CHAPTER SEVEN – VIOLATIONS OF PROBATION AND SUPERVISED RELEASE

PART A – INTRODUCTION TO CHAPTER SEVEN

 

1.      Authority

Under 28 U.S.C. § 994(a)(3), the Sentencing Commission is required to issue guidelines or policy statements applicable to the revocation of probation and supervised release. The Commission chose to promulgate policy statements only. These policy statements were intended to provide guidance and allow for the identification of any substantive or procedural issues that require further review. The Commission viewed these policy statements as evolutionary and intended to review relevant data and materials concerning revocation determinations under these policy statements. Updated policies would be issued after federal judges, probation officers, practitioners, and others had the opportunity to evaluate and comment on these policy statements.

 

2.      Background

Prior to the implementation of the federal sentencing guidelines, a court could stay the imposition or execution of sentence and place a defendant on probation.  When a court found that a defendant violated a condition of probation, the court could continue probation, with or without extending the term or modifying the conditions, or revoke probation and either impose the term of imprisonment previously stayed, or, where no term of imprisonment had originally been imposed, impose any term of imprisonment that was available at the initial sentencing.

The statutory authority to "suspend" the imposition or execution of sentence in order to impose a term of probation was abolished upon implementation of the sentencing guidelines.  Instead, the Sentencing Reform Act recognized probation as a sentence in itself.  18 U.S.C. § 3561.  Under current law, if the court finds that a defendant violated a condition of probation, the court may continue probation, with or without extending the term or modifying the conditions, or revoke probation and impose any other sentence that initially could have been imposed.  18 U.S.C. § 3565.  For certain violations, revocation is required by statute.

Supervised release, a new form of post-imprisonment supervision created by the Sentencing Reform Act, accompanied implementation of the guidelines.  A term of supervised release may be imposed by the court as a part of the sentence of imprisonment at the time of initial sentencing.  18 U.S.C. § 3583(a).  Unlike parole, a term of supervised release does not replace a portion of the sentence of imprisonment, but rather is an order of supervision in addition to any term of imprisonment imposed by the court.  Accordingly, supervised release is more analogous to the additional "special parole term" previously authorized for certain drug offenses.

The conditions of supervised release authorized by statute are the same as those for a sentence of probation, except for intermittent confinement.  (Intermittent confinement is available for a sentence of probation, but is available as a condition of supervised release only for a violation of a condition of supervised release.)  When the court finds that the defendant violated a condition of supervised release, it may continue the defendant on supervised release, with or without extending the term or modifying the conditions, or revoke supervised release and impose a term of imprisonment.  The periods of imprisonment authorized by statute for a violation of the conditions of supervised release generally are more limited, however, than those available for a violation of the conditions of probation.  18 U.S.C. § 3583(e)(3).

 

3.      Resolution of Major Issues

At the outset, the Commission faced a choice between promulgating guidelines or issuing advisory policy statements for the revocation of probation and supervised release.  After considered debate and input from judges, probation officers, and prosecuting and defense attorneys, the Commission decided, for a variety of reasons, initially to issue policy statements.  Not only was the policy statement option expressly authorized by statute, but this approach provided greater flexibility to both the Commission and the courts.  Unlike guidelines, policy statements are not subject to the May 1 statutory deadline for submission to Congress, and the Commission believed that it would benefit from the additional time to consider complex issues relating to revocation guidelines provided by the policy statement option.

Moreover, the Commission anticipated that, because of its greater flexibility, the policy statement option would provide better opportunities for evaluation by the courts and the Commission.  This flexibility is important, given that supervised release as a method of post-incarceration supervision and transformation of probation from a suspension of sentence to a sentence in itself represented recent changes in federal sentencing practices.  After an adequate period of evaluation, the Commission intended to promulgate updated revocation policies.

The Commission initially debated two different approaches to sanctioning violations of probation and supervised release.

The first option considered a violation resulting from a defendant's failure to follow the court-imposed conditions of probation or supervised release as a "breach of trust."  While the nature of the conduct leading to the revocation would be considered in measuring the extent of the breach of trust, imposition of an appropriate punishment for any new criminal conduct would not be the primary goal of a revocation sentence.  Instead, the sentence imposed upon revocation would be intended to sanction the violator for failing to abide by the conditions of the court-ordered supervision, leaving the punishment for any new criminal conduct to the court responsible for imposing the sentence for that offense.

The second option considered by the Commission sought to sanction violators for the particular conduct triggering the revocation as if that conduct were being sentenced as new federal criminal conduct.  Under this approach, offense guidelines in Chapters Two and Three of the Guidelines Manual would be applied to any criminal conduct that formed the basis of the violation, after which the criminal history in Chapter Four of the Guidelines Manual would be recalculated to determine the appropriate revocation sentence.  This option would also address a violation not constituting a criminal offense.

After lengthy consideration, the Commission adopted an approach that is consistent with the theory of the first option; i.e., at revocation the court should sanction primarily the defendant's breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator. 

The Commission adopted this approach for a variety of reasons.  First, although the Commission found desirable several aspects of the second option that provided for a detailed revocation guideline system similar to that applied at the initial sentencing, extensive testing proved it to be impractical.  In particular, with regard to new criminal conduct that constituted a violation of state or local law, working groups expert in the functioning of federal criminal law noted that it would be difficult in many instances for the court or the parties to obtain the information necessary to apply properly the guidelines to this new conduct.  The potential unavailability of information and witnesses necessary for a determination of specific offense characteristics or other guideline adjustments could create questions about the accuracy of factual findings concerning the existence of those factors.

In addition, the Commission rejected the second option because that option was inconsistent with its views that the court with jurisdiction over the criminal conduct leading to revocation is the more appropriate body to impose punishment for that new criminal conduct, and that, as a breach of trust inherent in the conditions of supervision, the sanction for the violation of trust should be in addition, or consecutive, to any sentence imposed for the new conduct.  In contrast, the second option would have the revocation court substantially duplicate the sanctioning role of the court with jurisdiction over a defendant's new criminal conduct and would provide for the punishment imposed upon revocation to run concurrently with, and thus generally be subsumed in, any sentence imposed for that new criminal conduct.

Further, the sanctions available to the courts upon revocation are, in many cases, more significantly restrained by statute.  Specifically, the term of imprisonment that may be imposed upon revocation of supervised release is limited by statute to not more than five years for persons convicted of Class A felonies, except for certain title 21 drug offenses; not more than three years for Class B felonies; not more than two years for Class C or D felonies; and not more than one year for Class E felonies. 18 U.S.C. § 3583(e)(3).

Given the relatively narrow ranges of incarceration available in many cases, combined with the potential difficulty in obtaining information necessary to determine specific offense characteristics, the Commission felt that it was undesirable at that time to develop guidelines that attempt to distinguish, in detail, the wide variety of behavior that can lead to revocation.  Indeed, with the relatively low ceilings set by statute, revocation policy statements that attempted to delineate with great particularity the gradations of conduct leading to revocation would frequently result in a sentence at the statutory maximum penalty.

Accordingly, the Commission determined that revocation policy statements that provided for three broad grades of violations would permit proportionally longer terms for more serious violations and thereby would address adequately concerns about proportionality, without creating the problems inherent in the second option.

4.      The Basic Approach

The revocation policy statements categorized violations of probation and supervised release in three broad classifications ranging from serious new felonious criminal conduct to less serious criminal conduct and technical violations.  The grade of the violation, together with the violator's criminal history category calculated at the time of the initial sentencing, fixed the applicable sentencing range. 

The Commission initially elected to develop a single set of policy statements for revocation of both probation and supervised release.  In reviewing the relevant literature, the Commission had determined that the purpose of supervision for probation and supervised release should focus on the integration of the violator into the community, while providing the supervision designed to limit further criminal conduct.  Although there was considerable debate as to whether the sanction imposed upon revocation of probation should be different from that imposed upon revocation of supervised release, the Commission initially concluded that a single set of policy statements is appropriate. 

5.      Updating the Approach

The Commission viewed the original policy statements for revocation of probation and supervised release as the first step in an evolutionary process. The Commission intended to revise its approach after judges, probation officers, and practitioners had an opportunity to apply and comment on the policy statements. Since the promulgation of those policy statements, a broad array of stakeholders has identified the need for more flexible, individualized responses to violations of supervised release.

In response, the Commission updated the policy statements in this chapter to ensure judges have the discretion necessary to properly manage supervised release. The revised policy statements encourage judges to take an individualized approach in: (1) responding to reports of non-compliance before initiating revocation proceedings; (2) addressing violations found during revocation proceedings; and (3) imposing a sentence of imprisonment upon revocation. These changes are intended to better allocate taxpayer dollars and probation resources, encourage compliance and improve public safety, and facilitate the reentry and rehabilitation of defendants.

This chapter proceeds in two parts: Part B addresses violations of probation, and Part C addresses violations of supervised release. Both parts maintain an approach in which the court addresses primarily the defendant’s failure to comply with court-ordered conditions, while reflecting, to a limited degree, the seriousness of the underlying violation and the criminal history of the individual. The Commission determined that violations of probation and supervised release should be addressed separately to reflect their different purposes. While probation serves all the goals of sentencing, including punishment, supervised release primarily "fulfills rehabilitative ends, distinct from those served by incarceration." United States v. Johnson, 529 U.S. 53, 59 (2000). In light of these differences, Part B continues to recommend revocation for most probation violations. Part C encourages courts to consider a graduated response to a violation of supervised release, including considering all available options focused on facilitating a defendant’s transition into the community and promoting public safety. Parts B and C both recognize the important role of the court, which is best situated to consider the individual defendant’s risks and needs and respond accordingly within its broad discretion.

Historical Note:  Effective November 1, 1990 (amendment 362).  Amended effective November 1, 2002 (amendment 646); November 1, 2009 (amendment 733); November 1, 2023 (amendment 824); November 1, 2025 (amendment 835).

 

§§7A1.1–7A1.4 [Deleted]

Historical Note:  Sections 7A1.1 (Reporting of Violations of Probation and Supervised Release), 7A1.2 (Revocation of Probation), 7A1.3 (Revocation of Supervised Release), and 7A1.4 (No Credit for Time Under Supervision), effective November 1, 1987, were deleted as part of an overall revision of this chapter effective November 1, 1990 (amendment 362).

 

PART B – VIOLATIONS OF PROBATION

 

Introductory Commentary

The policy statements in this part seek to prescribe penalties only for the violation of the judicial order imposing probation.  Where a defendant is convicted of a criminal charge that also is a basis of the violation, these policy statements do not purport to provide the appropriate sanction for the criminal charge itself.  The Commission has concluded that the determination of the appropriate sentence on any new criminal conviction should be a separate determination for the court having jurisdiction over such conviction.

Under 18 U.S.C. § 3584, the court, upon consideration of the factors set forth in 18 U.S.C. § 3553(a), including applicable guidelines and policy statements issued by the Sentencing Commission, may order a term of imprisonment to be served consecutively or concurrently to an undischarged term of imprisonment.  It is the policy of the Commission that the sanction imposed upon revocation is to be served consecutively to any other term of imprisonment imposed for any criminal conduct that is the basis of the revocation.

This part is applicable in the case of a defendant on probation for a felony or Class A misdemeanor. Consistent with §1B1.9 (Class B or C Misdemeanors and Infractions), this part does not apply in the case of a defendant on probation for a Class B or C misdemeanor or an infraction.

Historical Note:  Effective November 1, 1990 (amendment 362). Amended effective November 1, 2025 (amendment 835).

 

§7B1.1.     Classification of Violations (Policy Statement)

 

Commentary

Application Notes:

1.      Under 18 U.S.C. §§ 3563(a)(1), a mandatory condition of probation is that the defendant not commit another federal, state, or local crime.  A violation of this condition may be charged whether or not the defendant has been the subject of a separate federal, state, or local prosecution for such conduct.  The grade of violation does not depend upon the conduct that is the subject of criminal charges or of which the defendant is convicted in a criminal proceeding.  Rather, the grade of the violation is to be based on the defendant's actual conduct.

2.      "Crime of violence" is defined in §4B1.2 (Definitions of Terms Used in Section 4B1.1).  See §4B1.2(a) and Application Note 1 of the Commentary to §4B1.2.

3.      "Controlled substance offense" is defined in §4B1.2 (Definitions of Terms Used in Section 4B1.1).  See §4B1.2(b) and Application Note 1 of the Commentary to §4B1.2.

4.      A "firearm or destructive device of a type described in 26 U.S.C. § 5845(a)" includes a shotgun, or a weapon made from a shotgun, with a barrel or barrels of less than 18 inches in length; a weapon made from a shotgun or rifle with an overall length of less than 26 inches; a rifle, or a weapon made from a rifle, with a barrel or barrels of less than 16 inches in length; a machine gun; a muffler or silencer for a firearm; a destructive device; and certain large bore weapons.

5.      Where the defendant is on probation in connection with a felony conviction, or has a prior felony conviction, possession of a firearm (other than a firearm of a type described in 26 U.S.C. § 5845(a)) will generally constitute a Grade B violation, because 18 U.S.C. § 922(g) prohibits a convicted felon from possessing a firearm.  The term "generally" is used in the preceding sentence, however, because there are certain limited exceptions to the applicability of 18 U.S.C. § 922(g).  See, e.g., 18 U.S.C. § 925(c).

Historical Note:  Effective November 1, 1990 (amendment 362).  Amended effective November 1, 1992 (amendment 473); November 1, 1997 (amendment 568); November 1, 2002 (amendment 646); November 1, 2025 (amendment 835).

 

§7B1.2.     Reporting of Violations of Probation (Policy Statement)

 

Commentary

Application Note:

1.      Under subsection (b), a Grade C violation must be promptly reported to the court unless the probation officer makes an affirmative determination that the alleged violation meets the criteria for non-reporting.  For example, an isolated failure to file a monthly report or a minor traffic infraction generally would not require reporting.  

Historical Note:  Effective November 1, 1990 (amendment 362). Amended effective November 1, 2025 (amendment 835).

 

§7B1.3.     Revocation of Probation (Policy Statement)

 

Commentary

Application Notes:

1.      Revocation of probation generally is the appropriate disposition in the case of a Grade C violation by a defendant who, having been continued on probation after a finding of violation, again violates the conditions of his probation. 

2.      Subsection (e) is designed to ensure that the revocation penalty is not decreased by credit for time in official detention other than time in official detention resulting from the federal probation violation warrant or proceeding.  Example:  A defendant, who was in pre-trial detention for three months, is placed on probation, and subsequently violates that probation.  The court finds the violation to be a Grade C violation, determines that the applicable range of imprisonment is 4–10 months, and determines that revocation of probation and imposition of a term of imprisonment of four months is appropriate.  Under subsection (e), a sentence of seven months imprisonment would be required because the Federal Bureau of Prisons, under 18 U.S.C. § 3585(b), will allow the defendant three months' credit toward the term of imprisonment imposed upon revocation.

3.  Subsection (f) provides that any term of imprisonment imposed upon the revocation of probation shall run consecutively to any sentence of imprisonment being served by the defendant.  Similarly, it is the Commission's recommendation that any sentence of imprisonment for a criminal offense that is imposed after revocation of probation release be run consecutively to any term of imprisonment imposed upon revocation.

4.  Intermittent confinement is authorized as a condition of probation during the first year of the term of probation. 18 U.S.C. § 3563(b)(10); see also §5F1.8 (Intermittent Confinement).

Historical Note:  Effective November 1, 1990 (amendment 362).  Amended effective November 1, 1991 (amendment 427); November 1, 1995 (amendment 533); November 1, 2002 (amendment 646); November 1, 2004 (amendment 664); November 1, 2009 (amendment 733); November 1, 2025 (amendment 835).

 

§7B1.4.     Term of Imprisonment—Probation (Policy Statement)

 

Commentary

Application Notes:

1.      The criminal history category to be used in determining the applicable range of imprisonment in the Probation Revocation Table is the category determined at the time the defendant originally was sentenced to the term of probation. The criminal history category is not to be recalculated because the ranges set forth in the Probation Revocation Table have been designed to take into account that the defendant violated probation. Example: A defendant, who was originally sentenced in 2022, was determined to have a criminal history category of II due in part to having committed the offense "while under any criminal justice sentence." See §4A1.1(d) (Criminal History Category) (Nov. 2021). For purposes of determining the applicable range of imprisonment in the Probation Revocation Table, the defendant’s criminal history category is category II, regardless of whether the defendant’s criminal history category would be reduced for other purposes based on the retroactive application of Part A of Amendment 821 pursuant to §1B1.10 (Reduction of Imprisonment as a Result of Amended Guideline Range (Policy Statement)). See USSG App. C, Amendment 825 (effective November 1, 2023).

In the rare case in which no criminal history category was determined when the defendant originally was sentenced to the term of probation being revoked, the court shall determine the criminal history category that would have been applicable at the time the defendant originally was sentenced to the term of probation. (See the criminal history provisions of §§4A1.1–4B1.4.)

2.      Upon a finding that a defendant violated a condition of probation by being in possession of a controlled substance or firearm or by refusing to comply with a condition requiring drug testing, the court is required to revoke probation and impose a sentence that includes a term of imprisonment. 18 U.S.C. § 3565(b).

3.      In the case of a defendant who fails a drug test, the court shall consider whether the availability of appropriate substance abuse programs, or a defendant's current or past participation in such programs, warrants an exception from the requirement of mandatory revocation and imprisonment under 18 U.S.C. § 3565(b). 18 U.S.C. § 3563(a).

Historical Note:  Effective November 1, 1990 (amendment 362); November 1, 1995 (amendment 533); November 1, 2010 (amendment 747); November 1, 2025 (amendments 835 and 836).

 

§7B1.5.     No Credit for Time on Probation (Policy Statement)

Commentary

Background:  This section provides that time served on probation is not to be credited in the determination of any term of imprisonment imposed upon revocation.  Other aspects of the defendant's conduct, such as compliance with probation conditions and adjustment while on probation, appropriately may be considered by the court in the determination of the sentence to be imposed within the applicable revocation range.

Historical Note:  Effective November 1, 1990 (amendment 362). Amended effective November 1, 2025 (amendment 835).

 

PART C — VIOLATIONS OF SUPERVISED RELEASE

 

Introductory Commentary

At the time of original sentencing, the court may—and in some cases, must—impose a term of supervised release to follow the sentence of imprisonment. See 18 U.S.C. § 3583(a). During that term, the court may receive allegations that the defendant has violated a condition of supervision. In responding to such allegations, addressing a violation found during revocation proceedings, and imposing a sentence upon revocation, the court should conduct the same kind of individualized assessment used "in determining whether to include a term of supervised release, and, if a term of supervised release is to be included, in determining the length of the term and the conditions of supervised release." See 18 U.S.C. § 3583(c), (e); Application Note 1 to §5D1.1 (Imposition of a Term of Supervised Release).

If the court finds that the defendant violated a condition of supervised release, it may continue the defendant on supervised release under existing conditions, modify the conditions, extend the term, or revoke supervised release and impose a term of imprisonment. See 18 U.S.C. § 3583(e)(3). The court also has authority to terminate a term of supervised release and discharge the defendant at any time after the expiration of one year of supervised release if it is satisfied that such action is warranted by the conduct of the defendant and the interest of justice. 18 U.S.C. § 3583(e)(1).

Because supervised release is intended to promote rehabilitation and ease the defendant’s transition back into the community, the Commission encourages courts—where possible—to consider a wide array of options to respond to non-compliant behavior and violations of the conditions of supervised release. These interim steps before revocation are intended to allow courts to address the defendant’s failure to comply with court-imposed conditions and to better address the needs of the defendant while also maintaining public safety. If revocation is mandated by statute or the court otherwise determines revocation to be appropriate, the sentence imposed upon revocation should be tailored to address the failure to abide by the conditions of the court-ordered supervision; imposition of an appropriate punishment for new criminal conduct is not the primary goal of a revocation sentence. The determination of the appropriate sentence on any new criminal conviction that is also a basis of the violation should be a separate determination for the court having jurisdiction over such conviction. 

Historical Note:  Effective November 1, 2025 (amendment 835). 

 

§7C1.1.     Classification of Violations (Policy Statement)

 

Commentary

Application Notes:

1.      Under 18 U.S.C. § 3583(d), a mandatory condition of supervised release is that the defendant not commit another federal, state, or local crime. A violation of this condition may be charged whether or not the defendant has been the subject of a separate federal, state, or local prosecution for such conduct. The grade of violation does not depend upon the conduct that is the subject of criminal charges or of which the defendant is convicted in a criminal proceeding. Rather, the grade of the violation is to be based on the defendant’s actual conduct.

2.      "Crime of violence" is defined in §4B1.2 (Definitions of Terms Used in Section 4B1.1). See §4B1.2(a) and Application Note 1 of the Commentary to §4B1.2.

3.      "Controlled substance offense" is defined in §4B1.2 (Definitions of Terms Used in Section 4B1.1). See §4B1.2(b) and Application Note 1 of the Commentary to §4B1.2.

4.      A "firearm or destructive device of a type described in 26 U.S.C. § 5845(a)" includes a shotgun, or a weapon made from a shotgun, with a barrel or barrels of less than 18 inches in length; a weapon made from a shotgun or rifle with an overall length of less than 26 inches; a rifle, or a weapon made from a rifle, with a barrel or barrels of less than 16 inches in length; a machine gun; a muffler or silencer for a firearm; a destructive device; and certain large bore weapons.

5.      Where the defendant is on supervised release in connection with a felony conviction, or has a prior felony conviction, possession of a firearm (other than a firearm of a type described in 26 U.S.C. § 5845(a)) will generally constitute a Grade B violation, because 18 U.S.C. § 922(g) prohibits a convicted felon from possessing a firearm. The term ‘generally’ is used in the preceding sentence, however, because there are certain limited exceptions to the applicability of 18 U.S.C. § 922(g). See, e.g., 18 U.S.C. § 925(c).

Historical Note:  Effective November 1, 2025 (amendment 835).

 

§7C1.2.     Reporting of Violations of Supervised Release (Policy Statement)

 

Commentary

Application Note:

1.      Under subsection (b), a Grade C violation must be promptly reported to the court unless the probation officer makes an affirmative determination that the alleged violation meets the criteria for non-reporting. For example, an isolated failure to file a monthly report or a minor traffic infraction generally would not require reporting.

Historical Note:  Effective November 1, 2025 (amendment 835).

 

§7C1.3.     Responses to Violations of Supervised Release (Policy Statement)

 

Commentary

Application Notes:

1.      Individualized Assessment.—When making an individualized assessment under this section, the factors to be considered are the same as the factors considered in determining whether to impose a term of supervised release. See 18 U.S.C. § 3583(c), (e); Application Note 1 to §5D1.1 (Imposition of a Term of Supervised Release).

2.      Responses.—Upon a report of non-compliance or a finding of a violation, the court may take any appropriate action provided under 18 U.S.C. § 3583, which includes extension, modification, revocation, or termination of supervised release. If revocation is not statutorily required, the court may also consider an informal response, such as issuing a warning while maintaining supervised release without modification, continuing the violation hearing to provide the defendant time to come into compliance, or directing the defendant to additional resources needed to come into compliance.

3.      Issuing Summons.—If the defendant’s presence in court is required to address a report of non-compliance, the court should consider issuing a summons rather than an arrest warrant where appropriate.

Historical Note:  Effective November 1, 2025 (amendment 835).

 

§7C1.4.     Revocation of Supervised Release (Policy Statement)

 

Commentary

Application Notes:

1.      Individualized Assessment.—When making an individualized assessment under subsection (a), the factors to be considered are the same as the factors considered in determining whether to impose a term of supervised release. See 18 U.S.C. § 3583(c), (e); Application Note 1 to §5D1.1 (Imposition of a Term of Supervised Release).

2.      The provisions for the revocation, as well as early termination and extension, of a term of supervised release are found in 18 U.S.C. § 3583(e), (g)–(i). Under 18 U.S.C. § 3583(h) (effective September 13, 1994), the court, in the case of revocation of supervised release, may order an additional period of supervised release to follow imprisonment.

3.      In the case of a revocation based, at least in part, on a violation of a condition specifically pertaining to community confinement, intermittent confinement, or home detention, use of the same or a less restrictive sanction is not recommended.

4.      Any restitution, fine, community confinement, home detention, or intermittent confinement previously imposed in connection with the sentence for which revocation is ordered that remains unpaid or unserved at the time of revocation shall be ordered to be paid or served in addition to the sanction determined under §7C1.5 (Term of Imprisonment—Supervised Release), and any such unserved period of community confinement, home detention, or intermittent confinement may be converted to an equivalent period of imprisonment.

Historical Note:  Effective November 1, 2025 (amendment 835).

 

§7C1.5.     Term of Imprisonment—Supervised Release (Policy Statement)