AMENDMENT 756
Amendment: Section 5D1.1 is amended by striking subsection (a) as follows:
"(a) The court shall order a term of supervised release to follow imprisonment when a sentence of imprisonment of more than one year is imposed, or when required by statute.",
and inserting the following:
"(a) The court shall order a term of supervised release to follow imprisonment—
(1) when required by statute (see 18 U.S.C. § 3583(a)); or
(2) except as provided in subsection (c), when a sentence of imprisonment of more than one year is imposed.";
and in subsection (b) by adding at the end the following: "See 18 U.S.C. § 3583(a).".
Section 5D1.1 is amended by adding at the end the following:
"(c) The court ordinarily should not impose a term of supervised release in a case in which supervised release is not required by statute and the defendant is a deportable alien who likely will be deported after imprisonment.".
The Commentary to §5D1.1 captioned "Application Notes" is amended by striking Notes 1 and 2 as follows:
"1. Under subsection (a), the court is required to impose a term of supervised release to follow imprisonment if a sentence of imprisonment of more than one year is imposed or if a term of supervised release is required by a specific statute. The court may depart from this guideline and not impose a term of supervised release if it determines that supervised release is neither required by statute nor required for any of the following reasons: (A) to protect the public welfare; (B) to enforce a financial condition; (C) to provide drug or alcohol treatment or testing; (D) to assist the reintegration of the defendant into the community; or (E) to accomplish any other sentencing purpose authorized by statute.
2. Under subsection (b), the court may impose a term of supervised release to follow a term of imprisonment of one year or less for any of the reasons set forth in Application Note 1.",
and inserting the following:
"1. Application of Subsection (a).—Under subsection (a), the court is required to impose a term of supervised release to follow imprisonment when supervised release is required by statute or, except as provided in subsection (c), when a sentence of imprisonment of more than one year is imposed. The court may depart from this guideline and not impose a term of supervised release if supervised release is not required by statute and the court determines, after considering the factors set forth in Note 3, that supervised release is not necessary.
2. Application of Subsection (b).—Under subsection (b), the court may impose a term of supervised release to follow a term of imprisonment in any other case, after considering the factors set forth in Note 3.
3. Factors to Be Considered.—
(A) Statutory Factors.—In determining whether to impose a term of supervised release, the court is required by statute to consider, among other factors:
(i) the nature and circumstances of the offense and the history and characteristics of the defendant;
(ii) the need to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant, and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(iii) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(iv) the need to provide restitution to any victims of the offense.
See 18 U.S.C. § 3583(c).
(B) Criminal History.—The court should give particular consideration to the defendant's criminal history (which is one aspect of the ‘history and characteristics of the defendant’ in subparagraph (A)(i), above). In general, the more serious the defendant's criminal history, the greater the need for supervised release.
(C) Substance Abuse.—In a case in which a defendant sentenced to imprisonment is an abuser of controlled substances or alcohol, it is highly recommended that a term of supervised release also be imposed. See §5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction).
4. Community Confinement or Home Detention Following Imprisonment.—A term of supervised release must be imposed if the court wishes to impose a ‘split sentence’ under which the defendant serves a term of imprisonment followed by a period of community confinement or home detention pursuant to subsection (c)(2) or (d)(2) of §5C1.1 (Imposition of a Term of Imprisonment). In such a case, the period of community confinement or home detention is imposed as a condition of supervised release.
5. Application of Subsection (c).—In a case in which the defendant is a deportable alien specified in subsection (c) and supervised release is not required by statute, the court ordinarily should not impose a term of supervised release. Unless such a defendant legally returns to the United States, supervised release is unnecessary. If such a defendant illegally returns to the United States, the need to afford adequate deterrence and protect the public ordinarily is adequately served by a new prosecution. The court should, however, consider imposing a term of supervised release on such a defendant if the court determines it would provide an added measure of deterrence and protection based on the facts and circumstances of a particular case.".
Section 5D1.2(a) is amended in subdivision (1) by striking "three" and inserting "two"; and by adding at the end the following: "See 18 U.S.C. § 3583(b)(1).".
Section 5D1.2(a) is amended in subdivision (2) by striking "two years" and inserting "one year"; and by adding at the end the following: "See 18 U.S.C. § 3583(b)(2).".
Section 5D1.2(a) is amended in subdivision (3) by adding at the end the following: "See 18 U.S.C. § 3583(b)(3).".
The Commentary to §5D1.2 captioned "Application Notes" is amended by adding at the end the following:
"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.".
Reason for Amendment: This amendment makes revisions to the supervised release guidelines, §5D1.1 (Imposition of a Term of Supervised Release) and §5D1.2 (Term of Supervised Release), in response to both the findings in the Commission’s July 2010 report, Federal Offenders Sentenced to Supervised Release, and changes in federal immigration law and the federal offender population in recent years.
First, the amendment creates an exception to the general rule in §5D1.1(a) that a term of supervised release be imposed when a sentence of imprisonment of more than one year is imposed or when required by statute. The exception, which appears in a new subsection (c) in §5D1.1, states that supervised release ordinarily should not be imposed in a case in which supervised release is not required by statute and the defendant is a deportable alien who likely will be deported after imprisonment. A corresponding application note explains that imposing supervised release in such a case is generally unnecessary, although there may be particular cases in which it is appropriate. Non-citizens now are approximately half of the overall population of federal offenders, see 2010 Sourcebook of Federal Sentencing Statistics, Table 9 (showing that 47.5% of federal offenders in fiscal year 2010 were non-citizens), and supervised release is imposed in more than 91 percent of cases in which the defendant is a non-citizen, see Federal Offenders Sentenced to Supervised Release at 60. The Commission determined that such a high rate of imposition of supervised release for non-citizen offenders is unnecessary because "recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders." Padilla v. Kentucky, 130 S. Ct. 1473, 1481 (2010); see also id. at 1478 ("[D]eportation or removal . . . is now virtually inevitable for a vast number of noncitizens convicted of crimes."). Furthermore, such offenders likely would face prosecution for a new offense under the federal immigration laws if they were to return illegally to the United States.
Second, the amendment lowers the minimum term of supervised release required by the guidelines for certain defendants (regardless of their citizenship status) when a statute does not require a higher minimum term. Section 5D1.2 requires the court to impose a term of supervised release of at least three years when the defendant is convicted of a Class A or B felony and at least two years when the defendant is convicted of a Class C or D felony. The amendment lowers these minimum terms to two years for a defendant convicted of a Class A and B felony and one year for a defendant convicted of a Class C or D felony. Thus, for reasons of proportionality, the amendment maintains a 1-year distinction in the minimum term of supervised release between a defendant convicted of a Class A or B felony and a defendant convicted of a Class C or D felony. The Commission determined that these lesser minimum terms should be sufficient in most cases because research indicates that the majority of defendants who violate a condition of supervised release do so during the first year of the term of supervised release. See Federal Offenders Sentenced to Supervised Release at 63 & n. 265. Furthermore, if an offender shows non-compliance during such a minimum term, the court may extend the term of supervision up to the statutory maximum. See 18 U.S.C. § 3583(e)(2). The amendment also adds commentary at new Application Note 5 encouraging courts to exercise their authority to terminate supervised release at any time after the expiration of one year of supervised release in appropriate cases. See 18 U.S.C. § 3583(e)(1).
Finally, the amendment adds commentary in §§5D1.1 and 5D1.2 that provides guidance on the factors a court should consider in deciding whether to order a term of supervised release (when not required by statute) and, if so, how long such a term should be. Such factors include the extent of an offender’s criminal record, which research shows to be predictive of an offender’s likelihood of complying with the conditions of supervision. See Federal Offenders Sentenced to Supervised Release at 66-67 (Figure 4) (noting that the rates of revocation for offenders increased steadily across the six Criminal History Categories (CHC), from 18.7% for offenders in CHC I to 59.8% in CHC VI).
Effective Date: The effective date of this amendment is November 1, 2011.