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When Is Lifetime Supervised Release Proper for Sex Offender?

Kevin Crowder was convicted of child molestation in the State of Washington.  When he was released from prison, he was required to register as a sex offender under the Sex Offender Registration and Notification Act (“SORNA”) at 18 U.S.C. § 2250(a).
In a Nutshell:  When convicted sex offender violates terms of his initial release from prison, court may impose lifetime of supervised release.
In 2009, Crowder was arrested and later convicted in Montana for failing to register under SORNA.  In merits mention, as it obviously was of some influence to the sentencing court in Montana, that in a separate federal proceeding, Crowder pleaded guilty to knowingly possess a firearm and ammunition in violation of 18 U.S.C. § 922(g)(i), which prohibits a convicted felon from having such items.

In sentencing, the Montana federal court sentenced Crowder to thirty-three months’ imprisonment and imposed a term of lifetime supervised release.  One of the terms of supervised release was that Crowder report to the probation office within 72 hours of release from prison.

Art 323 - U.S. Ninth Cir Court Of Appeals PasadenaU.S. Ninth Circuit Court of Appeals Pasadena

When Crowder was released from prison, he failed to report to his probation officer.  Crowder also committed a crime in Montana in violation of Montana law, which is what led to his arrest.

In sentencing in federal court on his violation of supervised release, the federal judge ordered that lifetime supervised release was appropriate and sentenced him to fourteen months of prison in connection with failing to register under SORNA.

Crowder then filed an appeal, challenging the lifetime term of supervised release.  The issue for the United States Court of Appeals for the Ninth Circuit was whether 18 U.S.C. § 3583(h), which authorized an additional term of supervised release, permits imposition of a lifetime term of supervised release.

The U.S. Court of Appeals for the Ninth Circuit, in United States v. Kevin Leroy Crowder (2013 DJDAR 16797) looked to the Second Circuit of the federal court, in United States v. Cassesse (2d Cir. 2012) 685 F. 3d 186, 191, and the Tenth Circuit of the federal court, in United States v. Raush (10th Cir., 2011) 638 F. 3d 1296, 1302-3.  In both of these cases, the courts found that a lifetime term of supervised release could be imposed under 18 U.S.C. § 3583(h).

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Crowder admitted that the statute under which he was first sentenced (18 U.S.C. § 2250(a)) for failing to register as a sex offender does authorize a lifetime term of supervised release.  However, he argued that 3583(h) does not.

Section 3583(h) states:

When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment, the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment.  The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.

Crowder’s argument was rather academic.  It was that the term of supervised release could not last a lifetime because the statute contemplated the term being at the most a lifetime, “less any term of imprisonment that was imposed upon revocation of supervised release.”

The Ninth Circuit, however, looked into the Second Circuit and Tenth Circuit cases cited above.  In each of these cases, the same challenge Crowder raised was heard, considered and rejected.  In looking deeper at these prior opinions, the Ninth Circuit noted that the Second Circuit thought it was “highly unlikely” that Congress intended to bar lifetime supervised release.  The Ninth Circuit further noted that Crowder’s “strained interpretation” of 3583(h) would not bar a judge from imposing an absurdly long term of supervised release, effectively making it a lifetime, i.e. 100 years.

Consequently, the Ninth Circuit affirmed the trial court’s imposition at a lifetime term of supervised release for Crowder’s failure to register as a sex offender.

The citation for the United States Ninth Circuit Court of Appeal ruling discussed above is United States v. Kevin Leroy Crowder (9th Cir., 2013) 738 F.3d 1103.

For more information about probation conditions and other restrictions for a convicted sex offender, click on the following articles:
  1. Standard Sex Offender Probation Conditions Imposed in Hundreds of Orange County Cases Since 2003 Are Unconstitutional
  2. Irvine’s Ordinance Barring Sex offender’s from Entering Parks without Permission Is Unconditional and Violates California Law
  3. Are Lie Detector Tests a Valid Probation Condition for a Sex Offender?
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