Does the First Step Act Apply to Supervised Release Revocation?
The First Step Act allows the court to reduce an inmate’s sentence if their offense was covered under the Fair Sentencing Act, but does the First Step Act apply to supervised release revocation?
In U.S. v. Venable, the Fourth Circuit Court of Appeals held that the First Step Act does apply to supervised release revocations under the “unitary theory of sentencing,” although that does not mean a sentence reduction will be granted.
The district court has the authority to reduce an inmate’s sentence if the original sentence was for a covered offense, even though the inmate is serving time on a supervised release revocation and even though the original sentence has been completed.
Does the First Step Act Apply to Supervised Release?
Venable was sentenced for possession with intent to distribute crack cocaine and felony possession of a firearm. His sentence was later reduced under Amendment 706 to the United States Sentencing Guidelines, he was released, and he began serving four years of supervised release.
While on supervised release, he was arrested and sentenced in state court for drug offenses. He received a consecutive federal sentence for supervised release revocation (he did not begin serving the federal time until he had completed the state prison sentence).
He then filed a motion for a sentence reduction under the First Step Act. Although he had completed his sentence, his original offense was covered under the First Step Act, his original sentence could have been reduced, if it is reduced he would be eligible for credit for “overserved time” that could be applied to his revocation sentence, and then he could be released with time served.
The district court denied his motion. The Fourth Circuit Court of Appeals reversed, finding that Venable is eligible for a sentence reduction, although the district court is not required to give him one…
When Does the First Step Act Apply?
An inmate is eligible for a sentence reduction under the First Step Act if they were convicted of a “covered offense” under the Fair Sentencing Act but were unable to request a sentence reduction due to procedural barriers.
Venable’s original conviction is a “covered offense” under the First Step Act:
Venable’s original drug conviction under 21 U.S.C. § 841(a) falls within the First Step Act’s definition of “covered offense,” meaning that so long as he is serving any part of his sentence for that offense, he is eligible for a reduction.
Furthermore, he would have received a benefit from the Fair Sentencing Act (another requirement to be eligible for a sentence reduction under the First Step Act):
His offense (possession of 12.1 grams of cocaine base) was originally classified as a Class B felony, but under the Fair Sentencing Act’s provisions, it is now classified as a Class C felony. This reclassification corresponds with a lower range of statutory penalties.
What if the inmate has completed the original sentence, but they are incarcerated again due to a supervised release revocation?
The revocation is based on “new” conduct, but is it a separate offense that is not covered under the First Step Act, or is it a part of the original sentence that could have been reduced?
The Unitary Theory of Sentencing
If Venable was serving his original sentence, there would be no question whether he is eligible for a sentence reduction. But is a supervised release revocation – additional prison time for violating the conditions of supervised release – part of the original sentence?
The US Supreme Court has held that, under the “unitary theory of sentencing,” supervised release revocations are a part of the penalty for the original offense:
(“[W]e . . . acknowledge that an accused’s final sentence includes any supervised release sentence he may receive. Nor in saying that do we say anything new: This Court has already recognized that supervised release punishments arise from and are treated . . . as part of the penalty for the initial offense.”
Because “Venable’s revocation sentence is part of the penalty for his initial offense, he is still serving his sentence for a “covered offense” for purposes of the First Step Act,” and the district court has the authority to order a sentence reduction.
Does Venable Get a Reduction of His Supervised Release Revocation?
The Fourth Circuit does not say that Venable is entitled to a sentence reduction, only that the district court has the authority, in its discretion, to grant a sentence reduction:
We emphasize that our holding today is limited to the issue of a district court’s authority to resentence a defendant serving a term of imprisonment for revocation of supervised release whose original, underlying conviction was for a “covered offense.” We offer no opinion on whether Venable is entitled to a reduction of his revocation sentence.
The Court also notes that the district court could rely on the fact that Venable’s supervised release was revoked, inviting the district court to decline to give Venable a sentence reduction:
Nor do we offer any opinion on what, if any, effect the fact that Venable is serving a sentence for revocation of supervised release should have on the district court’s assessment of his motion.
On remand, the district court judge did just that – defiantly declined to reduce Venable’s sentence:
Because I would not have granted Defendant a reduced sentence on the merits of his original motion, I see no basis to grant his motion as revised. Although he is eligible for a reduction under the First Step Act, the sentence he is currently serving is for a violation of the court’s conditions of supervised release. The First Step Act does nothing to change Congress’s view regarding the seriousness of that offense, and I will not be reducing Defendant’s sentence for violating the terms of his supervised release because Congress saw fit to decrease the punishment for drug offenses.
So – can you get a sentence reduction under the First Step Act if you are serving supervised release or revocation of supervised release?
Yes – the court has the authority to grant the sentence reduction if the original sentence was for a “covered offense.” But it is not guaranteed, and the district court will need to be persuaded that a sentence reduction is appropriate in each specific case.
Federal Criminal Appellate Attorney in Columbia, SC
Elizabeth Franklin-Best is a federal white collar criminal defense and federal appeals lawyer located in Columbia, SC.
For more information, call us at (803) 331-3421 or send us an email to set up a consultation about your case.
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