BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
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Section 4 - Sentencing

    4.02 Revocation Of Probation Or Supervised Release (FRCP 32.1; 18 USC 3565 and 3583)

        4.02.1 Revocation Of Probation Or Supervised Release: Introduction
        4.02.2 Revocation Of Probation Or Supervised Release: Preliminary Hearing
        4.02.3 Revocation Of Probation Or Supervised Release: Suggested Procedure At The Revocation Hearing
        4.02.4 Revocation Of Probation Or Supervised Release: Other Sources Other FJC Sources

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

4.02.1 Revocation Of Probation Or Supervised Release: Introduction

Whenever a probationer or a person on supervised release fails to abide by the conditions of supervision or is arrested for another offense, a revocation hearing may be ordered. Revocation is mandatory if a probationer or supervised releasee possesses a firearm (including a destructive device) or a controlled substance, or refuses to comply with required drug testing. [Footnote 1] See 18 USC 3565(b), 3583(g). Revocation is also mandatory under the Sentencing Guidelines for conduct that constitutes certain serious offenses. See U.S.S.G. §§ 7B1.1 and 7B1.3, p.s. (Nov. 1990).

Because the proceeding may result in incarceration, particular attention must be given to ensuring that the probationer or releasee receives substantive and procedural due process. The revocation procedure may be initiated by the court or at the request of the probation office or the office of the U.S. attorney. An Order to Show Cause why probation or supervised release should not be revoked is effective for this purpose.

FRCP 32.1 was substantially revised and reorganized by the December 1, 2002, amendments. New subsection (a) now requires an initial appearance before a magistrate judge, whether the person is held in custody or appears in response to a summons. The Advisory Committee Notes state that, if the initial appearance would not be unnecessarily delayed, it may be combined with the preliminary hearing. Under Rule 32.1(a), the procedures applied at the initial appearance differ depending on whether the district where the person appears is or is not the district where the alleged violation occurred or is one that has jurisdiction to hold the revocation hearing.

[Note: At the time this publication went to press, it was unclear whether, at the revocation hearing, the rights accorded by the Crime Victims’ Rights Act, 18 USC 3771, should be accorded to a victim of the conduct that caused the violation of probation or release. If the conduct constituted a federal offense, the CVRA may apply whether or not there is a separate prosecution. [Footnote 2]  Or, if the revocation hearing is considered a "public court proceeding . . . involving the crime or . . . any release . . . of the accused," the CVRA may apply. If it is determined that the CVRA applies, ensure that any victims receive the required notice of the hearing and the right to attend, as well as the opportunity "to be reasonably heard" at any proceeding involving sentencing or release.]

FOOTNOTES:

Footnote 1:    The mandatory drug testing and revocation for refusal to comply provisions became effective September 13, 1994. The ex post facto prohibition may prevent their application to defendants who committed their offenses before that date.

Footnote 2:    Under § 3771(e), crime victim is defined as “a person directly and proximately harmed as a result of the commission of a Federal offense.” The rights to notification and attendance apply to any public court proceeding “involving the crime,” § 3771(a)(1) & (2), and the right to be heard at such a proceeding applies if it “involv[es] release, plea, [or] sentencing,” § 3771(a)(4). No provision of the CVRA limits its application to an offense that is prosecuted.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

4.02.2 Revocation Of Probation Or Supervised Release: Preliminary Hearing  [Footnote 3]

If the probationer or releasee is in custody, FRCP 32.1(b)(1) [formerly 32.1(a)(1)] requires a preliminary probable cause hearing before a district judge or magistrate judge. A probable cause hearing is not required if the probationer or releasee is arrested after the issuance of an Order to Show Cause and brought before the court for an immediate revocation hearing without being held in custody, or if he or she appears voluntarily in response to an Order to Show Cause or other notice. FRCP 32.1 and Advisory Committee Notes (1979).

FOOTNOTES:

Footnote 3:    Note that under the Federal Courts Administration Act of 1992, a magistrate judge may revoke, modify, or reinstate probation and modify, revoke, or terminate supervised release if any magistrate judge imposed the probation or supervised release. 18 USC 3401(d), (h) (effective Jan. 1, 1993).
    Also under the Act, a district judge may designate a magistrate judge to conduct hearings to modify, revoke, or terminate supervised release; to submit proposed findings of fact; and to recommend a disposition. 18 USC 3401(i) (effective Jan. 1, 1993).

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

4.02.3 Revocation Of Probation Or Supervised Release: Suggested Procedure At The Revocation Hearing 

A. Establish for the record that the probationer or releasee, defense counsel, a U.S. attorney, and a probation officer are present.

B. Advise the probationer or releasee of the alleged violations by reading or summarizing the revocation motion. If the alleged violation is of a kind that makes revocation mandatory under 18 USC 3565(b) or § 3583(g) (possession of a firearm, destructive device, or controlled substance, or refusal to comply with a drug test [Footnote 4]), or under U.S.S.G. § 7B1.3(a)(1), p.s., include advice to that effect.

C. Ascertain whether the alleged violations are admitted or denied by the probationer or releasee.

1. If the violations are admitted:

(a) Ask the U.S. attorney to present the factual basis showing the violations of the terms of supervision.

(b) Permit the probationer or releasee, his or her counsel, the U.S. attorney, and the probation officer to be heard concerning whether supervision should be revoked.

2. If the violations are denied:

(a) Receive evidence presented by the U.S. attorney and the probationer or releasee.

(b) The revocation hearing is not a formal trial and the Federal Rules of Evidence need not apply. FRE 1101(d)(3). [Footnote 5]

(c) Proof beyond a reasonable doubt is not required. To revoke probation, the court must be "reasonably satisfied" that the probationer has not met the conditions of probation. United States v. Francischine, 512 F.2d 827 (5th Cir.), cert. denied, 423 U.S. 931 (1975). Revocation of supervised release requires a preponderance of the evidence. 18 USC 3583(e)(3).

D. Sentencing options

[Note: In a hearing to determine whether to modify or revoke probation or supervised release, the defendant must be given "an opportunity to make a statement and present information in mitigation." See FRCP 32.1(b)(2)(E) and (c)(1) (effective December 1, 2005). [Footnote 6]]

1. If a determination is made not to revoke probation or supervised release:

(a) The original term of probation or supervised release may be extended up to the maximum term of probation or supervised release that could have been imposed originally. 18 USC 3564(d), 3565(a)(1), 3583(e)(2); U.S.S.G. § 7B1.3(a)(2).

(b) Conditions of probation or supervised release may be modified or added. 18 USC 3563(c), 3565(a)(1), 3583(e)(2); U.S.S.G. § 7B1.3(a)(2).

2. If a determination is made to revoke probation:

(a) Resentence the defendant under the provisions of 18 USC 3551–3559 if the defendant is subject to 18 USC 3565(a)(2), as amended Sept. 13, 1994. [Footnote 7] The court must also consider the provisions of U.S.S.G. § 7B1.3–1.4, p.s. Otherwise, impose any other sentence that was available under the sentencing provisions "at the time of the initial sentencing." [Footnote 8] 18 USC 3565(a)(2) (before September 13, 1994, amendment). For defendants initially sentenced under the Sentencing Guidelines, consider the provisions of U.S.S.G. § 7B1.3–1.4, p.s.

(b) If probation is revoked for possession of drugs or firearms or for refusal of required drug testing, sentence the defendant to a term of imprisonment. [Footnote 9] 18 USC 3565(b) (effective Sept. 13, 1994).

(c) [Pre-Guidelines law:] Order, with or without modification, the execution of a sentence previously suspended (the sentence cannot be increased but may be reduced). 18 USC 3653.

3. If a determination is made to revoke supervised release:

(a) Require the person to serve in prison [Footnote 10] all or part of the term of supervised release without credit for time previously served on post-release supervision, except that the person may not be required to serve more than five years in prison if the person was convicted of a Class A felony, more than three years in prison if convicted of a Class B felony, more than two years in prison if convicted of a Class C or D felony, or more than one year in any other case. 18 USC 3583(e)(3). For defendants initially sentenced under the Sentencing Guidelines, consider the provisions of U.S.S.G. § 7B1.3–1.4, p.s.

(b) Require the person to serve a term of imprisonment when revocation is for possession of drugs or firearms or for refusal of required drug testing. 18 USC§ 3583(g) (as amended Sept. 13, 1994) and 3583(e) (before September 13, 1994, amendment). [Footnote 11]

(c) If the term of imprisonment imposed is less than the statutorily authorized maximum, determine whether to reimpose a term of supervised release. The length of the reimposed term may not exceed the term of supervised release authorized by statute for the original offense, less the term of imprisonment imposed upon revocation of release. 18 USC 3583(h) (added Sept. 13, 1994); 18 USC 3583(e)(3) (for offenses committed before Sept. 13, 1994). [Footnote 12]

E. Judgment or order

Enter the appropriate order or judgment. Note that for sentences imposed pursuant to U.S.S.G. § 7B1, p.s., the court should include "the reasons for its imposition of the particular sentence." 18 USC 3553(c). For a sentence outside the range resulting from the application of § 7B1, it may be advisable to follow § 3553(c)(2) and state "with specificity in the written order of judgment and commitment" the reasons "for the imposition of a sentence different from" the recommended range.

FOOTNOTES:

Footnote 4:    The statutory provisions for mandatory revocation for refusal to comply with drug testing and, for supervised releasees, possession of a firearm, were enacted September 13, 1994. Ex post facto considerations may prohibit their application to defendants whose original offenses were committed before that date.

Footnote 5:    But note that FRCP 32.1(c), effective December 1, 1993, requires the production of witness statements pursuant to the terms of FRCP 26.2.

Footnote 6:     This change was added to Rule 32.1 after several circuits held that defendants have, or should as a matter of practice be given, the right of allocution when probation or supervised release is revoked or modified.

Footnote 7:    Ex post facto considerations may require the use of prior law if the defendant committed the original offense before September 13, 1994.

Footnote 8:    Because of ex post facto considerations, this earlier version of § 3565(a)(2) may be required if the defendant committed the original offense before September 13, 1994. The Third, Fourth, Fifth, Eighth, Ninth, and Eleventh Circuits have held that “any other sentence that was available . . . at the time of the initial sentencing” means the guideline range applicable to the original offense of conviction. Note that some of the sentences in the “Revocation Table,” U.S.S.G. § 7B1.4, p.s., may exceed the maximum sentences allowed under this interpretation. See also Guideline Sentencing: An Outline of Appellate Case Law on Selected Issues § VII.A.1 (Federal Judicial Center 2002).

Footnote 9:     This amendment to § 3565 removed the requirement to “sentence the defendant to not less than one-third of the original sentence.” The Supreme Court resolved a circuit split by ruling that “original sentence” meant the original guideline range, not the term of probation. Thus, defendants sentenced before the 1994 amendment could not be sentenced after revocation to more than the original guideline maximum. United States v. Granderson, 114 S. Ct. 1259, 1263–69 (1994). Ex post facto considerations may limit the length of the sentence that may be imposed in some circuits for defendants who committed their original offenses before September 13, 1994. 

Footnote 10:    Home confinement may also be imposed as an alternative to incarceration. See 18 USC 3583(e)(4); U.S.S.G. § 5F1.2.

Footnote 11:    Before September 13, 1994, § 3583 required such defendants “to serve in prison not less than one-third of the term of supervised release” and only applied to revocation for drug possession.

Footnote 12:    Before § 3583(h) was added, § 3583(e) did not specifically authorize reimposition of supervised release after revocation. The circuits disagreed about whether reimposition was allowed and whether § 3583(h) could be applied retroactively. However, the Supreme Court resolved that split by holding that reimposition was authorized under § 3583(e)(3) for offenses committed before enactment of § 3583(h). Johnson v. United States, 120 S. Ct. 1795, 1800–07 (2000).

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

Other FJC sources

Guideline Sentencing: An Outline of Appellate Case Law on Selected Issues (2002)