Punishment for Violating Supervised Release Determined by Original Crime

Matthew Jensen pled guilty to unlawful possession of a mail key in 2009. Though the offense carried a maximum of ten years in prison, he was only sentenced to twelve months imprisonment, followed by thirty-six months of supervised release.

Shockingly enough, he violated supervised release shortly after completing his initial prison bid. The violation carried a maximum sentence of two years because the underlying offense was a class C felony. He was sentenced to fourteen months. He never showed.

After Jensen was captured, he pled guilty to failure to appear for service of sentence. He was given twenty-seven months on the newest charge, setting up this appeal.

The failure to appear charge has a penalty that varies according to the underlying sentence. The two relevant punishment provisions are:

• for an offense punishable by five years or more, imprisonment for up to five years;
• for any other felony, not more than two years imprisonment

Jensen contends that the underlying charge, for purposes of the failure to appear, is the violation of a supervised release. If he is correct, he only should have faced two years. If the government is correct, and the underlying offense is the original mail key charge, he faced up to five years (and his sentence is appropriate).

To start with, the First, Sixth, and Seventh Circuits have addressed this issue and decided that the underlying offense should be the original criminal charge. The Ninth Circuit agreed after discussing the statutory definitions. The two cited definitions are:

• "'offense' means any criminal offense ... which is in violation of an Act of Congress and is triable in any court ..."
• "'felony' means an offense punishable by a maximum term of imprisonment of more than one year."

So, per the statute, an "offense" or "felony" must be (1) criminal (2) in violation of an Act of Congress and (3) triable in federal court.

Violation of supervised release is, according to the Court, not a crime. It is also not a violation of an Act of Congress. Instead, it is a violation of a court order. Third, it is not a triable offense; such violations are dealt with in hearings instead. Conversely, the mail key offense meets all three elements.

Jensen agreed with all of that. He instead pointed to other language "if the person was released in connection with a charge of, or while awaiting sentence, surrender for service of sentence ..." He took off while awaiting surrender on a new sentence for violating his release terms.

Or did he? The court classified the sentence for violating his supervised release as a modification and continuation of the original criminal sentence, not a new sentence. After all, the length of the revocation sentence is based on the original underlying offense's sentence.

Related Resources:

• United States v. Jensen (Ninth Circuit Court of Appeals)
• Ex Post Facto Argument Won't Save Sex Tourist Pedophile (FindLaw's Ninth Circuit Blog)
• Sentencing Guidelines Applied, Not Applicable, Determine FSA Eligibility (FindLaw's Ninth Circuit Blog)