Appeal from a judgment revoking supervised release and imposing sentence of additional incarceration and supervised release entered in the United States District Court for the Southern District of New York (Wood, J.). We conclude that the district court lacked jurisdiction because no warrant or summons was issued before the end of the supervised release term.
The opinion of the court was delivered by: Gerard E. Lynch, Circuit Judge
Before: JACOBS, Chief Judge, LYNCH, Circuit Judge, and RESTANI, Judge.*fn1
Phillip Janvier appeals from a judgment of the United States District Court for the Southern District of New York (Wood, J.) revoking his term of supervised release, and sentencing him to five months' incarceration and an additional period of supervised release. We reverse the judgment, because the district court lacked jurisdiction to revoke Janvier's supervised release after the supervised release term had ended, and a warrant had not issued before the end of that term.
Janvier pled guilty in 2003 to several charges relating to the sale of fraudulent United States passports, and in due course was sentenced to thirty months in prison and a three-year term of supervised release. On July 22, 2005, he completed his prison term and began serving his term of supervised release. His adjustment to supervision was troubled due to his repeated use of illegal drugs, which led to a finding that he had violated the conditions of his release and of modification of the terms of his release to include additional drug treatment and testing. Near the end of his supervised release term, his probation officer concluded, based on the results of a "sweat patch" test, that Janvier had again used cocaine. Accordingly, on July 21, 2008, the Probation Department submitted a petition to the district court, charging that Janvier had violated the conditions of his supervised release by using cocaine between July 9 and July 16, 2008. On the same date, the probation officer also required that Janvier submit a urine sample. That sample also tested positive for cocaine, and on July 30, 2008, the Probation Department submitted an amended petition charging that Janvier had used cocaine on or before July 21, 2008.
The petition submitted to the district court on July 21 was accompanied by a form that asked the district judge to check a box indicating the action to be taken in response to the petition from among various options including the issuance of a summons, the issuance of a warrant, the submission of a request to modify the conditions of release, or "other." Acting promptly, the judge checked the box ordering "[t]he [i]issuance of a [w]arrant" and signed the order, on July 21, the same day the petition was submitted. A warrant did not actually issue, however, until July 23, 2008. Janvier appeared in court to respond to the petition on July 31.
Throughout the proceedings that followed, Janvier consistently argued, on a variety of grounds, that the court lacked jurisdiction to revoke his release and to impose any punishment because his term of supervised release had already expired. These objections were eventually overruled by the district court, and on October 29, 2008, Janvier admitted that he had used cocaine on July 21, 2008 and was sentenced to five months' imprisonment and to thirty-one additional months of supervised release.
On appeal, relying on the plain language of the statute authorizing revocation of supervised release after expiration of the term under specific circumstances, Janvier argues that the district court lacked jurisdiction to revoke his supervised release because a warrant had not issued on the charge before the expiration of the term of supervised release. The government responds that Janvier's argument lacks merit because the district court "ordered the issuance of a warrant on the final day of Janvier's supervised release, which was a sufficient step to maintain jurisdiction for a later hearing." (Emphasis added.) Guided by the plain language of the governing statute, we agree with Janvier.
Superficially, it might appear anomalous that on October 29, 2008, the district court "revoked" a term of supervision that had unquestionably expired months earlier. And it would indeed be peculiar to permit probation officers and courts to bring retrospective charges of violation against probationers and supervised releasees who had long since completed their periods of supervision. But courts have long recognized that unless a court retains some authority to punish violations of supervised release after the expirations of the term, violations of the conditions of release (which can include serious misconduct) that occur late in the term of supervised release would go unpunished. Elementary conditions of fairness, embodied in the Due Process Clause of the Fifth Amendment, require a hearing at which the court determines whether the releasee has violated the conditions of his release, and if so, whether the violation warrants or requires revocation. See United States v. Brown, 899 F.2d 189, 193-94 (2d Cir. 1990) (so holding with respect to probation violations); see also Gagnon v. Scarpelli, 411 U.S. 778 (1973); Morrissey v. Brewer, 408 U.S. 471 (1972). The necessary proceedings take time; if courts lost the power to punish upon expiration of the release or probation term, proceedings on charges of violations filed late in the term would either be rushed, leading to unreliable outcomes, or delayed, leading to avoidance of just punishment.
For these reasons, even before any statute expressly authorized the retention of jurisdiction over violation charges beyond expiration of the term of probation or supervised release, courts asserted such jurisdiction, reasoning that Congress could not have intended such unfortunate results. Courts took different approaches to balancing the interests of former releasees in repose and those of the government in punishing timely-detected late-term violations. For the most part, courts identified either the filing of a petition for revocation with the court or the provision of notice to a releasee that the government would seek to revoke the term of release as the event that would trigger an extension of jurisdiction. So long as some such triggering event had occurred during the term of release, the courts held, a court would retain jurisdiction over the releasee for the time necessary to adjudicate the charge. See, e.g., United States v. Barton, 26 F.3d 490 (4th Cir. 1994) (holding that district court had jurisdiction to revoke probation where petition had been filed prior to expiration of probationary term, but no warrant or summons had issued); United States v. Schimmel, 950 F.2d 432, ...