Tuesday, November 08, 2016

District Court's Revocation of Supervised Release Reversed

United States v. Henry, 2016 WL 6211808 (October 25, 2016): relying US v. Jones, 818 F.3d 1091 (10th Cir. 2016) and Fed.R.Crim.P 32.1(b)(2)(C), the panel reverses Henry’s supervised release revocation sentence because the trial court did not apply Jones’ balancing test before accepting hearsay statements as proof of one of Henry’s violations. The government does not win on harmless error grounds either because Henry asked for a variance. The panel reasoned that the court considered all the violations together (there were 3) when fashioning its sentence. The panel could not know how the hearsay proven violation affected the court’s sentencing decision. Had the court ruled differently on the hearsay proven violation, the panel suggested, it might have varied as Henry proposed. In sending the case back to the district court, the panel offered numerous suggestions on how it can avoid mistakes at the next hearing. Still, Henry illustrates the benefits of asking for a variance even in a supervised release revocation sentencing.