AMENDMENT 533

Amendment: Section 7B1.3(g)(2) is amended by deleting "the defendant may, to the extent permitted by law, be ordered to recommence supervised release upon release from imprisonment" and inserting in lieu thereof:

"the court may include a requirement that the defendant be placed on a term of supervised release upon release from imprisonment. The length of such a term of supervised release shall not exceed the term of supervised release authorized by 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. 18 U.S.C. § 3583(h)".

The Commentary to §7B1.3 captioned "Application Notes" is amended in Note 2 by deleting:

". This statute, however, neither expressly authorizes nor precludes a court from ordering that a term of supervised release recommence after revocation. Under §7B1.3(g)(2), the court may order, to the extent permitted by law, the recommencement of a supervised release term following revocation",

and inserting in lieu thereof:

", (g)-(i). Under 18 U.S.C. § 3583(h) (effective September 13, 1994), the court, in the case of revocation of supervised release and imposition of less than the maximum imposable term of imprisonment, may order an additional period of supervised release to follow imprisonment".

The Commentary to §7B1.3 captioned "Application Notes is amended by deleting:

"3. Subsection (c) provides for the use of certain alternatives to imprisonment upon revocation. It is to be noted, however, that a court may decide that not every alternative is authorized by statute in every circumstance. For example, in United States v. Behnezhad, 907 F.2d 896 (9th Cir. 1990), the Ninth Circuit held that where a term of supervised release was revoked there was no statutory authority to impose a further term of supervised release. Under this decision, in the case of a revocation of a term of supervised release, an alternative that is contingent upon imposition of a further term of supervised release (e.g., a period of imprisonment followed by a period of community confinement or detention as a condition of supervised release) cannot be implemented. The Commission has transmitted to the Congress a proposal for a statutory amendment to address this issue.";

and by renumbering the remaining notes accordingly.

The Commentary to §7B1.4 captioned "Application Notes" is amended by deleting:

"5. Under 18 U.S.C. § 3565(a), upon a finding that a defendant violated a condition of probation by being in possession of a controlled substance, the court is required ‘to revoke the sentence of probation and sentence the defendant to not less than one-third of the original sentence.’ Under 18 U.S.C. § 3583(g), upon a finding that a defendant violated a condition of supervised release by being in possession of a controlled substance, the court is required ‘to terminate supervised release and sentence the defendant to serve in prison not less than one-third of the term of supervised release.’ The Commission leaves to the court the determination of whether evidence of drug usage established solely by laboratory analysis constitutes ‘possession of a controlled substance’ as set forth in 18 U.S.C. §§ 3565(a) and 3583(g).

6. Under 18 U.S.C. § 3565(b), upon a finding that a defendant violated a condition of probation by the actual possession of a firearm, the court is required ‘to revoke the sentence of probation and impose any other sentence that was available ... at the time of initial sentencing.’",

and inserting in lieu thereof:

"5. Upon a finding that a defendant violated a condition of probation or supervised release 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 or supervised release and impose a sentence that includes a term of imprisonment. 18 U.S.C. §§ 3565(b), 3583(g).

6. 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) and 3583(g). 18 U.S.C. §§ 3563(a), 3583(d).".

Reason for Amendment: Section 110505 of the Violent Crime Control and Law Enforcement Act of 1994 amends 18 U.S.C. § 3583(e)(3) by specifying that a defendant whose supervised release term is revoked may not be required to serve more than five years in prison if the offense that resulted in the term of supervised release is a Class A felony. The provision also amends section 3583(g) by eliminating the mandatory re-imprisonment period of at least one-third of the term of supervised release if the defendant possesses a controlled substance. Additionally, the provision requires the courts to revoke probation or supervised release and impose a sentence that includes a term of imprisonment if the defendant is found to be in possession of a firearm, or refuses to participate in drug testing. Finally, the provision expressly authorizes the court to order an additional, limited period of supervision following revocation of supervised release and re-imprisonment.

Section 20414 of the Violent Crime Control and Law Enforcement Act of 1994 makes mandatory a condition of probation requiring that the defendant refrain from any unlawful use of a controlled substance. 18 U.S.C. § 3563(a)(4). The section also establishes a condition that the defendant, with certain exceptions, submit to periodic drug tests. The existing mandatory condition of probation requiring the defendant not to possess a controlled substance remains unchanged. 18 U.S.C. § 3563(a)(3). Similar requirements are made with respect to conditions of supervised release. 18 U.S.C. § 3583(d).

Section 110506 of the Violent Crime Control and Law Enforcement Act of 1994 mandates revocation of probation and imposition of a term of imprisonment if the defendant violates probation by possessing a controlled substance or a firearm, or by refusing to comply with drug testing. 18 U.S.C. § 3565(b). It does not require revocation in the case of use of a controlled substance (although use presumptively may establish possession). No minimum term of imprisonment is required other than a sentence that includes a "term of imprisonment" consistent with the sentencing guidelines and revocation policy statements. Similar requirements are set forth in 18 U.S.C. § 3583(g) with respect to conditions of supervised release.

Section 20414 permits "an exception in accordance with United States Sentencing Commission guidelines" from the mandatory revocation provisions of section 3565(b), "when considering any action against a defendant who fails a drug test administered in accordance with [section 3563(a)(4)]." The exception from the mandatory revocation provisions appears limited to a defendant who fails the test and does not appear to apply to a defendant who refuses to take the test.

This amendment conforms §§7B1.3 (Revocation of Probation or Supervised Release) and 7B1.4 (Term of Imprisonment) to these revised statutory provisions.

Effective Date: The effective date of this amendment is November 1, 1995.