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In Case of First Impression, Fourth Circuit Holds First Step Act Applies to Those Serving Supervised Release Revocation Sentences

by Dale Chappell

The U.S. Court of Appeals for the Fourth Circuit held on November 20, 2019, that the retroactive application of the Fair Sentencing Act of 2010 (“FSA”) by the First Step Act applies to those who are serving a sentence after a revocation of supervised release linked to an original conviction that would qualify for relief under the FSA.

When Bobby Venable was sentenced for 12.1 grams of crack cocaine in the late 1990s, he was sentenced under the provisions of 21 U.S.C. § 841(b)(1)(B) to just over nine years in prison. He completed that sentence in 2010 and began his four-year supervised release term.

While on supervised release, Venable was convicted and sentenced in state court for a new drug offense. He received 10 years for the new state conviction, and the federal court imposed 15 months in prison consecutive to the state sentence for the supervised release revocation.

When the First Step Act was passed in 2018, Venable was serving his supervised release sentence. He filed a motion based on § 404 of the First Step Act, because the 12.1 grams of crack at that time would fall under the lesser provisions of 841(b)(1)(C) in light of the retroactive application of the FSA.

He argued that because his revocation sentence is part of the original conviction and sentence for the 12.1 grams of crack, he was eligible for relief under the First Step Act.

The district court, though, entered a “form order” summarily denying Venable’s First Step Act motion he filed under 18 U.S.C. § 3582(c)(1)(B). Under the comments section of the form, the court said Venable “has finished his term of incarceration and is currently in custody following revocation of his supervised release. No reduction is authorized.”

On appeal, Venable argued that the supervised release violation was tied directly to his original judgment, and therefore, the district court had the authority to hear his First Step Act motion. He cited the Fourth Circuit’s “unitary” sentencing policy that supervised release is not separate from the original conviction and sentence. Because of that, he argued that he was technically still serving the original sentence, and the First Step Act applies to him.

The Government, on the other hand, originally argued that revocation sentences are separate from the original case and thus unaffected by the First Step Act. It said that Venable’s revocation sentence stemmed from the supervised release statute, not from the statute of his conviction.

But afterward, the Government conceded it was wrong. It agreed that the First Step Act did apply to Venable — but only to reduce his original sentence he already served, not his supervised release revocation sentence he was serving.

Under the First Step Act, Congress expressly made the FSA retroactive to “covered offenses” affected by the FSA. This included Venable’s original crack offense. The FSA raised the amount of crack needed to trigger a sentence under § 841(b)(1)(B) to 28 grams. This meant that Venable’s 12.1 grams of crack would now fall under § 841(b)(1)(C) with a lower statutory range.

But the First Step Act is silent as to whether a court may consider a motion under the Act by a defendant who has already served his original sentence and is serving a revocation sentence or term of supervised release based on that original offense, the Court noted.

This was a question of first impression not only for the Fourth Circuit, but for every other circuit in the country, the Court observed. But the Court wasn’t writing on a blank slate. It explained that its conclusion on this issue “flows directly from the plain language of the relevant statutes and the unitary theory of sentencing.”

In Johnson v. United States, 529 U.S. 694 (2000), the U.S. Supreme Court resolved a circuit split on the issue of whether revocation and reimprisonment constitute punishment for the original offense, ruling that such reimprisonment is indeed punishment for the original offense.

Based upon the reasoning in Johnson, the Fourth Circuit adopted the unitary sentence framework in United States v. Ketter, 908 F.3d 61 (4th Cir. 2018), explaining that treating “custodial and supervised release terms as components of one unified sentence appropriately recognizes the interdependent relationship between incarceration and supervised release.” A plurality of the Supreme Court reaffirmed its unitary sentence framework articulated in Johnson in United States v. Haymond, 139 S. Ct. 2369 (2019), reiterating that “an accused’s final sentence includes any supervised release sentence he may receive….” It added that “supervised release punishments arise from and are treated … as part of the penalty for the initial offense.”  

The Fourth Circuit then applied the unitary sentence framework set forth in Johnson and Ketter to the present case and concluded that “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.” Thus, the Court held that the district court had the authority to consider Venable’s motion for a sentence reduction, “just as if he were still serving the original custodial sentence.”

The district court erred in concluding that it lacks such authority.

The Court emphasized that its holding “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.’” The Court said it offered no opinion on whether Venable was entitled to a reduction under the First Step Act.

Accordingly, the Court vacated the denial of Venable’s motion and remanded to the district court for consideration of Venable’s motion. See: United States v. Venable, 943 F.3d 187 (4th Cir. 2019).


Writer’s note: Can someone serving a supervised release term, and not a revocation sentence, also qualify to apply under the First Step Act? Under the Court’s reasoning here, it appears they can. But that question wasn’t before the Court. Still, the Supreme Court’s reaffirmation of its Johnson decision in Haymond, that supervised release is “part of the penalty for the initial offense,” gives the impression that even a supervised release term should allow a First Step Act motion. 

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United States v. Venable



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