Could Appealing Your Supervised Release Term Backfire?

It can. Before appealing a sentence, you have to ask whether a win could lead to a harsher sentence. United States v. Lopez-Pastrana, No. 15-1894 (1st Cir. May 4, 2018), shows how.

There, the First Circuit threw out a supervised release term imposed on a count where the defendant, who had a serious medical condition, got no prison time. At first that looks like a win, but it could lead to real prison time if the district court finds his condition is not as life-threatening as it seemed at the first sentencing.

The rule: no supervised release without prison time

Under 18 U.S.C. § 3583(a), a judge "in imposing a sentence to a term of imprisonment" may add "a term of supervised release after imprisonment." So supervised release can follow only a prison sentence on that count.

Supervised release is court supervision after you leave prison. It is sometimes called mandatory parole, but it is not a privilege like early release or parole. The judge imposes it to make sure you follow the rules after prison. Breaking its conditions can send you back to prison.

What happened in Lopez-Pastrana's case

Jose Luis Lopez-Pastrana pleaded guilty to two counts:

• possessing marijuana with intent to distribute, and
• possessing a firearm in furtherance of drug trafficking.

He had a serious lung disease. His lawyer told the court he had about a 20 percent chance of surviving the next four years.

On the gun count, he got the mandatory minimum of 60 months in prison, plus five years of supervised release. The original article said he was to serve that time in a prison medical facility. On the drug count, the guideline range was zero to six months, and he got zero months. But the court still imposed two years of supervised release on the drug count. As a condition, it ordered 12 months of home confinement with electronic monitoring.

The judge called the home confinement a "quid pro quo," a trade, for not imposing six months in prison. In effect, he could choose a year of home confinement, where he would keep receiving federally funded medical care, or six months in prison. Defense counsel objected but then said, "We'll take it." He took home confinement, and then appealed.

Why the First Circuit vacated the term

The First Circuit held that the court could not impose supervised release on the drug count, because there was no prison time on that count. The home confinement condition was tied to that improper term, so it could not stand.

The court sent the case back for resentencing on the drug count.

The risk at resentencing

Here is the catch. As defense counsel admitted at argument, resentencing could lead to actual prison time on the drug count. The court said the district judge could consider any change in his health since the original sentencing.

The district judge also had another option. It could keep zero months on the drug count, drop the improper supervised release, and add home confinement as a condition of supervised release on the gun count. That could leave him about where he started.

The government said it did not plan to seek prison time on the drug count.

What to weigh before appealing a sentence

Lopez-Pastrana could walk away from resentencing with a lighter sentence and no supervised release on the drug count, but he could just as easily face prison time.

Winning an appeal can reopen the whole sentence. If you received a lenient sentence, for example because of a chronic medical problem, think carefully about what the judge could do the second time. It may be better to accept a term of supervised release or home detention as part of your appeal strategy. That is especially true if, like Lopez-Pastrana, you are counting on federally funded medical care.

Trying to cut prison time is usually worth it, but things get more complicated when the sentence already includes favorable terms, like supervised release instead of prison. Talk with a federal appeals lawyer, such as Brandon Sample, Esq., before you decide, so you understand the risks.

Don't wait long. In a federal criminal case, the notice of appeal is generally due 14 days after the judgment is entered, under Federal Rule of Appellate Procedure 4(b)(1)(A). Filing the notice keeps your options open while you and your lawyer weigh the risks.

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