An 11th Circ. Update On Motions To End Supervised Release

January 12, 2018Articles Law360

In its recent decision in United States v. Johnson,[1] the Eleventh Circuit strengthened procedural protections for defendants in criminal cases who seek early termination of supervised release and joined a growing number of circuit courts in holding that district courts may not summarily deny a defendant’s early termination motion. Instead, the Eleventh Circuit held that district courts must give due consideration to the relevant sentencing factors set forth in 18 U.S.C. § 3553(a) before denying such a motion, in order to allow for meaningful appellate review. While the majority of appellate courts to have considered this issue have reached the same conclusion as the Eleventh Circuit did in Johnson, there is potential for an emerging circuit conflict, with the Eighth Circuit holding that a district court is not required to provide any explanation of a decision denying early termination. Apart from cases from the Eighth Circuit, the decision in Johnson — and similar opinions in four other circuits — provides criminal defendants with a potential avenue for appeal from summary denials of early termination motions.

Motions for Early Termination of Supervised Release

As part of imposing a sentence of imprisonment on a convicted defendant, district courts almost always require that the defendant be placed on a term of supervised release following release from prison. During supervised release, the defendant is overseen by a federal probation officer who assists in the transition from prison to community and also ensures that the defendant is compliant with all conditions set by the sentencing judge. Under certain circumstances, a defendant may request early termination of supervised release by filing such a motion with the district court. Federal judges are authorized to terminate a term of supervised release early pursuant to 18 U.S.C. § 3583(e), provided the defendant has served at least one year. Motions for early termination of supervised release are not uncommon, but are infrequently granted because the defendant is required to demonstrate new or unforeseen circumstances — or even “extraordinary circumstances” by some courts — in order to justify early termination. Because of the high standard for relief, and because the district court is usually already well acquainted with the defendant from having presided over the criminal case including the sentencing hearing, district courts oftentimes issue summary denials of such motions without explanation or a written opinion.

Factual Background of United States v. Johnson

In Johnson, the defendant was convicted by a jury in 1997 of unlawful possession of a firearm by a convicted felon, an offense that carried a statutory maximum sentence of 10 years. However, with a prior criminal history that included two manslaughter convictions and a drug conviction, Johnson was subject to the Armed Career Criminal Act (ACCA), which provided a 15-year mandatory minimum and a maximum of life imprisonment. The district court imposed a sentence of 327 months’ imprisonment — the high end of the guideline range — in light of what it considered his “‘extraordinary’ criminal history and violent propensities,” to be followed by five years of supervised release. The Eleventh Circuit upheld his conviction in 2001.

In 2015, the Supreme Court decided Johnson v. United States,[2] holding that the ACCA’s “residual clause” was unconstitutionally void for vagueness. Johnson thereafter filed an emergency motion to vacate his sentence and for immediate release, arguing that his enhanced sentence under the ACCA was a due process violation, because his two manslaughter convictions could no longer qualify as ACCA predicates. Thus, Johnson argued, he had already served 21 years in prison for a crime that carried a statutory maximum of 10 years. The district court adopted a magistrate judge’s report and recommendation that the motion be granted but also ordered that Johnson be assigned a probation officer and begin a three-year period of supervised release. The court did not provide any reasoning for imposing a term of supervised release.

One year later, Johnson moved for early termination of his supervised release under 18 U.S.C. § 3583(e)(1). That provision allows district courts, in the interest of justice, to terminate a term of supervised release after the defendant completes one year of the term, after consideration of the following sentencing factors contained in 18 U.S.C. § 3553(a):

the nature and circumstances of the offense and the history and characteristics of the defendant; the need for deterrence, for public protection from further crimes of the defendant, and for correctional treatment for the defendant; the guidelines range; the Sentencing Commission’s policy statements; the need to avoid unwarranted sentencing disparities; and the need to provide restitution to any victims of the offense.[3]

Johnson contended early termination was in the interest of justice, given that he had served 21 years on a 10-year sentence. He also noted he was “employed full-time at a construction company, went to church and Bible study, volunteered helping at-risk youth, and that his probation officer would not oppose early termination of his supervised release.”[4] The district court denied the motion, without requesting a response from the government, in a one-line paperless docket entry containing no explanation for the decision.

The Eleventh Circuit’s Reasoning in Johnson

On appeal, the Eleventh Circuit considered the threshold issue of whether courts must consider the § 3553(a) factors at all when denying a motion for early termination. The government argued that the statutory text directed district courts to consider the factors only when granting a motion for early termination, because the statute provides that “[t]he court may, after considering [the relevant § 3553(a) factors,] ... terminate a term of supervised release.”[5] The court of appeals dismissed this argument, reasoning that the government’s approach would leave district courts without guidance in determining when to deny relief or, worse, allow courts to “turn a blind eye” to the § 3553(a) factors. The court, citing unpublished authority from the Eleventh Circuit and a published opinion from the D.C. Circuit, held it was “sufficiently implicit” in § 3583(e)(1) that the factors must be considered whether a court grants or denies a motion for early termination.

The Eleventh Circuit then considered the ultimate issue of whether an order denying a motion for early termination of supervised release must indicate that the district court actually considered the § 3553(a) factors. The court began by noting that a district court “must explain its sentencing decisions adequately enough to allow for meaningful appellate review,” in the absence of which it abuses its discretion.[6] The same principle applies, the court of appeals observed, to decisions regarding whether to reduce a defendant’s sentence.[7] The court further noted that, when ruling on a motion under 18 U.S.C. § 3582(c)(2) to reduce a sentence where the Sentencing Commission later lowers the relevant guideline range, district courts must indicate that they considered the relevant § 3553(a) factors.[8] In that situation, although the district court “need not ‘articulate the applicability of each factor,’” it must show that the “pertinent factors were taken into account” to allow for meaningful appellate review.[9]

The Eleventh Circuit found early termination of supervised release to be “sufficiently analogous” to a reduction of a sentence under § 3582(c)(2) to warrant a similar requirement that the district court indicate its consideration of the relevant sentencing factors, noting a “similar scheme” between the two statutes, in that the defendant “must be statutorily eligible” and the court must then consider, within its discretion, whether consideration of the § 3553(a) factors warrants relief. The court of appeals further recognized its prior holding that “a defendant is ‘not without recourse’” after a denial of an early termination motion, because the defendant may appeal the denial.[10] Reasoning that “recourse” means meaningful appellate review, the court of appeals concluded that an order denying a § 3583(e)(1) motion “must indicate that the court considered the factors enumerated” in that section.

The Eleventh Circuit noted, however, that a district court “need not explain each factor’s applicability.”[11] Nor must the district court “always explicitly articulate that it considered the factors,” because there may be instances where either the reasons are apparent from the record, where an explanation was given in denying a previous motion and no new facts were presented, or where “clear and compelling reasons to deny relief” were otherwise apparent.[12] But, the court of appeals held, “where the order is deficient in explanation, the record must clearly imply that the relevant factors were considered” to ensure meaningful appellate review and avoid “speculation of whether [the § 3553(a) factors] were taken into account in the first place.”[13]

Applying these standards to Johnson’s motion, the Eleventh Circuit considered whether, in light of the paperless docket entry lacking explanation, an indication of whether the § 3553(a) factors were considered was nevertheless sufficiently implicit from the record. The government argued that, because the same judge that presided over Johnson’s 1997 trial and sentencing also denied his motion for early termination, the judge must have been aware of Johnson’s prior history. It also argued that, because Johnson submitted a brief outlining his post-release conduct, the judge must have considered it. The Eleventh Circuit rejected these arguments, refusing to “stretch” any inferences arising from the fact that the same judge presided over Johnson’s trial and sentencing, given that Johnson’s motion came 20 years after his trial and the district court did not indicate that it had reconsidered the record of Johnson’s trial or sentencing. Moreover, the court of appeals reasoned that the impact of Johnson’s prior conduct and convictions, which informed his sentencing in 1997, may well have diminished with the passage of time. The court found that “it would be unacceptable speculation to impart sentencing considerations from 1997 to this case.”[14]

The Eleventh Circuit reasoned that, while a judge’s personal knowledge or recollection could be a basis for a denial, it must be revealed in the order.[15] In other words, the court of appeals could not simply assume that the district court’s determination was “buttressed” by its experience in overseeing the defendant’s trial. In addition, the Eleventh Circuit found that merely because Johnson had filed a brief in support of his motion did not mean that the district court had actually considered the § 3553(a) factors, reasoning that affirming on that basis “would promote post hoc rationalization of sentencing decisions, not meaningful review.”[16]

The Eleventh Circuit vacated the district court’s order denying Johnson’s motion and remanded the case for further consideration and explanation. It concluded that, because neither the summary denial order nor the record indicated the basis for the denial, it could not “reflexively presume” that the district court had properly exercised its discretion—which “would risk turning abuse of discretion into merely a rubber stamp.”[17]

An Emerging Circuit Conflict?

The Eleventh Circuit is the fifth circuit court of appeals to address the question of a whether a district court must consider the relevant § 3353(a) factors before denying a motion for early termination of supervised release. The first court of appeals to address the question — the Second Circuit — held district courts need not make specific findings of fact with respect to each § 3553(a) factor, and that “a statement that [the district court] has considered the statutory factors is sufficient.”[18] The Seventh Circuit followed next, holding in United States v. Lowe that “the district court must give some indication that it has considered the statutory factors” and that “[s]tating simply that the court has ‘reviewed the motion’ ... is not equivalent to considering the statutory factors.”[19]

The next appellate court to adopt this developing majority rule was the Ninth Circuit, which held (albeit in a split decision) in United States v. Emmett that “[a] district court’s duty to explain its sentencing decisions must also extend to requests for early termination of supervised release” in order to allow for meaningful appellate review and also to preserve public trust in sentencing decisions.[20] That holding drew a sharp rebuke from Judge Jacqueline H. Nguyen, who in dissent criticized the majority’s “impractical, overly formalistic approach” which gave “short shrift” to the wide latitude accorded district courts in sentencing matters.[21] The dissent argued that requiring the district court to explain its denial was unnecessary in a case where the defendant “filed a bare-bones ex parte application which merely reargued, in little more than a page, matters already previously considered by the district court.”[22]

The D.C. Circuit followed next in adopting the majority approach in United States v. Mathis-Gardner.[23] However, the court of appeals acknowledged the point made by the dissenting opinion in Emmett that “there may be instances where no explanation for denying a motion to terminate supervised release is necessary,” such as “[w]here clear and compelling reasons to deny relief leap out from the record.”[24]

To date, the only circuit to diverge from the majority rule is the Eighth Circuit, which in 2013 affirmed a district court’s decision to “summarily den[y]” a motion for early termination in United States v. Mosby.[25] There, the court of appeals found no abuse of discretion in the district court’s summary denial based upon the district court’s extensive familiarity with the defendant:

We conclude that the district court did not abuse its discretion. It had presided over Mosby’s trial and was well acquainted with his extensive criminal record, which includes convictions for violent offenses such as first degree attempted murder and first degree sexual assault. The district court was aware of the time that Mosby had been detained related to his [18 U.S.C.] § 4248 proceeding, his subsequent positive transition to life outside of custody, and his status as a sex offender subjecting him to state monitoring.[26]

The Eighth Circuit concluded that “[n]either 18 U.S.C. § 3583(e) nor relevant case law required the district court to explain its denial of early termination of supervised release.”[27]


Criminal defense practitioners should consider the implications of the Johnson decision and the growing chorus of circuit courts holding that district courts must indicate that they considered the relevant § 3553(a) factors before denying a motion for early termination of supervised release. Although the Eighth Circuit has held to the contrary in Mosby, and the dissenting opinion in Emmett would agree with the reasoning of Mosby, the majority rule is firmly reflected in the Johnson opinion. With the exception of cases arising in the Eighth Circuit, the decisions in Gammarano, Lowe, Emmett, Mathis-Garnder and now Johnson provide criminal defendants with a possible avenue for appeal from summary denials of motions for early termination by district courts.

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