Published on: Monday, April 16, 2018

On April 12, 2018, in United States v. Shimabukuro, Case No. 17-10339, the Ninth Circuit addressed whether intermittent confinement counts against the cap on the amount of time “in prison” a court may impose when revoking a defendant’s supervised release, under the version of 18 U.S.C. § 3583(e)(3) effective in 2002. The 2002 version of the statute provided for a maximum of three years in prison upon revocation of supervised release for the defendant’s underlying offense. Under Ninth Circuit precedent, in calculating the time in prison, a court was required to subtract the aggregate length of all terms of revocation imprisonment from the maximum – the current version of § 3583(e) provides that courts should not give credit for time previously served on postrelease supervision.  

In this case, the district court revoked the defendant’s supervised release three times. The first time, the district court sentenced the defendant to 18 months’ imprisonment and 42 months of supervised release. The second time, the district court sentenced the defendant to 1 month of time served and an additional 41 months of supervised release, with a condition that the defendant serve 150 days of intermittent confinement (50 consecutive weekends beginning on Friday evenings and ending on Sunday afternoons) at a federal detention center. The third time, the district court sentenced him to 17 months’ imprisonment. The court rejected the argument that intermittent confinement counted as time “in prison.” Instead, the district court only credited the defendant for the 18 months’ imprisonment for the first revocation and for 1 month’ imprisonment for the second revocation.

The Ninth Circuit vacated and remanded. The court held that the plain language of the statute dictated that intermittent confinement qualified as “in prison.”  

 The Training Division provides resources on challenges to supervised release/probation, here.