Flashcards in Federal - Revocation of Probation & Supervised Release Deck (14)
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1
What does due process require for a probation revocation?
1. Written notice of the claim of violation of probation;
2. Disclosure to the probationer of evidence against him;
3. Opportunity to be heard in person and to present witnesses adn documentary evidence;
4. Right to confront and cross-examine adverse witnesses (unless good cause)
5. A "neutral and detached" hearing body; and
6. a written statement by the fact finder as to the evidence relied on and reasons for revoking
2
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"
3
Is the CRT limited to the original Guidelines Range on revocation?
No, the statute was amended to allow CRT to recalculate Guidelines
4
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.
5
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
6
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
7
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
8
How is restitution determined?
CRT must consider:
1. ACTUAL loss sustained by any victims;
2. financial resources of D;
3. D's financial needs, earnings, and dependants
9
Is D entitled to a jury trial on restitution?
No.
10
What is the burden for restitution?
Preponderance of Evidence
1. Gov't must prove amount of restitution;
2. D must show his financial ability
3. D must show that Vic has already recovered civilly
11
How do you calculate restitution in conspiracy?
Split in Circuits
5th Cir - conspiracy may broaden ability to collect restitution
12
When is restitution "REQUIRED"?
1. Crime of Violence;
2. Offense against property under Title 18, includes fraud or deceit;
3. Offenses related to tampering with consumer products
13
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
14