Please ensure Javascript is enabled for purposes of website accessibility
Home / Opinion Digests / Criminal Law / Mandatory supervised release term not required

Mandatory supervised release term not required

Where the district court believed it was required to impose a mandatory minimum term of five additional years of supervised release after the defendant violated his sex-offender registration requirement, but the statute does not require a mandatory minimum term, the sentence was vacated because the error was plain and affected the defendant’s substantial rights.


Upon revocation of a term of supervised release, Keith Eugene Nelson was sentenced to what the district court believed was a mandatory minimum term of five additional years of supervised release. On appeal, he argues that the district court was mistaken, and that the statute governing his revocation sentence, 18 U.S.C. § 3583(h), does not impose any mandatory term of supervised release. And the district court likewise erred, he contends, in determining that the applicable sentencing guidelines provision recommended a five-year term of supervised release.

Because Nelson concededly did not raise this objection to the district court, he must show that (1) an error was made, (2) the error was plain and (3) the error affected his substantial rights.


All agree that at Nelson’s original sentencing for his sex-offender registration offense, the supervised release portion of his sentence was governed by § 3583(k). And under § 3583(k), it is clear and undisputed that Nelson was subject to a mandatory minimum supervised release term of five years and a maximum term of life.

This appeal, however, does not concern Nelson’s original sentencing. Instead, the court is dealing with his sentencing at a subsequent revocation proceeding, which is governed by § 3583(h). That section, in the view of the court, allows, but does not require, a court to impose a new term of supervised release upon revocation. In other words, there is no mandatory supervised release at all under § 3583(h). And second, if a court chooses to impose a term of supervised release, § 3583(h) establishes only an upper limit on its length. The district court’s contrary conclusion – that § 3583(h) imported not only § 3583(k)’s maximum term of supervised release but also its five-year mandatory minimum – simply cannot be reconciled with the statutory text. The same is true of the guidelines policy statement on “Revocation of Probation or Supervised Release.”

The government offers little by way of response to this straightforward reading of the relevant texts. This is perhaps not surprising; in two other federal circuit courts, the government has conceded that the only plausible interpretation of § 3583(h) is the one the court adopts today. Here, however, the government advances a different theory.

Under § 3583(h), the government suggests, a district court may choose not to impose any supervised release at all, but if it does impose a term of supervised release, then § 3583(h) incorporates § 3583(k)’s original sentencing scheme in its entirety, minimum and maximum alike. The fundamental problem is that the government’s novel reading is not faithful to § 3583(h)’s text.


The district court’s error in calculating Nelson’s supervised release sentencing range is “plain” for purposes of Rule 52(b) review because the statutory text – as set out in § 3583(h) and replicated in section 7B1.3(g)(2) of the sentencing guidelines – provides a “clear” and “obvious” answer to the question. The terms “may” and “shall not exceed” cannot reasonably be read to impose or suggest a mandatory or minimum term of supervised release.

Although this case marks this circuit’s first encounter with this question – likely because of the clarity of the governing statute – it does not take controlling authority to confirm that “exceed” means “exceed.” Although this court’s analysis does not depend on it, the court notes that other federal circuit courts have had occasion to address this question, and uniformly have concluded, that § 3583(h) does not impose any minimum term of supervised release. The court is aware of no authority to the contrary.

Substantial rights

The government has pointed to no record evidence – and none is apparent – that the district court’s five-year sentence “was imposed independent of its error” in calculating a five-year minimum term of supervised release under § 3583(h) and a comparable recommendation under the guidelines.

Vacated and remanded.

United States v. Nelson, Case No. 21-4250, June 17, 2022. 4th Cir. (Harris), from SDWVA at Bluefield (Faber). Stephen J. van Stempvoort for Appellant. Andrew Dayne Isabell for Appellee. VLW 022-2-147. 14 pp.

VLW 022-2-147

Virginia Lawyers Weekly