, 1994, Congress amended the mandatory revocation

provisions in two ways. First, for supervised release, it expanded the

possiblebasesformandatoryrevocationto includefirearmpossessionand

refusal to submit to drug testing. Pub. L. No. 103-322, § 110505, 108

Stat. 2016-17. For probation, where firearm possession was already a

basis for revocation, see

18 U.S.C. § 3565(b) (1993), Congress added

the drug testing provision as an additional basis for revocation. Pub. L.

No. 103-322, § 110506, 108 Stat. 2017-18. Second, Congress

removed the “one-third” sentence requirement from both the supervised

release and probationprovisions. See Sections II.A.3.a and III.A.3.a for

text comparisons. In United States v. McGee

, 60 F.3d 1266 (7th Cir.

1995), the court found on plain error review that there was no ex post

facto violation because the defendant was not subjected to any increase

in punishment from the application of the amendments.

iii. On November 2, 2002, Congress further amended the mandatory

revocationprovisions toinclude drug test failures (more thanthree positive

tests within a one-year period) as another basis for revocation. Pub. L.

No. 107-273, Div. B, Title II, § 2103(a), (b), 116 Stat. 1793; see

U.S.C. §§ 3565(b)(4), 3583(g)(4).

b. Imposition of additional supervised release following revocation of supervised

release: On September 13, 1994, Congress amended 18 U.S.C. § 3583 by

adding section (h), which specifically permits the imposition of additional

supervised following imprisonment for a violation of supervised release. Pub. L.

No. 103-322, § 110505, 108 Stat. 2017. (For cases addressing this issue prior

to the amendment, see Section III.B.2.a.) The circuits addressing whether

section 3583(h) can be applied retroactively to defendants whose offenses took

place prior to the amendment had split onthe issue. In Johnson v. United States

529 U.S. 694 (2000), the Supreme Court resolved this split when it ruled that

§3583(h) did not apply to revocations for offenses occurring prior to the section’s

enactment. However, the Court also ruled that under § 3583(e)(3) as it stood

prior to Sept. 13, 1994, district courts had authority to impose additional

supervised release following a term of imprisonment punishing a revocation

violation.

WhenCongress added section (h) in 1994, it limited the impositionofsupervised

release to those cases in which a district court imposed less than the full amount

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Revocation (October 2004) Page 11

of imprisonment available upon 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.” Pub. L. No. 103-322, § 110505, 108

Stat. 2017. Effective April 30, 2003, however, Congress amended section (h)

to permit additional supervised release even where the district court gives the full

amount of imprisonment available: “When a term of supervised release is revoked

and the defendant is required to serve a term of imprisonment, the court may

include a requirement that the defendant be placed ona termofsupervised release

after imprisonment.” PROTECT Act, Pub. L. No. 108-21, § 101(2), 117

Stat. 651.

c. Sentencing Guidelines

: Courts have found that using the amended Chapter 7

policy statements does not create anexpost facto violationontwo bases. United

States v. Levi, 2 F.3d 842 (8thCir.1993) (Chapter 7 not subject to expost facto

analysis because it does not have the force of law); United States v. Schram, 9

F.3d 741 (9th Cir. 1993) (the offense for Chapter 7 purposes is the violation of

probation or supervised release, not the original offense).

I. Defenses

1. Insanity: The federal insanity defense is not available in revocation proceedings because

revocation is not a “prosecution under any Federal statute” within the meaning of 18

U.S.C. § 17. United States v. Brown

, 899 F.2d 189 (2d Cir. 1990). Moreover, there

is no minimum standard of criminal responsibility required for revocation. Id.

2. Indigency: Where a condition of probation is that a defendant pay a fine or restitution,

probation cannot be automatically revoked for inability to make payments. Bearden v.

Georgia, 461 U.S. 660 (1983); see 18 U.S.C. § 3614; see also United States v. Leigh,

276 F.3d 1011 (8th Cir. 2002) (failure to paymonthly restitutionwarranted revocationof

probation absent evidence that defendant lacked ability to pay or made good faith efforts

to pay).

3. Underlyingconduct

: Where the conduct underlying the revocation proceedings also results

in a conviction in state court, the defendant cannot use the revocation proceedings to

collaterally challenge the state conviction. United States v. Brown

, 656 F.2d 1204 (5th

Cir.1981). However, where the appeal of the revocationis consolidated withthe appeal

of the federal conviction for the conduct giving rise to the revocation, the vacation of the

latter also results in vacation of the former. United States v. Singleterry

, 646 F.2d 1014

(5thCir. 1981). The fact that a defendant has been acquitted of the conduct giving rise to

the revocation proceeding does not preclude revocation. Morishita v. Morris

, 702 F.2d

207 (10th Cir. 1983).

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Revocation (October 2004) Page 12

J. Findings

1. Revocation: The Supreme Court held in Morrisey v. Brewer, 408 U.S. 471 (1972), and

by extension in Gagnon v. Scarpelli, 411 U.S. 788 (1973), that in revoking parole or

probation, a court mustissue a writtenstatement specifyingthe evidence it relied uponand

its reasons for its decision to revoke. The appellate courts have developed an exception

to this rule: written findings are not required, and due process is satisfied, where oral

findings, if recorded or transcribed, create a record sufficient to advise the parties of the

reasons for revocationand to permit appellate review. United States v. Barth

, 899 F.2d

199 (2d Cir. 1990); United States v. Barnhart, 980 F.2d 219 (3d Cir. 1992); United

States v. Copley, 978 F.2d 829 (4th Cir. 1992); United States v. Gilbert, 990 F.2d 916

(6thCir. 1993); United States v. Yancey

, 827 F.2d 83 (7th Cir. 1987); United States v.

Sesma-Hernandez, 253 F.3d 403 (9thCir.2001) (enbanc); United States v. Copeland,

20 F.3d 412 (11th Cir. 1994); see also United States v. Whalen, 82 F.3d 528 (1st Cir.

1996) (on plain error review, no due process violation in court’s failure to make written

findings when defendant failed to request court to do so and court stated on record that

it concluded defendant committed offense leading to revocationand adopted presentence

report); cf.

United States v. Kindred, 918 F.2d 485 (5th Cir. 1990) (remand for written

findings not necessary when evidence at hearing was overwhelming that defendant

possessed drugs, thus mandating revocation).

2. Sentencing

: United States v. Blackston, 940 F.2d 877 (3d Cir. 1991) (court’s statement

of reasons for decision to sentence defendant above minimum required for revocation

based on drug possession was sufficiently detailed); United States v. McClelland, 164

F.3d 308 (6th Cir. 1999) (reversing because district court’s articulation of reasons

insufficient to justify sentence); United States v. McClanahan

, 136 F.3d 1146 (7th Cir.

1998) (district court made sufficient findings to justify sentence at statutory maximum);

United States v. Lockard, 910 F.2d 542 (9th Cir. 1990) (18 U.S.C. § 3553(c) requires

judge to state in open court the generalreasons for imposing particular sentence); United

States v. Rose, 185 F.3d 1108 (10th Cir. 1999) (district court must state reasons for

sentence, even when range does not exceed 24 months).

K. Sentencing

1. Application of the U.S. Sentencing Guidelines

a. Chapter 7 of the U.S. Sentencing Guidelines addresses revocation of probation

and supervised release. Every circuit has held that because the Sentencing

Commission intended the policystatements ofChapter 7 to be recommendations,

those policystatements are not binding on the courts. However, the courts must

consider them. United States v. Hooker

, 993 F.2d 898 (D.C. Cir.1993); United

States v. O’Neil, 11 F.3d 292 (1st Cir. 1993); United States v. Anderson,15

F.3d 278 (2d Cir. 1994); United States v. Blackston, 940 F.2d 877 (3d Cir.

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Revocation (October 2004) Page 13

1991); United States v. Davis, 53 F.3d 638 (4thCir.1995) (supervisedrelease);

United States v. Denard

, 24 F.3d 599 (4th Cir. 1994) (probation); United States

v. Mathena, 23 F.3d 87 (5th Cir. 1994); United States v. Sparks, 19 F.3d 1099

(6th Cir. 1994); United States v. Washington, 147 F.3d 490 (6th Cir. 1998)

(district court adequately considered policystatements even though court did not

refer to themby name); United States v. Hill

, 48 F.3d 228 (7thCir.1995); United

States v. Levi, 2 F.3d 842 (8th Cir. 1993); United States v. Forrester,19F.3d

482 (9th Cir. 1994) (probation); United States v. Hurst, 78 F.3d 482 (10th Cir.

1996); United States v. Thompson, 976 F.2d 1380 (11thCir. 1992) (supervised

release);UnitedStatesv. Milano, 32 F.3d 1499 (11thCir.1994) (probation). Cf.

United States v. Wright, 92 F.3d 502 (7th Cir. 1996) (although not binding, it

would be abuse of discretion for district court to ignore Ch. 7); United States v.

Montez, 952 F.2d 854 (5th Cir. 1992) (no plain error in failing to consider

guidelines).

b. On September 13, 1994, Congress amended18 U.S.C. § 3553(a)(4) to require

courts to consider “the kinds of sentence and the sentencing range established

for . . . in the case of a violationof probationor supervised release, the applicable

guidelines or policy statements issued by the Sentencing Commission . . . .” 18

U.S.C. § 3553(a)(4)(B). Several courts have found that the inclusion of this

language in section 3553 still does not make application of the Chapter 7 policy

statements mandatory. See

United States v. Bruce, 285 F.3d 69 (D.C. Cir.

2002); United States v. Cohen, 99 F.3d 69 (2d Cir. 1996); United States v.

Schwegel, 126 F.3d 551 (3d Cir. 1997); United States v. Escamilla,70F.3d835

(5thCir.1995);United States v. West

, 59 F.3d 32 (6thCir. 1995); United States

v. Brown, 203 F.3d 557 (8th Cir. 2000); United States v. George, 184 F.3d

1119 (9thCir. 1999); United States v. Hofierka, 83 F.3d 357 (11th Cir. 1996).

c. Although the policy statements are not binding, district courts are required to

interpret themcorrectly. United States v. Kingdom (U.S.A.), Inc.

, 157 F.3d 133

(2d Cir. 1998).

d. Determining a revocation sentence under the Guidelines

i. Begin by determiningwhat grade the violationis under U.S.S.G. § 7B1.1.

United States v. Kingdom (U.S.A.), Inc.

, 157 F.3d 133 (2d Cir. 1998)

(where defendant has committedmultiple violations, sentence to be based

on most serious violation); United States v. Lindo, 52 F.3d 106 (6th Cir.

1995) (multiple Grade C violations do not aggregate into a Grade B

violation); United States v. Schwab

, 85 F.3d 326 (8th Cir. 1996) (look

to defendant’s actualconduct, not offense of which he was convicted, to

determine grade); United States v. Bonner

, 85 F.3d 522 (11thCir. 1996)

(making a threatening phone call is “crime of violence” that is grade A

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Revocation (October 2004) Page 14

violation); United States v. Cawley, 48 F.3d 90 (2d Cir. 1995) (witness

intimidation is crime of violence that is grade A violation).

In determining the grade of violation for criminal conduct, courts are not

restricted to considering only conduct constituting federal offenses. Put

another way, when a defendant commits a crime that constitutes a

relatively minor federal offense but that also constitutes a more serious

state offense, courts may use the more serious state offense to determine

the grade ofviolation. United States v. Brennick

, 337 F.3d 107 (1st Cir.

2003); United States v. Jolibois, 294 F.3d 1110 (9th Cir. 2002).

Further, in determining the grade of violation, courts must take into

account any recidivist provisions to which the defendant could be

subjected if he were charged with the offense conduct. United States v.

Trotter, 270 F.3d 1150 (7th Cir. 2001); United States v. Boisjolie,74

F.3d 1115 (11th Cir. 1996).

ii. Determine the guideline range ofimprisonment contained insection7B1.4.

iii. For information related to departures, see sections II.B.1.a, III.B.3.

iv. Apply section7B1.3(c) for sentencingoptions relating to Grade B and C

violations. If imprisonment is imposed, adjust for time spent in official

detention. U.S.S.G. § 7B1.3(e); UnitedStates v. Whaley

, 148 F.3d 205

(2d Cir. 1998).

2. Concurrent v. consecutive sentences

a. Revocation after sentencing for new offense: The statutes governing revocation

are silent on this subject. U.S.S.G. § 7B1.3(f) and application note 4 require a

sentence imposed upon revocation to run consecutively to any other sentence a

defendant is serving. However, several courts have ruled that because Chapter 7

is advisory only, district courts can use their discretion in deciding whether to run

a sentence consecutively or concurrently. United States v. Sparks

, 19 F.3d 1099

(6thCir. 1994); United States v. Hill, 48 F.3d 228 (7thCir.1995); United States

v. Caves, 73 F.3d 823 (8th Cir. 1995); United States v. Rose, 185 F.3d 1108

(10th Cir. 1999). Approaching the issue from the perspective of § 5G1.3, the

Second Circuit has ruled that the directive in that provision’s application note 6 is

not mandatory. United States v. Maria

, 186 F.3d 65 (2d Cir. 1999).

b. Revocationsentenceimposedsimultaneouslywithnewoffensesentence: Similarly,

one court has found that the district court has discretion to impose a revocation

sentence concurrently or consecutively to a sentence for the substantive offense

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Revocation (October 2004) Page 15

The circuits are also split in non-revocation cases, with the Seventh and Ninth Circuits concluding

there is no authority, United States v. Romandine, 206 F.3d 731 (7thCir. 2000); United Statesv. Clayton,

giving rise to the revocation that is imposed at the same time as the revocation

sentence. United States v. Urcino-Sotello

, 269 F.3d 1195 (10th Cir. 2001).

c. Revocation before sentencing for new federal offense: Where a defendant is

sentenced federally for a new offense after having been sentenced on a federal or

state revocationviolation, the Sentencing Guidelines state that the sentencefor the

instant conviction“should”runconsecutivelytothe revocationsentence. U.S.S.G.

§ 5G1.3, comment. (n.6 ) (Nov. 2002) (added Nov. 1, 1993 as note 4). Several

circuits have interpreted this language as mandating that the new sentence run

consecutively to the revocation sentence. See

United States v. Gondek,65

F.3d 1 (1st Cir. 1995); United States v. Alexander, 100 F.3d 24 (5thCir. 1996);

United States v. Goldman

, 228 F.3d 942 (8th Cir. 2000); United States v.

Bernard, 48 F.3d 427 (9th Cir. 1995); United States v. Flowers,13F.3d395

(11th Cir. 1994). Other circuits, however, have found that the language is

permissive. See United States v. Maria, 186 F.3d 65 (2d Cir. 1999); United

States v. Swan, 275 F.3d 272 (3rd Cir. 2002);UnitedStatesv. Tisdale, 248 F.3d

964 (10th Cir. 2001).

To resolve the circuit split, the Sentencing Commission amended the commentary

in November 2003 to make clear that the Commission only recommends that

district courts impose the newsentence consecutively to the revocation sentence.

U.S.S.G. § 5G1.3, comment. (n.3(C)) (Nov. 2003). The Commission expressly

followed the positionofthe Second, Third, and TenthCircuits. U.S.S.G. App. C,

amend. 660. See also

United States v. Huff, 370 F.3d 454 (5th Cir .2004)

(discussing application of amendment to case pending on direct appeal at time of

amendment).

d. Revocation before imposition of state sentence

: The Guidelines do not address

this issue directly. U.S.S.G. § 7B1.3(f) refers only to running a revocation

sentence consecutive to a sentence the defendant “is serving;” similarly,

section5G1.3 addresses situations where the defendant is alreadyserving another

sentence. The circuits are split as to whether a court may order a federal

revocation sentence to run consecutively to a state sentence that has not yet been

imposed. Two circuits have addressed the issue directly. The Sixth Circuit held

that 18 U.S.C. § 3584(a) does not give the district courts suchauthority. United

States v. Quintero, 157 F.3d 1038 (6th Cir. 1998). In contrast, the Eighth and

EleventhCircuits have held that the districtcourtsdohave authority. United States

v. Mayotte, 249 F.3d 797 (8th Cir. 2001); United States v. Andrews, 330 F.3d

1305 (11th Cir. 2003).

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Revocation (October 2004) Page 16

927 F.2d 491 (9th Cir. 1991). The Fifth, Tenth, and Eleventh Circuits have reached the opposite

conclusion. United States v. Brown, 920 F.2d 1212 (5th Cir. 1991); United States v. Williams, 46 F.3d

57 (10thCir. 1995); United States v. Ballard

, 6 F.3d 1502 (11thCir.1993). The Second Circuit has held

that a district court may impose a consecutive sentence to an as-yet-to-be-imposed state sentence under

the statutory scheme that predated § 3584(a), Salley v. United States, 786 F.2d 546 (2d Cir. 1986); in

a recent case, however, that court expressly reserved the question as to whether Salley

would still apply

under the new statute. McCarthy v. Doe, 146 F.3d 118 (2d Cir. 1998).

e. Multiple terms ofimprisonment for revocationviolation

: Several circuits have held

that when concurrent terms of supervised release are revoked, the district court

may impose consecutive terms of imprisonment as punishment. United States v.

Johnson, 138 F.3d 115 (4thCir. 1998); United States v.Gonzalez, 250 F.3d 923

(5th Cir. 2001); United States v. Cotroneo, 89 F.3d 510 (8th Cir. 1996); United

States v. Rose, 185 F.3d 1108 (10th Cir. 1999); United States v. Jackson, 176

F.3d 1175 (9th Cir. 1999); United States v. Quinones

, 136 F.3d 1293 (11thCir.

1998).

L. Appeals

1. Jurisdiction of appellate court: Following Spencer v. Kemna, 523 U.S. 1 (1998), two

courts ofappeals have ruled that theydo not have jurisdictionto hear an appeal where the

defendant has completed the term of imprisonment imposed upon revocation. United

States v. Probber, 170 F.3d 345 (2d Cir. 1999); United States v Meyers, 200 F.3d 715

(10th Cir. 2000). In these cases, however, the district court imposed only a term of

imprisonment. Therefore, if a defendant’s revocation sentence included a term of

supervised release that he is serving at the time of appeal, the appeal should be ripe, and

the defendant should have standing because he is still under sentence. See

United States

v. Searan, 259 F.3d 434 (6th Cir. 2001); United States v. Trotter, 270 F.3d 1150 (7th

Cir. 2001); cf. United States v. Palomba, 182 F.3d 1121 (9th Cir. 1999) (defendant

lacked standing to appeal sentence where he had completed supervised release term).

2. Standard of review

a. Unless a violation is based upon drug or firearm possession, which requires

revocation, a district court’s decision to revoke probation or supervised release

will be reviewed for abuse of discretion. United States v. Morin, 889 F.2d 328

(1st Cir. 1989); United States v. Stephenson, 928 F.2d 728 (6th Cir. 1991);

United States v. Levine

, 983 F.2d 785 (7th Cir. 1993); United States v. Schmidt,

99 F.3d 315 (9thCir.1996); United States v. McAfee, 998 F.2d 835 (10th Cir.

1993); United States v. Copeland

, 20 F.3d 412 (11th Cir. 1994).

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Revocation (October 2004) Page 17

b. The factfinding underlying a decision to revoke will be reviewed for clear error.

United States v. Whalen

, 82 F.3d 528 (1st Cir. 1996); United States v. Alaniz-

Alaniz, 38 F.3d 788 (5th Cir. 1994); United States v. Hall, 984 F.2d 387 (10th

Cir. 1993).

c. Questions oflawwill be reviewed de novo

. See, e.g., United States v. Morales,

45 F.3d 693 (2d Cir.1995)(jurisdictionofdistrict court); United States v. Barton

26 F.3d 490 (4th Cir. 1994) (jurisdiction of district court); United States v.

Naranjo, 259 F.3d 379 (5th Cir. 2001) (interpretation of § 3583(i)); United

States v. Truss, 4 F.3d 437 (6th Cir. 1993) (whether district court exceeded

authorityunder18U.S.C. § 3583); United States v. McClanahan, 136 F.3d 1146

(7thCir. 1998); United States v. Martin

, 382 F.3d 840, 844 n.4 (8thCir.2004)

(constitutional question); United States v. Shampang, 987 F.2d 1439 (9th Cir.

1993) (interpretation of 18 U.S.C. § 3565); United States v. Neville, 985 F.2d

992 (9th Cir. 1993) (jurisdiction of district court); United States v. Kelley, 359

F.3d 1302 (10thCir.2004); United States v. Boisjolie

, 74 F.3d 1115 (11th Cir.

1996) (interpretation of Guidelines).

d. The sentence imposed upon revocation will be reviewed for reasonableness, i.e.,

abuse of discretion. United States v. Sweeney

, 90 F.3d 55 (2d Cir. 1996);

United States v. Mathena, 23 F.3d 87 (5th Cir. 1994); United States v. Bujak,

347 F.3d 607 (6thCir. 2003);UnitedStates v. McClanahan

, 136 F.3d 1146 (7th

Cir. 1998); United States v. Touche, 323 F.3d 1105 (8th Cir. 2003) (abuse of

discretion); United States v. Oliver, 931 F.2d 463 (8th Cir. 1991)

(reasonableness); United States v. Kelley

, 359 F.3d 1302 (10th Cir. 2004).

InUnited States v. Tschebaum, 306 F.3d 540 (8th Cir. 2002), the Eighth Circuit

actually found that a sentence imposed for violating probation was “plainly

unreasonable.”

II. REVOCATION OF PROBATION

SPECIAL CONSIDERATIONS

A. The Relevant Statutory Provisions

1. In general, the imposition of probation is governed by 18 U.S.C. §§ 3561-3566.

Revocation, in particular, is governed by 18 U.S.C. § 3565. The text of the current

version of section 3565, last amended substantively as of November 2, 2002, is

reproduced in Appendix A.

2. Discretionary revocation

: Under subsection (a), revocation of probation is within the

discretion of the court.

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Revocation (October 2004) Page 18

3. Mandatory revocation: If a defendant violates certain conditions of probation, the court

is required to revoke probation.

a. Drug possession

i. Prior to September 13, 1994: Effective December 31, 1988, Congress

added a provisionto section3565(a)requiringthat“ifa defendant is found

by the court to be in possession of a controlled substance, thereby

violating the condition imposed by section 3563(a)(3), the court shall

revoke the sentence of probation and sentence the defendant to no less

than one-third of the original sentence.” Pub. L. No. 100-690,

§ 7303(a)(2), (d), 102 Stat. 4464. The split that developed among the

circuit courts as to the meaning of“one-third ofthe originalsentence”was

resolved by the Supreme Court in favor of the majority position, that

“originalsentence”means the originalGuidelines sentence, not the term of

probation. United States v. Granderson

, 511 U.S. 39 (1994).

ii. After September 13, 1994: On September 13, 1994, Congress added

section3565(b)(1)torequirea court to “revoke the sentence ofprobation

and resentence the defendant under subchapter A [18 U.S.C.

§§ 3551-3559] toa sentence thatincludesa termofimprisonment.” Pub.

L. No. 103-322, § 110506, 108 Stat. 2017.

iii. Drug use can constitute evidence of possession. See

Section I.G.6.

iv. In at least one case, a court held that it must revoke probation if it finds

that defendant possessed drugs, evenwhere the drugpossessionis not the

event triggering the revocation proceeding. United States v. Shampang

987 F.2d 1439 (9th Cir. 1993). In contrast, another court found that it

was not required to revoke probationwhere the drug possession was not

the triggering event for revocation. United States v. White

, 770 F. Supp.

503 (W.D. Mo. 1991).

b. Drug testing

i. Prior to September 13, 1994, section 3565 contained no provision

mandatingrevocationfor a defendant’s refusalto comply withdrug testing

requirements.

ii. On September 13, 1994, Congress added section 3565(b)(3), which

requires revocation and a sentence of imprisonment. Pub. L.

No. 103-322, § 110506, 108 Stat. 2017. See

United States v.

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Revocation (October 2004) Page 19

Coatoam, 245 F.3d 553 (6th Cir. 2001) (first appellate decision to

interpret provision).

iii. On November 2, 2002, Congress added section 3565(b)(4), which

requires revocationwhena defendant tests positive more than three times

in a one-year period. Pub. L. No. 107-273, Div. B, Title II, § 2103(a),

116 Stat. 1793.

iv. In the case of a defendant who fails a drug test, the court must consider

whether the availability of drug treatment programs, or the defendant’s

past or present participation in such programs, warrants an exception to

the mandatory revocation and imprisonment requirements. 18 U.S.C.

§ 3563(e); U.S.S.G. § 7B1.4 comment. (n.6).

c. Firearm possession

i. Prior to September 13, 1994: On November 18, 1988, Congress

enacted section 3565(b), requiring revocation “[i]f the defendant is in

actual possession of a firearm, as that term is defined in section 921 of

[Title 18]” and the imposition of “any other sentence that was available

under subchapter A at the time of the initial sentencing.” Pub. L.

No. 100-690, § 6214, 102 Stat. 4361.

ii. On September 13, 1994, Congress amended section 3565(b)(2) to

require revocation “[i]f a defendant . . . possesses a firearm.” The court

“shall . . . resentence the defendant under subchapter A to a sentence that

includes a termof imprisonment.” Pub. L. No. 103-322, § 110506, 108

Stat. 2017.

B. Sentencing

1. The language of subsection 3565(a)(2)

a. Prior to September 13, 1994, the language of subsection(a)(2) read “revoke the

sentence of probation and impose any other sentence that was available under

subchapter A [18 U.S.C. §§ 3553-3559] at the time of the initial sentencing.”

i. The revocation sentence could not exceed the guideline range that was

calculated for the underlying offense at the original sentencing. United

States v. Boyd, 961 F.2d 434 (3d Cir. 1992); United States v. Alli, 929

F.2d 995 (4th Cir. 1991); United States v. Von Washington, 915 F.2d

390 (8th Cir. 1990); United States v. Dixon

, 952 F.2d 260 (9th Cir.

1991); United States v. Smith, 907 F.2d 133 (11th Cir. 1990).

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Revocation (October 2004) Page 20

ii. Departures fromthe guideline range calculated for the underlying offense

were possible, but could be based only onfactors that were present at the

time of the original sentencing; the court could not use post-sentence

conduct as a basis for departure. United States v. Williams

, 961 F.2d

1185 (5th Cir. 1992); United States v. Von Washington, 915 F.2d 390

(8th Cir. 1990); United States v. White

, 925 F.2d 284 (9th Cir. 1991);

United States v. Smith

, 907 F.2d 133 (11thCir. 1990); see United States

v. Alli, 929 F.2d 995 (4th Cir. 1991).

iii. Conversely, where the original sentence was the result of a downward

departure, the court was not required to depart down again, but could

sentence the defendant within the guideline range originally calculated.

United States v. Forrester

, 19 F.3d 482 (9thCir. 1994); United States v.

Redmond, 69 F.3d 979 (9th Cir. 1995). In the case of a departure for

substantial assistance, the government must renew its 5K1.1 motion.

United States v. Schaefer

, 120 F.3d 505 (4th Cir. 1997).

b. OnSeptember 13, 1994, Congress amended section3565(a)(2) to read “revoke

the sentence of probation and resentence the defendant under subchapter A

[sections 3551-3559].” The effect ofthis amendment is to subject a defendant to

a full resentencing, including a recalculation of his sentence under the Guidelines

that takes into account changes in the defendant’s circumstances occurring after

the originalsentencing (e.g., anincrease in criminal history score due to additional

convictions sustained after the originalsentencing). United States v.Schaefer

,120

F.3d 505 (4th Cir. 1997); United States v. Hudson

, 207 F.3d 852 (6th Cir.

2000); United States v. Cook, 291 F.3d 1297 (11th Cir. 2002); see United

States v. Byrd, 116 F.3d 770 (5thCir.1997) (comparinglanguage of former and

current statutes and impact of change).

2. Interplay of section 3565 and Chapter 7 policy statements

: Keeping in mind that

Chapter 7 ofthe Sentencing Guidelines is not binding,see SectionI.K.1, the examples that

follow illustrate the interplay between section 3565 and Chapter 7.

a. Defendant A’s original guideline range is 4-10 months. His revocation range,

according to U.S.S.G. § 7B1.4, is 12-18 months. Under the old version of

section3565(a), Defendant A could not be sentenced to more than 10 months in

prison, absent an upward departure based on factors present at the time of the

originalsentencing. United States v. Dixon

, 952 F.2d 260 (9thCir.1991). Under

the current version of section 3565(a), the court could sentence Defendant A to

as much as 18 months, or more if the guideline range for the original offense, as

recalculated, is higher, or there is an upward departure based on factors present

at the new sentencing.

Office of Defender Services Training Branch

Revocation (October 2004) Page 21

b. Defendant B’s original guideline range is 0-6 months, and his revocation range

is 3-9 months. Under the old version of section 3565(a), Defendant B could be

sentenced to no more than 6 months in prison absent an upward departure (and

no lessthan3 months, ifthe courtchoosesto followsection7B1.4). United States

v. Boyd, 961 F.2d 434 (3d Cir. 1992). Under the current version of

section 3565(a), Defendant B could be sentenced to as much as 9 months, or

more if the guideline range for the original offense, as recalculated, is higher, or

there is anupward departure based onfactors present at the newsentencing. See

United States v. Olabanji, 268 F.3d 636 (9th Cir. 2001) (remanding for

resentencing because trialcourt did not consider sentencing guidelines applicable

to original offense).

c. Defendant C has an original guideline range of 33-41 months, but, thanks to a

downward departure, received 5 years probation. His revocation range is 3-9

months. Under the old version of section 3565(a), Defendant C could be properly

givena sentence of 33 months. United States v. Forrester

,19F.3d482(9thCir.

1994). He could also be given a sentence as high as 41 months, or more if the

court departs upward. Under the current version of section 3565(a), Defendant

C could also be sentenced to as much as 41 months, or more ifthe guideline range

for the original offense, as recalculated, is higher,or there is anupward departure.

3. Supervised release

: Upon revoking probation, a court may impose supervised release to

followa sentence ofimprisonment. United States v. Wesley,81F.3d482 (4thCir.1996);

United States v. McCullough, 46 F.3d 400 (5thCir.1995);UnitedStatesv.Vasquez, 160

F.3d 1237 (9th Cir. 1998); United States v. Donaghe

, 50 F.3d 608 (9th Cir. 1994);

United States v. Hobbs, 981 F.2d 1198 (11th Cir. 1993); see United States v. Gallo,20

F.3d 7 (1st Cir. 1994). However, where a defendant was sentenced originally to

probation under the Federal Juvenile Delinquency Act, the court cannot impose

supervised release as part of a sentence upon revocation of probation. United States v.

Sealed Appellant, 123 F.3d 232 (5th Cir. 1997).

4. Credit for time spent previously in detention

. The district court, in imposing a maximum

sentence for a probationviolation, should not reduce the term by the amount of time spent

incommunityconfinement or home detention. United States v. Iversen, 90 F.3d1340(8th

Cir. 1996); United States v. Horek, 137 F.3d 1226 (10thCir. 1998). Moreover, where

a defendant has spent time in pretrial detention for which he would receive credit pursuant

to18 U.S.C. § 3585(b), the court mustincrease the termofimprisonment imposed for the

revocation violation. U.S.S.G. § 7B1.3(e).

Office of Defender Services Training Branch

Revocation (October 2004) Page 22

III. REVOCATION OF SUPERVISED RELEASE:

SPECIAL CONSIDERATIONS

A. The Relevant Statutory Provisions

1. In general, the imposition of supervised release is governed by 18 U.S.C. § 3583.

Revocation, in particular, is governed by 18 U.S.C. § 3583(e), (g), (h), and (i). The

current version of these provisions, last amended substantively as of April 30, 2003, are

reproduced in Appendix B.

2. Discretionary revocation

: Under subsection (e), revocation of supervised release is within

the discretion of the court.

3. Mandatoryrevocation

: If a defendant violates certain conditions of supervised release, the

court is required to revoke the supervised release.

a. Drug possession

i. Prior to September 13, 1994: Effective December 31, 1988, Congress

enacted section 3583(g), which provided that the court must sentence a

defendant found to have possessed a controlled substance to a term of

imprisonment “not less than one-third the term of supervised release” in

length. Pub. L. No. 100-690, § 7303(b)(2), (d), 102 Stat. 4464.

ii. AfterSeptember 13, 1994

: On September 13, 1994, Congress amended

section 3583(g) to require the court to sentence a defendant to a term of

imprisonment “not to exceed the maximum term of imprisonment

authorized under subsection (e)(3).” Pub. L. No. 103-322 § 110505,

108 Stat. 2016.

iii. Evidence of drug use can equal possession. See

Section I.G.6.

b. Drug testing

i. Prior to September 13, 1994, section 3583 did not contain any provision

mandatingrevocationfor a defendant’s refusalto comply withdrug testing

requirements.

ii. On September 13, 1994, Congress added section3583(g)(3) to require

revocation and a sentence of imprisonment. Pub. L. No. 103-322,

§ 110505, 108 Stat. 2016.

Office of Defender Services Training Branch

Revocation (October 2004) Page 23

iii. On November 2, 2002, Congress added section 3583(g)(4), which

requires revocationwhena defendant tests positive more than three times

in a one-year period. Pub. L. No. 107-273, Div. B, Title II, § 2103(b),

116 Stat. 1793.

iv. In the case of a defendant who fails a drug test, the court must consider

whether the availability of drug treatment programs, or the defendant’s

past or present participation in such programs, warrants an exception to

the mandatory revocation and imprisonment requirements. 18 U.S.C.

§ 3583(d); U.S.S.G. § 7B1.4 comment. (n.6); United States v. Pierce

132 F.3d 1207 (8th Cir. 1997).

c. Firearm possession

i. Prior to September 13, 1994, section 3583 did not contain a provision

mandating revocation for a defendant’s possession of a firearm.

ii. OnSeptember 13, 1994, Congress added section 3583(g)(2) to require

revocation and a sentence of imprisonment. Pub. L. No. 103-322,

§ 110505, 108 Stat. 2016.

B. Sentencing

1. Additional imprisonment

a. Statutory limits: Section 3583(e)(3) permits a court to “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 [section 3583(b)]

without credit for time previously served on postrelease supervision.”

i. Determine the maximum imprisonment possible for the violation by

(1) determining the class of the original offense under 18 U.S.C.

§ 3559(a); (2) determining the authorized term of supervised release for

the original offense under section 3583(b); and (3) determining the limits

set forthinsection3583(e)(3). See

United States v. Marrow Bone, 378

F.3d 806 (8th Cir. 2004). Note that for Class B, C, and D felonies, the

maximum term of imprisonment authorized under section 3583(e)(3) is

shorter than the term of supervised release authorized under section

3583(b). However, where the original offense is a drug offense

punishable pursuant to 21 U.S.C. § 841(b)(1)-(2), there is no maximum

term of supervised release. United States v. Page

, 131 F.3d 1173 (6th

Cir.1997). See also

18 U.S.C. §§ 3583(j), (k) (providingforsupervised

Office of Defender Services Training Branch

Revocation (October 2004) Page 24

release for any term of years or life in certain terrorism and sexual abuse

cases) (effective April 30, 2003).

ii. Credit for time served

: As provided in section 3583(e)(3), a defendant

does not have the sentence imposed following revocation of supervised

release reduced by the amount of time he spent on supervised release

before it was revoked. United States v. Bewley

, 27 F.3d 343 (8th Cir.

1994) (maximum length of total revocation sentence possible is three

years, the amount ofsupervised release originallyimposed, not 27 months

(three years minus nine months already served on supervised release) as

defendant argued). Thus, as an extreme example, a defendant whose

supervised release is revoked based on a violation occurring just before

the end of a five-year termofsupervisioncould be sentenced to five years

in prison for the violation.

b. Imprisonment in excess of statutory maximum for original offense

: The courts

addressing the issue have found that it is acceptable for a court to order

imprisonment for a revocation violation even where that imprisonment, when

combined withthe prior termofimprisonment forthe originaloffense,exceeds the

statutorymaximumfor the original offense. United States v. Celestine

, 905 F.2d

266 (5thCir. 1991); United States v. Wright, 2 F.3d 175 (6thCir. 1993); United

States v. Colt, 126 F.3d 981 (7th Cir. 1997); United States v. Purvis, 940 F.2d

1276 (9thCir. 1991); United States v. Robinson, 62 F.3d 1282 (10thCir.1995);

United States v. Proctor, 127 F.3d 1311 (11th Cir. 1997). Apprendi v. New

Jersey has not changed this. See United States v. Gomez-Gonzalez, 277 F.3d

1108 (9th Cir. 2002), withdrawn as moot, July 2, 2002.

c. Imprisonment inexcess ofguideline maximum for originaloffense: Similarly, courts

have found it permissible to order imprisonment for a revocation violation even

where that imprisonment, when combined with the prior termofimprisonment for

the original offense, exceeds the original guideline range. United States v.

Mandarelli, 982 F.2d 11 (1st Cir. 1992); United States v. Dillard, 910 F.2d 461

(7th Cir. 1990); United States v. Smeathers, 930 F.2d 18 (8th Cir. 1991).

d. Factors in determining length of sentence: United States v. Ramirez-Rivera, 241

F.3d 37 (1st Cir. 2001) (court did not abuse discretion when it considered

defendant’s drug rehabilitationneeds inimposing sentence beyond recommended

range); United States v. Anderson

, 15 F.3d 278 (2d Cir. 1994) (under section

3583(e)(3), it was proper for district court to consider defendant’s correctional

and medical needs in determining length of imprisonment); United States v.

Giddings, 37 F.3d 1091 (5th Cir. 1994) (proper for court to consider need for

rehabilitation following mandatory revocation under section 3583(g)); United

States v. Jackson, 70 F.3d 874 (6thCir.1995) (court can consider rehabilitation

Office of Defender Services Training Branch

Revocation (October 2004) Page 25

insettingsentencefollowing mandatoryrevocationunder section3583(g)); United

States v. Kaniss, 150 F.3d 967 (8thCir. 1998) (appropriate for court to consider

defendant’s repeated violations ofsupervisedreleasebyusingmarijuana, his failure

to participate in drug abuse treatment programs, and leniency of his original

sentence);United States v. Tsosie, 376 F.3d 1210 (10thCir. 2004) (district court

may consider need for rehabilitation); United States v. Aguillard

, 217 F.3d 1319

(11thCir.2000)(districtcourt mayconsider availabilityof rehabilitationprograms

in determining length of sentence imposed).

2. Additional supervised release

a. Until September 13, 1994, section 3583 had no provision addressing the

impositionofadditionalsupervisedreleaseto followimprisonment for a revocation

violation.

i. The First and Eighth Circuits found it permissible for a court to order

additional supervised release as long as the combined length of the

imprisonment for the revocation and the new term of supervised release

did not exceed the length of the original term of supervised release.

United States v. O’Neil

, 11 F.3d 292 (1st Cir. 1993); United States v.

Stewart, 7 F.3d 1350 (8th Cir. 1993).

ii. Every other circuit addressing the issue held that a court could not order

additional supervised release to follow a term of imprisonment. United

States v. Koehler, 973 F.2d 132 (2d Cir. 1992); United States v.

Malesic,18 F.3d 205 (3d Cir. 1994); United States v. Cooper, 962 F.2d

339 (4th Cir. 1992); United States v. Holmes, 954 F.2d 270 (5th Cir.

1992); United States v. Truss, 4 F.3d 437 (6thCir. 1993); United States

v. McGee, 981 F.2d 271 (7th Cir. 1992); United States v. Behnezhad,

907 F.2d 896 (9thCir. 1990); United States v.Rockwell

,984F.2d 1112

(10thCir. 1993); United States v. Williams, 2 F.3d 363 (11thCir. 1993).

iii. The Supreme Court has resolved this split infavorofthe minority

position.

Johnson v. United States, 529 U.S. 694 (2000).

b. On September 13, 1994, Congress enacted section 3583(h), Pub. L.

No. 103-322, § 110505, 108 Stat. 2016, inresponse to urging fromthe judiciary

and the Sentencing Commission. See

Malesic, 18 F.3d at 205-06 & n.2. This

section authorizes a court to impose an additional term of supervised release as

long as that termdoes not exceed the amount of supervised release authorized by

statute for the original offense minus the amount of imprisonment imposed as

punishment for revocation. For a discussion and example of the operation of

section 3583(h), see United States v. Brings Plenty

,188 F.3d 1051 (8th Cir.

Office of Defender Services Training Branch

Revocation (October 2004) Page 26

When Congress added section (h) in 1994, it had limited the imposition of supervised release to

those cases in which a district court imposed less than the full amount of imprisonment available upon

revocation: “Whena termof 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.”

1999). See also

United States v. Maxwell, 285 F.3d 336 (4thCir. 2002); United

States v. Merced, 263 F.3d 34 (2nd Cir. 2001); United States v. Beals,87F.3d

854 (7th Cir. 1996), overruled in part on other grounds by United States v.

Withers, 128 F.3d 1167 (7th Cir. 1997).

c. As part ofthe PROTECTAct, Congress amended section(h) to permit additional

supervised release even where the district court gives the full amount of

imprisonment available under section 3583(e)(3): “When a term of supervised

release is revoked and the defendant is required to serve a term of imprisonment,

the court may include a requirement that the defendant be placed on a term of

supervised release after imprisonment.” PROTECT Act, Pub. L. No. 108-21,

§ 101(2), 117 Stat. 651 (April 30, 2003).

However, even if the full term of

imprisonment is imposed, supervised release may be imposed only if the term of

imprisonment is less that the amount of supervised release authorized for the

original offense. 18 U.S.C. § 3583(h).

If, in imposing additional supervised release the court adds conditions not

previously imposed, theymustrelate either to the originaloffense or the revocation

violation. See

United States v. T.M., 330 F.3d 1235 (9th Cir. 2003); see also

United States v. Scott, 270 F. 3d 632 (8th Cir. 2001) (district court erred in

imposing upon defendant convicted of armed bank robbery special conditions of

supervised release intendedforsexoffenders where, although defendant had been

convicted of sex-based offense previously, that conviction was unrelated to

robberyconvictionat issue inpresent case, was fifteenyears old, and government

failed to establish that defendant had propensity to commit sex offenses).

3. Departures

: A number of courts have held that, because the Chapter 7 policy statements

are not binding, a sentence greater than that suggested by the Chapter 7 sentencing table

is not a departure suchthat the sentencing court mustgive notice or make detailed findings.

United States v. Pelensky

, 129 F.3d 63 (2d Cir. 1997); United States v. Blackston, 940

F.2d 877 (3d Cir. 1991); United States v. Davis, 53 F.3d 638 (4th Cir. 1995); United

States v. Mathena, 23 F.3d 87 (5th Cir. 1994); United States v. Marvin, 135 F.3d 1129

(7th Cir. 1998); United States v. Shaw, 180 F.3d 920 (8th Cir. 1999); United States v.

Burdex, 100 F.3d 882 (10th Cir. 1996); United States v. Hofierko, 83 F.3d 357 (11th

Cir. 1996).

Office of Defender Services Training Branch

Revocation (October 2004) Page 27

4. Deportation: Once a court has revoked an alien defendant’s supervised release and

sentenced him to imprisonment, the court lacks authority to order the defendant to be

deported. United States v. Aimufa

, 122 F.3d 1376 (11th Cir. 1997).

Office of Defender Services Training Branch

Revocation (October 2004) Page 28

Subsection (4) was added on November 2, 2002, by Pub. L. No. 107-273, Div. B, Title II,

§ 2103(a), 116 Stat. 1793.

APPENDIX A

§ 3565. Revocation of probation

(a) Continuation or revocation.—If the defendant violates a condition

of probation at any time prior to the expiration or termination of the term of

probation, the court may, after a hearing pursuant to Rule 32.1 of the Federal

Rules of Criminal Procedure, and after considering the factors set forthin section

3553(a) to the extent that they are applicable—

(1) continue himonprobation, with or without extending the term

or modifying or enlarging the conditions; or

(2) revoke thesentenceofprobationandresentencethe defendant

under subchapter A [18 U.S.C. §§ 3551-3559].

(b)Mandatory revocationforpossessionofcontrolledsubstance or

firearm or refusal to comply with drug testing.— If the defendant—

(1) possesses a controlled substance in violation of the condition

set forth in section 3563(a)(3);

(2) possesses a firearm, as such term is defined insection921 of

this title, in violation of Federal law, or otherwise violates a condition of

probation prohibiting the defendant from possessing a firearm;

(3) refuses to comply with drug testing, thereby violating the

condition imposed by section 3563(a)(4); or

(4) as a part of drug testing, tests positive for illegal controlled

substances more than 3 times over the course of 1 year;

the court shall revoke the sentence of probation and resentence the defendant

under subchapter A [18 U.S.C. §§ 3551-3559] to a sentence that includes a term

of imprisonment.

of probation for violation of a condition of probation, and to impose another

Office of Defender Services Training Branch

Revocation (October 2004) Page 29

The phrase “on any such revocation” was added as of April 30, 2003. PROTECT Act, Pub.

L. No. 108-21, § 101(1), 117 Stat. 651.

sentence, extends beyond the expiration of the term of probation for any period

reasonably necessary for the adjudication of matters arising before its expiration

if, prior to its expiration, a warrant or summons has beenissued on the basis of an

allegation of such a violation.

APPENDIX B

§ 3583. Inclusion of a term of supervised release after

imprisonment

. . . .

(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), (a)(6), and (a)(7)—

. . . .

(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

supervisedreleasewithout credit fortime previously served on postrelease

supervision, if the court, pursuant to the Federal Rules of Criminal

Procedure applicable to revocation of probation or supervised release

[Rule 32.1], finds by a preponderance ofthe evidence that the defendant

violated a conditionofsupervised release, except that a defendant whose

termis revoked under this paragraph may not be required to serve onany

such revocation

more than5 years inprison 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; . . .

. . . .

(g)Mandatory revocationforpossessionof controlledsubstance or

firearm or for refusal to comply with drug testing.— If the defendant—

Office of Defender Services Training Branch

Revocation (October 2004) Page 30

Subsection (4) was added on November 2, 2002, by Pub. L. No. 107-273, Div. B, Title II,

§ 2103(b), 116 Stat. 1793.

The PROTECTAct, Pub. L. No. 108-21, § 101(2), struck out the language “that is less than

the maximumtermofimprisonment authorizedunder subsection(e)(3)”preceding “the court mayinclude.”

The deleted language had been added in 1994. See

Pub.L. No. 103-322, Title XI, § 110505, Sept. 13,

1994, 108 Stat. 2016.

(1) possesses a controlled substance in violation of the condition

set forth in subsection (d);

(2) possesses a firearm, as suchtermis defined in section 921 of

this title, in violation of Federal law, or otherwise violates a condition of

supervised release prohibiting the defendant from possessing a firearm;

(3) refuses to comply with drug testing imposed as a conditionof

supervised release; or

(4) as a part of drug testing, tests positive for illegal controlled

substances more than 3 times over the course of 1 year;

the court shallrevoke 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,

the court may include a requirement that the defendant be placed

on a term of supervised release after imprisonment. The length of such a termof

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

[section 3583(b)], less any term of imprisonment that was imposed upon

revocation of supervised release.

(i) Delayed revocation.— The power of the court to revoke a term of

supervised release for violation ofa conditionofsupervised release, and to order

the defendant to serve a term of imprisonment and, subject to the limitations in

subsection(h), a further termof 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, prior to its expiration, a

warrant or summons has been issued on the basis of an allegation of such a

violation.