Revocation Case Analysis

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Although the court declined to decide Russell’s second argument, the court’s dicta suggests that the second supervised release, and a subsequent revocation and reimprisonment would be lawful.

This creates an interesting anomaly, in that sometimes, when a court imposes the maximum imprisonment upon revocation, it will not be able to impose a subsequent term of supervised release, while at other times, it will.

18 U.S.C. 3583(h) provides, “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 term of supervised release shall not exceed the term of supervised release authorized by the statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.”

The maximum term of supervised release for a Class A felony is five years (sec. 3583(b)(1)), the same as the maximum term of reimprisonment upon revocation (sec. 3583(e)(3)).

Thus, if a Class A felony defendant receives the maximum after revocation, no additional supervised release can be imposed.

Likewise, the maximum term of supervised release for Class E felonies and misdemeanors is one year (sec. 3583(b)(3)), the same as the maximum term of reimprisonment upon revocation (sec. 3583(e)(3)). Such an offender also cannot be given additional supervised release if he gets the maximum.

However, the maximum term of supervised release for Class B felons is five years, but the maximum term of reimprisonment is three years. This was Russell’s situation, and thus, the two-year supervised release is authorized by the statute, even though he received the maximum reimprisonment.

	Links Seventh Circuit Court of Appeals Related Article Sentence after revocation can’t exceed initial SR term

For Class C and D felons, the maximum supervised release term is three years, while the maximum reimprisonment term is two. Thus, like Class B felons, even if they receive the maximum reimprisonment, an additional year of supervised release can be imposed after that.

The result is somewhat absurd. A class A felon maxed out at revocation will do his five years, and be done with the sentence forever. A Class B, C, or D, felon, however, can theoretically go back and forth between prison and supervised release for the rest of his life if he keeps violating his conditions of supervised release, and the court keeps giving him the maximum, plus more supervised release.

But a Class E felon, like the Class A felon, will also be free and clear after he does his one year maximum on revocation, and can never go back to prison for that charge.

Arguably, it violates the Equal Protection Clause for the statutory scheme to create a possibility for Class B, C, and D felons to face an endless cycle of maximum reimprisonment and extended supervision, while giving Class A felons closure after just one term of maximum reimprisonment.

Thus, should Russell, or any other defendant in a similar position, get extended supervision revoked for a second time, after receiving the maximum term of reimprisonment for the first, the equal protection argument should be added to any statutory arguments.

– David Ziemer

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David Ziemer can be reached by email.