16‐4063‐cr
United States v. Brooks
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2017
(Submitted: December 13, 2017 Decided: May 2, 2018)
Docket No. 16‐4063‐cr
UNITED STATES OF AMERICA,
Appellee,
‐ against ‐
JAMAAL BROOKS, also known as Marley,
Defendant‐Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Before:
PARKER, LYNCH, AND CHIN, Circuit Judges.
Appeal from a judgment of revocation of supervised release of the
United States District Court for the Southern District of New York (Kaplan, J.),
sentencing defendant‐appellant, upon his guilty plea, to one year in prison
followed by a life term of supervised release. Defendant‐appellant contends that
his lifetime sentence of supervised release is substantively and procedurally
unreasonable.
VACATED IN PART AND REMANDED.
Timothy V. Capozzi, Sarah Kathleen Eddy, Anna
Skotko, Assistant United States Attorneys, for
Geoffrey S. Berman, United States Attorney for
the Southern District of New York, New York,
New York, for Appellee.
Kafahni Nkrumah, Nkrumah Law PLLC, New York,
New York, for Defendant‐Appellant.
PER CURIAM:
In this case, defendant‐appellant Jamaal Brooks pleaded guilty to
distributing and possessing with intent to distribute cocaine and heroin. He was
sentenced to 30 monthsʹ imprisonment and three yearsʹ supervised release.
After he completed his prison sentence and began serving his term
of supervised release, Brooks repeatedly tested positive for drugs and failed to
report for scheduled drug testing. He eventually pleaded guilty to violating the
terms of his supervised release and was sentenced to one year in prison followed
by a life term of supervised release.
‐ 2 ‐
Brooks now appeals, challenging the district courtʹs imposition of
lifetime supervised release as substantively and procedurally unreasonable. For
the reasons set forth below, we vacate the sentence in part and remand for
further proceedings.
BACKGROUND
A. Original Offense
On June 3, 2013, Brooks pleaded guilty to distributing and
possessing with intent to distribute cocaine and heroin in violation of 21 U.S.C.
§§ 812, 841(a)(1), and 18 U.S.C. § 2, a Class C felony. Brooks faced a statutory
maximum of 20 yearsʹ imprisonment and a mandatory minimum of three yearsʹ
supervised release. 21 U.S.C. § 841(b)(1)(C).
Brooks was sentenced on January 16, 2014. He had a Total Offense
Level of 13 and criminal history category of IV. In the presentence report
(ʺPSRʺ), the Probation Office calculated a Guidelines range of imprisonment of 24
to 30 months, and recommended that Brooks receive a Guidelines sentence of 30
monthsʹ imprisonment. The Probation Office also recommended that Brooks
receive three yearsʹ supervised release.
‐ 3 ‐
The district court sentenced Brooks to 30 monthsʹ imprisonment and
three yearsʹ supervised release. Judgment was entered February 20, 2014.
B. Violations of Supervised Release
Brooks was discharged from custody on January 24, 2015. He began
to test positive for marijuana approximately two weeks later. After three
positive test results, the Probation Office referred Brooks to an outpatient drug
treatment program. On May 13, 2015, however, Brooks was arrested and
charged in state court with possessing marijuana and a scale bearing cocaine
residue. On July 8, 2015, he was arrested again and charged with aggravated
unlicensed operation of a motor vehicle.
On June 29, 2016, the Probation Office filed a violation report with
the district court alleging that Brooks had violated the terms of his supervised
release on at least ten occasions. Following Brooksʹs arraignment on July 19,
2016, the district court granted adjournments at defense counselʹs request, in part
to allow for the resolution of the state case underlying certain specifications, and
also to provide Brooks with additional time to participate in treatment for his
drug addiction.
‐ 4 ‐
On October 19, 2016, Brooks pleaded guilty to three of ten
specifications of Grade C violations of the terms of his supervised release ‐‐
Specifications 5, 6, and 7 ‐‐ which consisted of the use of a controlled substance,
marijuana, on 14 specified dates; the use of a controlled substance, cocaine, on
one specified date; and the failure to report for scheduled drug testing on six
specified dates.
At the final revocation hearing, defense counsel noted Brooksʹs
ʺserious drug problemʺ as a ʺhuge underlying factor and contributing factorʺ to
his repeated violations of supervised release, for which counsel acknowledged
Brooks still needed ʺsome assistance.ʺ App. 19‐20.
Upon revocation, Brooks faced a maximum statutory sentence of
two yearsʹ imprisonment. See 18 U.S.C. § 3583(e)(3). Although Brooksʹs original
offense was subject to a Guidelines range, his revocation sentence was not. See
U.S. Sentencing Guidelines Manual, Ch. 7, Pt. A. The Guidelines policy
statements for revocation, however, recommended a range of 6 to 12 monthsʹ
imprisonment for defendants like Brooks with a criminal history category of IV
and Grade C violations of supervised release. U.S.S.G. § 7B1.4(a) (2012). As for
an additional term of supervised release, the violation report explained that:
‐ 5 ‐
Pursuant to 18 USC 3583(h), if a term of supervised release
is revoked and the term of imprisonment is imposed,
supervised release not to exceed life can be reimposed as
authorized under the original offense, 21 USC 846,
841(a)(1), 841(b)(1)(C), less any term of imprisonment that
was imposed upon revocation of supervised release.
Violation Report at 6.
The Probation Office recommended a revocation sentence of 12
monthsʹ imprisonment, but did not recommend a specific term of supervised
release. At sentencing, the Government asked the court to impose a ʺguidelines
range sentence in the upper endʺ as ʺappropriate and no more than necessary.ʺ
App. 25. The Government did not request a specific term of supervised release.
On November 10, 2015, the district court sentenced Brooks to 12
monthsʹ imprisonment and a life term of supervised release. In imposing its
sentence, the district court stated that the court, the Probation Office, and the
Government had given Brooks ʺchance after chance after chance,ʺ and Brooks
had not ʺbeen able to muster the strength of character . . . to take advantage of
the opportunities.ʺ App. 26. The district court acknowledged Brooksʹs addiction
as ʺbeyond [his] controlʺ but credited the Probation Officeʹs exceptional efforts to
assist him with that problem, noting that the court ʺha[d] not seen anything like
it in any other case.ʺ App. 25‐26.
‐ 6 ‐
Additionally, as Brooks had expressed at sentencing his hope to
ʺreally get some help for [him]self,ʺ the district court advised Brooks that the life
term of supervised release was meant to provide him with ongoing access to
services and the Probation Office, ʺfor as long as it is useful,ʺ to assist with his
transition to the community and treat his addiction. App. 21, 27.
This appeal followed.
DISCUSSION
A. Supervised Release
Section 3553 provides the framework for sentencing decisions,
including the imposition of supervised release. United States v. Burden, 860 F.3d
45, 56 (2d Cir. 2017). Section 3553(a) requires the district court, in imposing a
sentence, to consider, inter alia, ʺthe need for the sentence imposed . . . to reflect
the seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense.ʺ 18 U.S.C. § 3553(a)(2)(A). Section 3583(c) governs
the imposition of supervised release and ʺspecifically does not require the district
court to consider the factors listed in § 3553(a)(2)(A), all of which go to the
seriousness of the defendantʹs offense.ʺ Burden, 860 F.3d at 56. Because
ʺsupervised release is not, fundamentally, part of the punishment,ʺ United States
‐ 7 ‐
v. Aldeen, 792 F.3d 247, 252 (2d Cir. 2015), the omission of the § 3553(a)(2)(A)
factors accords with the purpose of supervised release, which is to ʺfulfill[ ]
rehabilitative ends, distinct from those served by incarceration,ʺ United States v.
Johnson, 529 U.S. 53, 59 (2000); see also United States v. Granderson, 511 U.S. 39, 50
(1994) (ʺSupervised release . . . is not a punishment in lieu of incarceration.ʺ).
In imposing a term of supervised release, the district court is
required to consider, among other factors, ʺthe nature and circumstances of the
offense and the history and characteristics of the defendant,ʺ 18 U.S.C. §
3553(a)(1); the need for the sentence imposed to ʺprotect the public from further
crimes of the defendantʺ and ʺprovide the defendant with needed . . . training,
medical care, or other correctional treatment,ʺ 18 U.S.C. § 3553(a)(2)(C)‐(D); ʺthe
applicable guidelines or policy statements issued by the Sentencing
Commission,ʺ 18 U.S.C. § 3553(a)(4)(B); and ʺthe need to avoid unwarranted
sentence disparities among defendants with similar records who have been
found guilty of similar conduct,ʺ 18 U.S.C. § 3553(a)(6).
Section 3583(b) sets forth the maximum terms of supervised release
a court may impose, unless a statute ʺotherwise provide[s]ʺ a different term. 18
U.S.C. § 3583(b)(2); see United States v. Mora, 22 F.3d 409, 412 (2d Cir. 1994). For a
‐ 8 ‐
Class C felony, the statutory maximum term of supervised release is three years.
18 U.S.C. § 3583(b). As discussed above, however, Brooksʹs offense statute
provided a mandatory minimum of three yearsʹ supervised release. See 21 U.S.C.
§ 841(b)(1)(C). We have interpreted the presence of a mandatory minimum term
in 18 U.S.C. § 841(b), without a maximum, to allow the district court to impose
up to lifetime supervised release notwithstanding the limits of section 3583(b).
See United States v. Cassesse, 685 F.3d 186, 189 (2d Cir. 2012); Mora, 22 F.3d at 412.
The Sentencing Commission has promulgated Guidelines for
supervised release. See U.S.S.G. § 5D1.2. For a Class C felony, the Guidelines
recommend a term of at least one year but no more than three years. U.S.S.G.
§ 5D1.2(a)(2). Brooksʹs applicable Guidelines range was also three yearsʹ
supervised release, the mandatory minimum for his offense. See U.S.S.G.
§ 5D1.2, cmt. 6 (explaining how a statutorily required minimum term of
supervised release affects the term of supervised release provided by the
guidelines).
B. Revocation of Supervised Release
Sentencing for violations of supervised release is governed by 18
U.S.C. § 3583. When a defendant violates the terms of his supervised release, the
‐ 9 ‐
district court may revoke a term of supervised release, and require the defendant
to serve a term of imprisonment. 18 U.S.C. § 3583(e)(3). Upon revocation, the
district court may not impose a term of imprisonment greater than the statutory
maximum terms set forth in 18 U.S.C. § 3583(e)(3). If the underlying offense that
led to the supervised release term was a Class C felony, the maximum is two
yearsʹ imprisonment. 18 U.S.C. § 3583(e)(3).
The Sentencing Commission has only issued policy statements for
terms of imprisonment after revocation, which classify violations, U.S.S.G. §
7B1.3, and recommend applicable sentencing ranges, U.S.S.G. § 7B1.4. As noted
above, for Brooksʹs violations, the applicable range was 6 to 12 monthsʹ
imprisonment, with a statutory maximum of two years. U.S.S.G. § 7B1.4(a).
After revoking a defendantʹs supervised release, the district court is
also authorized to impose an additional term of supervised release that does not
exceed the maximum term authorized by the underlying offense. 18 U.S.C.
§ 3583(h).1 The district court is required to consider the same set of factors as
1 The revocation statute was originally silent on the question of whether a
renewed term of supervised release may be imposed in addition to a prison term. See
Cassesse, 685 F.3d at 189. In 1994, Congress amended the provisions to provide
explicitly that a renewed term of supervised release may be imposed for a supervised
release violation. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L.
No. 103‐322, § 110505, 108 Stat. 1796, 2017, codified at 18 U.S.C. § 3583(h).
‐ 10 ‐
those it must consider when imposing supervised release for the underlying
offense. See Burden, 860 F.3d at 56 (ʺLike 18 U.S.C. § 3583(c), § 3583(e) omits
§ 3553(a)(2)(A) from the list of § 3553(a) factors that courts are instructed to
consider in . . . revoking supervised release.ʺ).
The Sentencing Commission has not issued separate policy
statements for terms of supervised release upon revocation. See U.S.S.G.
§ 7B1.3(g)(2) (providing only that a court may impose new term of supervised
that ʺshall not exceed the term of supervised release authorized by statuteʺ for
the underlying offense). As discussed above, Brooksʹs offense statute authorized
up to lifetime supervised release upon revocation.
C. Sentencing Review
Brooks challenges the substantive and procedural reasonableness of
his sentence. We review the reasonableness of a sentence under a ʺdeferential
abuse‐of‐discretion standard.ʺ Aldeen, 792 F.3d at 251 (quoting Gall v. United
States, 552 U.S. 38, 41 (2007)). Sentences for violations of supervised release are
reviewed under ʺthe same standard as for sentencing generally: whether the
sentence imposed is reasonable.ʺ United States v. McNeil, 415 F.3d 273, 277 (2d
Cir. 2005); see also United States v. Hargrove, 497 F.3d 256, 260 (2d Cir. 2007) (ʺ[T]he
‐ 11 ‐
standard of review that we use to evaluate a sentence pursuant to a policy
statement . . . [is] simply one of ʹreasonableness,ʹ the latter being the same
standard of review for all sentences.ʺ).
District judges are given considerable discretion in fashioning the
proper sentence for criminal defendants. Cavera, 550 F.3d at 188. This discretion
extends to sentences imposed for violations of supervised release, including the
imposition of additional terms of supervised release. See Aldeen, 792 F.3d at 251‐
52.
Still, supervised release is itself a serious sanction that imposes
significant limitations on a defendantʹs liberty. See United States v. Reyes, 283 F.3d
446, 461 (2d Cir. 2002) (the imposition of supervised release requires a defendant
to ʺcomply with certain conditions, enforced by federal probation officers, or face
further penal sanctionsʺ); United States v. Myers, 426 F.3d 117, 124 (2d Cir. 2005)
(holding that a district courtʹs broad discretion to tailor conditions of supervised
release is not ʺuntrammelledʺ in light of a defendantʹs liberty interests).
A lifetime of supervised release is an extreme and unusual remedy.
See U.S. Sentencing Commʹn, Federal Offenders Sentenced to Supervised Release
58‐60 (2010) (fewer than one percent of federal defendants sentenced between
‐ 12 ‐
fiscal years 2005‐09 received a lifetime term of supervised release). It indefinitely
subjects a defendant to the possibility of imprisonment for violating its terms.
See United States v. C.R., 296 F.R.D. 131, 135 (E.D.N.Y. 2013) (rejecting
governmentʹs request for lifetime supervised release ʺas too severe [and]
inhibitory of rehabilitationʺ in a distribution of child pornography case, and
instead imposing a sentence of five yearsʹ supervised release).
A lifetime of supervised release is also, to some degree, at odds with
the rehabilitative purpose of supervised release, as it presumes that the need for
supervision will never end and that the defendant is essentially incorrigible. See
Johnson, 529 U.S. at 59 (ʺCongress intended supervised release to assist
individuals in their transition to community life.ʺ). Accordingly, the severity of a
life sentence of supervised release justifies a closer look at the district courtʹs
decision to impose such a sentence. We have previously recognized this
principle. See Mora, 22 F.3d at 413‐14; United States v. Stevens, 192 F.3d 263 (2d
Cir. 1999).
In both Mora and Stevens, we reviewed the imposition of life terms
of supervised release for reasonableness, that is, ʺwhether the departure [from
the Guidelines and general statute maximum for supervised release] [was]
‐ 13 ‐
reasonable in light of the justification given,ʺ Mora, 22 F.3d at 413 (quoting United
States v. Campbell, 967 F.2d 20, 27 (2d Cir. 1992) (emphasis added)); Stevens, 192
F.3d at 267. Although Mora and Stevens were in the pre‐Booker era of mandatory
guideline sentencing and involved sentences for new criminal offenses
committed while the defendants were on release,2 we also review for
reasonableness in a revocation setting. See Aldeen, 792 F.3d at 253 (ʺThe standard
of review on the appeal of a sentence for violation of supervised release is . . .
whether the sentence imposed is reasonable.ʺ (citation and internal quotation
marks omitted)).
In Mora, we reversed the district courtʹs sentence of lifetime
supervised release for a defendant who violated the terms of her supervised
release for a drug trafficking offense by engaging in further drug trafficking, for
which she pled guilty to possession of heroin with intent to distribute, a Class B
felony. 22 F.3d at 411.
2 The Sentencing Commission has provided, by policy statement, that where a
defendant is convicted of a criminal charge that also is a basis of the violation of
supervised release, the policy statements do not purport to provide the appropriate
sanction for the criminal charge itself. The appropriate sentence on any new criminal
conviction should be a separate determination. U.S. Sentencing Guidelines Manual
§ 7B1.1, cmt. 1.
‐ 14 ‐
Although the general statute and Guidelines provided a five‐year
maximum period of supervised release for Class B felonies, Moraʹs offense
statute required a term of at least four years. See id. at 411‐13. We held that by
providing a mandatory minimum term of supervised release with no specified
maximum, the offense statute authorized the district court to impose up to a life
term of supervised release. Id. at 412. Nevertheless, we found that the
magnitude of the departure in Moraʹs case from the general statute and
Guidelines maximum of five yearsʹ supervised release for Class B felonies was
unreasonable under the circumstances. Id. at 414.
In reversing the sentence, we emphasized that in imposing a term of
supervised release, district courts are required to consider, among other factors,
ʺthe need to avoid unwarranted sentencing disparities among defendants with
similar records who have been found guilty of similar conduct,ʺ 18 U.S.C.
§ 3553(a)(6), and found that ʺ[i]t is difficult to understand why a life term of
supervised release is reasonable for a defendant who is no different from any
other recidivist,ʺ Mora, 22 F.3d at 414; see also Stevens, 192 F.3d at 267‐78
(reversing district courtʹs sentence of lifetime supervised release based on finding
that defendant convicted of heroin possession had committed perjury and
‐ 15 ‐
exhibited antisocial behavior, because district court did not ʺsufficiently
distinguish this defendant from any other recidivist who has committed perjury
at trialʺ).
D. Application
As in Mora, Brooksʹs offense statute permitted the district court to
impose up to a life term of supervised release. See 21 U.S.C. § 841(b)(1)(C); Mora,
222 F.3d at 412. For the court to do so, however, there had to be a significant
justification to support the severity of that sentence or conduct that distinguished
Brooks from similar recidivists. See United States v. Chartier, 933 F.2d 111, 117 (2d
Cir. 1991), abrogated on other grounds by United States v. Hargrett, 156 F.3d 447, 449‐
51 (2d Cir. 1998) (ʺThough a sentencing judge retains discretion . . . he must
demonstrate that he has thoughtfully discharged his statutory obligation [under
§ 3553(c)], with a degree of care appropriate to the severity of the punishment
ultimately selected.ʺ); see also 18 U.S.C. § 3553(a)(6) (in determining the length of
the term of supervised release upon revocation, a court is required to ʺconsider
the need to avoid unwarranted sentencing disparities among defendants with
similar recordsʺ). Neither are present on this record.
‐ 16 ‐
The district court advised Brooks that it was imposing a life term of
supervised release in part because he had already received ʺchance after chance
after chance,ʺ but failed to ʺmuster the strength of characterʺ to take advantage of
the multiple opportunities he had received. App. 26. Because ʺa court may not
take account of retribution (the first purpose listed in § 3553(a)(2)) when
imposing a term of supervised release,ʺ Tapia v. United States, 564 U.S. 319, 326
(2011), including when imposing a term of supervised release upon revocation,
18 U.S.C. § 3583(e), this justification alone cannot support Brooksʹs lifetime
sentence. See Burden, 860 F.3d at 57 (reversing lifetime supervised release
because sentence was ʺdriven largely by the past seriousnessʺ of the crimes and a
ʺretributive rationale cannot support the lifetime sentences of supervised release
imposedʺ).
The district court also explained that a life term of supervised
release was intended to provide Brooks with resources to treat his drug addiction
for ʺas long as it is usefulʺ to him. App. 31. This reason accords with the
purpose of supervised release. See also 18 U.S.C. § 3553(a)(2)(D) (the court shall
consider the need to ʺprovide the defendant with needed educational or
‐ 17 ‐
vocational training, medical care, or other correctional treatment in the most
effective mannerʺ).
Nevertheless, on this record, Brooksʹs conduct is not distinguishable
from that of many other recidivist defendants in his position struggling with
drug addiction. Brooksʹs violations of supervised release center on a drug habit
that he has been unable, thus far, to kick. Unfortunately, cases are legion in
which offenders with repeated drug violations or other recidivism problems are
sentenced to far shorter terms of supervised release. See, e.g., Hargrove, 497 F.3d
at 257‐58 (affirming a one‐year sentence with no additional term of supervised
release upon revocation of defendantʹs supervised release for repeated cocaine
use before and after drug treatment); United States v. Ilayayev, 800 F. Supp. 2d 417,
451‐52 (E.D.N.Y. 2011) (sentencing a defendant to one day in custody followed
by new term of two yearsʹ supervised release upon revocation for four violations
of supervised release related to use of PCP, cocaine, heroin, and other drugs).
In contrast, cases in which life terms of supervised release have been
affirmed have typically involved child pornography or violent crimes. See, e.g.,
U.S. Sentencing Commʹn, Federal Offenders Sentenced to Supervised Release, 58‐
59 (the ʺoverwhelming majorityʺ ‐‐ more than 95 percent ‐‐ of those who received
‐ 18 ‐
lifetime supervised release between 2005‐09 were convicted of sex offenses); see
also United States v. Wright, 747 F.3d 399, 404 (6th Cir. 2014) (affirming district
courtʹs sentence of lifetime supervised release for defendant who pled guilty to
conspiracy and attempt to use weapon of mass destruction); United States v.
Asalati, 615 F.3d 1001, 1007 (8th Cir. 2010) (affirming life term of supervised
release for defendant whose ʺparticipation in a violent assault demonstrates a
continued and escalating danger to the publicʺ); United States v. Hayes, 445 F.3d
536, 537 (2d Cir. 2006) (affirming lifetime supervised release sentence for
defendant convicted of distributing child pornography, and citing congressional
findings recommending lifetime supervised release for sex offenses because of
studies demonstrating high rates of recidivism of sex offenders).
We are therefore not persuaded that the imposition of a life term of
supervised release ‐‐ upon Brooksʹs first revocation ‐‐ is reasonable in light of the
justifications given by the district court. Cf. Cassesse, 685 F.3d at 187, 193
(upholding lifetime supervised release where court adequately explained
reasoning and defendant had been convicted of new criminal offenses multiple
times while on supervised release). Given the non‐violent nature of Brooksʹs
violations and the difficulty faced by so many offenders in controlling addiction,
‐ 19 ‐
we conclude that his behavior was not so extreme or unusual as to justify a life
term of supervised release. See United States v. Ahuja, 936 F.2d 85, 89 (2d Cir.
1991) (ʺ[I]n cases where . . . the sentence imposed by the district court strains the
bounds of reasonableness, remand for resentencing may well be warranted.ʺ).
We leave it to the capable and experienced district judge to set a
term of supervised release consistent with the factors set forth in § 3583(e), that
will provide Brooks with access to drug treatment and other support and
resources. We hold only that, at this time, on this record, a life term of
supervised release is not warranted.
CONCLUSION
The judgment of the district court is VACATED IN PART and the
case is REMANDED for further proceedings.
‐ 20 ‐