Law is not black or white, it's grey


Violation of supervised release

Federal Violation of Supervised Release lawyer

If you or a loved one is charged with a violation of supervised release, there are options that a federal judge can consider depending on the class (A, B or C) and the alleged violation (technical, failed drug test, new substantive charge).

If a defendant violates one of the conditions of supervised release, the court may modify the conditions, terminate the supervised release before the original expiration date, or revoke supervised release and impose a term of imprisonment. Chapter Seven of the Guidelines Manual contains policy statements that classify violations, recommend when probation officers should report violations to the court, recommend when courts should revoke supervised release, and recommend terms of imprisonment for classes of violations. A court must consider the same factors from 18 U.S.C. § 3553(a) that the court initially considered in imposing the term of supervised release.

Statutory Provisions

The statutory maximum term of imprisonment that may be imposed upon revocation is governed by 18 U.S.C. § 3583(e)(3). There are two limits on the term of imprisonment. It may not be longer than the term of supervised release the court could have originally imposed, and it may not be longer than a specified number of years, depending on the Class of the original offense, e.g. Class A or B (5 years), C or D felony (3 years) or any others, 1 year.  The statute in effect at the time of the original offense controls.  If the case is old, there may be a different maximum (usually lower).

Policy Statements

The revocation table at §7B1.4 provides ranges of imprisonment for each violation grade with increasing severity based on an offender’s criminal history category at the time of the original sentencing. An offender’s criminal history category at the time of the revocation hearing — even if it would be greater or lesser than the original criminal history category — is not factored into the guidelines’ revocation table. This revocation table is entirely separate from the Sentencing Table in Chapter 5, Part A of the Guidelines Manual, which applies at original sentencing hearings.

Concurrent or consecutive

Under 18 U.S.C. § 3584, district courts have discretion whether to impose consecutive or concurrent sentences of imprisonment; this statute applies to prison terms for violations of supervised release as well.  Likewise, in the case of a new federal offense resulting in both a new sentence and a revocation of an existing term of supervised release, a court may decide whether to impose a sentence of imprisonment for the new offense to run concurrently with or consecutively to the revocation sentence (unless the new offense carries a mandatory consecutive prison sentence). Such discretion exists notwithstanding provisions in the advisory guidelines that call for a consecutive sentence in such cases.

Revocation of supervised release

A court is required to revoke supervised release and impose some amount of imprisonment when:

(1) an offender possesses a controlled substance under some circumstances

(2) an offender unlawfully possesses a firearm

(3) an offender refuses to comply with drug testing imposed as a condition of supervised release or

(4) an offender has four positive drug tests over the course of one year.

Although part of USSG §7B1.3 is written in mandatory terms (“the court shall revoke”) for Grade A and B violations, Chapter Seven of the Guidelines Manual contains only non-binding policy statements. The only truly mandatory grounds for revocation are the four grounds set forth in 18 U.S.C. § 3583(g), above.

Revocation of supervised release for drugs, possession, failed drug test

The statute provides a limited exception to the requirement that a court incarcerate an offender for possessing drugs: if a failed drug test constitutes the sole evidence of drug possession, and if the court finds that an offender would benefit from “an appropriate substance abuse treatment program,” the court may substitute drug abuse treatment for imprisonment.

This exception is not available if a court finds that a defendant had been in actual knowing possession of illegal drugs (as opposed to merely failing a drug test).

Revocation for a new substantive charge

conviction for a new offense is not necessary for a finding of a violation, and proof of culpable conduct by a preponderance of the evidence is sufficient for revocation.  In other words, a defendant could beat the underlying criminal charge and still be found guilty of a violation of supervised release. The standard in a substantive criminal case is beyond a reasonable doubt.  The standard in a violation of supervised release is much lower, preponderance or greater weight of the evidence. 

Appealing a conviction for Violation of supervised release 

What if the judge revokes supervised release and sentences the defendant to prison?  Can you appeal?  Yes.

A term of supervised release will be reviewed for reasonableness in light of the court’s stated reasons, as with a sentence of imprisonment.

Standards of review on appeal for violation of supervised release

Challenges to conditions of supervised release are ordinarily reviewed on appeal for abuse of discretion.  Unpreserved claims that a district court imposed an invalid condition raised for the first time on appeal are reviewed only for “plain error” under Federal Rule of Criminal Procedure 52(b).

The issue of whether a district court had jurisdiction to revoke supervised release is reviewed de novo.

The district court’s factual findings that a defendant violated the conditions of release are reviewed for clear error; legal conclusions are reviewed de novo.

If the government proved by a preponderance of the evidence that the defendant violated a valid condition of supervised release, the district court’s decision to revoke supervised release is reviewed for abuse of discretion. With respect to appellate review of the type and length of the sentence imposed upon revocation, the federal courts of appeals are divided over whether sentences are reviewed under a Booker-type “reasonableness” standard or, instead, under the “plainly unreasonable” standard that uniformly was followed in supervised release appeals before Booker.

Typical issues on appeal for violation of supervised release

Generally, issues on appeal for violation of supervised release are that the condition violated was vague and overbroad, insufficiently explained, not reasonably related to relevant statutory sentencing factors, and a greater deprivation of liberty than reasonably necessary.

If you or a loved one are charged with a violation of supervised release in Federal criminal court or want to appeal a conviction for violation of supervised release, you should contact a Federal criminal lawyer who can help.


“Law is not black or white, it’s Grey”

Florida Bar Board certified criminal trial lawyer


Florida Federal violation of supervised release lawyer Grey Tesh helps people accused of violations of supervised release.  Grey is based out of the Southern District of Florida, which includes West Palm Beach, Fort Pierce, Miami, Key West, and Fort Lauderdale.  However, Grey travels nationwide for his federal criminal clients.