CHAPTER FIVE - DETERMINING THE SENTENCE


PART D - SUPERVISED RELEASE


§5D1.2.     Term of Supervised Release

(a)       Except as provided in subsections (b) and (c), if a term of supervised release is ordered, the length of the term shall be:

(1)       At least two years but not more than five years for a defendant convicted of a Class A or B felony.  See 18 U.S.C. § 3583(b)(1).

(2)       At least one year but not more than three years for a defendant convicted of a Class C or D felony.  See 18 U.S.C. § 3583(b)(2).

(3)       One year for a defendant convicted of a Class E felony or a Class A misdemeanor.  See 18 U.S.C. § 3583(b)(3).

(b)      Notwithstanding subdivisions (a)(1) through (3), the length of the term of supervised release shall be not less than the minimum term of years specified for the offense under subdivisions (a)(1) through (3) and may be up to life, if the offense is—

(1)       any offense listed in 18 U.S.C. § 2332b(g)(5)(B), the commission of which resulted in, or created a foreseeable risk of, death or serious bodily injury to another person; or

(2)       a sex offense.

(Policy Statement) If the instant offense of conviction is a sex offense, however, the statutory maximum term of supervised release is recommended.

(c)       The term of supervised release imposed shall be not less than any statutorily required term of supervised release.


Commentary

Application Notes:

1.      Definitions.—For purposes of this guideline:

"Sex offense" means (A) an offense, perpetrated against a minor, under (i) chapter 109A of title 18, United States Code; (ii) chapter 109B of such title; (iii) chapter 110 of such title, not including a recordkeeping offense; (iv) chapter 117 of such title, not including transmitting information about a minor or filing a factual statement about an alien individual; (v) an offense under 18 U.S.C. § 1201; or (vi) an offense under 18 U.S.C. § 1591; or (B) an attempt or a conspiracy to commit any offense described in subdivisions (A)(i) through (vi) of this note.

"Minor" means (A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years; and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.

2.      Safety Valve Cases.—A defendant who qualifies under §5C1.2 (Limitation on Applicability of Statutory Minimum Sentence in Certain Cases) is not subject to any statutory minimum sentence of supervised release.  See 18 U.S.C. § 3553(f).  In such a case, the term of supervised release shall be determined under subsection (a).

3.      Substantial Assistance Cases.—Upon motion of the Government, a defendant who has provided substantial assistance in the investigation or prosecution of another person who has committed an offense may be sentenced to a term of supervised release that is less than any minimum required by statute or the guidelines.  See 18 U.S.C. § 3553(e), §5K1.1 (Substantial Assistance to Authorities).

4.      Factors Considered.—The factors to be considered in determining the length of a term of supervised release are the same as the factors considered in determining whether to impose such a term.  See 18 U.S.C. § 3583(c); Application Note 3 to §5D1.1 (Imposition of a Term of Supervised Release).  The court should ensure that the term imposed on the defendant is long enough to address the purposes of imposing supervised release on the defendant.

5.      Early Termination and Extension.—The court has authority to terminate or extend a term of supervised release.  See 18 U.S.C. § 3583(e)(1), (2).  The court is encouraged to exercise this authority in appropriate cases.  The prospect of exercising this authority is a factor the court may wish to consider in determining the length of a term of supervised release.  For example, the court may wish to consider early termination of supervised release if the defendant is an abuser of narcotics, other controlled substances, or alcohol who, while on supervised release, successfully completes a treatment program, thereby reducing the risk to the public from further crimes of the defendant.

Background:  This section specifies the length of a term of supervised release that is to be imposed.  Subsection (c) applies to statutes, such as the Anti-Drug Abuse Act of 1986, that require imposition of a specific minimum term of supervised release.  

Historical Note:  Effective November 1, 1987.  Amended effective January 15, 1988 (see Appendix C, amendment 52); November 1, 1989 (see Appendix C, amendment 302); November 1, 1995 (see Appendix C, amendment 529); November 1, 1997 (see Appendix C, amendment 570); November 1, 2001 (see Appendix C, amendment 615); November 1, 2002 (see Appendix C, amendments 637 and 646); November 1, 2004 (see Appendix C, amendment 664); November 1, 2005 (see Appendix C, amendment 679); November 1, 2007 (see Appendix C, amendment 701); November 1, 2009 (see Appendix C, amendment 736); November 1, 2011 (see Appendix C, amendment 756).