Prosecutor requests excessive sentence for VOSR; is it lawful?

Question

I was sentenced to two years of supervised release with a time-served sentence, avoiding imprisonment. The offense's maximum supervised release term was three years. Fifteen days before the end of my term, the prosecutor filed a Violation of Supervised Release, requesting six months of imprisonment and a 36-month supervised release.

Under 18 U.S.C. § 3583(h), I understand that the new supervised release should be reduced by the time already served. Having completed two years, the maximum lawful sentence should be six months of imprisonment followed by 30 months of supervised release. The request for six months and 36 months appears excessive.

My CJA attorney cites 18 U.S.C. § 3583(e)(3), suggesting the court can impose up to 36 months total, including imprisonment. My violation includes not paying approximately $1.4 million in restitution and mistakenly taking a car on credit. However, my attorney isn't reacting to these concerns, making me feel inadequately represented. Is the prosecutor's request excessive and intended to pressure me? Can the court lawfully impose these terms?

Stephen Bilkis · Answer

Your concerns are understandable, especially given the complexity of supervised release violations and the possibility of significant consequences even near the end of your term. Based on the details you've provided, your understanding of the sentencing provisions under 18 U.S.C. § 3583 appears to be correct in many respects, and the prosecutor’s request for six months of imprisonment followed by a full 36 months of supervised release raises legitimate legal issues. 
 
Under 18 U.S.C. § 3583(e)(3), when a person violates a condition of supervised release, the court may revoke the term and require the defendant to serve time in prison. The statute limits the length of imprisonment based on the grade of the violation and the classification of the original offense. For a Class C felony, for example, the maximum prison term upon revocation is two years. Importantly, the total punishment—including any new supervised release—must fall within the legal limits authorized by § 3583(h). 
 
Section 3583(h) specifically allows the court to impose a new term of supervised release following imprisonment for a violation, but it clearly states that the new term cannot exceed the length originally authorized minus any time already served on supervised release. If the original maximum term was three years, and you have already completed two years, only one year of supervised release should be available after any term of re-imprisonment. If six months of prison is imposed, the court may only impose a maximum of six additional months of supervised release, not a full 36 months. 
 
Therefore, if the prosecutor is asking for both six months of incarceration and 36 months of new supervised release, that request would appear to exceed what is authorized under § 3583(h). Courts have generally agreed that the statute requires subtraction of time already served on supervision when calculating any new supervised release term after a revocation. 
 
If your current attorney is not addressing this concern, you have the right to raise it with the court directly or seek a substitution of counsel if you believe you are not being adequately represented. Courts take sentencing errors seriously, and a misapplication of the statute could be grounds for appeal if the court imposes an excessive sentence. 
 
This response is for general informational purposes only and does not constitute legal advice. For personalized guidance, please consult a qualified federal criminal defense attorney.

Q: Prosecutor requests excessive sentence for VOSR; is it lawful?