18 U.S.C. § 3565

Revocation of probation

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(a)Continuation or Revocation.—If the defendant violates a condition of probation at any time prior to the expiration or termination of the term of probation, the court may, after a hearing pursuant to Rule 32.1 of the Federal Rules of Criminal Procedure, and after considering the factors set forth in section 3553(a) to the extent that they are applicable—(1) continue him on probation, with or without extending the term or modifying or enlarging the conditions; or(2) revoke the sentence of probation and resentence the defendant under subchapter A.(b)Mandatory Revocation for Possession of Controlled Substance or Firearm or Refusal To Comply With Drug Testing.—If the defendant—(1) possesses a controlled substance in violation of the condition set forth in section 3563(a)(3);(2) possesses a firearm, as such term is defined in section 921 of this title, in violation of Federal law, or otherwise violates a condition of probation prohibiting the defendant from possessing a firearm;(3) refuses to comply with drug testing, thereby violating the condition imposed by section 3563(a)(4); 11 See References in Text note below. or(4) as a part of drug testing, tests positive for illegal controlled substances more than 3 times over the course of 1 year;the court shall revoke the sentence of probation and resentence the defendant under subchapter A to a sentence that includes a term of imprisonment.(c)Delayed Revocation.—The power of the court to revoke a sentence of probation for violation of a condition of probation, and to impose another sentence, extends beyond the expiration of the term of probation for any period reasonably necessary for the adjudication of matters arising before its expiration if, prior to its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.(Added Pub. L. 98–473, title II, § 212(a)(2), Oct. 12, 1984, 98 Stat. 1995; amended Pub. L. 100–690, title VI, § 6214, title VII, § 7303(a)(2), Nov. 18, 1988, 102 Stat. 4361, 4464; Pub. L. 101–647, title XXXV, § 3585, Nov. 29, 1990, 104 Stat. 4930; Pub. L. 103–322, title XI, § 110506, Sept. 13, 1994, 108 Stat. 2017; Pub. L. 107–273, div. B, title II, § 2103(a), Nov. 2, 2002, 116 Stat. 1793.)Editorial NotesReferences in Text

The Federal Rules of Criminal Procedure, referred to in subsec. (a), are set out in the Appendix to this title.

Section 3563(a)(4), referred to in subsec. (b)(3), probably means the par. (4) of section 3563(a) added by section 20414(b)(3) of Pub. L. 103–322, which was renumbered par. (5) by Pub. L. 104–132, title II, § 203(1)(C), Apr. 24, 1996, 110 Stat. 1227.

Prior Provisions

For a prior section 3565, applicable to offenses committed prior to Nov. 1, 1987, see note set out preceding section 3551 of this title.

Amendments

2002—Subsec. (b)(4). Pub. L. 107–273 added par. (4).

1994—Subsec. (a). Pub. L. 103–322, § 110506(a)(2), struck out concluding sentence which read as follows: “Notwithstanding any other provision of this section, if a defendant is found by the court to be in possession of a controlled substance, thereby violating the condition imposed by section 3563(a)(3), the court shall revoke the sentence of probation and sentence the defendant to not less than one-third of the original sentence.”

Subsec. (a)(2). Pub. L. 103–322, § 110506(a)(1), substituted “resentence the defendant under subchapter A” for “impose any other sentence that was available under subchapter A at the time of the initial sentencing”.

Subsec. (b). Pub. L. 103–322, § 110506(b), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows:

“(b) Mandatory Revocation for Possession of a Firearm.—If the defendant is in actual possession of a firearm, as that term is defined in section 921 of this title, at any time prior to the expiration or termination of the term of probation, the court shall, after a hearing pursuant to Rule 32.1 of the Federal Rules of Criminal Procedure, revoke the sentence of probation and impose any other sentence that was available under subchapter A at the time of the initial sentencing.”

1990—Subsec. (a)(1). Pub. L. 101–647 substituted “or modifying” for “of modifying”.

1988—Subsec. (a). Pub. L. 100–690, § 7303(a)(2), inserted at end “Notwithstanding any other provision of this section, if a defendant is found by the court to be in possession of a controlled substance, thereby violating the condition imposed by section 3563(a)(3), the court shall revoke the sentence of probation and sentence the defendant to not less than one-third of the original sentence.”

Subsecs. (b), (c). Pub. L. 100–690, § 6214, added subsec. (b) and redesignated former subsec. (b) as (c).

Statutory Notes and Related SubsidiariesEffective Date of 1988 Amendment

Amendment by section 7303(a)(2) of Pub. L. 100–690 applicable with respect to persons whose probation, supervised release, or parole begins after Dec. 31, 1988, see section 7303(d) of Pub. L. 100–690, set out as a note under section 3563 of this title.

Effective Date

Section effective Nov. 1, 1987, and applicable only to offenses committed after the taking effect of this section, see section 235(a)(1) of Pub. L. 98–473, set out as a note under section 3551 of this title.

Notes of Decisions

Cited in 505 cases (31 in the last 5 years), 1948–2026 · leading case: United States v. Verkhoglyad, 516 F.3d 122 (2d Cir. 2008).

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United States v. Verkhoglyad, 516 F.3d 122 (2d Cir. 2008). · cites it 7× “19, 2005; see 18 U.S.C. § 3565 (a)(2). C. The 2005 Probation Violation On April 26, 2005, one week after receiving the “big break” of non-incarceratory sentences, Verkhoglyad tested positive for marijuana use.”

United States v. Granderson, 511 U.S. 39 (1994). · cites it 10× “" 18 U. S. C. § 3565 (a). Congress did not further define the critical term "original sentence," nor are those words, unmodified, used elsewhere in the Federal Criminal Code chapter on sentencing.”

United States v. Fidel Castro-Verdugo, 750 F.3d 1065 (9th Cir. 2014). · cites it 15× “The panel rejected the defendant’s contention that because of the defect in the underlying sentence, the district court in 2013 lacked jurisdiction under 18 U.S.C. § 3565 (a) to revoke the probation.”

United States v. Cheryl Gordon, 961 F.2d 426 (3rd Cir. 1992). · cites it 11× “Under 18 U.S.C. § 3565 (a) (1988), a probationer who is found in possession of a controlled substance will be resentenced to “not less than one-third of the original sentence.”

United States v. Todd David Neville, 985 F.2d 992 (9th Cir. 1993). · cites it 9× “9 Neville contrasts § 3583, which governs revocation of supervised release, with 18 U.S.C. § 3565 , which governs revocation of probation.”

United States v. Joseph Kippers, 685 F.3d 491 (5th Cir. 2012). · cites it 4× “See 18 U.S.C. § 3565 (a)(2) (stating that, where probation is revoked, a defendant may be resentenced “under subchapter A,” which includes general provisions that deal with sentencing).”

United States v. Lashawn Nichol Clay, 982 F.2d 959 (6th Cir. 1993). · cites it 14× “Defendant-Appellant LaShawn Nichol Clay appeals the sentence imposed on her for violating 18 U.S.C. § 3565 (a) (1988 & Supp. Ill 1991) by possessing a controlled substance while on probation.”

United States v. Colasuonno, 697 F.3d 164 (2d Cir. 2012). · cites it 5× “Further reinforcing recognition of a probation violation hearing as a continuation of the criminal action sentencing the defendant to probation is 18 U.S.C. § 3565 (a), which provides (1) for probation revocation hearings to be conducted pursuant to Fed.”

United States v. Sandra Cook, 291 F.3d 1297 (11th Cir. 2002). · cites it 5× “PER CURIAM: The defendant Sandra Cook appeals her sentence of twenty-four months in prison, which was imposed pursuant to 18 U.S.C. § 3565 (a)(2) upon the revocation of her probation.”

United States v. John William Forrester, 19 F.3d 482 (9th Cir. 1994). · cites it 7× “See Chapter 7, Sentencing Guidelines; 18 U.S.C. § 3565 (1988). Because Chapter 7 deals only with the applicable statute, 18 U.”

United States v. Gary Mitsven, 452 F.3d 1264 (11th Cir. 2006). · cites it 6× “Mit-sven argued that when he was sentenced on April 22, 2005, the district court sentenced him pursuant to 18 U.S.C. § 3565 (b), which does not mandate that a term of supervised release be imposed.”

United States v. Rey Garcia, 323 F.3d 1161 (9th Cir. 2003). · cites it 4× “4 (2002), and 18 U.S.C. § 3565 (a)(2).” On September 14, 2001, Garcia entered a guilty plea in California state court to armed robbery,, residential burglary, three counts of check forgery, and a felony count of issuing checks with insufficient funds.”

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— 18 U.S.C. § 3565(a) — 2 cases

United States v. Andrew Leander Pierce, 75 F.3d 173 (4th Cir. 1996).

United States v. Robert W. Denard, A/K/A Scotia, 24 F.3d 599 (4th Cir. 1994).

— 18 U.S.C. § 3565(a)(2) — 1 case

United States v. Cannistraro, Richard, 871 F.2d 1210 (3rd Cir. 1989).

— 18 U.S.C. § 3565(b) — 1 case

United States v. Ramos, 624 F. Supp. 970 (S.D.N.Y. 1985).

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