Can a Judge Lengthen Your Supervised Release to Punish You?

No. Supervised release is meant to help you return to the community after prison, not to add punishment. So a judge may not set its length based on retribution, meaning payback for the crime. The Second Circuit held this in United States v. Burden.

Update (October 2026): In 2025, the Supreme Court applied the same idea to revocations. A judge deciding whether to revoke supervised release may not consider retribution for the original crime under 18 U.S.C. § 3553(a)(2)(A). Esteras v. United States (June 20, 2025). Also, since November 1, 2025, the Sentencing Guidelines ask judges to make an individualized assessment of whether to impose supervised release and for how long. See the 2025 Supervised Release Amendment.

What happened in Burden

Kelvin Burden and Jermaine Buchanan were convicted of a racketeering conspiracy involving drugs and murder. Both got life in prison.

They later filed 2255 motions claiming the government hid evidence that helped their defense (a Brady claim). They agreed to drop those motions in exchange for a full resentencing within a binding range of 262 to 365 months.

The district court gave each of them 365 months in prison and lifetime supervised release.

On appeal, they argued the court imposed lifetime supervised release for retributive reasons.

Why supervised release is not punishment

The Second Circuit reviewed for plain error. It relied on several Supreme Court cases:

• "Supervised release . . . is not a punishment in lieu of incarceration." United States v. Granderson, 511 U.S. 39, 50 (1994).
• "Congress intended supervised release to assist individuals in their transition to community life." United States v. Johnson, 529 U.S. 53, 59 (2000).
• "[S]upervised release fulfills rehabilitative ends, distinct from those served by incarceration." Id.
• "[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)).

Why the Second Circuit sent it back

The district judge told Buchanan the sentence was "really driven in large part by the seriousness of what Mr. Buchanan did." The judge told Burden that although it believed he was a "changed person," his sentence was at the top of the range "because of really the seriousness of what [he] did."

The Second Circuit said a judge can consider how serious the offense was for some purposes, like deterrence and protecting the public, but not for payback. The court explained:

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 argued the two men had waived their right to appeal. The court disagreed. It read the waivers narrowly, and the stipulations did "not so much as mention supervised release."

The court sent the case back for resentencing on supervised release only. See United States v. Burden, 860 F.3d 45 (2d Cir. 2017).

What this means for your supervised release term

If the judge's words at sentencing suggest a long supervised release term is meant as punishment, that can be grounds for appeal. Object at sentencing if you can, and order the sentencing transcript so the judge's exact words are on paper.

A term that has already started is not always fixed. After you have served one year of supervised release, you can ask the court to end it early if your conduct and the interest of justice support it. See 18 U.S.C. § 3583(e)(1). A steady job, clean drug tests, and a supportive letter from your probation officer can all help.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.