Supervised Release Length Cannot Be Based On Retribution

Federal supervised release is supposed to help offenders reintegrate into society after leaving prison. As such, supervised release length cannot be based on retribution, the U.S. Court of Appeals for the Second Circuit recently held.

Kelvin Burden and Jermaine Buchanan were convicted of a racketeering conspiracy involving drugs and murder. Both were sentenced to life imprisonment. They filed 28 U.S.C. 2255 motions arguing that the Government failed to disclose Brady material. Burden and Buchanan then agreed to dismiss their 2255 motions in exchange for a full resentencing hearing and a binding advisory Guideline Range of 262 to 365 months.

The district court sentenced Burden and Buchanan to 365 months and lifetime supervised release.

On appeal, Burden and Buchanan argued that the district court erred by imposing lifetime supervised release for retributive reasons.

The Second Circuit, reviewing for plain error, noted that:

"Supervised release . . . is not a punishment in lieu of incarceration.” United States v. Granderson, 511 U.S. 39, 50 (1994). To the contrary, “Congress intended supervised release to assist individuals in their transition to community life.” United States v. Johnson, 529 U.S. 53, 59 (2000). Accordingly, “[s]upervised release fulfills rehabilitative ends, distinct from those served by incarceration.” Id. As such, “a court may not take account of retribution (the first purpose listed in § 3553(a)(2)) when imposing a term of supervised release.” Tapia v. United States, 564 U.S. 319, 326 (2011) (citing 18 U.S.C. § 3583(c)).

As applied to Buchanan and Burden's case, the Second Circuit held that the lower court had improperly set the supervised release length based on retributive factors:

Here, the district court advised Buchanan that its sentence was 'really driven in large part by the seriousness of what Mr. Buchanan did.' And it advised Burden that although it believed he was a 'changed person,' his sentence was 'at the top of the [stipulated] range . . . because of really the seriousness of what [he] did, and . . . although years have passed, it doesn’t change what [he was] doing.”  To be sure, in order to impose a term of supervised release that takes account of “the nature and circumstances of the offense,' 18 U.S.C. § 3553(a)(1), that “afford[s] adequate deterrence,” § 3553(a)(2)(B), and that 'protect[s] the public from further crimes of the defendant,' § 3553(a)(2)(C)—each of which is relevant to the supervised release analysis, see § 3583(c)—it would be neither possible nor desirable to disregard the seriousness of a defendant’s offense. A district court properly weighs the seriousness of the offense as relevant to the application of these mandatory considerations when imposing a term of supervised release. But when a supervised release term is inflected with retributive interests—as appears may have been the case here—the district court commits procedural error and the supervised release term cannot stand.

The Government had also argued that Buchanan and Burden waived their right to challenge their supervised release length. But the Second Circuit rejected the Government's waiver arguments after construing the waiver narrowly and in light of the fact that the waiver did "not so much as mention supervised release."

Accordingly, the case was remanded for resentencing solely related to Buchanan and Burden's supervised release length. United States v. Burden, No. 15-1080 (2d Cir. 2017).

About Brandon Sample

Brandon Sample is an attorney, author, and criminal justice reform activist. Brandon’s law practice is focused on federal criminal defense, federal appeals, federal post-conviction relief, federal civil rights litigation, federal administrative law, and the Freedom of Information Act (FOIA).

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