Federal - Revocation of Probation & Supervised Release Flashcards
What does due process require for a probation revocation?
- Written notice of the claim of violation of probation;
- Disclosure to the probationer of evidence against him;
- Opportunity to be heard in person and to present witnesses adn documentary evidence;
- Right to confront and cross-examine adverse witnesses (unless good cause)
- A “neutral and detached” hearing body; and
- a written statement by the fact finder as to the evidence relied on and reasons for revoking
What is the burden of proof required in probation revocations, by DUE PROCESS?
Not “beyond a reasonable doubt” rather the judge must be “reasonably satisfied”
Is the CRT limited to the original Guidelines Range on revocation?
No, the statute was amended to allow CRT to recalculate Guidelines
On revocation, can the CRT impose a split sentence?
Yes, CRT can require additional supervision after prison term is served. However, all prison together cannot exceed a statutory maximum.
When is revocation “mandatory”?
When D possesses a controlled substance, a firearm in violation of law, or refuses to comply with drug testing 18 USC 3563
For drugs, CRT can consider treatment programs instead of prison
How is sentencing determined on revocation?
CRT decides within legal range, BUT there is a table in Chapter 7 that increases the punishment based on severity of violation
Can a CRT order a longer sentence on revocation, so that D can get treatment in prison?
No. Tapia applies
5th Cir. has held it is plain error to impose sentence on rehabilitative needs
How is restitution determined?
CRT must consider:
- ACTUAL loss sustained by any victims;
- financial resources of D;
- D’s financial needs, earnings, and dependants
Is D entitled to a jury trial on restitution?
No.
What is the burden for restitution?
Preponderance of Evidence
- Gov’t must prove amount of restitution;
- D must show his financial ability
- D must show that Vic has already recovered civilly
How do you calculate restitution in conspiracy?
Split in Circuits
5th Cir - conspiracy may broaden ability to collect restitution
When is restitution “REQUIRED”?
- Crime of Violence;
- Offense against property under Title 18, includes fraud or deceit;
- Offenses related to tampering with consumer products
What do you do about restitution is there A LOT of victims?
If restitution is impractical or too complex the need for restitution is outweighed by the burden on the sentencing process
Does the CRT have to pronounce restitution with sentence?
No, as long as CRT announces it intends to enter a restitution order within 90 days it need not finalize the amount at that point
