Supervised Release (Parole): An Overview of Federal Law

Supervised Release (Parole): An Overview of Federal Law

Supervised Release (Parole): An Overview of
September 28, 2021
Federal Law
Charles Doyle
Federal courts sentence almost 75% of the defendants convicted of federal offenses to a term of
Senior Specialist in
supervised release. A term of supervised release is a period following a defendant’s release from
American Public Law
prison when a probation officer monitors the defendant to ensure compliance with the conditions

for the defendant’s release. Under some circumstances, the court may terminate the term of
supervised release, extend it, or revoke it.

Supervised release replaces parole for federal crimes committed after November 1, 1987. Like parole, supervised release is a
period of restricted freedom following a defendant’s release from prison. The nature of supervision and the conditions
imposed during supervised release are similar to those that applied in the earlier system of federal parole. However, while
parole operates in lieu of the remainder of an unexpired prison term, supervised release begins only after a defendant has
completed his full prison sentence. Where revocation of parole could result in a defendant’s return to prison to finish out his
original sentence, revocation of supervised release can lead to a return to prison for a term in addition to that imposed for the
defendant’s original sentence.
A sentencing court determines the duration and conditions for a defendant’s supervised release at the time of initial
sentencing. As a general rule, federal law limits the maximum duration of supervised release to five years, although in the
case of serious drug, sex, and terrorism-related offenses it sometimes permits, and sometimes mandates, supervision for a
term of any duration or for life.
Several conditions are standard features of supervised release. Some conditions, such as a ban on the commission of further
crimes, are required. Other conditions, such as an obligation to report to a probation officer, have become standard practice
by the operation of the Sentencing Guidelines, which federal courts must consider along with other statutorily designated
considerations. Together with these regularly imposed conditions, the Sentencing Guidelines recommend additional
conditions appropriate in specific offense- or offender- situations. A sentencing court may impose any of these discretionary
conditions, as long as they offend no constitutional limitations, involve no greater deprivation of liberty than is reasonably
necessary, and are “reasonably related” to the nature of the offense, the defendant’s crime-related history, deterrence of
crime, protection of the public, or the defendant’s rehabilitation. If the court finds that a defendant has violated a condition of
his release, it may revoke his supervised release and resentence him to a further term of imprisonment and supervised release.
Both a defendant’s constitutional rights and separation-of-powers concerns set boundaries for supervised release conditions.
Federal courts have upheld a wide range of conditions against constitutional challenges. A constitutionally suspect condition
is also likely to run afoul of statutory “reasonably related” or excessive “deprivation of liberty” limitations. In such cases, the
courts often resolve the issue on statutory grounds.

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Contents
Introduction ..................................................................................................................................... 1
Duration ........................................................................................................................................... 3
Conditions ....................................................................................................................................... 7
Mandatory Conditions ............................................................................................................... 7
Discretionary Conditions .......................................................................................................... 9
Limits on Discretionary Conditions ........................................................................................ 10
Reasonably Related ........................................................................................................... 10
Unnecessary Deprivation of Liberty .................................................................................. 11
Consistent with Guidelines’ Policy Statements................................................................. 12
Three Classes of Discretionary Conditions ............................................................................. 12
Standard Discretionary Conditions ................................................................................... 13
Special Discretionary Conditions ..................................................................................... 15
Additional Discretionary Conditions ................................................................................ 18
Modification and Revocation ........................................................................................................ 19
Modification of Conditions ..................................................................................................... 20
Revocation .............................................................................................................................. 21
Constitutional Considerations ....................................................................................................... 26
Article III ................................................................................................................................. 26
First Amendment ..................................................................................................................... 27
Fourth Amendment.................................................................................................................. 29
Fifth Amendment .................................................................................................................... 30
Sixth Amendment .................................................................................................................... 33
Eighth Amendment .................................................................................................................. 33
Attachments ................................................................................................................................... 34
18 U.S.C. § 3583 (text). .......................................................................................................... 34
Rule 32.1. Revoking or Modifying Probation or Supervised Release (text). .......................... 36

Contacts
Author Information ........................................................................................................................ 37

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Supervised Release (Parole): An Overview of Federal Law

Introduction1
Federal courts sentence close to three quarters (72.9%) of the defendants convicted of federal
offenses to a term of supervised release.2 Supervised release is the successor to parole in the
federal criminal justice system.3 In the 1984 Sentencing Reform Act, Congress eliminated parole
in future cases to create a more determinate federal sentencing structure.4 In its place, Congress
instituted a system that includes supervised release, which applies to all federal crimes committed
after November 1, 1987.5
Both parole and supervised release call for a period of supervision following release from prison
and for a return to prison upon a failure to observe designated conditions. Parole ordinarily stands
in lieu of a portion of the original term of imprisonment, while supervised release begins only
after full service of the original term (less any “good time” credits).6 Parole restrictions last no
longer than the remainder of a defendant’s original sentence. Supervised release restrictions can
last for the remainder of a defendant’s life, although the court may modify the conditions at any
time and may terminate supervised release after a year.7

1 This report is available in an abridged form, without the footnotes, attributions, citations to authority, or attachments
found here, as CRS Report RS21364, Supervised Release (Parole): An Abbreviated Outline of Federal Law, by Charles
Doyle.
2 U.S. SENTENCING COMM’N, 2020 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS, TABLE 18 (2020),
https://www.ussc.gov/research/sourcebook-2020.
3 18 U.S.C. §§ 4201–4218 (1982), reprinted 18 U.S.C. § 4201 note. See generally, Forty-Ninth Review of Criminal
Procedure: Section IV: Sentencing—Supervised Release, 49 GEO. L.J. ANN. REV. CRIM. PROC. 929 (2020); U.S.
SENTENCING COMM’N, PRIMER: SUPERVISED RELEASE (March 2020).
4 Sentencing Reform Act of 1984, Pub. L. No. 98-473, Tit. II, ch. II, § 211 et seq., 98 STAT. 1837, 1987 (codified at 18
U.S.C. § 3551 note).
5 18 U.S.C. § 3583(a) (“The court, in imposing a sentence to a term of imprisonment for a felony or misdemeanor, may
include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after
imprisonment, except that the court shall include as a part of the sentence a requirement that the defendant be placed on
a term of supervised release if such a term is required by statute or if the defendant has been convicted for the first time
of a domestic violence crime as defined in section 3561(b).”); U.S.S.G. § 5D1.1 & cmt. n.1 (“(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) [relating to deportable aliens], when a sentence of imprisonment of more than one
year is imposed. (b) The court may order a term of supervised release to follow imprisonment in any other case. . . .
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[relating to the sentencing factors mentioned in 18 U.S.C. § 3553(a)(1), (2), (6), (7)], that
supervised release is not necessary.”). The Sentencing Reform Act became effective by and large on November 1,
1987. 18 U.S.C. § 3551 note. Parole continues to apply to the small number of remaining federal offenders serving
sentences for crimes committed prior to November 1, 1987. Pub. L. No. 100-182, § 2, 101 STAT. 1266 (1987), 18
U.S.C. § 3551 note; cf. United States v. Stewart, 865 F.2d 115, 116-19 (7th Cir. 1988). Although Congress officially
repealed the parole provisions, including those authorizing the U.S. Parole Commission’s activities, in 1984, Congress
has several times extended the life of the Parole Commission to address these remaining offenders. 18 U.S.C. § 3551
note. Congress also vested the U.S. Parole Commission with authority over parole of defendants incarcerated for
violations of the laws of the District of Columbia. Pub. L. No. 105-33, § 11231, 111 STAT. 251, 745 (1997). The
District of Columbia abolished parole as of August 5, 2000, but the U.S. Parole Commission continues to have
responsibility for parole decisions concerning those convicted for D.C. offenses committed before that date. Cf. D.C.
CODE § 22-403.01. The U.S. Parole Commission is now scheduled to expire on November 1, 2022. Pub. L. No. 116-
159, 134 STAT. 741 (2020); 18 U.S.C. § 3551 note.
6 See U.S. SENTENCING COMM’N, GUIDELINES MANUAL § 7A.2(b) (2018), https://guidelines.ussc.gov/chapters/7/parts
(“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.”).
7 18 U.S.C. § 3583(e).
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Supervised Release (Parole): An Overview of Federal Law

Because of their differences, some commentators8 and judges have highlighted the way that
supervised release works differently from parole.9 Differences and critics notwithstanding,
supervised release is now a regular feature of sentencing in the federal system. Parole is not.
Federal courts ordinarily set the terms and conditions of supervised release when they sentence a
criminal defendant to prison, 10 and “[t]he duration, as well as the conditions of supervised release
are components of a sentence.”11 Sentencing courts have broad discretion when imposing the
conditions of supervised release;12 yet their exercise of such discretion must be understood within
the confines established for mandatory conditions, the scope of permissible standard discretionary
conditions and special conditions, and the deference that the Sentencing Guidelines require.
Except in specified drug offenses, federal crimes of terrorism, certain sex offenses, and domestic
violence cases, courts may decline to impose supervised release for a particular defendant.13
However, the Sentencing Guidelines, promulgated by the United States Sentencing Commission,
recommend that sentencing courts impose a term of supervised release in most felony cases.14

8 Jacob Schuman, Supervised Release Is Not Parole, 53 LOY. OF L.A. L. REV. 587, 642-43 (2019) (“Although the circuit
courts regard them as ‘constitutionally indistinguishable,’ there are actually three key differences between parole and
supervised release: their method of imposition (relief/penalty), their theory of punishment (rehabilitative/punitive), and
their governing institutions (agency/courts). . . . Supervised release is a unique form of post-release supervision, a
significant feature of the federal justice system that impacts nearly every criminal defendant and is responsible for the
incarceration of tens of thousands.”).
9 United States v. Ka, 982 F.3d 219, 227 n.4 (4th Cir. 2020) (Gregory, J., dissenting) (“[A]t its most expansive, the
federal parole system supervised . . . about one-fourth of the number now on supervised release’ and ‘federal probation
has declined by about two-thirds since’ the introduction of supervised release. . . . ‘Supervised release is now the
dominant form of federal community supervision . . . [and] is responsible for sending a significant number of offenders
back to prison.’ ‘Revocations have also become more common, and more than half of all revocations are for
noncriminal conduct.’ ‘One-third of all defendants are eventually found in violation of a condition of their release. . . .
[i]n 2009, over 10,000 people were in federal prison for violating their supervised release, which is between 5 and 10
per cent of the total federal prison population.’ Thus, ‘[w]hile Congress intended supervised release to reduce
government interference in the lives of former prisoners,’ it has instead grown to vast scale and, for many people,
extends involvement with the criminal system, raising the chances of reincarceration.”) (quoting Fiona Doherty,
Indeterminate Sentencing Reforms, 88 N.Y.U. L. REV. 958, 997-98, 1014-15 and Schuman, 53 LOY. OF L.A. L. REV. at
603-07).
10 18 U.S.C. § 3583(a), supra note 5. The sentencing court must inform the defendant of the conditions and duration of
any term of supervised release either explicitly or by reference to the presentence report. United States v. Omigie, 977
F.3d 397, 406 (5th Cir. 2020) (citing United States v. Diggles, 957 F.3d 551, 561 (5th Cir. 2020) (en banc)).
11 United States v. Wilson, 707 F.3d 412, 414 (3d Cir. 2013) (citation omitted); United States v. Perrin, 926 F.3d 1044,
1049 (8th Cir. 2019).
12 United States v. Hinojosa, 956 F.3d 331, 334 & n.4 (5th Cir. 2020) (citing United States v. Hathorn, 920 F.3d 982,
984 (5th Cir. 2019) (citing 18 U.S.C. § 3583(d)(1)–(3)) (footnote omitted); United States v. Mumuni, 946 F.3d 97, 106
(2d Cir. 2019); United States v. Boucher, 937 F.3d 702, 708 (6th Cir. 2019); United States v. Spallek, 934 F.3d 822,
824 (8th Cir. 2019) (referring to 18 U.S.C. § 3583(d), which “requires that the condition be ‘reasonably related’ to
certain § 3553(a) factors, ‘involve[ ] no greater deprivation of liberty than is reasonably necessary for the purposes’
enumerated in those provisions of § 3553(a), and be consistent with policy statements issued by the Sentencing
Commission.” (internal citations omitted)).
13 18 U.S.C. §§ 3583(a), 3583(j), 3583(k); 21 U.S.C. § 841(b).
14 18 U.S.C. § 3583; U.S.S.G. § 5D1.1 cmt. n.1; id. § 5D1.1 cmt. n.3(A) (“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.”); for background and analysis
related to the federal Sentencing Guidelines, see generally, CRS Report R41696, How the Federal Sentencing
Guidelines Work: An Overview, by Charles Doyle.
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A term of supervised release begins when a prisoner is actually released, regardless of when he
should have been released.15 There is a split among the circuits over when the term of supervised
release begins for a defendant whose release from federal custody is stayed pending a civil
commitment determination.16
A court may sentence a defendant to several terms of supervised release for each of several
crimes, but the terms are served at the same time rather than consecutively.17 This rule applies
even when criminal statutes require a defendant to serve the multiple terms of imprisonment
consecutively.18
Duration
Section 3583(b) sets the authorized duration for a term of supervised release, subject to
exceptions for certain drug, terrorism, and sex offenses:19

15 18 U.S.C. § 3624(e); United States v. Johnson, 529 U.S. 53, 60 (2000) (holding that a prisoner’s term of supervised
release could not be reduced by the two and a half years during which he inadvertently remained incarcerated after the
expiration of his lawful prison term). Nevertheless, supervised release follows imprisonment; if the court does not
sentence a defendant to prison, it may not sentence him to a term of supervised release. United States v. Lopez-
Postrana, 889 F.3d12, 21 (1st Cir. 2018).
16 Compare United States v. Maranda, 761 F.3d 689, 690 (7th Cir. 2014) (In the case of “a defendant who has
completed his prison sentence, but who remains in federal custody while he awaits a determination of whether he will
be civilly committed[,] . . . his term of supervised release d[oes] not begin until the [commitment] proceedings [a]re]
resolved in his favor[.]”), United States v. Neuhauser, 745 F.3d 125, 131 (4th Cir. 2014), and United States v. Mosby,
719 F.3d 925, 929–30 (8th Cir. 2013), with United States v. Turner, 689 F.3d 1117, 1121–26 (9th Cir. 2012).
A sentencing court, however, may not delay the term beyond the defendant’s release from federal custody. Appellate
courts in a number of circuits have held that a district court may not impose an indefinite condition of supervised
release which prohibits the defendant from returning to the United States, that is, postponing or tolling the term of
supervised release during the defendant’s absence from the United States. United States v. Cole, 567 F.3d 110, 113–16
(3d Cir. 2009) (citing in accord United States v. Balogun, 146 F.3d 141, 146 (2d Cir. 1998); United States v. Juan-
Manuel, 222 F.3d 480, 487 (8th Cir. 2000); United States v. Okoko, 365 F.3d 962, 966 (11th Cir. 2004); United States
v. Ossa-Gallegos, 491 F.3d 537, 541 (6th Cir. 2007)).
17 18 U.S.C. § 3624(e) (“The term of supervised release commences on the day the person is released from
imprisonment and runs concurrently with any Federal, State, or local term of probation or supervised release or parole
for another offense to which the person is subject or becomes subject during the term of supervised release.”); United
States v. Hernandez-Guevara, 162 F.3d 863, 877–78 (5th Cir. 1998); United States v. Zizkind, 471 F.3d 266, 272 (1st
Cir. 2006).
18 U.S.S.G. § 5G1.2 cmt. n.2(C).
19 21 U.S.C. § 841(b) (text infra note 20); 18 U.S.C. § 3583(j) (“Notwithstanding subsection (b), the authorized term of
supervised release for any offense listed in section 2332b(g)(5)(B) [relating to federal crimes of terrorism without
reference to the terrorist-motivation requirement of section 2332b(g)(5)(A)] is any term of years or life.”); e.g., United
States v. Dais, 482 F. Supp. 3d 800, 807 (E.D. Wis. 2020).
For exceptions, see 18 U.S.C. § 3583(k) (“Notwithstanding subsection (b), the authorized term of supervised release for
any offense under section 1201 [relating to kidnapping] involving a minor victim, and for any offense under section
1591 [relating to commercial sex trafficking], 1594(c)) [relating to attempts or conspiracies to engage in commercial
sex trafficking], 2241 [relating to aggravated sexual abuse], 2242 [relating to sexual abuse], 2243 [relating to sexual
abuse of a minor or ward], 2244 [relating to abusive sexual contact], 2245 [relating to sexual abuse offenses resulting in
death], 2250 [relating to failure to register as a sex offender], 2251 [relating to sexual exploitation of children], 2251A
[relating to selling or buying children], 2252 [relating to material involving sexual exploitation of minors], 2252A
[relating to child pornography], 2260 [relating to production of child pornography abroad], 2421 [relating to interstate
transportation for unlawful sexual purposes], 2422 [relating to coercive interstate travel for unlawful sexual purposes],
2423 [relating to transportation of minors for unlawful sexual purposes], or 2425 [relating to use of interstate facilities
to transmit information about a minor], is any term of years not less than 5, or life.”). The Supreme Court in Haymond
held unconstitutional another portion of section 3583(k), which purports to authorize a mandatory minimum term of
imprisonment upon revocation of supervised release based on a judge’s finding by a preponderance of the evidence.
United States v. Haymond, 139 S. Ct. 2369, 2373 (2019) (plurality opinion); id. at 2386 (Breyer, J., concurring in the
judgment).
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Generally
 Class A felony (felony punishable by death or life imprisonment):20 5 years
(max.)21
 Class B felony (felony punishable by imprisonment for a max. of 25 years or
more.):22 5 years (max.)23
 Class C felony (felony punishable by imprisonment for a max. of 10 years or
more but less than 25 years):24 3 years (max.)25
 Class D felony (felony punishable by imprisonment for a max. of 5 years or more
but less than 10 years):26 3 years (max.)27
 Class E felony/misdemeanor (felony punishable by imprisonment):28 1 year
(max.)29
Exceptions
 Drug trafficking: life (max.)/mandatory min. range from 2 to 10 years
 Federal “crime of terrorism”: life (max.)
 Designated sex offenses against a child: life (max.)/ mandatory min.- 5years
As for the exceptions, possession with intent to distribute illicit drugs ordinarily permits a
sentence of supervised release for any term of years up to life, and the statute assigns a sliding
scale of mandatory minimum terms of supervised release based on the dangerousness of the drug,
the volume involved, and whether the defendant is a recidivist.30 Nevertheless, the Sentencing

20 18 U.S.C. § 3559(a)(1).
21 Id. § 3583(b).
22 Id.§ 3559(a)(2).
23 Id. § 3583(b).
24 Id. § 3559(a)(3).
25 Id. § 3583(b).
26 Id. § 3559(a)(4).
27 Id. § 3583(b).
28 Id. § 3559(a)(5)-(9).
29 Id. § 3583(b).
30 21 U.S.C. § 841(b) (“[A]ny person who violates subsection (a) of this section [prohibiting possession with intent to
distribute] shall be sentenced as follows: (1)(A) In the case of a violation of subsection (a) of this section involving– (i)
1 kilogram or more of . . . heroin; (ii) 5 kilograms or more of . . . (II) [powder] cocaine, . . . (iii) 280 grams or more of
. . . cocaine base [crack]; (iv) 100 grams or more of phencyclidine (PCP) . . . ; (v) 10 grams or more of . . . lysergic acid
diethylamide (LSD); . . . (vii) 1000 kilograms or more of . . . marihuana . . . ; or (viii) 50 grams or more of
methamphetamine[.] . . . Notwithstanding section 3583 of Title 18, any sentence under this subparagraph shall, in the
absence of such a prior conviction, impose a term of supervised release of at least 5 years in addition to such term of
imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 10 years in
addition to such term of imprisonment, . . . (B) In the case of a violation of subsection (a) of this section involving– (i)
100 grams or more of . . . heroin; (ii) 500 grams or more of . . . (II) [powder] cocaine, . . . (iii) 28 grams or more of . . .
cocaine base [crack]; (iv) 10 grams or more of phencyclidine (PCP) . . . ; (v) 1 gram or more of . . . lysergic acid
diethylamide (LSD); . . . (vii) 100 kilograms or more of . . . marihuana . . . ; or (viii) 5 grams or more of
methamphetamine[.] . . . Notwithstanding section 3583 of Title 18, any sentence imposed under this subparagraph
shall, in the absence of such a prior conviction, include a term of supervised release of at least 4 years in addition to
such term of imprisonment and shall, if there was such a prior conviction, include a term of supervised release of at
least 8 years in addition to such term of imprisonment[.] . . . (C) In the case of a controlled substance in schedule I or II
. . . except as provided in subparagraphs (A), (B), and (D)[.] . . . Notwithstanding section 3583 of Title 18, any sentence
imposing a term of imprisonment under this paragraph shall, in the absence of such a prior conviction, impose a term of
supervised release of at least 3 years in addition to such term of imprisonment and shall, if there was such a prior
conviction, impose a term of supervised release of at least 6 years in addition to such term of imprisonment. . . . (D) In
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Guidelines point out that the “safety valve” and “substantial assistance” provisions (18 U.S.C.
§§ 3553(e), (f)), which excuse the application of mandatory minimums in certain drug cases,
apply to the duration of supervised release.31
Similar mandatory minimum terms of supervised release apply in the case of kidnaping a child
and certain sex offenses.32 In those instances, the mandatory minimum is five years, regardless of
the triggering offense or the defendant’s criminal record.33 For federal “crimes of terrorism,” that
is, those listed in 18 U.S.C. § 2332b(g)(5)(B), the courts must impose a term of supervised release
of any term of years or life.34 The obligation applies regardless of whether the offense was

the case of less than 50 kilograms of marihuana, except in the case of 50 or more marihuana plants regardless of
weight, 10 kilograms of hashish, or one kilogram of hashish oil, such person shall, except as provided in paragraphs (4)
and (5) of this subsection[.] . . . Notwithstanding section 3583 of Title 18, any sentence imposing a term of
imprisonment under this paragraph shall, in the absence of such a prior conviction, impose a term of supervised release
of at least 2 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a
term of supervised release of at least 4 years in addition to such term of imprisonment. . . . (E)(i) . . . in the case of any
controlled substance in schedule III, . . . (iii) Any sentence imposing a term of imprisonment under this subparagraph
shall, in the absence of such a prior conviction, impose a term of supervised release of at least 2 years in addition to
such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at
least 4 years in addition to such term of imprisonment. (2) In the case of a controlled substance in schedule IV . . .
[a]ny sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior conviction,
impose a term of supervised release of at least one year in addition to such term of imprisonment and shall, if there was
such a prior conviction, impose a term of supervised release of at least 2 years in addition to such term of
imprisonment.”) (emphases added).
31 U.S.S.G. §5d1.2 cmt nn.2, 3 (“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 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).”). See generally CRS Report R41326, Federal
Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions, by Charles Doyle.
32 18 U.S.C. § 3583(k); see, e.g., United States v. Arbaugh, 951 F.3d 167, 171 (4th Cir. 2020).
33 18 U.S.C. § 3583(k).
34 18 U.S.C. § 3583(j). Section 2332b(g)(5)(B) lists a substantial number of federal offenses. Id. § 2332b(g)(5)(B) (“an
offense that– . . . (B) is a violation of– (i) section 32 (relating to destruction of aircraft or aircraft facilities), 37 (relating
to violence at international airports), 81 (relating to arson within special maritime and territorial jurisdiction), 175 or
175b (relating to biological weapons), 175c (relating to variola virus), 229 (relating to chemical weapons), subsection
(a), (b), (c), or (d) of section 351 (relating to congressional, cabinet, and Supreme Court assassination and kidnaping),
831 (relating to nuclear materials), 832 (relating to participation in nuclear and weapons of mass destruction threats to
the United States)[,] 842(m) or (n) (relating to plastic explosives), 844(f)(2) or (3) (relating to arson and bombing of
Government property risking or causing death), 844(i) (relating to arson and bombing of property used in interstate
commerce), 930(c) (relating to killing or attempted killing during an attack on a Federal facility with a dangerous
weapon), 956(a)(1) (relating to conspiracy to murder, kidnap, or maim persons abroad), 1030(a)(1) (relating to
protection of computers), 1030(a)(5)(A) resulting in damage as defined in 1030(c)(4)(A)(i)(II) through (VI) (relating to
protection of computers), 1114 (relating to killing or attempted killing of officers and employees of the United States),
1116 (relating to murder or manslaughter of foreign officials, official guests, or internationally protected persons), 1203
(relating to hostage taking), 1361 (relating to government property or contracts), 1362 (relating to destruction of
communication lines, stations, or systems), 1363 (relating to injury to buildings or property within special maritime and
territorial jurisdiction of the United States), 1366(a) (relating to destruction of an energy facility), 1751(a), (b), (c), or
(d) (relating to Presidential and Presidential staff assassination and kidnaping), 1992 (relating to terrorist attacks and
other acts of violence against railroad carriers and against mass transportation systems on land, on water, or through the
air), 2155 (relating to destruction of national defense materials, premises, or utilities), 2156 (relating to national defense
material, premises, or utilities), 2280 (relating to violence against maritime navigation), 2280a (relating to maritime
safety), 2281 through 2281a (relating to violence against maritime fixed platforms), 2332 (relating to certain homicides
and other violence against United States nationals occurring outside of the United States), 2332a (relating to use of
weapons of mass destruction), 2332b (relating to acts of terrorism transcending national boundaries), 2332f (relating to
bombing of public places and facilities), 2332g (relating to missile systems designed to destroy aircraft), 2332h
(relating to radiological dispersal devices), 2339 (relating to harboring terrorists), 2339A (relating to providing material
support to terrorists), 2339B (relating to providing material support to terrorist organizations), 2339C (relating to
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committed for terrorist purposes,35 but under the Sentencing Guidelines the extended duration is
limited to terrorism cases “which resulted in, or created a foreseeable risk of, death or serious
bodily injury to another person.”36
The court may terminate a defendant’s term of supervised release at any time after the defendant
has served a year on supervised release, based on the defendant’s conduct, the interests of justice,
and consideration of several of the general sentencing factors.37 The circuits are divided over
whether the court may dismiss such a petition out of hand or must explain its action.38

financing of terrorism), 2339D (relating to military-type training from a foreign terrorist organization), or 2340A
(relating to torture) of this title; (ii) sections 92 (relating to prohibitions governing atomic weapons) or 236 (relating to
sabotage of nuclear facilities or fuel) of the Atomic Energy Act of 1954 (42 U.S.C. 2122 or 2284); (iii) section 46502
(relating to aircraft piracy), the second sentence of section 46504 (relating to assault on a flight crew with a dangerous
weapon), section 46505(b)(3) or (c) (relating to explosive or incendiary devices, or endangerment of human life by
means of weapons, on aircraft), section 46506 if homicide or attempted homicide is involved (relating to application of
certain criminal laws to acts on aircraft), or section 60123(b) (relating to destruction of interstate gas or hazardous
liquid pipeline facility) of title 49; or (iv) section 1010A of the Controlled Substances Import and Export Act (relating
to narco-terrorism).”).
35 Section 3583(j) declares that “the authorized term of supervised release for any offense listed in section
2332b(g)(5)(B) is any term of years or life.” 18 U.S.C. § 3583(j). Section 2332b(g)(5) defines crimes of terrorism as
those (A) committed for a terrorist purpose and (B) those listed in 18 U.S.C. § 2332b(g)(5)(B). A crime is listed in
section 2332b(g)(5)(B) regardless of whether it is committed for the terrorist purposes identified in section
2332b(g)(5)(A). Of course, the same term applies when the offense is committed for a terrorist purpose, see, e.g.,
United States v. Wright, 747 F.3d 399, 407 (6th Cir. 2014).
36 U.S.S.G. § 5d1.2(B)(1).
37 18 U.S.C. § 3583(e) (“The court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B),
(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) . . . (1) terminate a term of supervised release and discharge the
defendant released at any time after the expiration of one year of supervised release, pursuant to the provisions of the
Federal Rules of Criminal Procedure relating to the modification of probation, if it is satisfied that such action is
warranted by the conduct of the defendant released and the interest of justice[.]”); United States v. Johnson, 529 U.S.
53, 60 (2000); United States v. Cordero, 7 F.4th 1058, 1071-72 (11th Cir. 2021); United States v. Hamilton, 986 F.3d
4135, 422-23 (4th Cir. 2021).
The sentencing factors the court must consider are: “(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence imposed . . . (B) to afford adequate deterrence to
criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with
needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; . .
. (4) the kinds of sentence and the sentencing range established for (A) the applicable category of offense committed
by the applicable category of defendant as set forth in the guidelines (i) issued by the Sentencing Commission
pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act
of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into
amendments issued under section 994(p) of title 28); and (ii) that, except as provided in section 3742(g), are in effect
on the date the defendant is sentenced; or (B) in the case of a violation of probation or supervised release, the
applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title
28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of
Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into
amendments issued under section 994(p) of title 28); (5) any pertinent policy statement (A) issued by the Sentencing
Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such
policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the
Sentencing Commission into amendments issued under section 994(p) of title 28); and (B) that, except as provided in
section 3742(g), is in effect on the date the defendant is sentenced[;] (6) the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to
provide restitution to any victims of the offense.”). 18 U.S.C. § 3553 (footnote omitted.
38 United States v. Johnson, 877 F.3d 993, 994–1000 (11th Cir. 2017) (per curiam) (district court must explain unless
its reasons are apparent from the record); United States v. Mathis-Gardner, 783 F.3d 1286, 1286–87 (D.C. Cir. 2015)
(district court need not explain if its reasons are discernable from the record); United States v. Emmett, 749 F.3d 817,
820 (9th Cir. 2014) (“A district court’s duty to explain its sentencing decisions must also extend to requests for early
termination of supervised release.”); id. at 820 n.1 (“Other circuits have reached conflicting results on this issue.
Compare United States v. Mosby, 719 F.3d 925, 931(8th Cir. 2013) (requiring no explanation), with United States v.
Lowe, 632 F.3d 996, 998 (7th Cir. 2011) (holding that ‘although a court need not make explicit findings as to each of
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A court may extend a defendant’s term of supervised release, unless the term has already run or
unless the court initially imposed the maximum permissible term.39
Conditions
Conditions for supervised release are determined during a federal defendant’s initial sentencing,
based on the nature of the offense, the defendant’s particular history, and other factors. When
determining applicable conditions, courts consider both federal statutory requirements and the
federal Sentencing Guidelines.40
There are mandatory and discretionary conditions for supervised release.
Mandatory Conditions
Section 3583 makes several conditions mandatory regardless of the crime of conviction, and a
few additional conditions mandatory in cases involving domestic violence or sex offenses. All
supervised release orders require defendants to:
 refrain from criminal activity;41
 forgo the unlawful possession of controlled substances;42
 refrain from the unlawful use of controlled stances and submit to periodic drug
tests;43
 cooperate with collection of DNA samples;44

the factors, the record must reveal that the court gave consideration to the § 3553(a) factors’), and United States v.
Gammarano, 321 F.3d 311, 315–16 (2d Cir. 2003) (requiring a statement that the court has considered the statutory
factors but not findings of fact).”).
39 18 U.S.C. § 3583(e) (“The court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B),
(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) . . . (2) extend a term of supervised release if less than the
maximum authorized term was previously imposed . . . at any time prior to the expiration or termination of the term of
supervised release[.]”); United States v. McCullock, 991 F.3d 313, 323 (1st Cir. 2021); United States v. Bobal, 981
F.3d 971, 977 (11th Cir. 2020); United Sates v. Rusnak, 981 F3d 697, 712 (9th Cir. 2020).
40 Although no longer binding, the Sentencing Guidelines remain a primary sentencing consideration. Gall v. United
States, 552 U.S. 38, 40–51 (2007). Those guidelines call for the sentencing court to calculate the applicable Guidelines
range, hear the views of the parties on sentencing, and consider the application statutory factors. The district court must
then make an “individualized assessment based on the facts presented” and justify a sentence outside the Guidelines
range. That sentence may be reviewed by an appellate court under an abuse-of-discretion standard, ensuring that the
district court did not make any significant procedural error and taking into account the totality of the circumstances.
41 18 U.S.C. § 3583(d); U.S.S.G. § 5D1.3(a)(1).
42 18 U.S.C. § 3583(d); U.S.S.G. § 5D1.3(a)(2).
43 18 U.S.C. § 3583(d) (“. . . The court shall also order, as an explicit condition of supervised release, that the defendant
refrain from any unlawful use of a controlled substance and submit to a drug test within 15 days of release on
supervised release and at least 2 periodic drug tests thereafter (as determined by the court) for use of a controlled
substance. The condition stated in the preceding sentence may be ameliorated or suspended by the court as provided in
section [3583(e)]. The results of a drug test administered in accordance with the preceding subsection shall be subject
to confirmation only if the results are positive, the defendant is subject to possible imprisonment for such failure, and
either the defendant denies the accuracy of such test or there is some other reason to question the results of the test. A
drug test confirmation shall be a urine drug test confirmed using gas chromatography/mass spectrometry techniques or
such test as the Director of the Administrative Office of the United States Courts after consultation with the Secretary
of Health and Human Services may determine to be of equivalent accuracy. The court shall consider whether the
availability of appropriate substance abuse treatment programs, or an individual's current or past participation in such
programs, warrants an exception in accordance with United States Sentencing Commission guidelines from the rule of
section 3583(g) when considering any action against a defendant who fails a drug test.”); U.S.S.G. § 5D1.3(a)(4).
44 18 U.S.C. § 3583(d); U.S.S.G. § 5D1.3(a)(8). DNA samples are collected from those convicted and imprisoned for a
federal offense, 34 U.S.C. § 40702; 28 C.F.R. § 28.12; see e.g., United States v. Diggles, 957 F.3d 551, 556 (5th Cir.
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 prior to release, agree to adhere to the payment schedule for any unpaid fine
imposed;45
 pay any remaining restitution and special assessment balances;46
 first-time domestic violence offenders must attend an approved rehabilitation
program if one is located within 50 miles of their residence; 47
 convicted sex offenders must register with relevant authorities if federal sex
offender registry requirements apply.48
The “no new crimes” condition encompasses offenses under federal, state, or local law.49
Notwithstanding the mandatory general “no new crimes” condition, supervised release comes
with two additional, specific mandatory conditions prohibiting the unlawful possession or use of
controlled substances.50
Section 3583(d) requires defendants, convicted for the first time of a federal crime of domestic
violence, to participate in an approved rehabilitation program, if one is available within 50 miles
of his residence.51 Here, a crime of domestic violence is one “in which the victim or intended
victim is the spouse, former spouse, intimate partner, former intimate partner, child, or former
child of the defendant, or other relative of the defendant.”52 The mandatory condition requires a
domestic violation conviction, but absent a conviction, evidence in the record may support a
corresponding discretionary condition.53
Regardless of the existence of a mandatory condition, if the court imposes no fines and no
restitution is ordered, the “pay your fines and restitution” conditions have no bearing.54 The
existence of the mandatory condition by itself may authorize a restitution order when it would
otherwise not have been possible.55

2020) (en banc) (replicating that portion of the Probation Officer’s Presentence Report (PSR) reciting the obligation to
cooperate with the collection of DNA samples).
45 18 U.S.C. § 3624(e). The statute, however, does not specify that such agreements will be enforced as conditions of
supervised release after the agreement is made. To fill this gap, the Sentencing Guidelines identify the payment of fines
and restitution as a mandatory condition of supervised release; U.S.S.G. § 5D1.3(a)(5) (“If a fine is imposed and has
not been paid upon release to supervised release, the defendant shall adhere to an installment schedule to pay that fine
(see 18 U.S.C. § 3624(e)).
46 Id. § 3583(d); U.S.S.G. § 5D1.3(a)(6) (“The defendant shall (A) make restitution in accordance with 18 U.S.C.
§§ 3663 and 3663A, or any other statute authorizing a sentence of restitution; and (B) pay the assessment imposed in
accordance with 18 U.S.C. § 3013. If there is a court-established payment schedule for making restitution or paying the
assessment . . . the defendant shall adhere to the schedule.”).
Courts impose “special assessments” upon conviction in amounts ranging from $5 to $100 for individual defendants
and up to $400 for organizations and other entities. Id. § 3013.
47 18 U.S.C. § 3583(d); U.S.S.G. § 5D1.3(a)(3);18 U.S.C. § 3561(b).
48 18 U.S.C. § 3583(d); U.S.S.G. § 5D1.3(a)(7).
49 Id. § 3583(d); U.S.S.G. § 5D1.3(a)(1).
50 18 U.S.C. § 3583(d) (possession); U.S.S.G. §§ 5D1.3(a)(2) (possession), 5D1.3(a)(4) (use).
51 18 U.S.C. § 3583(d); U.S.S.G. § 5D1.3(a)(3).
52 18 U.S.C. §§ 3583(d), 3561(b).
53 United States v. Gomez, 960 F.3d 173, 179 n.28 (5th Cir. 2020).
54 United States v. Strobel, 987 F.3d 743, 747 (7th Cir. 2021).
55 United States v. Adams, 955 F.3d 238, 250 (2d Cir. 2020) (“Adams is correct that the [district] court exceeded its
authority by ordering a part of the judgment to begin immediately, since neither 18 U.S.C. § 3663(a) nor 18 U.S.C.
§ 3663A permits restitution for Title 26 [tax] offenses. But as Adams himself concedes, district courts do have the
authority to order restitution as a condition of supervised release. Specifically, 18 U.S.C. § 3583(d) authorizes courts to
impose, as a condition of supervised release, any condition set forth as a discretionary condition of probation in section
3563(b). One such condition is the requirement that the defendant make restitution to the victim of the offense. 18
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In addition to serving as a mandatory condition of supervised release, failure to register as a sex
offender when required to do so may constitute a separate offense under some jurisdictional
circumstances.56
Discretionary Conditions
Courts have relatively broad discretion to impose other conditions of supervised release to
supplement the mandatory conditions. Section 3583(d) is specific about a few of these
discretionary conditions. For example, it states that a court may condition an alien’s supervised
release upon his deportation and remaining outside the United States,57 although the Sentencing
Guidelines recommend a limited exercise of the authority.58 Under this authority, the defendant’s
term of supervised release is “in fact unsupervised release with mandatory and standard
conditions and the special condition that [the defendant] not illegally re-enter the United
States.”59
Section 3583(d) also authorizes a court, in the case of an offender required to register as a sex
offender, to condition supervised release upon the offender’s submission to warrantless,
suspicionless searches by his probation officer, or with reasonable suspicion warrantless searches
by any law enforcement officer.60 The section adopts the statutory list of conditions for probation

U.S.C. § 3563(b)(2). Section 5E1.1 of the Sentencing Guidelines further states that ‘[I]n the case of an identifible
victim, the court shall . . . impose a term . . . supervised release with a condition requiring restitution for the full amount
of the victim’s loss even if the offense does not qualify for restitution under 18 U.S.C. § 3663(a). Thus, we have
repeatedly held that district courts may impose restitution in Title 26 cases as a condition of supervised release.”); but
see United States v. Delano, 981 F.3d 1136, 1139-40 (10th Cir. 2020) (“Courts have no inherent authority to order
restitution; they may only do so as authorized by statute. Under the VWPA [18 U.S.C. § 3663], Delano’s obligation to
pay restitution terminated in 2013, twenty years after he was sentenced for armed bank robbery. And, by its express
terms, the MVRA [18 U.S.C. § 3663A] cannot apply to him. Accordingly, the district court erred when it concluded the
MVRA authorized entry of an order requiring Delano to pay the outstanding balance of the restitution imposed in
1993.”) (failing to mention the 18 U.S.C. § 3563 probation provision nor Sentencing Guideline as authority for the
district court’s order).
56 18 U.S.C. § 2250. See generally CRS Report R42692, SORNA: A Legal Analysis of 18 U.S.C. §2250 (Failure to
Register as a Sex Offender), by Charles Doyle.
57 Id. § 3583(d) (“If an alien defendant is subject to deportation, the court may provide, as a condition of supervised
release, that he be deported and remain outside the United States, and may order that he be delivered to a duly
authorized immigration official for such deportation.”).
58 U.S.S.G. § 5D1.1(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.”); see also id. cmt, n. 5 (“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 additional measure of deterrence and protection based on
the facts and circumstances of a particular case.”).
59 United States v. Chavez-Morales, 894 F.3d 1206, 1208 n.1 (10th Cir. 2018); see also United States v. Hernandez-
Loera, 914 F.3d 621, 622-23 (8th Cir. 2019).
60 18 U.S.C. § 3583(d) (“. . . The court may order, as an explicit condition of supervised release for a person who is a
felon and required to register under the Sex Offender Registration and Notification Act, that the person submit his
person, and any property, house, residence, vehicle, papers, computer, other electronic communications or data storage
devices or media, and effects to search at any time, with or without a warrant, by any law enforcement or probation
officer with reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct by the
person, and by any probation officer in the lawful discharge of the officer’s supervision functions.”); see also U.S.S.G
§ 5D1.3(d)(7). In a district in which the warrantless search condition had become a standard condition, regardless of
whether the defendant was required to register as sex offender, one circuit court vacated the condition in the case of a
defendant convicted of extortion in which the district court had failed to indicate how the condition met the “reasonably
related” standard, see United States v. Farmer, 755 F.3d 849, 854 (7th Cir. 2014).
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as another source of discretionary conditions of supervised release.61 Finally, the section allows a
court to impose any other appropriate condition subject to the general limitations on discretionary
conditions of supervised release, i.e., the condition must be reasonably related to one of several
sentencing goals, it may involve no greater deprivation of liberty than is reasonably necessary to
accommodate those goals, and it must be consistent with Sentencing Guideline policy
statements.62
Limits on Discretionary Conditions
Thus, a court may impose a discretionary condition only if it (1) is “reasonably related” to
specified factors; (2) “involves no greater deprivation of liberty than is reasonably necessary”;
and (3) is “consistent with” policy statements issued by the U.S. Sentencing Commission.63
Reasonably Related
The threshold question for any discretionary condition of supervised release is whether it is
reasonably related to the offense, the defendant, increased public safety, or one of several other
sentencing factors.64 Factors to which the condition must be “reasonably related” include (1) the
nature and circumstances of the offense and the defendant’s history and character; (2) deterrence
of crime; (3) protection of the public; and (4) the defendant’s rehabilitation.65 Since a condition
may be reasonably related to a defendant’s history or to future protection of the public, it need not
be related to the offense for which supervised release was ordered.66 Yet “reasonably related” may

61 18 U.S.C. § 3583(d).
62 Id. (“The court may order, as a further condition of supervised release, to the extent that such condition (1) is
reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D); (2) involves no
greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C),
and (a)(2)(D); and (3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant
to 28 U.S.C. [§] 994(a); any condition set forth as a discretionary condition of probation in section 3563(b) and any
other condition it considers to be appropriate, provided, however that a condition set forth in subsection 3563(b)(10)
shall be imposed only for a violation of a condition of supervised release in accordance with section 3583(e)(2) and
only when facilities are available.”).
Section 3553(a) provides in pertinent part: “The court, in determining the particular sentence to be imposed, shall
consider (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the
need for the sentence imposed . . . (B) to afford adequate deterrence to criminal conduct; (C) to protect the public
from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner[.]”). 18 U.S.C. § 3553(a).
63 18 U.S.C. § 3583(d). The Sentencing Guidelines caption sections 5D1.3(c), (d), and (e) as “policy statement[s].” See,
e.g., U.S.S.G. § 5D1.3(c) (titled “ ‘Standard’ Conditions (Policy Statement)”).
64 18 U.S.C. § 3583(d) (incorporating by reference 18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D)).
65 Id. § 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(d); United States v. Bolin, 976 F.3d 202, 210 (2d Cir. 2020); United
States v. Morrison, 771 F.3d 687, 693 (10th Cir. 2014) (“[A] court may order . . . conditions of supervised release as
long as the conditions are ‘reasonably related’ to ‘the nature and circumstances of the offense and the history and
characteristics of the defendant,’ and 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.’ ”); United States v. Bell, 770 F.3d 1253,
1259 (9th Cir. 2014); United States v. Salazar, 743 F.3d 445, 452 (5th Cir. 2014) (A “condition that is not related to the
crime of conviction will nevertheless be upheld as long as it is justified by a defendant’s criminal history.”).
66 United States v. Taylor, 997 F.3d 1348, 1353 (11th Cir. 2021); United States v. Johnson, 756 F.3d 532, 540–41 (7th
Cir. 2014) (“We [have] reviewed our sister circuits’ decisions and concluded that ‘[t]he common theme of these
decisions is that sex-offender treatment is reasonably related . . . , even if the offense of conviction is not a sex offense,
as long as the sexual offenses are recent enough in the defendant’s history[.]’ ” (second set of brackets in original;
citation omitted)); United States v. Bainbridge, 746 F.3d 943, 951 (9th Cir. 2014) (“A condition of supervised release
does not have to be related to the offense of conviction because the sentencing judge is statutorily required to look
forward in time to crimes that may be committed in the future by the convicted defendant.” (citation omitted)).
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turn on the currency and seriousness of past misconduct.67 Although the statutory language
repeats the conjunction “and” between factors and thus appears on its face to require that a
particular condition relate to all, rather than just one, of these factors, courts have sometimes
interpreted the statute so that a reasonable relationship to any one factor is sufficient to justify a
discretionary condition.68
Unnecessary Deprivation of Liberty
The courts’ general discretionary authority to order conditions of supervised release is likewise
bound by the requirement that it “involve[] no greater deprivation of liberty than is reasonably
necessary” for the reasonably related purposes.69 The assessment is one of balancing. A
considerable deprivation of liberty will be considered justified, when a condition is clearly
reasonably related to a serious crime of conviction and a criminal history that cries out for close
supervision.70 At the other end of the spectrum, a serious deprivation of liberty will not be

67 United States v. Richards, 958 F.3d 961, 965 (10th Cir. 2020) (“Defendant’s prior drug and alcohol problems may
appear . . . remote in time. But these were not the only facts before the district court.”); United States v. Ford, 882 F.3d
1279, 1287 (10th Cir. 2018) (“‘[P]rior sex offenses can be too temporally remote for sex offender conditions of
supervised release to be reasonably related to the factors’ prescribed by § 3583.” (quoting United States v. Bear, 769
F.3d 1221, 1227 (10th Cir. 2014)); Johnson, 756 F.3d at 540–41; United States v. McLaurin, 731 F.3d 258, 264 (2d
Cir. 2013) (“A condition of supervised release must also be ‘reasonably related to the nature and circumstances of the
offense and the history and characteristics of the defendant.’ The charge to which McLaurin pleaded guilty was failure
to register as a sex offender in Vermont in 2011. . . . McLaurin did not hide his whereabouts; he purposefully informed
sex offender registry officials of his address in Vermont. His crime was failing to complete paperwork—albeit
important paperwork. His criminal history includes one other instance when he failed to register his move between two
Alabama counties. McLaurin’s only conviction for an actual sexual offense was for photographing his daughter topless
in 2001. Ten years passed between that offense and the instant failure to register, and McLaurin has not been convicted
or accused of any substantively sexual crime in that period. We fail to see any reasonable connection between the
defendant, his conviction more than a decade ago, his failure to fill out paperwork, and the government-mandated
measurement of his penis.”).
68 E.g., United States v. Taylor, 997 F.3d at 1353 (11th Cir. 2021) (noting that the condition need not be supported by
each of the sentencing factors); United States v. Perkins, 935 F.3d 63, 65 (2d Cir. 2019) (explaining a condition may
be supported by “any one” of the factors); United States v. Santiago, 769 F.3d 1, 9 (1st Cir. 2014) (“The conditions
must just be reasonably related to one or more of the goals of supervised release, i.e., the nature and circumstances of
the offense and the history and characteristics of the defendant, the need to deter criminal conduct, the need to protect
the public, and the needed training, care, or treatment of the defendant.”); United States v. Salazar, 743 F.3d 445, 451
(5th Cir. 2014) (“District courts have wide discretion in imposing special conditions of supervised release. First, such
conditions must be reasonably related to one of the following statutory 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; (iii) the need to protect the public from further crimes of the defendant; and (iv) the need to provide the
defendant with needed training, medical care, or other correctional treatment in the most effective manner. A condition
satisfies the requirements if it is reasonably related to any of the four factors.”) (internal citations omitted).
69 18 U.S.C. § 3583(d).
70 United States v. Ellis, 720 F.3d 220, 225–27 (5th Cir. 2013) (per curiam) (In the case of a defendant with a history of
child molestation, sentenced to a lifetime of supervised release, the court observed: “First, Ellis appeals the special
condition that he not ‘possess, have access to, or utilize a computer or internet connection device . . . without prior
approval of the court.’ . . . However, restrictions on Internet and computer use are often imposed in cases involving
child pornography, and this circuit has routinely upheld such restrictions. . . . Second, Ellis appeals the condition
requiring him to ‘have no contact with persons under the age of 18, including by correspondence, telephone, internet,
electronic communication, or through third parties.’ This circuit has affirmed bans on contact with children. Ellis’s ban
does not contain an exception for permitted contact and is, along with the other conditions, for life. Importantly,
however, it references activities by which Ellis could initiate and carry on regular contact with children. By contrast,
the condition in the subsequent paragraph, which prohibits ‘unsupervised contact . . . at any location’ without
permission, makes clear that Ellis may in fact request permission from his probation officer for incidental contact in
locations such as his place of work should the need arise. Third, Ellis appeals the condition that prohibits him from
‘access to or loiter[ing] near school grounds, parks, arcades, playgrounds, amusement parks, or other places where
children may frequently congregate’ and from ‘seek[ing] or maintain[ing] employment or volunteer work at any
location . . . where persons under the age of 18 congregate, without prior permission of the probation officer.’ Although
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considered justified, when the connection between the condition and the defendant’s crime and
his past is tenuous.71 Between the two poles, some courts see the standard as “a narrow tailoring
requirement,” one that compels the district court to “choose the least restrictive alternative.”72
Consistent with Guidelines’ Policy Statements
The third discretionary condition requirement, that it be consistent with pertinent Sentencing
Guidelines policy statements. The Sentencing Commission has captioned the sentencing
guidelines for standard conditions, special conditions, and additional conditions—“policy
statements,” i.e., conditions must be consistent with Guideline requirements.73
Three Classes of Discretionary Conditions
The Sentencing Guidelines quote some of the statutorily identified discretionary conditions,
suggest expanded versions of others, and propose additional considerations in still other
situations.74 They divide the discretionary conditions into three groups—Thirteen “standard”
conditions, which courts impose as a matter of practice in most cases;75 eight “special” conditions
that may be applied to particular kinds of cases;76 and six “additional” conditions.77 When a court
elects to impose a discretionary condition of supervised release, it must refer to the condition
during the pronouncement of sentence.78

it is true there is no evidence Ellis targeted children in public places, his crime and the evidence of past molestation is
sufficient reason for the district court to be concerned with his access to children absent permission. . . . Fourth, Ellis
appeals as not related to public safety the condition that he not ‘date or befriend anyone who has children under the age
of 18, without prior permission of the probation officer.’ This restriction is reasonably related to public safety because
‘Congress has made clear that children . . . are members of the public it seeks to protect.’ Even though the conditions
contain separate restrictions on contact with minors, the evidence showed Ellis has a proclivity to use close
relationships to reach children. . . . Therefore, restricting his contact with other adults who have minor children is
related to public safety. . . . In addition, Ellis appeals on the ground that the cumulative effect of all these conditions is a
greater depravation of liberty than necessary. . . . [S]ince we have determined that none of these conditions are
unreasonable, their cumulative effect is not unreasonable.”) (internal citations and footnote omitted; last set of brackets
added).
71 United States v. Bear, 769 F.3d 1221, 1229 (10th Cir. 2014) (“When the liberty interest at issue is substantial, such as
a parent’s right to have contact with his child, a challenged condition will be subject to strict scrutiny.); United States v.
Ramos, 763 F.3d 45, 64 (1st Cir. 2014) (“A condition with no basis in the record or with only the most tenuous basis,
will inevitably violate 18 U.S.C. § 358[3](d)(2)’s command that such conditions involve no greater deprivation of
liberty than is reasonably necessary.”) (citation omitted); Johnson, 756 F.3d at 540–41; United States v. Wolf Child,
699 F.3d 1082, 1099 (9th Cir. 2012).
72 United States v. Hamilton, 986 F.3d 413, 420 (4th Cir. 2021) (“There must be some tailoring of the condition to the
case.”); United States v. Bolin, 976 F.3d 202, 214 (“If the liberty interest at stake is fundamental, a deprivation of that
liberty is ‘reasonably necessary’ only if the deprivation is narrowly tailored to serve a compelling government
interest.”); United States v. Malenya, 736 F.3d 554, 559 (D.C. Cir. 2013) (citing in accord United States v. Holm, 326
F.3d 872, 877 (7th Cir. 2003)); but see United States v. Santiago, 769 F.3d 1, 9 (1st Cir. 2014) (“With respect to
conditions of supervised release, the ‘hallmark’ that separates the permissible from the impermissible is whether, given
the facts, a certain restriction was ‘clearly unnecessary.’ ”).
73 U.S.S.G. §§ 5D1.3(c), (d), (e). United States v. Hinojosa, 956 F.3dn 331, 334 (5th Cir. 2020)(“[T]hat section of the
Guidelines is a policy statement, so the condition need only be ‘consistent’ with it.”); see also United States v. Perkins,
935 F.3d 63, 65-66 (2d Cir. 2019) (noting that binding policy statements may be found in the application notes of the
Sentencing Guidelines in U.S.S.G. § 5D1.3).
74 U.S.S.G. § 5D1.3. The Sentencing Commission substantially amended section 5D1.3 effective November 1, 2016.
81 Fed. Reg. 27,262 (May 5, 2016).
75 U.S.S.G. § 5D1.3(c).
76 U.S.S.G. § 5D1.3(d).
77 U.S.S.G. § 5D1.3(e).
78 United States v. Singletary, 984 F.3d 341, 345 (4th Cir. 2021) (“To reiterate, under Rogers, in order to sentence a
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Standard Discretionary Conditions
For the most part, the Sentencing Guidelines’ standard conditions replicate or build upon the
probation conditions or statutory conditions of supervised release. Courts regularly impose the
Sentencing Guidelines’ standard conditions as a matter of practice.79 Many of these conditions
relate to the defendants relationship with their probation officers. The standard conditions require
that a defendant:
 report to the probation office upon release from prison;80
 follow instructions relating to reporting to a probation officer;81
 refrain from leaving the judicial district without permission;82
 answer the probation officer’s questions truthfully;83
 live in an approved residence and notify the probation officer of moves;84
 allow probation officer visits and permit the officer to seize prohibited items
found in plain sight;85
 secure or seek full-time employment;86
 avoid communications or contact with convicted felons or anyone engaged in
criminal activity;87

defendant to a non-mandatory condition of supervised release, the sentencing court must include that condition in its
oral pronouncement of a defendant’s sentence in open court.” (citing United States v. Rogers, 961 F.3d 291, 296 (4th
Cir. 2020)); United States v. Garcia, 983 F.3d 820, 822 (5th Cir. 2020).
79 United States v. Truscello, 168 F.3d 61, 63 (2d Cir. 1999) (“[B]ecause the so-called ‘standard conditions’ [of
U.S.S.G. § 5D1.3(c)] imposed in this case are ‘basic administrative requirement[s] essential to the functioning of the
supervised release system,’ they are almost uniformly imposed by the district courts and have become boilerplate.”)
(internal citation omitted; alteration in original).
80 U.S.S.G. § 5D1.3(c)(1) (“The defendant shall report to the probation office in the federal judicial district where he or
she is authorized to reside within 72 hours of the time the defendant was sentenced, unless the probation officer
instructs the defendant to report to a different probation office or within a different time frame.”).
81 U.S.S.G. § 5D1.3(c)(2) (“After initially reporting to the probation office, the defendant will receive instructions from
the court or the probation officer about how and when to report to the probation officer, and the defendant shall report
to the probation officer as instructed.”).
82 U.S.S.G. § 5D1.3(c)(3) (“The defendant shall not knowingly leave the federal judicial district where he or she is
authorized to reside without first getting permission from the court or the probation officer.”).
83 U.S.S.G. § 5D1.3(c)(4) (“The defendant shall answer truthfully the questions asked by the probation officer.”).
84 U.S.S.G. § 5D1.3(c)(5) (“The defendant shall live at a place approved by the probation officer. If the defendant plans
to change where he or she lives or anything about his or her living arrangements (such as the people the defendant lives
with), the defendant shall notify the probation officer at least 10 days before the change. If notifying the probation
officer at least 10 days in advance is not possible due to unanticipated circumstances, the defendant shall notify the
probation officer within 72 hours of becoming aware of a change or expected change.”).
85 U.S.S.G. § 5D1.3(c)(6) (“The defendant shall allow the probation officer to visit the defendant at any time at his or
her home or elsewhere, and the defendant shall permit the probation officer to take any items prohibited by the con-
ditions of the defendant’s supervision that he or she observes in plain view.”).
86 U.S.S.G. § 5D1.3(c)(7) (“The defendant shall work full time (at least 30 hours per week) at a lawful type of
employment, unless the probation officer excuses the defendant from doing so. If the defendant does not have full-time
employment he or she shall try to find full-time employment, unless the probation officer excuses the defendant from
doing so. If the defendant plans to change where the defendant works or anything about his or her work (such as the
position or the job responsibilities), the defendant shall notify the probation officer at least 10 days before the change.
If notifying the probation officer at least 10 days in advance is not possible due to unanticipated circumstances, the
defendant shall notify the probation officer within 72 hours of becoming aware of a change or expected change.”).
87 U.S.S.G. § 5D1.3(c)(8) (“The defendant shall not communicate or interact with someone the defendant knows is
engaged in criminal activity. If the defendant knows someone has been convicted of a felony, the defendant shall not
knowingly communicate or interact with that person without first get-ting the permission of the probation officer.”).
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 notify the probation officer of arrest or police questioning;88
 refrain from possession of firearms or dangerous weapons;89
 avoid becoming an informant without permission;90
 notify third parties of risks posed by the defendant upon the probation officer’s
determination;91
 adhere to the probation officer’s instructions concerning the conditions of
release.92
At one time, the territorial condition barred the defendant from leaving the “jurisdiction” without
permission, which some considered vague; use of the term “federal judicial district” removes
some of the uncertainty,93 as does addition of the word “knowingly” to the traditional formula.94
The “answer your probation officer truthfully” condition might appear to raise questions
concerning the defendant’s privilege against self-incrimination. The Fourth Circuit Court of
Appeals, however, has rejected that suggestion for two reasons. First, “a person seeking to invoke
the Fifth Amendment privilege against self-incrimination generally must assert the privilege
rather than answer [the probation officer’s question].’95 Second, the privilege is not implicated
unless the statement is used in criminal proceedings, and supervised release revocation
proceedings are not criminal proceedings.96
Defendants have found little more availing the suggestion that the Fourth Amendment’s
reasonable search and seize requirements undermine the “allow probation officer visits and plain
sight seizures” condition. The standard condition applies “at any time at home or elsewhere.”97 At
one time, the Seventh Circuit indicated that this was a bit too sweeping. 98 The Sentencing
Commission later rejected the Seventh Circuit’s view and left the wording of the standard
unchanged.99 The Commission explained that “in some circumstance[s], adequate supervision of
defendants may require probation officers to have the flexibility to visit defendants at off-hours,

88 U.S.S.G. § 5D1.3(c)(9) (“If the defendant is arrested or questioned by a law enforcement officer, the defendant shall
notify the probation officer within 72 hours.”).
89 U.S.S.G. § 5D1.3(c)(10) (“The defendant shall not own, possess, or have access to a firearm, ammunition,
destructive device, or dangerous weapon (i.e., anything that was designed, or was modified for, the specific purpose of
causing bodily injury or death to another person, such as nunchakus or tasers).”).
90 U.S.S.G. § 5D1.3(c)(11) (“The defendant shall not act or make any agreement with a law enforcement agency to act
as a confidential human source or informant without first getting the permission of the court.”).
91 U.S.S.G. § 5D1.3(c)(12) (“If the probation officer determines that the defendant poses a risk to another person
(including an organization), the probation officer may require the defendant to notify the person about the risk and the
defendant shall comply with that instruction. The probation officer may contact the person and confirm that the
defendant has notified the person about the risk.”). See United States v. Rasheed, 981 F.3d 187, 199 (2d Cir. 2020)
(noting that the standard “risk-notification” condition is an impermissible delegation); United States v. Cabral, 926 F.3d
687, 699 (10th Cir. 2019) (“Because the risk-notification condition, as imposed by the district court, grants Mr.
Cabral’s probation officer decision-making authority that could infringe on a wide variety of liberty interests, it is
improper delegation of judicial power.”); but see United States v. Janis, 995 F.3d 647, 717 (8th Cir. 2021) (“. . . the
condition is not an impermissible delegation of authority.”).
92 U.S.S.G. § 5D1.3(c)(13) (“The defendant shall follow the instructions of the probation officer related to the
conditions of supervision.”).
93 See United States v. Collins, 939 F.3d 892, 896–97 (7th Cir, 2019).
94 Unted States v. Gawron, 929 F.3d 473, 477-78 (7th Cir. 2019).
95 United States v. Riley, 920 F.3d 200, 204 (4th Cir. 2019).
96 Id. at 205; United States v. Ka, 982 F.3d 218, 221-22 (4th Cir. 2020).
97 U.S.S.G. § 5D1.3(c)(6).
98 United States v. Peyton, 959 F.3d 654, 657 (5th Cir. 2020) (listing Seventh Circuit cases).
99 Id. at 657 (citing U.S. Sentencing Guidelines Manual, supp. to app. C at 168, 162 (2016)).
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at their workplaces, and without advance notice to the supervisee.”100 Assessing the standard
condition, one court pointed out that “[t]he liberty rights of parolee . . . are limited compared to
an average citizen.”101 A special discretionary condition available in sex offender cases calls for
even more expanded search authority,102 and may be applied in appropriate cases involving other
offenses.103
An earlier version of the “risk notification” condition faced vagueness challenges,104 which some
courts suggested might be overcome by having the probation officer identify the specific risks
posed to specific victims by the defendant’s criminal record.105 Other courts foresaw delegation
problems in the solution.106
Special Discretionary Conditions
The conditions which the statute refers to as “other” discretionary conditions, the Sentencing
Guidelines divides into “special” and “additional” discretionary conditions.107 The so-called
special discretionary conditions address case-specific factors, such as the nature of an offense, the
defendant’s character, or another condition contained in a defendant’s sentence. For example,
when a conviction is for a sex offense, a court might mandate sex-offender treatment, limit
computer use, or authorize warrantless searches of the defendant’s possessions by a law
enforcement officer on reasonable suspicion or by a probation officer.108 Other special conditions
based on a particular defendant’s character or history include requiring participation in a drug or
mental health treatment program based on a history of substance abuse or mental health
problems;109 or ordering deportation if the defendant is an alien who is eligible for deportation
under immigration laws.110
In cases involving financial offenses, unpaid fees, or restitution orders, the Sentencing Guidelines
recommend that a court prohibit a defendant from incurring new credit charges, or opening
additional lines of credit without approval of the probation officer unless the defendant is in

100 Id. at 657-68 (quoting U.S. Sentencing Guidelines Manual, supp. to app. C at 171 (2016)).
101 Id. at 658 (citing United States v. Windling, 817 F.3d 910, 916 (5th Cir. 2016)).
102 U.S.S.G. § 5D1.3(d)(7) (“If the instant offense of conviction is a sex offense, as defined in Application Note 1 of the
Commentary to §5D1.2 (Term of Supervised Release)* . . . (C) A condition requiring the defendant to submit to a
search, at any time, with or without a warrant, and by any law enforcement or probation officer, of the defendant’s
person and any property, house, residence, vehicle, papers, computer, other electronic communication or data storage
devices or media, and effects, upon reasonable suspicion concerning a violation of a condition of probation or unlawful
conduct by the defendant, or by any probation officer in the lawful discharge of the officer’s supervision functions.”).
103 United States v. Sterling, 959 F.3d 855, 862 (8th Cir. 2020).
104 United States v. Gipson, 998 F.3d 415, 422 (9th Cir. 2021) (citing United States v. Hill, 818 F.3d 342, 345 (7th Cir.
2016); United States v. Evans, 883 F.3d 1154, 1163 (9th Cir. 2018).
105 Gipson, 998 F.3d at 422; United States v. Magdirila, 962 F.3d 1152, 1159 (9th Cir. 2020).
106 United States v. Cabral, 926 F.3d 687, 697, 699 (10th Cir. 2019) (“Article III of the United States Constitution
confers the authority to impose punishment on the judiciary, and the judiciary may not delegate that authority to a
nonjudicial officer. . . . By tasking Mr. Cabral’s probation officer with determining whether Mr. Cabral poses a ‘risk’ to
others . . . and requiring Mr. Cabral to comply with any order to notify someone of any such risk, the district court
delegated broad decision-making authority to the probation officer that could implicate a variety of liberty interests. . . .
Because the risk-notification condition . . . grants Mr. Cabral’s probation officer decision-making authority that could
infringe on a wide variety of liberty interests, it is an improper delegation of judicial power.”).
107 U.S.S.G. § 5D1.3(d), (e).
108 Id. § 5D1.3(d)(7).
109 U.S.S.G. § 5D1.3(d)(4).
110 U.S.S.G. § 5D1.3(d)(6).
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compliance with his scheduled payments, or mandating the probation officers’ access to a
defendant’s financial information.111
More specifically, the eight special conditions include requirements that direct the defendant to:
 support his dependents;112
 satisfy his debt obligations;113
 provide the probation officer with financial information;114
 abstain from controlled substances and alcohol and participate in a substance
abuse treatment program;115
 participate in a mental health program;116
 adhere to deportation requirements;117
 participate in a sex offender treatment program; refrain from computer use;
submit to searches;118

111 Id. § 5D1.3(d)(2), (3), (8).
112 U.S.S.G. § 5D1.3(d)(1) (“(A) If the defendant has one or more dependents — a condition specifying that the
defendant shall support his or her dependents. (B) If the defendant is ordered by the government to make child support
payments or to make payments to support a person caring for a child — a condition specifying that the defendant shall
make the payments and comply with the other terms of the order.”).
113 U.S.S.G. § 5D1.3(d)(2) (“If an installment schedule of payment of restitution or a fine is imposed — a condition
prohibiting the defendant from incurring new credit charges or opening additional lines of credit without approval of
the probation officer unless the defendant is in compliance with the payment schedule.”).
114 U.S.S.G. § 5D1.3(d)(3) (“If the court imposes an order of restitution, forfeiture, or notice to victims, or orders the
defendant to pay a fine — a condition requiring the defendant to provide the probation officer access to any requested
financial information.”).
115 U.S.S.G. § 5D1.3(d)(4) (“If the court has reason to believe that the defendant is an abuser of narcotics, other
controlled substances or alcohol — (A) a condition requiring the defendant to participate in a program approved by the
United States Probation Office for substance abuse, which program may include testing to determine whether the
defendant has reverted to the use of drugs or alcohol; and (B) a condition specifying that the defendant shall not use or
possess alcohol.”). E.g., United States v. Hinojosa, 956 F.3d 331, 334–35 (5th Cir. 2020) (“[J]ust two years before his
arrest, Hinojosa used cocaine; he’d used marihuana earlier in life; and he was being sentenced for offenses that
involved large quantities of drugs. . . . The testing condition is therefore related to, among other things, ‘the nature and
circumstances’ of [Hinojosa’s] offense,’ his personal ‘history and characteristics,’ and ‘the need . . . to afford adequate
deterrence.’ ”) (quoting 18 U.S.C. § 3553(a)); see also United States v. Vigil, 989 F.3d 406, 410 (5th Cir. 2021)
(finding no abuse of discretion in “the imposition of ‘no alcohol’ conditions when there was evidence in the record that
the defendant abused controlled substances, even absent evidence that the defendant had a history of abusing alcohol
specifically.”); United States v. Miller, 978 F.3d 746, (10th Cir. 2020) (holding that the court may not delegate to the
probation officer the decision of how many drug tests the defendant is required take as a condition of supervised
release).
116 U.S.S.G. § 5D1.3(d)(5) (“If the court has reason to believe that the defendant is in need of psychological or
psychiatric treatment — a condition requiring that the defendant participate in a mental health program approved by the
United States Probation Office.
117 U.S.S.G. § 5D1.3(d)(6) (”If (A) the defendant and the United States entered into a stipulation of deportation
pursuant to section 238(c)(5) of the Immigration and Nationality Act (8 U.S.C. § 1228(c)(5)[ So in original. Probably
should be 8 U.S.C. § 1228(d)(5).]; or (B) in the absence of a stipulation of deportation, if, after notice and hearing
pursuant to such section, the Attorney General demonstrates by clear and convincing evidence that the alien is
deportable — a condition ordering deportation by a United States district court or a United States magistrate judge.”).
118 U.S.S.G. § 5D1.3(d)(7) (“If the instant offense of conviction is a sex offense, as defined in Application Note 1 of
the Commentary to §5D1.2 (Term of Supervised Release)* -- (A) A condition requiring the defendant to participate in
a program approved by the United States Probation Office for the treatment and monitoring of sex offenders. (B) A
condition limiting the use of a computer or an interactive computer service in cases in which the defendant used such
items. (C) A condition requiring the defendant to submit to a search, at any time, with or without a warrant, and by any
law enforcement or probation officer, of the defendant’s person and any property, house, residence, vehicle, papers,
computer, other electronic communication or data storage devices or media, and effects, upon reasonable suspicion
concerning a violation of a condition of probation or unlawful conduct by the defendant, or by any probation officer in
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 notify the probation officer of a change in economic circumstances.119
“[A] outright ban on [a defendant]’s internet access cannot be sustained under § 3583(d)(1)’s
‘reasonably related’ requirement absent some evidence linking his offense or criminal history to
unlawful use of the internet.”120 Nevertheless, the courts may sustain a condition imposing broad
restrictions when (1) “‘the defendant used the internet in the[ir] underlying offense’”; (2) “‘the
defendant had a history of improperly using the internet to engage in illegal conduct’”; and (3)
‘“particular and identifiable characteristics of the defendant suggested that a restriction was
warranted.’”121
Restrictions on a defendant’s access to legal pornography are permissible “where the district
court adequately explains why they are appropriate, and the record supports such a finding,” but
are otherwise impermissible particularly when coupled with a restriction on visiting locations
where it is likely to be found.122
The special substance abuse condition prohibiting the use of intoxicating substances may include
a ban on consumption of alcohol even when the only substance abuse on the record involves
controlled substances.123

the lawful discharge of the officer’s supervision functions.”). * “‘Sex offense’ means (A) an offense, perpetrated
against a minor, under (i) chapter 109A of title 18, United States Code [relating to sexual abuse]; (ii) chapter 110 of
such title [relating to sexual exploitation of children], not including a recordkeeping offense; (iii) chapter 117 of such
title [relating to transportation for illegal sexual activity], not including transmitting information about a minor or filing
a factual statement about an alien individual; (iv) an offense under 18 U.S.C. § 1201 [relating to kidnaping]; or (v) an
offense under 18 U.S.C. § 1591[relating commercial sex trafficking]; or (B) an attempt or a conspiracy to commit any
offense described in subdivisions (A)(i) through (v) of this note. Such term does not include an offense under 18 U.S.C.
§ 2250 (Failure to register).” See United States v. Ellis, 984 F.3d 1092, 1102 (4th Cir. 2021) (“Ultimately, on this
record, the district court’s ban on legal pornography cannot be sustained as ‘reasonably related’ under § 3583(d)(1) and
is overbroad under§ 3583(d)(2). . . . We first conclude that an outright ban on Mr. Ellis’s internet access cannot be
sustained under § 3583(d)(1)‘s ‘reasonably related’ requirement absent some evidence linking his offense or criminal
history to unlawful use of the internet.”); United States v. Koch, 978 F.3d 719, (10th Cir. 2020) (characterizing as plain
error the district court’s failure to explain how a condition restricting access to sexually oriented (but non-pornographic
material) would aid in rehabilitation or protect the public); United States v. Hathorn, 920 F.3d 982, 984–87 (5th Cir.
2019).
119 U.S.S.G. § 5D1.3(d)(8) (“If the defendant has any unpaid amount of restitution, fines, or special assessments, the
defendant shall notify the probation officer of any material change in the defendant’s economic circumstances that
might affect the defendant’s ability to pay.”). E. g., United States v. Hart, 829 F.3d 606, 609–10 (8th Cir. 2016)
(holding record supported imposing financial conditions); United States v. Sherwood, 850 F.3d 391, 395–97 (8th Cir.
2017) (holding the district court abused its discretion by imposing financial conditions without explanation or notice
and inconsistent with circuit precedents).
120 United States v. Ellis, 984 F.3d 1092, 1101 (4th Cir. 2021) (citing in accord United States v. Eaglin, 913 F.3d 88,
95-99 (2d Cir. 2019); United States v. Ramos, 763 F.3d 45, 61-62 (1st Cir. 2014); United States v. Baker, 755 F.3d
515, 525-26 (7th Cir. 2014); United States v. Burroughs, 613 F.3d 233, 242-43 (D.C. Cir. 2010)).
121 United States v. Comer, 5 F.4th 535, 546 (4th Cir. 2021) (quoting United States v. Hamilton, 986 F.3d 413, 421-22
(4th Cir. 2021) (“adopting factors articulated by the First Circuit in United States v. Perazza-Mercado, 553 F.3d 65, 70
(1st Cir. 2009)”).
122 Ellis, 984 F.3d at 1101-102 (“[P]ornography restrictions necessarily encompass various materials that enjoy First
Amendment protection. . . . Restricting [a defendant] from being physically present in any location where such material
could be accessed amounts to a dramatic restriction of liberty. . . . Ultimately, on the record, the district court’s ban on
legal pornography cannot be sustained under § 3583(d)(1) and is overbroad under § 3583(d)(2).”).
123 United States v. Vigil, 989 F.3d 406, 409-11 (9th Cir. 2021).
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Additional Discretionary Conditions
The Sentencing Guidelines identify other, “additional” conditions which address a defendant’s
mobility and work activities. They include community confinement;124 home detention;125
community service;126 curfew;127 and restrictions on a defendant’s occupation.128
Perhaps because many additional conditions restrict a defendant’s freedom of movement,
commentary accompanying these additional conditions in the Sentencing Guidelines shows a
special caution that such restrictions not become excessive. For example, the commentary advises
that “[c]ommunity confinement generally should not be imposed for a period in excess of six
months,” although “[a] longer period may be imposed to accomplish the objectives of a specific
rehabilitative program, such as drug rehabilitation.”129 Likewise, it limits community service
conditions to no more than 400 hours.130
The inventory of additional conditions relates to:
 community confinement;131
 home detention;132
 community service;133

124 U.S.S.G. § 5D1.3(e)(1).
125 Id. § 5D1.3(e)(2).
126 Id. § 5D1.3(e)(3).
127 Id. § 5D1.3(e)(5)
128 U.S.S.G. § 5D1.3(e)(4). See United States v. Farmer, 755 F.3d 849, 854 (7th Cir. 2014) (finding that the district
court failed to justify a condition that the defendant refrain from self-employment).
129 U.S.S.G. § 5F1.1.
130 Id. § 5D1.3(e)(3). For community service, the guidelines justify the time limitation in part on the heavy
administrative burden that would likely arise from periods of community service greater than 400 total hours. Id. §
5F1.3 cmt. n.1.
131 U.S.S.G. § 5D1.3(e)(1). (“Residence in a community treatment center, halfway house or similar facility may be
imposed as a condition of supervised release. See §5F1.1 (Community Confinement).”). See also United States v. Bahe,
201 F.3d 1124, 1127–36 (9th Cir. 2000); United States v. Griner, 358 F.3d 979, 982 (8th Cir. 2004); United States v.
D’Amario, 412 F.3d 253, 256 (1st Cir. 2005) (per curiam); United States v. Del Barrio, 427 F.3d 280, 283 (5th Cir.
2005). The Sentencing Guidelines’ commentary defines “community confinement” as “residence in a community
treatment center, halfway house, restitution center, mental health facility, alcohol or drug rehabilitation center, or other
community facility; and participation in gainful employment, employment search efforts, community service,
vocational training, treatment, educational programs, or similar facility-approved programs during non-residential
hours.” U.S.S.G. § 5F1.1 cmt. n.1
132 U.S.S.G. § 5D1.3(e)(2). (“Home detention may be imposed as a condition of supervised release, but only as a
substitute for imprisonment. See § 5F1.2 (Home Detention).”). The Sentencing Guidelines’ commentary defines “home
detention” as “a program of confinement and supervision that restricts the defendant to his place of residence
continuously, except for authorized absences, enforced by appropriate means of surveillance by the probation office.
When an order of home detention is imposed, the defendant is required to be in his place of residence at all times
except for approved absences for gainful employment, community service, religious services, medical care, educational
or training programs,” and at such other times as may be specifically authorized. Id. § 5F1.2 cmt. n.1. It further declares
first that “the court may impose other conditions of probation or supervised release appropriate to effectuate home
detention. If the court concludes that the amenities available in the residence of a defendant would cause home
detention not be sufficiently punitive, the court may limit the amenities available. Id. § 5F1.2 cmt. n.2. Then it adds,
“The defendant’s place of residence, for purposes of home detention, need not be the place where the defendant
previously resided. It may be any place of residence, so long as the owner of the residence (and other person(s)), from
whom consent is necessary, agrees to any conditions that may be imposed by the court, e.g., conditions that a
monitoring system be installed, that there will no ‘call forwarding,’ or “call waiting’ services or that there will be no
cordless telephones or answering machines.” Id. § 5F1.2 cmt. n.3.
133 U.S.S.G. § 5D1.3(e)(3). (“Community service may be imposed as a condition of supervised release. See §5F1.3
(Community Service).”). The application note accompanying section 5F1.3 states that “Community service generally
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 occupational restrictions;134
 curfew;135
 intermittent confinement.136
Modification and Revocation
Although it first considers supervised release when it initially sentences a defendant, a court
retains an important decision-making function, and broad discretion, throughout a defendant’s
term of supervised release. In addition to early termination of a defendant’s term of supervised
release, a court may modify supervised release conditions at any time, or revoke a defendant’s
term of supervised release, require him to return to prison for an additional term of imprisonment

should not be imposed in excess of 400 hours. Longer terms of community service impose heavy administrative
burdens relating to the selection of suitable placements and the monitoring of attendance.” See United States v. Perkins,
935 F.3d 63, (2d Cir. 2019) (finding the district abuse its discretion when it imposed three years of supervised release
conditioned on service of 300 hours of community service per year in light of the Sentencing Guidelines
recommendation and the district court’s failure to show a specific nexus between the sentencing factors and the
community service imposed).
134 U.S.S.G. § 5D1.3(e)(4). (“Occupational restrictions may be imposed as a condition of supervised release. See
§5F1.5 (Occupational Restrictions).”); United States v. Hamilton, 986 F.3d 413, 419 (4th Cir. 2021) (Finding
overbroad and “lack[ing] a sufficient nexus to the nature and circumstances of the offense, a condition that ban any
employment without the prior approval of the probation officer.). U.S.S.G. § 5F1.5 states, “(a) The court may impose a
condition of probation or supervised release prohibiting the defendant from engaging in a specified occupation,
business, or profession, or limiting the terms on which the defendant may do so, only if it determines that: (1) a
reasonable direct relationship exists between the defendant’s occupation, business, or profession and the conduct
relevant to the offense of conviction; and (2) imposition of such a restriction is reasonably necessary to protect the
public because there is reason to believe that, absent such restriction, the defendant will continue to engage in unlawful
conduct similar to that for which the defendant was convicted. (b) If the court decides to impose a condition of
probation or supervised release restricting a defendant’s engagement in a specified occupation, business, or profession,
the court shall impose the condition for the minimum time and to the minimum extent necessary to protect the public.”
135 U.S.S.G. § 5D1.3(e)(5). (“A condition imposing a curfew may be imposed if the court concludes that restricting the
defendant to his place of residence during evening and nighttime hours is necessary to protect the public from crimes
that the defendant might commit during those hours, or to assist in the rehabilitation of the defendant, Electronic
monitoring may be used as a means of surveillance to ensure compliance with a curfew order.”). See, e.g., United
States v. Degroate, 940 F.3d 167176-77 (2d Cir. 2019) (holding that the district court did not abuse its discretion when
it imposed a curfew but allowed the probation officer to set the curfew’s starting date and nighty duration); United
States v. Bell, 915 F.3d 574, 578 (8th Cir. 2019) (lower court abused its discretion by imposing a curfew as a condition
of supervised release without a showing that it was reasonably related); United States v. Quiñones-Otero, 869 F.3d 49,
52 (1st Cir. 2017) (upholding a curfew as an appropriate condition of supervised release for protection of the public
where the defendant had admitted to nighttime firearm possession); United States v. Asalati, 615 F.3d 1001, 1006–08
(8th Cir. 2010) (upholding a curfew as a condition of supervised release).
136 U.S.S.G. § 5D1.3(e)(6). (“Intermittent confinement (custody for intervals of time) may be ordered as a condition of
supervised release during the first year of supervised release, but only for a violation of a condition of supervised
release in accordance with 18 U.S.C. §3583(e)(2) and only when facilities are available. See §5F1.8 (Intermittent
Confinement).”). U.S.S.G. § 5F1.8 states: “Intermittent confinement may be imposed as a condition of probation during
the first year of probation. See 18 U.S.C. § 3563(b)(10). It may be imposed as a condition of supervised release during
the first year of supervised release, but only for as violation of a condition of supervised release in accordance with 18
U.S.C. § 3583(e)(2) and only when facilities are available. See 18 U.S.C. § 3583(d).” The accompanying application
note defines Intermittent confinement to mean “remaining in the custody of the Bureau of Prisons during nights,
weekends, or other intervals of time, totaling no more than the lesser of one year or the term of imprisonment
authorized for the offense, during the first year of the term of probation or supervised release. See 18 U.S.C. §
3563(b)(10).” E.g., United States v. Patterson, 957 F.3d 426, 429-30 (4th Cir. 2020); United States v. Shimabukuro,
887 F.3d 867, 869 (9th Cir. 2018) (term of intermittent confinement imposed upon revocation of supervised release
constitutes time spent in prison for purposes of the sentencing cap in 18 U.S.C. § 3583(e)(3)); United States v. Magana,
837 F.3d 457, 458 (5th Cir. 2016) (noting that intermittent confinement may only be imposed where a facility for
confinement is available).
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for breach of a condition of release, and impose an additional term of supervised release to be
served thereafter.137
Modification of Conditions
The court will ordinarily conduct a hearing on a petition to modify a defendant’s conditions of
supervised release, although the party at interest may waive under some circumstances.138 In
considering whether to modify the conditions of supervised release, the court weighs the same
sentencing factors that it considers in an early termination of a term of supervised release:
 the nature and circumstances of the offense and the history and characteristics of
the defendant;
 the need for the sentence imposed-
 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;
 the kinds of sentence and the sentencing range established for the applicable
category of offense committed by the applicable category of defendant as set
forth in the guidelines;
 any pertinent policy statement issued by the Sentencing Commission;
 the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct; and
 the need to provide restitution to any victim of the offense.139
A district court may summarily deny a motion to modify the conditions of supervised release as
long as the record supports the conclusion that the court considered the required factors.140 Breach
of an existing condition or a change in circumstances may justify modification, but neither is
required.141 In some instances, the courts have greeted objections to the imposition of a condition

137 18 U.S.C. § 3583(e); United States v. Jackson, 523 F.3d 234, 240–41 (3d Cir. 2008).
138 FED. R. CRIM. P. 32.1(c) (“(1) In General. Before modifying the conditions of probation or supervised release, the
court must hold a hearing, at which the person has the right to counsel and an opportunity to make a statement and
present any information in mitigation. (2) Exceptions. A hearing is not required if: (A) the person waives the hearing;
or (B) the relief sought is favorable to the person and does not extend the term of probation or of supervised release;
and (C) an attorney for the government has received notice of the relief sought, has had a reasonable opportunity to
object, and has not done so.”). See United States v. Hogenkamp, 979 F.3d 1167, 1168 (7th Cir. 2020).
139 18 U.S.C. § 3583(e)(2).
140 United States v. Cordero, 7 F.4th 1058, 1069 (11th Cir. 2021).
141 United States v. Evans, 727 F.3d 730, 732 (7th Cir. 2013) (“Nothing in Section 3583(e)(2) requires a violation of
existing conditions, or even changed circumstances.”); United States v. Bainbridge, 746 F.3d 943, 946–47 (9th Cir.
2014) (modification does not require a change in circumstances (citing in accord United States v. Begay, 631 F.3d 1168
(10th Cir. 2011) and United States v. Davies, 380 F.3d 329 (8th Cir. 2004)).
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at sentencing with the observation that it can be changed after the defendant is released from
prison.142 In others, they have observed that this can be an uncertain benefit.143
Revocation
Sometimes revocation is required.144 Sometimes it is not.145 By statute, a court must revoke a
defendant’s supervised release for (1) unlawful drug or firearm possession; (2) refusal to comply
with a drug testing condition; or (3) three or more positive drug tests within a single year.146 The
Sentencing Guidelines are more demanding. They recommend that a court revoke a defendant’s
supervised release for the commission of any federal or state crime punishable by imprisonment
for more than a year.147

142 United States v. Shultz, 733 F.3d 616, 623 (6th Cir. 2013) (“Should family members to whom condition four applies
come into being, Shultz may ask the district court then, not now, to exercise its statutory power to modify or reduce the
conditions of supervised release.” (citation and alteration omitted)); United States v. Ellis, 720 F.3d 220, 227 (per
curiam) (5th Cir. 2013) (“Ellis appeals the condition requiring him the participate in mental health and sex offender
treatment programs. . . . This challenge is not ripe for review because Ellis may never be subjected to such medication
or testing. . . . If he is required to submit to such medication or testing, he may petition the district court for
modification of his conditions.”); United States v. Legg, 713 F.3d 1129, 1134 (D.C. Cir. 2013) (“ ‘An Internet
restriction that today imposes “no greater deprivation of liberty than is reasonably necessary” to deter illegal conduct
may, by the time [the defendant] is released, be either wholly inadequate or entirely too burdensome.’ If the latter
transpires, Legg remains free throughout his term of supervised release to ask the district court to modify the
challenged conditions[.]” (internal citation omitted; brackets in original)); United States v. Hamilton, 986 F.3d 413,
422-23 (4th Cir. 2021).
143 United States v. Johnson, 756 F.3d 532, 539–40 (7th Cir. 2014) (“The government suggests that we need not decide
this issue because a determination on its appropriateness could await Johnson’s release from prison. . . . But the
government acknowledges that Johnson is unlikely to have counsel at that point, and if we do nothing the default will
be that the special condition is in place.”); United States v. Siegel, 753 F.3d 705, 708 (7th Cir. 2014) (“And while it’s
true that conditions of supervised release can be modified at any time, 18 U.S.C. § 3583(e)(2), modification is a bother
for the judge, especially when, as must be common in cases involving very long sentences, modification becomes the
responsibility of the sentencing judge’s successor because the sentencing judge has retired in the meantime.”).
144 18 U.S.C. § 3583(g). The Supreme Court in a plurality decision declared unconstitutional a second mandatory
revocation provision (18 U.S.C. § 3583(k)) that includes a mandatory minimum term of re-imprisonment upon
revocation. United States v. Haymond, 139 S. Ct. 2369 (2019). Subsequent lower federal appellate courts have
concluded that Haymond does not undermine the validity of mandatory revocation under 18 U.S.C. § 3583(g), e.g.,
United States v. Garner, 969 F.3d 550, 553 (5th Cir. 2020); United States v. Seighman, 966 F.3d 237, 239 (3d Cir.
2020); United States v. Coston, 964 F.3d 289, 291 (4th Cir. 2020).
145 Id. § 3583(e). United States v. Garner, 969 F.3d 550, 551 (5th Cir. 2020) (“Under the general revocation provision .
. . a district judge may revoke a defendant‘s term of supervised release. . . Sometimes, though, revocation is
mandatory.”).
146 18 U.S.C. § 3583(g). It is unclear how a defendant comes to fail a third drug test when failing the first test would
seem to evidence possession and consequently trigger mandatory revocation. This question has risen in the case law,
and appellate courts have held that sentencing courts may decline to assume drug possession on the basis of a failed
drug test. See United States v. Hammonds, 370 F.3d 1032, 1037 (10th Cir. 2004) (“We believe the mens rea
requirement in subsection (g)(1), requiring the government to prove by a preponderance of the evidence that the
defendant knowingly and voluntarily used the drug revealed by the drug test, sufficiently distinguishes it from
subsection (g)(4) so that the latter provision may apply in circumstances where the former does not.”); United States v.
Pierce, 132 F.3d 1207, 1208 (8th Cir. 1997) (court has discretion to not find possession on the basis of a failed drug
test); but see United States v. Rodriguez, 945 F.3d 1245, 1251 (10th Cir. 2019) (“We hold that controlled substances in
a person’s body is in possession of that person for purposes of 18 U.S.C. § 3583(g) assuming he required mens rea.”).
147 U.S.S.G. § 7B1.3(a)(1) (“Upon a finding of a Grade A or B violation, the court shall revoke probation or supervised
release.”) (emphasis added); id. § 7B1.1(a)(2) (“There are three grades of probation and supervised release violations:
. . . GRADE B VIOLATIONS—conduct constituting any other federal, state, or local offense punishable by a term of
imprisonment exceeding one year[.]”).
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Courts may revoke supervised release for breach of any other condition.148 A court’s revocation
jurisdiction, however, expires when the term of supervised release expires,149 unless the
government began the revocation process prior to expiration,150 or unless the defendant is
imprisoned for 30 days or more in “connection with” a conviction for a federal, state, or local
crime.151
By virtue of the Due Process Clause and operation of the Federal Rules of Criminal Procedure, a
person facing revocation of supervised release enjoys many, but not all, of the rights that attend a
criminal trial. He must be taken promptly before a magistrate following his arrest for violation of
the conditions of supervised release.152 The federal bail statutes apply to his pre-hearing release,
although he has the burden of establishing that he is neither dangerous nor a flight risk.153 He is
entitled to a probable cause preliminary hearing at which he may be represented by appointed
counsel if he cannot secure one.154 He may present evidence at the preliminary hearing and has a
limited right to confrontation.155

148 18 U.S.C. § 3583(e)(3) (“The court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B),
(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) . . . revoke a term of supervised release, and require the defendant
to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such
term of supervised release without credit for time previously served on postrelease supervision, if the court, pursuant to
the Federal Rules of Criminal Procedure applicable to revocation of probation or supervised release, finds by a
preponderance of the evidence that the defendant violated a condition of supervised release, except that a defendant
whose term is revoked under this paragraph may not be required to serve on any such revocation more than 5 years in
prison if the offense that resulted in the term of supervised release is a class A felony, more than 3 years in prison if
such offense is a class B felony, more than 2 years in prison if such offense is a class C or D felony, or more than one
year in any other case[.]”) (emphases added); United States v. Wiltshire, 772 F.3d 976, 977 (2d Cir. 2014); United
States v. Dillon, 725 F.3d 362, 366 (3d Cir. 2013); United States v. Preacely, 702 F.3d 373, 375 (7th Cir. 2012); United
States v. Shimabukuro, 887 F.3d 867, 869 (9th Cir. 2018) (term of intermittent confinement imposed upon revocation
of supervised release constitutes time spent in prison for purposes of the sentencing cap in 18 U.S.C. § 3583(e)(3)).
149 United States v. Block, 927 F.3d 978, 982 (7th Cir. 2019); United States v. Thompson, 924 F.3d 122, 127 (4th Cir.
2019).
150 18 U.S.C. § 3583(i). There may be some dispute over whether the term is tolled when revocation proceedings are
not possible because of the defendant’s flight, see United States v. Buchanan, 638 F.3d 448, 453–58 (4th Cir. 2011)
(concluding that flight tolls a term of supervised release even in the absence of the timely warrant or summons required
under 18 U.S.C. § 3583(i) and discussing the conflicting views expressed in United States v. Hernández-Ferrer, 599
F.3d 63, 67–68 (1st Cir. 2010) and United States v. Murguia-Oliveros, 421 F.3d 951, 954 (9th Cir. 2005)); see also
United States v. Cartagena-Lopez, 979 F.3d 356, 360-62 (5th Cir. 2020); United States v. Thompson, 924 F.3d 122,
128 (4th Cir. 2019); United States v. Island, 916 F.3d 249, 254 (3d Cir. 2019); United States v. Barinas, 865 F.3d 99,
109 (2d Cir. 2017).
151 18 U.S.C. § 3624(e); Mont v. United States, 139 S. Ct. 1826, 1829 (2019) (“[I]f the court’s later imposed sentence
credits the period of pretrial detention as time served for the new offense then the pretrial detention also tolls the
supervised-release period); United States v. Bussey, 745 F.3d 631, 633–34 (2d Cir. 2014). The Fifth Circuit has held,
however, that a term is not tolled by time spent in custody under an immigration detainer. See United States v. Juarez-
Velasquez, 763 F.3d 430, 436 (5th Cir. 2014). The term is not tolled during the period when the defendant is being
detained pending the outcome of a revocation hearing. See United States v. Block, 927 F.3d 978, 982 (7th Cir. 2019).
152 FED. R. CRIM. P. 32.1(a)(1) (“A person held in custody for violating probation or supervised release must be taken
without unnecessary delay before a magistrate judge.”).
153 Id. 32.1(a)(6) (“The magistrate judge may release or detain the person under 18 U.S.C. § 3143(a)(1) pending further
proceedings. The burden of establishing by clear and convincing evidence that the person will not flee or pose a danger
to any other person or to the community rests with the person.”).
154 Id. 32.1(b)(1) (“(A) . . . If a person is in custody for violating a condition of probation or supervised release, a
magistrate judge must promptly conduct a hearing to determine whether there is probable cause to believe that a
violation occurred. The person may waive the hearing. (B) . . . The hearing must be recorded by a court reporter or by a
suitable recording device. The judge must give the person: (i) notice of the hearing and its purpose, the alleged
violation, and the person’s right to retain counsel or to request that counsel be appointed if the person cannot obtain
counsel . . . (C) . . . If the judge finds probable cause, the judge must conduct a revocation hearing. If the judge does not
find probable cause, the judge must dismiss the proceeding.”).
155 Id. (“(B) . . . The judge must give the person: . . . (ii) an opportunity to appear at the hearing and present evidence;
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Upon a finding of probable cause to believe that he has violated a condition of his supervised
release, the defendant is entitled to a hearing and enjoys the benefit of counsel, appointed if
necessary.156 As in the case of the preliminary hearing, he is entitled to notice of the charges, to
present evidence, to make a statement and offer mitigating evidence,157 as well as, to a limited
extent, to confront witnesses against him.158
Nevertheless, the Fifth Amendment’s Self-Incrimination Clause does not preclude introduction of
compelled incriminating statements at the revocation hearing,159 nor does the Fourth Amendment
exclusionary rule apply in revocation proceedings.160 Moreover, a person subject to a revocation
hearing is not entitled to a jury; or to the benefit of proof beyond a reasonable doubt.161 The court
may revoke his supervised release if it finds by a preponderance of the evidence that he has
breached one or more of the conditions of his release.162 Any time served under supervision prior
to revocation is erased.163
Upon revocation of a term of supervised release, the court may order the defendant returned to
prison for a term capped by the length of “the term of supervised release authorized by statute

and (iii) upon request, an opportunity to question any adverse witness, unless the judge determines that the interest of
justice does not require the witness to appear[.]”).
156 Id. 32.1(b)(2) (“Unless waived by the person, the court must hold the revocation hearing within a reasonable time in
the district having jurisdiction. The person is entitled to: . . . (D) notice of the person’s right to retain counsel or to
request that counsel be appointed if the person cannot obtain counsel.”).
157 Id. (“The person is entitled to: (A) written notice of the alleged violation; (B) disclosure of the evidence against the
person; (C) an opportunity to appear, present evidence, and question any adverse witness unless the court determines
that the interest of justice does not require the witness to appear; . . . and (E) an opportunity to make a statement and
present any information in mitigation.”). Rule 32.1(b)(2)(E) confirms a previously recognized right to allocution. See
United States v. Paladino, 769 F.3d 197, 201 & n.3 (3d Cir. 2014). It is plain error for the court to fail “to address a
supervised releasee personally to ask if he wants to speak before the court imposes a post-revocation sentence.” United
States v. Daniels, 760 F.3d 920, 924–26 (9th Cir. 2014).
158 United States v. Diaz, 986 F.3d 202, (2d Cir. 2021) (“In a revocation hearing, the defendant is afforded the
opportunity to ‘question any adverse witness unless the court determines that the interest of justice does not require the
witness to appear.’ When a proffered out-of-court statement by an adverse witness is not within an established hearsay
exception, Rule 32.1 requires the court to determine whether good cause exists to deny the defendant the opportunity to
confront the adverse witness. This good cause determination is made by balancing ‘the defendant’s interest in
confronting a declarant against . . . the government’s reasons for not producing the witness and the reliability of the
proffered hearsay.’ It is error to admit a hearsay statement that is not otherwise admissible under an established hearsay
exception without conducting this balancing test.” (quoting Rule 32.1 and United States v. Williams, 443 F.3d 35, 45
(2d Cir. 2006)); see also United States v. Mosley, 759 F.3d 664, 667–70 (7th Cir. 2014); United States v. Ferguson, 752
F.3d 613, 616-17 (4th Cir. 2014); United States v. Smith, 718 F.3d 768, 772-73 (8th Cir. 2013).
159 United States v. Ka, 982 F.3d 219, 222 (4th Cir. 2020) (“[W]e conclude that the Self-Incrimination Clause of the
Fifth Amendment does not prevent the use of compelled, self-incriminating statements in supervised release revocation
hearings held, as Ka’s was, under 18 U.S.C. § 3583(e). . . . The Self-Incrimination Clause provides that no person ‘shall
be compelled to be a witness against himself.’ . . . [T]he clause is violated ‘only if [the self-incriminating] statements
are used in a criminal trial. Supervised release revocation proceedings, however, are not part of the underlying criminal
prosecution.’ Thus, the introduction of compelled self-incriminating statements in supervised release proceedings does
not violate a defendant’s rights under the Self-Incrimination Clause.” (quoting United States v. Riley, 920 F.3d 200,
209 (4th Cir. 2019)) (Ka failed to invoke the privilege in his incriminating conversation with his probation officer)).
160 United States v. Hightower, 950 F.3d 33, 37-38 (2d Cir. 2020).
161 United States v. Doka, 955 F.3d 290, 294 (2d Cir. 2020); United States v. Colón-Maldonado, 953 F.3d 1, 3 (1st Cir.
2020); United States v. Gavilanes-Ocaranza, 772 F.3d 624, 628–29 (9th Cir. 2014); United States v. Ward, 770 F.3d
1090, 1099 (4th Cir. 2014); United States v. Carlton, 442 F.3d 802, 806–10 (2d Cir. 2006) (citing in accord United
States v. Hinson, 429 F.3d 114, 118–19 (5th Cir. 2005); United States v. Work, 409 F.3d 484, 491–92 (1st Cir. 2005);
United States v. Coleman, 404 F.3d 1103, 1104–05 (8th Cir. 2005) (per curiam)).
162 18 U.S.C. § 3583(e)(3); United States v. Daye, 4 F.4th 698, 700 (8th Cir. 2021); United States v. Gomez, 955 F.3d
1250, 1257–59 (11th Cir. 2020) (per curiam); Doka, 955 F.3d at 293; Colón-Maldonado, 953 F.3d at 3; United States v.
Glenn, 744 F.3d 845, 847 (2d Cir. 2014) (per curiam).
163 18 U.S.C. § 3583(e)(3); U.S.S.G. § 7B1.5(b).
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authorized by statute for the offense that resulted in such term,” which is generally: five years for
defendants originally convicted of a Class A felony; three years for a Class B felony; two years
for a Class C or D felony; and one year in all other cases.164 The courts have rejected the
argument that the term of the revocation sentence of imprisonment, when added to the time the
defendant has already served for the underlying crime before his release, may not exceed the
statutory maximum for the underlying crime of conviction.165
Upon revocation, the court may also impose a new term of supervised release to be served after
the defendant is release from prison under the revocation sentence. The usual caps on the duration
of supervision release apply less the length of the term of imprisonment levied upon
revocation,166 except that the court is not bound by any statutory mandatory term of supervised
release originally required.167

164 18 U.S.C. §§ 3583(e)(3) (“The court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B),
(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)- . . . (3) revoke a term of supervised release, and require the
defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that
resulted in such term of supervised release without credit for time previously served on postrelease supervision, if the
court, pursuant to the Federal Rules of Criminal Procedure applicable to revocation of probation or supervised release,
finds by a preponderance of the evidence that the defendant violated a condition of supervised release, except that a
defendant whose term is revoked under this paragraph may not be required to serve on any such revocation more than 5
years in prison if the offense that resulted in the term of supervised release is a class A felony, more than 3 years in
prison if such offense is a class B felony, more than 2 years in prison if such offense is a class C or D felony, or more
than one year in any other case.”); U.S.S.G. § 7B1.4; United States v. Dawson, 980 F.3d 1156, 1162 (7th Cir. 2020)
(“Revocation sentences are also subject to statutory caps. These statutory caps depend on the seriousness of the original
crime of conviction – not the seriousness of the supervised release violation.”), but see id. at 1164 (“A serious
violation [of the conditions of supervised release] correlates to a serious breach of trust, so a court should consider the
nature of a violation when choosing its revocation sentence.”) (emphasis of the court).
165 United States v. Henderson, 998 F.3d 1071, 1073 (9th Cir. 2021) (“ [W]e do not read Haymond or any other
Supreme Court opinion as holding that a defendant’s otherwise reasonable sentence for violating the terms of
supervised release may not exceed, when aggregated with the time the defendant was imprisoned for the underlying
crime, the maximum statutory sentence for the underlying crime.”); see also United States v. Salazar, 987 F.3d 1248,
1256 (10th Cir. 2021); United States v, Seighman, 966 F.3d 237, 244-45 (3d Cir. 2020).
166 18 U.S.C. § 3583(h) (“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 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.”); United States v. Barber, 4 F.4th 689, 691 (8th
2021) (“Barber received a term of imprisonment upon each revocation of supervised release – three months the first
time and seven months the second time. Subtracting these terms of imprisonment (totaling 10 months) from the
authorized term of supervised release under the statute of conviction (96 months) leaves 86 months. Thus, pursuant to
§ 3583(h), the district court was authorized to impose a new term of supervised release of up to 86 months.”).
167 See United States v. Teague, 8 F.4th 611, 616 (7th Cir. 2021) (“We thus conclude that the court made an error of
law when it stated . . . that it was compelled to follow the statutory minimum for supervised release that applies to
original sentencing proceedings.”); United States v. Campos, 922 F.3d 686, 687-88 (5th Cir. 2019) (“While the
minimum supervised release sentence for Campos’s underlying drug conviction was eight years, see 21 U.S.C.
§§ 841(b)(1)(B), 860(a), that floor did not apply to Campos’s post-revocation supervised release, see 18 U.S.C. §
3583(h) (stating that ‘[w]hen a term of supervisory release is revoked . . . the court may include a requirement that the
defendant be placed on a term of supervisory release after imprisonment’ (emphasis added); U.S.S.G. §7B1.3(g)(2).
Campos’s supervised release was subject only to a maximum of ‘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.’ . . . Here, that is a life term, less Campos’s nine-month post-revocation
imprisonment.”) (Emphasis of the court).
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Assuming a timely objection below,168 federal appellate courts will uphold the sentence imposed
upon revocation, unless it is procedurally or substantively unreasonable.169 A procedurally
unreasonable sentence involves the district court “failing to calculate (or improperly calculating)
the [Sentencing] Guideline range, treating the Guidelines as mandatory, failing to consider the §
37553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence—including an explanation for any deviation from the Guideline
range.”170
In some circuits a sentence imposed upon revocation of supervised release is substantively
reasonable if it “is supported by a plausible sentencing rationale and reaches a defensible
result.”171 For others, “a revocation sentence ‘is substantively unreasonable if it (1) does not
account for a factor that should have received significant weight; (2) gives significant weight to
an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the
sentencing factors.’”172 In still others, a sentence is substantively unreasonable “if it is shockingly
high, shockingly low, or otherwise unsupportable as a matter of law”173 or is “arbitrary,
capricious, whimsical, or manifestly unreasonable . . . given all the circumstances of the case in
light of . . . the factors set forth in 18 U.S.C. § 3553(a).”174

168 Appellate courts review challenges raised for the first time on appeal under the “plain error” doctrine. E.g., United
States v. Teague, 8 F.4th 611, 614-15 (7th Cir. 2021) (“[P]lain-error review—involves four steps, or prongs. First, there
must be an error or defect—some sort of ‘[d]eviation from a legal rule’—that has not been intentionally relinquished or
abandoned, i.e., affirmatively waived, by the appellant. ... Second, the legal error must be clear or obvious, rather than
subject to reasonable dispute. ... Third, the error must have affected the appellant's substantial rights, which in the
ordinary case means he must demonstrate that it ‘affected the outcome of the district court proceedings.’... Fourth and
finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error—discretion
which ought to be exercised only if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)); United States v. Mims, 992 F.3d 406, 408-
409 (5th Cir. 2021).
169 E.g., United States v. Ayala-Lugo, 996 F.3d 51, 56-7 (1st Cir. 2021); United States v. Trent, 995 F.3d 1029, 1031
(8th Cir. 2021) (“We review a district court’s imposition of a revocation sentence for abuse of discretion, ‘first
ensur[ing] that the court committed no significant procedural error, such as improperly calculating the sentence under
the Guidelines.’” (quoting United States v. Cates, 613 F.3d 856, 858 (8th Cir. 2010)); United States v. Williams, 994
F.3d 1176, (10th Cir. 2021) (“‘We review this issue for abuse of discretion, Applying this standard, we give substantial
deference to the district court and will only overturn a sentence that is arbitrary, capricious, whimsical, or manifestly
unreasonable. Substantive reasonableness involves whether the length of the sentence is reasonable given all the
circumstances of the case in light of . . . the factors set forth in 18 U.S.C. § 3553(a).’” (quoting United States v. Peña,
963 F.3d 1016, 1024); United States v. Hall, 931 F.3d 694, 696 (8th Cir. 2019); United States v. Sayer, 916 F.3d 32, 37
(1st Cir. 2019); United States v. Brooks, 889 F.3d 95, 100 (2d Cir. 2018) (per curiam).
170 United States v. Boyd, 5 F.5th 550, 558 (4th Cir. 2021) (“No matter how ‘routine’ a case might be, a defendant’s
sentence [including conditions of supervised release] is ‘procedurally unreasonable if the district court . . . fail[s] to
address the defendant’s nonfrivolous argument.’”) (quoting United States v. Lewis, 958 F.3d 240, 243 (4th Cir. 2020));
United States v. Clark, 998 F.3d 363, 367 (8th Cir. 2021) (citing Gall v. United States, 552 U.S. 38, 51 (2007); see also,
United States v. a case may be Frederickson, 988 F.3d 76, 90 (1st Cir. 2021); United States v. Greene, 970 F.3d 831,
834 (7th Cir. 2020); United States v. Traficante, 966 F.3d 99, 102 (2d Cir. 2020).
171 United States v. Santa-Soler, 985 F.3d 93, 98 (1st Cir. 2021) (quoting United States v. Cameron, 835 F.3d 46, 52
(1st Cir. 2016)); United States v. Clark, 998 F.3d 363, 369 (8th Cir. 2021); United States v. Taylor, 997 F.3d 1348, 358
(11th Cir. 20121).
172 United States v. Cano, 981 F.3d 422, 427 (5th Cir. 2020) (quoting United States v. Warren, 720 F.3d 321, 332 (5th
Cir. 2013)); United States v. Barber, 4 F.4th 689, 692 (8th Cir. 2021).
173 United States v. Bleau, 930 F.3d 35, 39 (2d Cir. 2019).
174 United States v. Williams, 994 F.3d 1176, (10th Cir. 2021).
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Constitutional Considerations
The Constitution limits the range of permissible conditions of supervised release. Even if a
condition of supervised release satisfies all statutory requirements, a court will invalidate it if it
runs afoul of a defendant’s constitutional rights. On the other hand, a condition which raises
constitutional concerns is likely to offend statutory norms as well and can be resolved on those
grounds.175
Article III
The Constitution vests the judicial power of the United States in the Supreme Court and such
inferior courts as Congress shall ordain and establish.176 The power cannot be exercised
elsewhere. Sentencing, including imposing the terms and conditions of supervised release, is the
exercise of judicial power.177 In supervised release cases, the issue arises most often in the context
of the extent of discretion which a court may assign to a probation officer. In crafting the
conditions for a particular defendant, a sentencing court will often delegate initial implementing
responsibilities to a probation officer. The line between permissible and impermissible delegation
is not always clear. In some cases, it is a question of whether the task assigned a probation officer
in a condition of supervised release touches upon a defendant’s significant liberty interest.178 In
others, it is a matter of whether the court has declared that a particular condition is to be imposed,
even though thereafter the court may have delegated considerable implementing discretion.179 Yet

175 United States v. Bolin, 976 F.3d 202, 214 (2d Cir. 2020) (“If a special condition implicates a fundamental interest,
we must carefully examine it to determine whether it is ‘reasonably related’ to the pertinent factors and involves no
greater deprivation of liberty than is reasonably necessary and our application of these criteria must reflect the
heightened constitutional concerns.”).
176 U.S. CONST. art. III, § 1; see generally Cong. Research Serv., THE CONSTITUTION OF THE UNITED STATES OF
AMERICA: ANALYSIS AND INTERPRETATION, S. Doc. No. 112-9, https://constitution.congress.gov/browse/essay/artIII-S1-
1-1-2-1-3/ALDE_00001178/.
177 United States v. Carlineo, 998 F.3d 533, 537 (2d Cir. 2021) (“[T]he district court, not the Probation Office, retains
exclusive authority to set conditions of supervised release.”); United States v. Huerta, 994 F.3d 711, 716 (5th Cir.
2021); United States v. Miller, 978 F.3d 746, 761 (10th Cir. 2020) (“Article III of the United States Constitution
confers the authority to impose punishment on the judiciary, and the judiciary may not delegate that authority to a
nonjudicial officer.”).
178 United States v. Bear, 769 F.3d 1221, 1230 (10th Cir. 2014) (“Article III of the United States Constitution confers
the authority to impose punishment on the judiciary, and the judiciary may not delegate that authority to a nonjudicial
officer. To decide whether a condition of supervised release improperly delegates judicial authority to a probation
officer, we distinguish between [permissible] delegations that merely task the probation officer with performing
ministerial acts or support services related to the punishment imposed and [impermissible] delegations that allow the
officer to decide the nature or extent of the defendant’s punishment. This inquiry focuses on the liberty interest affected
by the probation officer’s discretion. Conditions that touch on significant liberty interests are qualitatively different
from those that do not. As a result, allowing a probation officer to make the decision to restrict a defendant’s significant
liberty interest constitutes an improper delegation of the judicial authority to determine the nature and extent of a
defendant’s punishment.” (internal citations and quotation marks omitted)); see also Carlineo, 998 F.3d at 537-38
(noting a district court “may delegate decision-making authority over details of supervised release such as scheduling
or duration. But it may not delegate decision-making authority which would make a defendant’s liberty contingent on a
probation officer’s exercise of open-ended discretion over a program no one knows much about”); United States v.
Smith, 961 F.3d 1000, 1008 (8th Cir. 2020) (“But conditions delegating limited authority to nonjuducal officials such
as probation officers are permissible so long as the delegating judicial officer retains and exercises ultimate
responsibility”); United States v. Degroate, 940 F.3d 167, 177 (2d Cir. 2019) (“Where, however, the district court has
left to a probation officer the ultimate decision of whether to restrict the defendant’s liberty, we must vacate the
condition of supervised release as improvidently imposed.”); United States v. Esparza, 552 F.3d 1088, 109091 (9th
Cir. 2009) (per curiam).
179 United States v. Carpenter, 702 F.3d 882, 885 (6th Cir. 2012) (“when imposing a special condition of drug
treatment, . . . the district court need only decide whether such treatment is required. Decisions such as which program
to select and how long it will last can be left to the discernment of the probation officer. Furthermore, the details of the
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elsewhere, the issue turns on the level of court oversight of the probation officer when
implementing a condition.180
First Amendment
The sex offender conditions have generated a number of First Amendment challenges, primarily
in two areas: overbreadth and freedom of association. Under the First Amendment overbreadth
doctrine, a condition is overbroad if it sweeps in a substantial amount of constitutionally
protected speech along with legitimately targeted unprotected speech.181 The courts also
recognize a right to intimate or familial relationships as a component of the freedom of
association which extends to “personal decisions about marriage, childbirth, raising children,
cohabiting with relatives, and the like.”182 Defendants have often contended that a particular
condition to which they are subject is overbroad,183 or improperly intrudes upon their freedom of

treatment, including how often and how many drug tests will be performed, can be left to the expertise of the
professionals running the program.”) (citation omitted); see also United States v. Van Donk, 961 F.3d 314, 327 (“We
agree with our sister circuits that it’s proper for a court to order a [defendant] to follow treatment program rules,”
(citing United States v. Bender, 566 F.3d 748, 750, 752 (8th Cir. 2009); United States v. Fellows, 157 F.3d 1197, 1207
(9th Cir. 1998); United States v. Miller, 77 F.3d 71, 77 (4th Cir.996)); United States v. Lee, 950 F.3d 439, 447 (7th Cir.
2020) (“A condition that delegates to a probation officer the ‘nature or extent of the defendant’s punishment’ is an
impermissible delegation.”) (citation omitted); United States v. Heckman, 592 F.3d 400, 411 (3d Cir. 2010)
(“Participation in the mental health treatment program itself is mandatory, and only the details are to be set by the
Probation Office.”).
180 United States v. Robertson, 948 F.3d 912, 919 (8th Cir. 2020) (“We have held a special condition of supervised
release is an impermissible delegation of authority ‘only where the district court gives an affirmative indication that it
will not retain ultimate authority over all of the conditions of supervised release.’ ”) (quoting United States v.
Thompson, 653 F.3d 688, 693 (8th Cir. 2011)); United States v. Dailey, 941 F.3d 1183, 1194 (9th Cir. 2019) (“ ‘[A]
probation officer may not decide the nature or extent of the punishment imposed upon a probationer.’ A district court
may delegate ‘the details of where and when the condition will be satisfied,’ but it alone must make[ ] the determination
of whether a defendant must abide by the condition.”) (quoting United States v. Stephens, 424 F.3d 876, 880–81 (9th
Cir. 2005)) (brackets in original).
181 United States v. Stevens, 559 U.S. 460, 473 (2010) (“[A] law may be invalidated as overbroad if ‘a substantial
number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’ ”); United
States v. Mefford, 711 F.3d 923, 927 (8th Cir. 2013) (“We will only strike down a condition of supervised release as
unconstitutionally overbroad ‘if its overbreadth is real and substantial in relation to its plainly legitimate sweep.’ We
have however upheld a number of supervised release conditions that substantially limit or completely ban sex offenders
from possessing pornography. In contrast, we often reject conditions banning materials with ‘nudity’ because such
breadth may well reach protected forms of art.” (internal citations omitted)); see generally Cong. Research Serv., THE
CONSTITUTION OF THE UNITED STATES OF AMERICA: AN ANALYSIS AND INTERPRETATION, S. Doc. No. 112-9,
https://constitution.congress.gov/browse/essay/amdt1-2-2-1/ALDE_00000735/
182 Pickup v. Brown, 740 F.3d 1208, 1233 (9th Cir. 2014) (citing Roberts v. U.S. Jaycees, 468 U.S. 609, 617–19
(1984)); see also Goodpaster v. City of Indianapolis, 736 F.3d 1060 (7th Cir. 2013).
183 United States v. Benhoff, 755 F.3d 504, 506 (7th Cir. 2014) (per curiam) (“Benhoff next challenges the two special
conditions of his supervised release as overbroad. He argues that the condition that bans sexually stimulating materials
is overbroad in that it bans both lawful material and illegal ones. . . . He also challenges the no-contact provision as
overbroad because it impermissibly deprives him of his First Amendment right to associate with minors (including
family)[.] . . . The government concedes, and we agree, that a limited remand is appropriate so that the district court can
on remand narrowly tailor these conditions.”); United States v. Siegel, 753 F.3d 705, 712 (7th Cir. 2014) (“So that key
condition remains a muddle, and for the additional reason that the judge did not explain why the condition should not
be limited to visual depictions of nudity related or incidental to sexual urges or activities. Is ‘nudity’ meant to include
innocuous partial nudity, such as a photography, in no respect prurient, of an adult wearing a bathing suit? So not only
is ‘contains’ vague, but ‘nudity’ is over-broad[.]”); United States v. Salazar, 743 F.3d 445, 450–51 (5th Cir. 2014)
(“Salazar claims on appeal that Condition No.6, which prohibits him from possessing, using, or purchasing sexually
stimulating or oriented materials, is impermissible for two reasons. . . . In his second point of error, Salazar argues that
Condition No. 6 is so overbroad that it violates his rights under the First Amendment[.] . . . [W]e hold that the district
court abused its discretion by not explaining how Condition No. 6 is reasonably related to the goals of supervised
release. We thus do not reach the issue of whether the condition is reasonably necessary, nor the First Amendment
issue.”).
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association.184 Both doctrines have companions in due process, discussed below. Both challenges
are often resolved by recourse to Section 3583(d)’s “reasonably related” and “no unnecessary
deprivation of liberty” requirements, which can provide the narrow tailoring that the First
Amendment demands.185 Cases that have First Amendment implications are often resolved on
those statutory grounds.186
A number of First Amendment challenges have been turned back by distinguishing them from the
facts in Packingham v. North Carolina,187 a case in which the Court found First-Amendment-
deficient a statute that restricted registered sex offenders’ access to social media sites.188

184 United States v. Lonjose, 663 F.3d 1292, 1303 (10th Cir. 2011) (“[A] defendant has a fundamental right of familial
association. Where a condition of supervised release interferes with that right, compelling circumstances must be
present to justify the condition.”); see also United States v. Wolf Child, 699 F.3d 1082, 1091–94 (9th Cir. 2012);
United States v. Worley, 685 F.3d 404, 408–09 (4th Cir. 2012).
185 United States v. Van Donk, 961 F.3d 314,326 (4thh Cir. 2020) (“The First Amendment overbreadth doctrine thus
isn’t relevant in the context of a supervised release condition that satisfies § 3583(d)’s requirements.); United States v.
Adkins, 743 F.3d 176, 194 (7th Cir. 2014) (“It is hard to see how the potential breadth of Special Condition Five would
satisfy the narrow tailoring requirement of 18 U.S.C. § 3583(d).”); United States v. Zobel, 696 F.3d 558, 576 (6th Cir.
2012).
186 E.g., United States v. Ramos, 763 F.3d 45, 64 (1st Cir. 2014) (“In Perazza-Mercado we also vacated . . . a ban on
adult pornography because the ban imposed, in the absence of any evidentiary support, was not reasonably related to
the nature and circumstances of the offense and to the history and characteristics of the defendant. . . . Here, the ban on
any pornographic material . . . must be vacated for the same reason.”); United States v. Malenya, 736 F.3d 554, 560–61
(D.C. Cir. 2013) (“It is unclear if any computer or internet restriction could be justified in Malenya’s case, but the
condition in its current form is surely a greater deprivation of liberty than is reasonably necessary to achieve the goals
referenced in § 3583(d). Cf. United States v. McLaurin, 731 F.3d 258, 262 (2d Cir. 2013).”).
187 137 S. Ct. 1730 (2017).
188 E.g., United States v. Cordero, 7 F.4th 1058, 1071 (11th Cir. 2021) (“Nothing in Peckingham undermines the settled
principle that a district court may impose reasonable conditions that deprive the offender of some freedoms enjoyed by
law-abiding citizens during supervised release.’”) (quoting United States v. Bohal, 981 F.3d 971, 977 (11th Cir. 2020));
United States v. Comer, 5 F.4th 535, 544 n.9 (4th Cir. 2021); United States v. Perrin, 926 F.3d 1044, 1048–50 (8th Cir
2019) (“Packingham, however, is of no help to Perrin for at least three reasons. First, the Court in Packingham
cautioned that its ‘opinion should not be interpreted as barring’ the enactment of specific criminal laws against specific
criminal acts, as such ‘acts are not protected speech even if speech is the means of their commission.’ The Court
‘assumed that the First Amendment permits [the enactment of] specific, narrowly tailored laws that prohibit a sex
offender from engaging in conduct that presages a sexual crime, like contacting a minor or using a website to gather
information about a minor.’ . . . Second, the statute at issue in Packingham prohibited registered sex offenders from
accessing commercial social-networking sites, even after ‘hav[ing] completed their sentences.’ . . . A term of
supervised release, however, is ‘a part of the sentence’ . . . ‘rather than a post-sentence penalty[.] . . . Third, the Court in
Packingham found that the North Carolina statute was a ‘complete bar to the exercise of First Amendment rights[.] . . .
Here, unlike Packingham, Perrin may possess or use a computer or have access to the Internet so long as he obtains
approval from his probation officer. . . . Accordingly, the district court did not err, much less plainly err, in imposing
the special condition [that banned the use of a computer or Internet access without probation officer approval].”) (citing
United States v. Holena, 906 F.3d 288, 293–95 (3d Cir. 2018) and United States v. Eaglin, 913 F.3d 88, 97–98 (2d Cir.
2019) in support of its first point (First Amendment permits bans on conduct that presage sexual child abuse); (citing
United States v. Halverson, 897 F.3d 645, 657–58 (5th Cir. 2018); United States v. Browder, 866 F.3d 504, 511 n.26
(2d Cir. 2017); and United States v. Rock, 863 F.3d 827, 831 (D.C. Cir. 2017) in support of its second point (post-
sentence v. sentencing restrictions)). See also United States v. Bobal, 981 F.3d 971, 977–78 (11th Cir. 2020); United
States v. Bolin, 976 F.3d 202, 214 (2d Cir. 2020); United States v. Becerra, 977 F.3d 373, 378–79 (5th Cir. 2020) (“We
have rejected the idea that ‘an absolute prohibition on accessing computers or the Internet is per se an unacceptable
condition of supervised release.’ Such absolute bans, however, have been affirmed only for limited duration such as
three or four years. . . . We have rejected such bans where they effectively preclude a defendant ‘from meaning fully
participating in modern society’ for long periods of time.’ To this end, the court requires conditions restricting the use
of computers and the Internet to be narrowly tailored either by scope or by duration.’”) (quoting United States v. Duke,
788 F.3d 392, 399–400 (5th Cir. 2015) and finding error in a ten-year absolute ban).
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Fourth Amendment
The Fourth Amendment guarantees protection “against unreasonable searches and seizures.”189
Following an individual’s criminal conviction, however, the Supreme Court has used a “general
balancing” test, in which it assesses “on the one hand, the degree to which [the government
action] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed
for the promotion of legitimate interests.”190 Because people on supervised release, like others
along the “continuum of punishment,” have a “reduced expectation of privacy” under the Court’s
Fourth Amendment jurisprudence, their privacy interests carry less weight in this balancing
test.191
Section 3583(d) and the corresponding Sentencing Guideline authorize warrantless search
conditions in the case of offenders required to register as sex offenders, based on reasonable
suspicion of a violation of a condition of supervised release.192 The Guidelines also permit a
warrantless search and plain-view seizure in cases that do not involve a sex offender, if based on
reasonable suspicion.193 As a general rule any condition, other than the conditions required by
statute, must be no greater deprivation of liberty than reasonably necessary to deter future
criminal conduct, protect the public, or provide for the defendant’s rehabilitation.194 They must
also be reasonably related to one of these purposes or to the defendant’s offenses or
background.195 With these limitations, the courts have upheld search conditions that might

189 U.S. CONST. amend. IV; see generally, Cong. Research Serv., THE CONSTITUTION OF THE UNITED STATES OF
AMERICA: ANALYSIS AND INTERPRETATION, S. Doc. No. 112.9, https://constitution.congress.gov/browse/essay/amdt4-4-
5-1-5/ALDE_00000803/
190 Samson v. California, 547 U.S. 843, 848 (2006) (citing United States v. Knights, 534 U.S. 112, 118–19 (2001)).
Although Samson involved a parole condition rather than a condition of supervised release, it is likely that the Court
would have applied the same analysis to evaluate a warrantless search of the person or property of an individual on
supervised release. See, e.g., United States v. McGill, 8 F.4th 617, 623 (7th Cir. 2021) (applying Knights to a probation
officer’s plain view seizure under a home-visit condition of supervised release).
191 Samson, 547 U.S. at 850; see also United States v. Rusnak, 981 F.3d 697, 712 (9th Cir. 2020); United States v.
Caya, 956 F.3d 498, 500 (7th Cir. 2020) (“Fourth Amendment law has long recognized that criminal offenders on
community supervision have significantly diminished expectations of privacy. More specifically, the privacy
expectations of offenders on post-imprisonment supervision are weak and substantially outweighed by the
government’s strong interest in preventing recidivism and safely reintegrating offenders into society. Indeed, the
Supreme Court has held that a law-enforcement officer may search a person on parole without any suspicion of
criminal activity.”) (citing Samson, 547 U.S. at 847); United States v. Mathews, 928 F.3d 968, 975 (10th Cir. 2019)
(“When the terms of a parolee’s parole allow officers to search his person or effects with something less than probable
cause, the parolee’s reasonable expectation of privacy is significantly diminished.”) (brackets and citation omitted).
192 18 U.S.C. § 3583(d) (“The court may order, as an explicit condition of supervised release for a person who is a felon
and required to register under the Sex Offender Registration and Notification Act, that the person submit his person,
and any property, house, residence, vehicle, papers, computer, other electronic communications or data storage devices
or media, and effects to search at any time, with or without a warrant, by any law enforcement or probation officer with
reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct by the person, and
by any probation officer in the lawful discharge of the officer’s supervision functions.” (emphasis added)); see also
U.S.S.G. § 5D1.3(d)(7)(C).
193 U.S.S.G. § 5D1.3(c)(6) (“The defendant shall allow the probation officer to visit the defendant at any time at his or
her home or elsewhere, and the defendant shall permit the probation officer to take any items prohibited by the
conditions of the defendant’s supervision that he or she observes in plain view.”).
194 18 U.S.C. § 3583(d)(2), (3); id. § 3553(a)(2)(B), (a)(2)(C), (a)(2)(D).
195 Id. § 3583(d)(1); id. § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D).
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otherwise be suspect.196 The courts are divided over the question of whether probation officers
may conduct a warrantless search in the absence of a specific condition.197
Should a probation officer’s visit lead to the discovery of incriminating evidence, defendant’s
motion to suppress may have to overcome many of the obstacles to the exclusionary rule,
including plain view doctrine, the reasonable suspicion standard, inevitable discovery, and
officer’s good faith among others.198
Fifth Amendment
The Fifth Amendment declares that “No person . . . shall . . . be subject for the same offence to be
twice put in jeopardy of life or limb[.]” This Double Jeopardy Clause, however, does not bar
“both a revocation of a defendant’s supervised release and a separate criminal conviction.”199
In addition, the Fifth Amendment provides that [n]o person . . . shall be compelled in any criminal
case to be a witness against himself[.]”200 The privilege against self-incrimination does not
preclude a condition of supervised release that requires the defendant to submit to periodic
polygraph testing to ensure his compliance with the conditions of his supervised release when the
government asserts that it will not seek revocation based on a valid claim of the privilege.201
The Amendment also declares that “[n]o person shall . . . be deprived of life, liberty, or property,
without due process of law[.]”202 Due process requires that a defendant facing revocation of his
supervised release be given a reasonably prompt hearing,203 and be “given adequate notice,

196 United States v. Dodds, 947 F.3d 473, 477–78 (7th Cir. 2020) (per curiam) (finding no abuse of discretion and
contrasting the district court’s uncontested, reasonably-related explanation of the search condition, which unlike the
condition in United States v. Farmer, 755 F.3d 849 (7th Cir. 2014), required reasonable suspicion and did not explicitly
allow the probation officer to call upon law enforcement officers to assist in the search. In Farmer, the Seventh Circuit
vacated a search condition because the lower court had not demonstrated that the condition was reasonably related to
the defendant’s underlying offense. Id. at 850. See also United States v. Cervantes, 859 F.3d 1175, 1184 (9th Cir. 2017)
(finding no abuse in discretion in a condition permitting suspicionless search in light of the defendant’s “long” history
of drug and counterfeiting offenses accompanied by a regular pattern of violating his conditions of supervised release).
197 United States v. Hill, 776 F.3d 243, 249 (4th Cir. 2015) (“[T]hus, law enforcement officers generally may not search
the home of an individual on supervised release who is not subject to a warrantless search condition unless they have a
warrant supported by probable cause.”). The court in Hill had previously noted that, “[t]he Fifth and Eleventh Circuits
have taken a broader view[.] . . . See United States v. Keith, 375 F.3d 346, 350 (5th Cir. 2005) (declining to read
Knights or Griffin ‘as requiring either a written condition of probation or an explicit regulation permitting the search of
a probationer’s home on reasonable suspicion’); United States v. Yuknavich, 419 F.3d 1302, 1310–11 (11th Cir. 2005)
(same)”). Id. at 249 n.3. See also United States v. Dupas, 419 F.3d 916, 922 (9th Cir. 2005) (holding that a supervised
release condition permitting search, day or night, with or without warrant or probable cause by any law enforcement
officer was not facially contrary to the requirements of the Fourth Amendment); United States v. Caya, 956 F.3d 498,
503-504 (7th Cir. 2020) (questioning the analysis in Hill but distinguishing the facts because Hill was not subject to a
“search” condition of supervised release).
198 United States v. McGill, 8 F.4th 617, 622-24 (7th Cir. 2021).
199 U.S. CONST. amend. V; United States v. Wilson, 939 F.3d 929, 931–32 (8th Cir. 2019).
200 U.S. CONST. amend. V.
201 See, e.g., United States v. Richards, 958 F.3d 961, 966–68 (10th Cir. 2020).
202 U.S. CONST. amend. V.
203 United States v. Torres-Santana, 991 F.3d 257, 263-64 (1st Cir. 2021) (“The right to a timely supervised release
revocation hearing is ‘assured’ by Rule 32.1, and, generally, by the Due Process Clause.’ . . . Both parties analyze
Torres’s unreasonable delay claim under the framework articulated in Baker v. Wingo. . . . That approach is misguided
here. We are not dealing with a Sixth Amendment Speedy Trial claim. . . . [W]e analyze a claim in this circuit under
Rule 32.1 akin to how we evaluate a Due Process claim under the Fifth Amendment. To demonstrate a violation caused
by a delayed revocation hearing that justifies relief, the defendant must show that the delay was unreasonable and
prejudicial.”) (citing United States v. Pagán-Rodriguez, 600 F.3d 39, 41 (1st Cir. 2010)); United States v. Gavilanes-
Ocaranza, 772 F.3d 624, 628 (9th Cir. 2014).
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represented at all times, [permitted to] appear[ ] at the hearing, and . . . afforded an opportunity to
make a statement and present information in mitigation.”204 “The minimum requirements of due
process [also] include the right to confront and cross examine adverse witnesses (unless the
hearing officer specifically finds good cause for not allowing confrontation).”205 These minimum
requirements include a right to representation by counsel “when a defendant has a colorable claim
that he has not violated the condition of release, or if he has a substantial case to make against
revocation. . . .”206 Due process also colors the extent to which a condition of supervised release
may bar a defendant’s access to his own children.207
One of the more common due process complaints has been that a particular condition of
supervised release is unconstitutionally vague.208 “A condition of supervised release is
unconstitutionally vague if it does not afford a person of reasonable intelligence with sufficient
notice as to the conduct prohibited.”209 The popularity of the challenge may have something to do

204 United States v. Jones, 774 F.3d 399, 403 (7th Cir. 2014) (“Fed. R. Civ. P. 32.1 and [United States] v. LeBlanc, 175
F.3d 511, 515 (7th Cir. 1999) (Rule 32.1 largely codified Morrissey v. Brewer, 408 U.S. 471, 489 (1972), which
defined Fifth Amendment due process rights . . . in parole revocation hearings.)”) (parallel citations omitted).
205 United States v. Smith, 718 F.3d 768, 772 (8th Cir. 2013); see also United States v. Mosley, 759 F.3d 664, 667–68
(7th Cir. 2014); United States v. Ferguson, 752 F.3d 613, 616–17 (4th Cir. 2014).
206 United States v. Jones, 861 F.3d 687, 690 (7th Cir. 2017).
207 United States v. Hobbs, 710 F.3d 850, 853 (8th Cir. 2013) (“The relationship between parent and child is a liberty
interest protected by the Due Process Clause. Thus, in sex offender cases, we scrutinize more carefully conditions
restricting the defendant’s right to contact his own children than conditions restricting childless sex offenders from
contact with children.”) (internal citation omitted); United States v. Bear, 769 F.3d 1221, 1229 (10th Cir. 2014) (“When
a defendant has committed a sex offense against children or other vulnerable victims, general restrictions on contact
with children ordinarily do not involve a greater deprivation of liberty than reasonably necessary. But restrictions on a
defendant’s contact with his own children are subject to stricter scrutiny. ‘[T]he relationship between parent and child
is constitutionally protected,’ and ‘a father has a fundamental liberty interest in maintaining his familial relationship
with his [children].’ ”) (internal citations omitted; brackets in original); United States v. Wolf Child, 699 F.3d 1082,
1097 (9th Cir. 2012) (“This record does not, however, support imposition of prohibitions on Wolf Child’s residing with
or being in the company of his daughters or socializing with his fiancée. We cannot justify the imposition of conditions
of supervised release that so drastically infringe on the fundamental right to familial association on the basis of a record
devoid of any suggestion that Wolf Child poses a sexual risk to his daughters or to his fiancée (or to her daughters, of
whom he is the father).”).
208 See, e.g., United States v. Adkins, 743 F.3d 176, 194-95 (7th Cir. 2014) (“Our conclusion is generally consistent
with our sister circuits’ approaches to this challenging area. See, e.g., United States v. Antelope, 395 F.3d 1128, 1141–
42 (9th Cir 2005) (striking down as unconstitutionally vague a supervised release condition banning the possession of
‘any pornographic, sexually oriented or sexually stimulating materials’); United States v. Guagliardo, 278 F.3d 868,
872 (9th Cir. 2002) (striking down as unconstitutionally vague a supervised release condition banning the possession of
‘any pornography,’ including legal adult pornography, because ‘a probationer cannot reasonably understand what is
encompassed by a blanket prohibition on “pornography” ’); United States v. Loy, 237 F.3d 251, 261 (3d Cir. 2001)
(striking down as unconstitutionally vague a supervised release condition banning the possession of ‘all forms of
pornography, including legal adult pornography’); Farrell v. Burke, 449 F.3d 470, 486 (2d Cir. 2006) (noting that the
Second Circuit has ‘strongly suggest[ed] that the term ‘pornography’ is inherently vague for defendants whose statute
of conviction does not define it.”)); see also United States v. Reeves, 591 F.3d 77, 80–81 (2d Cir. 2010) (finding
unconstitutionally vague a condition requiring the defendant to disclose his conviction to anyone with whom he entered
a “significant romantic relationship”); United States v. Johnson, 626 F.3d 1085, 1091 (9th Cir. 2010) (finding
impermissibly vague a condition banning the defendant from associating with anyone associated with gang members);
United States v. Perazza-Mercado, 553 F.3d 65, 74–76 (1st Cir. 2009) (vacating a condition of supervised release that
banned the “possession of any kind of pornographic material” because the district court did not provide an explanation
for this condition, and “no evidence in the record justifies the ban”); cf. United States v. Armel, 585 F.3d 182, 185–87
(4th Cir. 2009) (holding that sentencing court abused its discretion by imposing an unexplained three-year prohibition
on adult “pornography” where defendant had been convicted of threatening federal officials). But see United States v.
Boston, 494 F.3d 660, 667–68 (8th Cir. 2007) (upholding the breadth of the supervised release condition in part
because the defendant was found guilty of producing child pornography).
209 Adkins, 743 F.3d at 193; see also United States v. Bolin, 976 F.3d 202, 214 (2d Cir. 2020 (“Due process requires
that the conditions of supervised release be sufficiently clear to ‘give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act accordingly.’”) (quoting Grayned v. City of Rockford, 408
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with the fact that the statutory and Guidelines conditions are worded in general terms in order to
allow sentencing courts to adjust them to the facts before them.210 The most troubling appear to
have been adjusted in the 2016 amendments to the Guidelines.211
In addition, the Supreme Court in Haymond 212 held that one revocation subsection of Section
3583(k) constitutes a violation of Fifth Amendment due process and the Sixth Amendment right
to trial by jury. In the case of certain sex offenses, Section 3583(k) purported to establish a
mandatory term of reimprisonment and a mandatory term of supervised release thereafter.213 To
exercise the authority of Section 3583(k), a court was required to make certain findings by a
preponderance of the evidence. Justice Breyer, whose concurrence marks the point of agreement
in the 4-1-4 division of the Court, agreed that Section 3583(k) is unconstitutional. He viewed the
procedure under the section as “punishment of new criminal offenses” (the statutorily identified,
revocation-triggering offenses) and constitutionally suspect because “a jury [not a judge] must
find facts that trigger a mandatory minimum prison term.”214 Subsequent lower court decisions
have held that infirmities of section 3583(k) do not imperil revocation under section 3583(e).215

U.S. 104, 108 (1972)).
210 Siegel, 753 F.3d at 708 (“A more serious problem with the current system is that, as we’ll see when we discuss the
conditions imposed in our two cases, a number of the listed conditions, along with a number of conditions that judges
modify or invent, are vague.”).
211 Sentencing Guidelines for United States Courts, 81 Fed. Reg. 27,277 (May 5, 2016) (“Reason for Amendment: This
amendment is a result of the Commission’s multi-year review of sentencing practices related to federal probation . . .
and supervised release, § 5D1.3[.] . . . In a number of cases, defendants have raised objections (with varied degrees of
success) to conditions of supervised release . . . imposed upon them at the time of sentencing[.] . . . Challenges have
been made on the basis that certain conditions are vaguely worded[.]”).
212 United States v. Haymond, 139 S. Ct. 2369 (2019).
213 18 U.S.C. § 3583(k) (“Notwithstanding subsection (b), the authorized term of supervised release for any offense
under section 1201 [relating to kidnapping] involving a minor victim, and for any offense under section 1591 [relating
to commercial sex trafficking], 1594(c) [relating to attempts or conspiracies to engage in commercial sex trafficking],
2241 [relating to aggravated sexual abuse], 2242 [relating to sexual abuse], 2243 [relating to sexual abuse of a minor or
ward], 2244 [relating to abusive sexual contact], 2245 [relating to sexual abuse offenses resulting in death], 2250
[relating to failure to register as a sex offender], 2251 [relating to sexual exploitation of children], 2251A [relating to
selling or buying children], 2252 [relating to material involving sexual exploitation of children], 2252A [relating to
child pornography], 2260 [relating to production of child pornography abroad], 2421 [relating to interstate
transportation for unlawful sexual purposes], 2422 [relating to coercive interstate travel for unlawful sexual purposes],
2423 [relating to transportation and travel for illicit sexual purposes], or 2425 [relating to use of interstate facilities to
transmit information about a minor], is any term of years not less than 5, or life. If a defendant required to register
under the Sex Offender Registration and Notification Act commits any criminal offense under chapter 109A [relating to
sexual abuse], 110 [relating to sexual exploitation of a child], or 117 [relating to transportation for unlawful sexual
purposes], or section 1201 or 1591, for which imprisonment for a term longer than 1 year can be imposed, the court
shall revoke the term of supervised release and require the defendant to serve a term of imprisonment under subsection
(e)(3) without regard to the exception contained therein. Such term shall be not less than 5 years.”).
214 Haymond, 139 S. Ct. at 2386 (Breyer, J., concurring in the judgment).
215 United States v. Ka, 982 F.3d 219, 222-23 (4th 2020) (“Justice Breyer highlighted three unique aspects of § 3583(k)
that distinguish it from § 3583(e): (1) § 3583(k) applies only to an enumerated list of federal criminal statutes; (2) it
strips judges of the discretion to decide whether a violation of a condition of supervised release should result in
imprisonment; and (3) it ‘limits the judge’s discretion in a particular manner: by imposing a mandatory minimum term
of imprisonment of [five years]’ upon the judge’s finding that the releasee had committed one of the enumerated
offenses. . . . Notably, however, § 3583(e) ‘does not contain any of the features that, in combination, rendered
§ 3583(k) unconstitutional.’ . . . Our sister circuits that have considered whether Haymond has implications for their
§ 3583(e) jurisprudence agree that it does not.” (quoting Haymond, 139 S. Ct. at 2386 and United States v. Doka, 955
F.3d 290, 296 (2d Cir. 2020) and citing unpublished opinions from the Eleventh, Fifth and Fourth Circuits)); see also
United States v. Salazar, 987 F.3d 1248, 1259 (10th Cir. 2021); United States v. Henderson, 998 F.3d 1071, 1076 (9th
Cir. 2021).
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Sixth Amendment
The Sixth Amendment assures the accused a number of rights during the course of his trial.216 As
just noted, the Fifth Amendment Due Process Clause assures the defendant of comparable, if
more limited, rights at sentencing and during supervised release revocation hearings. The Sixth
Amendment rights, however, do not apply there. More specifically, the Sixth Amendment’s right
to a speedy trial is not implicated by the passage of time between a defendant’s conviction and
the revocation hearing triggered by allegations of a violation of the defendant’s condition of
supervised release.217 The Sixth Amendment Jury Trial Clause trial does not apply to revocation
hearings under Section 3583(e);218 neither do the Sixth Amendment Confrontation219 nor the
Assistance of Counsel Clauses.220
Eighth Amendment
The Eighth Amendment prohibits cruel and unusual punishment.221 Its proscription encompasses
both the inherently barbaric punishment and in rare cases those grossly disproportionate to the
crime for which punishment was inflicted.222 Eighth Amendment challenges of a sentence of
supervised release are rare,223 and thus far, even more rarely successful.224

216 U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with
the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance
of Counsel for his defence.”).
217 United States v. Napper, 978 F.3d 118, 126 n.21 (5th Cir. 2020) (“. . . Sixth Amendment speedy trial rights are
inapplicable in supervised release revocation hearings. . . .”); United States v. Gavilanes-Ocaranza, 772 F.3d 624, 628
(9th Cir. 2014); United States v. Ward, 770 F.3d 1090, 1097 (4th Cir. 2014) (Sixth Amendment speedy trial right does
not apply in hearings for the revocation of supervised release) (citing United States v. House, 501 F.3d 928, 931 (8th
Cir. 2007) and United States v. Tippens, 39 F.3d 88, 89 (5th Cir. 1994) (per curiam)).
218 Doka, 955 F.3d at 293–94; United States v. Rodriguez, 945 F.3d 1245, 1250 n.5 (10th Cir. 2019); United States v.
Collins, 859 F.3d 1207, 1216 (10th Cir. 2017); Gavilanes-Ocaranza, 772 F.3d at 628–29; Ward, 770 F.3d at 1099
(citing United States v. McIntosh, 630 F.3d 699, 702–03 (7th Cir. 2011) and United States v. Cunningham, 607 F.3d
1264, 1267–68 (11th Cir. 2010)).
219 United States v. Diaz, 986 F.3d 202, 209 (2d Cir. 2021); United States v. Colón-Maldonado, 953 F.3d 1, 3 (1st Cir.
2020); Ward, 770 F.3d at 1098 (citing United States v. Ray, 530 F.3d 666, 668 (8th Cir. 2008) and United States v.
Kelley, 446 F.3d 688, 691 (7th Cir. 2006)).
220 United States v. Jones, 861 F.3d 687, 690 (7th Cir. 2017).
221 U.S. CONST. amend. VIII; see generally Cong. Research Serv., The CONSTITUTION OF THE UNITED STATES OF
AMERICA: ANALYSIS AND INTERPRETATION, Sen. Doc. No. 112-9,
https://constitution.congress.gov/browse/essay/amdt8-2-1-1/ALDE_00000963/
222 Graham v. Florida, 560 U.S. 48, 59 (2010) (“The Cruel and Unusual Punishments Clause prohibits the imposition of
inherently barbaric punishments under all circumstances. . . . For the most part, however, the Court’s precedents
consider punishments challenged not as in inherently barbaric but as disproportionate to the crime. The concept of
proportionality is central to the Eighth Amendment.”).
223 Cf. United States v. Demers, 634 F.3d 982, 986 n.4 (8th Cir. 2011) (per curiam) (“Demers also asserts that this
condition is ‘punitive and an alternative form of incarceration,’ and, since the condition will be imposed for life,
‘constitutes cruel and unusual punishment under the Eighth Amendment.’ Demers makes no argument to support this
assertion, nor does he cite any law on point. Demers’s Eighth Amendment challenge accordingly fails to show plain
error. See United States v. Fields, 324 F.3d 1025, 1027–28 (8th Cir. 2003) (concluding that an Eighth Amendment
challenge does not show plain error because the defendant ‘cites no case in which a condition of supervised release was
found to constitute cruel and usual punishment’).”).
224 See, e.g., United States v. Williams, 636 F.3d 1229, 1232–34 (9th Cir. 2011) (concluding that the life-time term of
supervised release imposed as a consequence of Williams’ conviction for receipt of child pornography was not
unconstitutionally disproportionate punishment either as punishment for sex offenders generally or as applied to
Williams under the circumstances).
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Attachments
18 U.S.C. § 3583 (text).
(a) In general.The court, in imposing a sentence to a term of imprisonment for a felony or a
misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of
supervised release after imprisonment, except that the court shall include as a part of the sentence a
requirement that the defendant be placed on a term of supervised release if such a term is required by
statute or if the defendant has been convicted for the first time of a domestic violence crime as defined in
section 3561(b).
(b) Authorized terms of supervised release. Except as otherwise provided, the authorized terms of
supervised release are
(1) for a Class A or Class B felony, not more than five years;
(2) for a Class C or Class D felony, not more than three years; and
(3) for a Class E felony, or for a misdemeanor (other than a petty offense), not more than one year.
(c) Factors to be considered in including a term of supervised release. The court, 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, shall consider the factors set
forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).
(d) Conditions of supervised release. The court shall order, as an explicit condition of supervised
release, that the defendant not commit another Federal, State, or local crime during the term of supervision,
that the defendant make restitution in accordance with sections 3663 and 3663A, or any other statute
authorizing a sentence of restitution, and that the defendant not unlawfully possess a controlled substance.
The court shall order as an explicit condition of supervised release for a defendant convicted for the first
time of a domestic violence crime as defined in section 3561(b) that the defendant attend a public, private,
or private nonprofit offender rehabilitation program that has been approved by the court, in consultation
with a State Coalition Against Domestic Violence or other appropriate experts, if an approved program is
readily available within a 50-mile radius of the legal residence of the defendant. The court shall order, as an
explicit condition of supervised release for a person required to register under the Sex Offender
Registration and Notification Act, that the person comply with the requirements of that Act. The court shall
order, as an explicit condition of supervised release, that the defendant cooperate in the collection of a
DNA sample from the defendant, if the collection of such a sample is authorized pursuant to section 3 of
the DNA Analysis Backlog Elimination Act of 2000. The court shall also order, as an explicit condition of
supervised release, that the defendant refrain from any unlawful use of a controlled substance and submit to
a drug test within 15 days of release on supervised release and at least 2 periodic drug tests thereafter (as
determined by the court) for use of a controlled substance. The condition stated in the preceding sentence
may be ameliorated or suspended by the court as provided in section 3563(a)(4). The results of a drug test
administered in accordance with the preceding subsection shall be subject to confirmation only if the results
are positive, the defendant is subject to possible imprisonment for such failure, and either the defendant
denies the accuracy of such test or there is some other reason to question the results of the test. A drug test
confirmation shall be a urine drug test confirmed using gas chromatography/mass spectrometry techniques
or such test as the Director of the Administrative Office of the United States Courts after consultation with
the Secretary of Health and Human Services may determine to be of equivalent accuracy. The court shall
consider whether the availability of appropriate substance abuse treatment programs, or an individual's
current or past participation in such programs, warrants an exception in accordance with United States
Sentencing Commission guidelines from the rule of section 3583(g) when considering any action against a
defendant who fails a drug test. The court may order, as a further condition of supervised release, to the
extent that such condition
(1) is reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and
(a)(2)(D);
(2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in
section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant
to 28 U.S.C. 994(a);
any condition set forth as a discretionary condition of probation in section 3563(b) and any other condition
it considers to be appropriate, provided, however that a condition set forth in subsection 3563(b)(10) shall
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be imposed only for a violation of a condition of supervised release in accordance with section 3583(e)(2)
and only when facilities are available. If an alien defendant is subject to deportation, the court may provide,
as a condition of supervised release, that he be deported and remain outside the United States, and may
order that he be delivered to a duly authorized immigration official for such deportation. The court may
order, as an explicit condition of supervised release for a person who is a felon and required to register
under the Sex Offender Registration and Notification Act, that the person submit his person, and any
property, house, residence, vehicle, papers, computer, other electronic communications or data storage
devices or media, and effects to search at any time, with or without a warrant, by any law enforcement or
probation officer with reasonable suspicion concerning a violation of a condition of supervised release or
unlawful conduct by the person, and by any probation officer in the lawful discharge of the officer's
supervision functions.
(e) Modification of Conditions or Revocation. The court may, after considering the factors set forth in
section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)-
(1) terminate a term of supervised release and discharge the defendant released at any time after the
expiration of one year of supervised release, pursuant to the provisions of the Federal Rules of Criminal
Procedure relating to the modification of probation, if it is satisfied that such action is warranted by the
conduct of the defendant released and the interest of justice;
(2) extend a term of supervised release if less than the maximum authorized term was previously
imposed, and may modify, reduce, or enlarge the conditions of supervised release, at any time prior to
the expiration or termination of the term of supervised release, pursuant to the provisions of the Federal
Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to
the initial setting of the terms and conditions of post-release supervision;
(3) revoke a term of supervised release, and require the defendant to serve in prison all or part of the
term of supervised release authorized by statute for the offense that resulted in such term of supervised
release without credit for time previously served on postrelease supervision, if the court, pursuant to the
Federal Rules of Criminal Procedure applicable to revocation of probation or supervised release, finds
by a preponderance of the evidence that the defendant violated a condition of supervised release, except
that a defendant whose term is revoked under this paragraph may not be required to serve on any such
revocation more than 5 years in prison if the offense that resulted in the term of supervised release is a
class A felony, more than 3 years in prison if such offense is a class B felony, more than 2 years in
prison if such offense is a class C or D felony, or more than one year in any other case; or
(4) order the defendant to remain at his place of residence during nonworking hours and, if the court
so directs, to have compliance monitored by telephone or electronic signaling devices, except that an
order under this paragraph may be imposed only as an alternative to incarceration.
(f) Written statement of conditions. The court shall direct that the probation officer provide the
defendant with a written statement that sets forth all the conditions to which the term of supervised release
is subject, and that is sufficiently clear and specific to serve as a guide for the defendant's conduct and for
such supervision as is required.
(g) Mandatory revocation for possession of controlled substance or firearm or for refusal to
comply with drug testing. If the defendant
(1) possesses a controlled substance in violation of the condition set forth in subsection (d);
(2) possesses a firearm, as such term is defined in section 921 of this title, in violation of Federal law,
or otherwise violates a condition of supervised release prohibiting the defendant from possessing a
firearm;
(3) refuses to comply with drug testing imposed as a condition of supervised release; or
(4) as a part of drug testing, tests positive for illegal controlled substances more than 3 times over the
course of 1 year;
the court shall revoke the term of supervised release and require the defendant to serve a term of
imprisonment not to exceed the maximum term of imprisonment authorized under subsection (e)(3).
(h) Supervised release following revocation. 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 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.
(i) Delayed revocation. The power of the court to revoke a term of supervised release for violation of
a condition of supervised release, and to order the defendant to serve a term of imprisonment and, subject
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to the limitations in subsection (h), a further term of supervised release, extends beyond the expiration of
the term of supervised release for any period reasonably necessary for the adjudication of matters arising
before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an
allegation of such a violation.
(j) Supervised release terms for terrorism predicates. Notwithstanding subsection (b), the
authorized term of supervised release for any offense listed in section 2332b(g)(5)(B) is any term of years
or life.
(k) Notwithstanding subsection (b), the authorized term of supervised release for any offense under
section 1201 involving a minor victim, and for any offense under section 1591, 1594(c), 2241, 2242, 2243,
2244, 2245, 2250, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, 2423, or 2425, is any term of years not
less than 5, or life. If a defendant required to register under the Sex Offender Registration and Notification
Act commits any criminal offense under chapter 109A, 110, or 117, or section 1201 or 1591, for which
imprisonment for a term longer than 1 year can be imposed, the court shall revoke the term of supervised
release and require the defendant to serve a term of imprisonment under subsection (e)(3) without regard to
the exception contained therein. Such term shall be not less than 5 years.
Rule 32.1. Revoking or Modifying Probation or Supervised Release
(text).
(a) Initial Appearance.
(1) Person In Custody. A person held in custody for violating probation or supervised release must be
taken without unnecessary delay before a magistrate judge.
(A) If the person is held in custody in the district where an alleged violation occurred, the initial
appearance must be in that district.
(B) If the person is held in custody in a district other than where an alleged violation occurred, the
initial appearance must be in that district, or in an adjacent district if the appearance can occur more
promptly there.
(2) Upon a Summons. When a person appears in response to a summons for violating probation or
supervised release, a magistrate judge must proceed under this rule.
(3) Advice. The judge must inform the person of the following:
(A) the alleged violation of probation or supervised release;
(B) the person's right to retain counsel or to request that counsel be appointed if the person cannot
obtain counsel; and
(C) the person's right, if held in custody, to a preliminary hearing under Rule 32.1(b)(1).
(4) Appearance in the District With Jurisdiction. If the person is arrested or appears in the district that
has jurisdiction to conduct a revocation hearing-either originally or by transfer of jurisdiction-the court
must proceed under Rule 32.1(b)–(e).
(5) Appearance in a District Lacking Jurisdiction. If the person is arrested or appears in a district that
does not have jurisdiction to conduct a revocation hearing, the magistrate judge must:
(A) if the alleged violation occurred in the district of arrest, conduct a preliminary hearing under
Rule 32.1(b) and either:
(i) transfer the person to the district that has jurisdiction, if the judge finds probable cause to
believe that a violation occurred; or
(ii) dismiss the proceedings and so notify the court that has jurisdiction, if the judge finds no
probable cause to believe that a violation occurred; or
(B) if the alleged violation did not occur in the district of arrest, transfer the person to the district
that has jurisdiction if:
(i) the government produces certified copies of the judgment, warrant, and warrant application,
or produces copies of those certified documents by reliable electronic means; and
(ii) the judge finds that the person is the same person named in the warrant.
(6) Release or Detention. The magistrate judge may release or detain the person under 18 U.S.C.
§3143(a)(1) pending further proceedings. The burden of establishing by clear and convincing evidence
that the person will not flee or pose a danger to any other person or to the community rests with the
person.

(b) Revocation.
(1) Preliminary Hearing.
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Supervised Release (Parole): An Overview of Federal Law

(A) In General. If a person is in custody for violating a condition of probation or supervised
release, a magistrate judge must promptly conduct a hearing to determine whether there is probable
cause to believe that a violation occurred. The person may waive the hearing.
(B) Requirements. The hearing must be recorded by a court reporter or by a suitable recording
device. The judge must give the person:
(i) notice of the hearing and its purpose, the alleged violation, and the person's right to retain
counsel or to request that counsel be appointed if the person cannot obtain counsel;
(ii) an opportunity to appear at the hearing and present evidence; and
(iii) upon request, an opportunity to question any adverse witness, unless the judge determines
that the interest of justice does not require the witness to appear.
(C) Referral. If the judge finds probable cause, the judge must conduct a revocation hearing. If the
judge does not find probable cause, the judge must dismiss the proceeding.
(2) Revocation Hearing. Unless waived by the person, the court must hold the revocation hearing
within a reasonable time in the district having jurisdiction. The person is entitled to:
(A) written notice of the alleged violation;
(B) disclosure of the evidence against the person;
(C) an opportunity to appear, present evidence, and question any adverse witness unless the court
determines that the interest of justice does not require the witness to appear;
(D) notice of the person's right to retain counsel or to request that counsel be appointed if the
person cannot obtain counsel; and
(E) an opportunity to make a statement and present any information in mitigation.

(c) Modification.
(1) In General. Before modifying the conditions of probation or supervised release, the court must
hold a hearing, at which the person has the right to counsel and an opportunity to make a statement and
present any information in mitigation.
(2) Exceptions. A hearing is not required if:
(A) the person waives the hearing; or
(B) the relief sought is favorable to the person and does not extend the term of probation or of
supervised release; and
(C) an attorney for the government has received notice of the relief sought, has had a reasonable
opportunity to object, and has not done so.

(d) Disposition of the Case. The court’s disposition of the case is governed by 18 U.S.C. §3563 and
§3565 (probation) and §3583 (supervised release).

(e) Producing a Statement. Rule 26.2(a)–(d) and (f) applies at a hearing under this rule. If a party fails to
comply with a Rule 26.2 order to produce a witness’s statement, the court must not consider that witness’s
testimony.

Author Information

Charles Doyle

Senior Specialist in American Public Law

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Congressional Research Service
RL31653 · VERSION 13 · UPDATED
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