United States v. Trotter (321 F. Supp. 3d 337, 2018)

Jack B. Weinstein, Senior United States District Judge

Table of Contents

I. Introduction...339

A. Supervised Release...339

B. Marijuana and Supervised Release...340

C. Defendant Tyran Trotter...341

II. Facts...341

A. Background...341

B. Underlying Charge...342

C. Sentence...342

D. Violation Charge...342

E. Marijuana Legalization...342

F. New York State and City Marijuana Decriminalization...343

G. Racial Disparities in Marijuana Enforcement...344

III. Law...344

A. Supervised Release: Origin and Purpose...344

1. Origin of Federal Supervised Release...344

2. Rehabilitative Purpose of Supervised Release...345

B. Revocation of Supervised Release...346

C. Conditions of Supervised Release...349

1. Mandatory Conditions...349

2. Standard Conditions...351

3. Conditions for Specific Offense Types or Characteristics...354

4. Case Law on Conditions...357

5. Modification of Conditions...359

D. Early Termination of Supervised Release...359

1. Standard for Early Termination...359

2. Termination of Mandatory Minimum Periods...360

E. Supervised Release in the Age of Marijuana Legalization and Widespread Use...360

F. Critiques of Supervised Release...362

1. Overuse of Supervised Release...362

2. Negative Consequences...362

3. Proposals for Change...363

4. Probation Department Reforms...364

IV. Application of Law to Facts...365

A. 3553(a) Factors...365

B. Conduct of Defendant and Interests of Justice...365

V. Conclusion...365

I. Introduction

This case raises serious issues about sentencing generally, and supervised release for marijuana users specifically: Are we imposing longer terms than are needed for effective supervised release? Should we stop punishing supervisees for a marijuana addiction or habit?

After revisiting and reconsidering these issues, I conclude: (1) I, like other trial judges, have in many cases imposed longer periods of supervised release than needed, and I, like other trial judges, have failed to terminate supervised release early in many cases where continuing supervision presents such a burden as to reduce the probability of rehabilitation; and (2) I, like other trial judges, have provided unnecessary conditions of supervised release and unjustifiably punished supervisees for their marijuana addiction, even though marijuana is widely used in the community and is an almost unbreakable addiction or habit for some. As a result of these errors in our sentencing practice, money and the time of our probation officers are wasted, and supervisees are unnecessarily burdened.

In summary, in this and my future cases I will: (1) impose shorter terms of supervised release as needed; (2) give greater consideration to the appropriateness of conditions; (3) provide for earlier termination where indicated; and (4) avoid violations of supervised release and punishment by incarceration merely for habitual marijuana use.

A. Supervised Release

The purpose of federal supervised release is to assist people who have served prison terms with rehabilitation and reintegration into the law-abiding community. The United States Probation Department ("Probation Department") monitors individuals on supervised release and can help a supervisee with his or her reintegration into lawful society by providing drug treatment, mental health counseling, vocational training, and many other services to help reduce recidivism.

Violating a condition of supervised release can lead to-and in instances must lead to-additional incarceration. This situation can trap some defendants, particularly substances abusers, in a cycle where they oscillate between supervised release and prison.

[This is] the sinister side of probation the place where the promise of redemption is subverted by a lurking punitiveness.... Sanctions imposed for probation violations ... frequently lead to disproportionate sentences, with probation merely becoming a staging area for eventual imprisonment.

Nora V. Demleitner, How to Change the Philosophy and Practice of Probation and Supervised Release: Data Analytics, Cost Control, Focus on Reentry, and a Clear Mission , 28 Fed. Sent'g Rep. 231, 232 (2016) (internal quotation marks omitted).

Connections with family and community organizations-religious or secular-are an aid to, and indication of, rehabilitation and reentry into normal, lawful life. See generally Mark T. Berg & Beth M. Huebner, Reentry and the Ties That Bind: An Examination of Social Ties, Employment, and Recidivism , 28 Just. Q. 382 (2011). Every time a connection is broken with the world outside of prison, by unnecessary incarceration following violations of supervised release, it probably becomes more difficult to reconnect. The court must consider such factors in finding violations during supervised release. Cf. Reentry Program - Recidivism Reduction , Aleph Institute (June 25, 2018), https://aleph-institute.org/wp/programs/reentry-services/ (offering reentry programs and community connections to reduce recidivism).

The Probation Department in this court merits high praise for its work. Our probation officers do a difficult job well; often they have a helpful impact on criminal defendants' lives. Recognizing the possibility of over-supervision, our Probation Department has now taken measures to reduce supervision burdens by (1) tapering off supervision over time; (2) creating a "low intensity" supervision program; and (3) recommending early termination when warranted.

The resources of the Probation Department are limited. Cf. U.S. Courts, Probation Offices Look to Technology to Offset Budget, Staffing Reductions (Apr. 18, 2012) (discussing innovative measures taken by the Probation Department to offset budgetary concerns). The Probation Department should be focused on assisting those defendants with the potential for success, not on those doomed to fail.

The significance of terms and conditions of supervised release is often ignored when sentencing. See generally Christine S. Scott-Hayward, Shadow Sentencing: The Imposition of Federal Supervised Release , 18 Berkeley J. Crim. L. 180, 190 (2013). At the sentencing hearing, the term of supervised release is seldom discussed; defense counsel, Assistant United States Attorneys, and the court assume it will be imposed for a significant period (usually three or five years). The sentencing hearing centers on the incarceration term. Going forward, more careful attention should be given to the potential of supervised release, and its duration, to help-or to prevent-rehabilitation. Proposals of the American Law Institute to improve all aspects of sentencing are excellent, but generally beyond the powers of a trial judge to implement. See American Law Institute, Model Penal Code: Sentencing (Proposed Final Draft), § 6.09, at 197 (2017).

B. Marijuana and Supervised Release

Without addressing the advantages and dangers of the change in criminal laws on smoking marijuana, it is obvious that marijuana use, through law, policy, and social custom, is becoming increasingly accepted by society. Many people from all walks of life now use marijuana without fear of adverse legal consequences. In New York, where marijuana policy is evolving in favor of decriminalization, serious racial and social-class disparities exist in the enforcement of anti-marijuana laws. See, e.g. , Benjamin Mueller, Robert Gebeloff, & Sahil Chinoy, Surest Way to Face Marijuana Charges in New York: Be Black or Hispanic , N.Y. Times, May 13, 2018, at A1 (reporting that African Americans are arrested at eight times the rate of White people in New York City despite equal marijuana usage rates).

Yet, marijuana remains illegal for all purposes under federal law. See Silvia Irimescu, Marijuana Legalization: How Government Stagnation Hinders Legal Evolution and Harms A Nation , 50 Gonz. L. Rev. 241, 249 (2015) ; but cf. Sadie Gurman & Natalie Andrews, Jeff Sessions Struggles to Get Planned Marijuana Crackdown Going , Wall St. J., June 10, 2018 (discussion of a "bipartisan bill" which would prevent the federal government from interfering with state laws legalizing marijuana). Marijuana use violates a mandatory condition of federal supervised release and can require mandatory incarceration for some supervisees. See infra Section III(B)-(E)

Effectively, courts are faced with a choice: imprison a marijuana user on supervised release or cut short supervision, forcing an attempt at further rehabilitation on the supervisee's own. Many men and women who have terms of incarceration imposed by this court are seeking to live productive, law-abiding lives, but are derailed by their marijuana addiction.

Like many federal trial judges, I have been terminating supervision for "violations" by individuals with long-term marijuana habits who are otherwise rehabilitated. No useful purpose is served through the continuation of supervised release for many defendants whose only illegal conduct is following the now largely socially acceptable habit of marijuana use. The cost to tax-payers of long, repeating sentences and extended, unnecessary supervised release is substantial.

C. Defendant Tyran Trotter

Tyran Trotter, like many of his peers who fall into crime, comes from a broken home. He never knew his father. His mother struggles with drug addiction. His brother was apparently murdered. At fourteen he was placed in foster care. By sixteen he had half-a-dozen arrests on his record. He was convicted of a federal drug distribution charge and sentenced to two years imprisonment before he could legally drink alcohol. Now twenty-two years old, Trotter is on federal supervised release trying to lead a productive life, with a chronic problem holding him back: marijuana addiction.

Trotter began smoking marijuana when he was twelve years old. After serving his prison term, he has stayed out of trouble. Rehabilitation and reintegration into society are the most important roles the criminal justice system ought to play in his life. But, he should be returned to prison under prior practice because his marijuana use conflicts with federal law and the conditions of his supervision.

Supervised release is now being terminated by this court for Tyran Trotter. Its continuation would inhibit rehabilitation. He must attempt to lead a productive life on his own. As he himself put the matter:

There's not a day that I don't wake up that I don't think about how I was one of the big shots and I had a lot of money and I was doing my thing and breaking the rules. It's hard coming home today and seeing my mother struggle. I'm trying to leave New York. I want a job for me.... [w]hether Probation was here or not.

May 31, 2018 Hr'g Tr. 9:4-13 ("Hr'g Tr.").

II. Facts

A. Background

Trotter was born in 1996 in Queens, New York. Presentence Investigative Report ("PSR") at ¶ 69. For the first fourteen years of his life he lived with his mother, but when she lost her job and family home in 2010 because of her addiction, Trotter and his brothers were placed in foster care. Id. at ¶ 71. After several months in foster care, he moved into a group home where he lived for two years. Id.

Trotter abandoned school before completing the seventh grade. Id. at ¶ 83. But he has a good mind. While incarcerated in 2013, he earned his General Educational Development diploma. Id. at ¶ 82.

Before his arrest for the offense leading to the present conviction, he did not have a stable place to live: he resided-on a "catch as a catch can"-with friends, family members, and his former girlfriend. Id .

B. Underlying Charge

On July 14, 2016, Trotter pled guilty to one count of conspiracy to distribute heroin. See 21 U.S.C. §§ 846 and 841(b)(1)(C) ; Plea Hr'g Tr., ECF No. 260, July 14, 2016.

He participated in a street gang called "Paper Chasing Goons" that acted as a drug trafficking organization ("DTO"). PSR at ¶ 2. The DTO had access to narcotics and firearms, and distributed heroin to a network of drug traffickers who sold it to users. Id. at ¶¶ 2-3.

Between November 2014 and July 2015, Trotter conspired to distribute at least 400 grams of heroin. There is no evidence that he possessed or used a firearm. Id. at ¶¶ 8-9.

C. Sentence

Trotter was sentenced to two years imprisonment. See Oct. 7 Sent. Hr'g Tr. No fine was imposed in light of his inability to pay one. See id. ; PSR at ¶ 87.

A three year term of supervised release was imposed. See Oct. 7 Sent. Hr'g Tr. It was the mandatory minimum. See 21 U.S.C. § 841(b)(1)(C) ("[A]ny sentence imposing a term of imprisonment under this paragraph shall ... impose a term of supervised release of at least 3 years."). The maximum term is lifetime supervision. See United States v. Breton , 672 F. App'x 108, 109 n.3 (2d Cir. 2016).

D. Violation Charge

The United States Probation Department reported that Trotter had violated the terms of supervised release by using marijuana and failing to comply with its drug treatment orders. See Violation of Supervised Release Report, ECF No. 505, Dec. 14, 2017. An additional four months incarceration was recommended by the Probation Department to be followed by an additional two years of supervised release. Id. at 11-12.

Trotter pled not guilty to the violation charges. See Minute Entry for Initial Appearance, ECF No. 512, Jan. 30, 2018. Preliminary hearings were held on February 7, 2018 and May 31, 2018. See Minute Entry for Preliminary Hearing, ECF No. 520; Hr'g Tr. No ruling on the issue of use was made.

E. Marijuana Legalization

Under federal law, marijuana is a schedule I drug, meaning it has potential for abuse and has no accepted medical purpose. See Silvia Irimescu, Marijuana Legalization: How Government Stagnation Hinders Legal Evolution and Harms A Nation , 50 Gonz. L. Rev. 241, 249 (2015). Possession, use, and cultivation of marijuana has been outlawed by Congress pursuant to its Commerce Clause power. See Gonzales v. Raich , 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005).

As already noted, states are departing from the federal approach. In the majority of states-twenty-nine-marijuana may be used medicinally. See Melia Robinson, Jeremy Berke, & Skye Gould, This Map Shows Every State that has Legalized Marijuana , Business Insider, Apr. 20, 2018. In nine states and the District of Columbia, marijuana may be used recreationally. Id.

The trend in public opinion is in favor of legalization by state law. A Pew Research Center study found that in 2018, 61% of Americans believe that marijuana use should be legal. Abigail Geiger, About Six-in-Ten Americans Support Marijuana Legalization , Pew Research Center, Jan. 5, 2018, http://www.pewresearch.org/fact-tank/2018/01/05/americans-support-marijuana-legalization. This is a sharp increase from previous years: in 1969 only 12% of Americans supported legalization; 32% were in favor of it in 2010. Id. Younger generations, so-called "Milennials" and "Gen Xers," support legalizations at rates of 70% and 66%, respectively. Id. ; Cf. German Lopez, Canada just legalized marijuana. That has big implications for US drug policy. , Vox, June 20, 2018 (discussing Canadian marijuana legalization).

F. New York State and City Marijuana Decriminalization

States and municipalities have "decriminalized" marijuana use. German Lopez, The Spread of Marijuana Legalization Explained , Vox, Apr. 20, 2018. "Decriminalization" in this context has no standardized meaning-in some places, possession is no longer punished, but distribution is; in others, marijuana possession is punished with a small fine. Id.

New York City's decriminalization has been through systemic non-enforcement of marijuana laws. See Andrew Denney, DAs in NYC and Area Take Diverging Views on Marijuana Decriminalization , N.Y.L.J., May 24, 2018. In 2014, the Brooklyn District Attorney stopped prosecuting low-level marijuana possession. Id. The Manhattan District Attorney's Office has announced that in August of 2018 it will stop prosecuting low-level marijuana cases. Colby Hamilton, City Officials Announce Shifts in Marijuana Enforcement Policies , N.Y.L.J., May 16, 2018.

The Mayor of New York City has expressed the view that recreational marijuana legalization is inevitable in New York and he has asked the New York City Police Department ("NYPD") to stop making marijuana arrests. Denney, supra . The NYPD's Commissioner convened a working group to study marijuana enforcement, stating "[t]he NYPD has no interest in arresting New Yorkers for marijuana offenses when those arrests have no impact on public safety." Id. The City announced on June 19, 2018 that it would issue criminal summonses for, rather than arresting, most individuals caught smoking marijuana in public. Jonathan Wolfe, Marijuana in New York: Here's How the Laws Are Changing , N.Y. Times, June 20, 2018. Some, including people on parole or probation, will still be subject to arrest. Id.

At the state level, the Governor of New York commissioned a report on recreational marijuana that recommended legalization. Jesse McKinley & Benjamin Mueller, New York Moves Toward Legal Marijuana With Health Dept. Consent , N.Y. Times, June 18, 2018, at A17. It is uncertain whether this report will lead to a change in state law. Id. New York State legalized marijuana for medicinal use in 2014. Id.

Despite changes in public opinion, state law, and municipal policy, Probation Department policy requires officers to treat marijuana in the same way as other unlawful drugs. See Letter from Joe Gergits, Assistant General Counsel for the Administrative Office of the United States Courts to Jonathan Hurting, United States Probation (July 20, 2009) ("State laws that decriminalize marijuana have no legal effect on how officers should interpret drug use or possession under Federal law. Even when States have legalized marijuana possession for compassionate medicinal use, the Federal prohibitions against possession and distribution remain in effect.... Nonetheless, I anticipate that evolving views on the medicinal use of marijuana and State decriminalization and legalization of the possession of small amounts will influence the exercise of Federal prosecutorial and judicial sentencing discretion.").

G. Racial Disparities in Marijuana Enforcement

A leading commentator on "mass incarceration" in the United States explained the sharp racial and social disparities in enforcement of anti-marijuana laws:

Adding to the temptation to avoid race is the fact that opportunities for challenging mass incarceration on race-neutral grounds have never been greater.... Some states have decriminalized marijuana, including Massachusetts, where 65 percent of state voters approved the message.... [I]mpressive changes in our nation's drug laws and policies would be not only possible, but likely, without ever saying a word about race.... The prevailing caste system cannot be successfully dismantled with a purely race-neutral approach.

Michelle Alexander, The New Jim Crow 226 (2010); see also United States v. Bannister , 786 F.Supp.2d 617, 651-53 (E.D.N.Y. 2011) (discussing racial disparities in drug sentences).

Nationwide, African Americans are 3.73 times more likely to be arrested for marijuana possession than White people, despite similar usage rates. See ACLU, The War on Marijuana 17, 21 (June 2013). In the period between 2001 and 2010, the disparity increased. Id. at 20.

In New York City, African Americans were eight times more likely than White people to be arrested for marijuana possession. Benjamin Mueller, Robert Gebeloff & Sahil Chinoy, Surest Way to Face Marijuana Charges in New York: Be Black or Hispanic , N.Y. Times, May 13, 2018, at A1. There has been an attempt to explain this disparity by suggesting that more complaints are lodged in Black and Hispanic communities than in largely White areas. Id. But a New York Times' report found that "among neighborhoods where people called about marijuana at the same rate, the police almost always made arrests at a higher rate in the area with more black residents." Id.

In this court, the majority of supervisees who face a violation charge for marijuana use are African Americans. The arrest disparities in New York City may partially account for this imbalance.

It is a mandatory condition of supervised release that a supervisee may not violate state or federal law. See infra Section III(C)(1). A supervisee arrested by the state for marijuana possession may thus face both the state charge and a parallel violation of the terms of supervised release charge in the federal court. Since an African American is eight times more likely to be arrested for marijuana use, his or her chance of a supervised release violation for marijuana is much greater than a White person's.

III. Law

A. Supervised Release: Origin and Purpose

1. Origin of Federal Supervised Release

The Sentencing Reform Act of 1984 (the "Act" or "SRA") sought to introduce uniformity and consistency in federal sentencing. See generally Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion , 117 Yale L.J. 1420 (2008). It created the United States Sentencing Commission and Federal Sentencing Guidelines. Id. at 1427-34. It abolished federal parole and created supervised release. Christine S. Scott-Hayward, Shadow Sentencing: The Imposition of Federal Supervised Release , 18 Berkeley J. Crim. L. 180, 190 (2013).

The switch to supervised release was made in part as a response to criticism that the parole system enhanced the indeterminate sentencing structure-creating a lack of uniformity, transparency, and predictability in the criminal justice system. Id. ; Fiona Doherty, Indeterminate Sentencing Returns: The Invention of Supervised Release , 88 N.Y.U.L. Rev. 958, 992 (2013). "A growing consensus emerged that a system premised on coercive rehabilitation was fatally flawed-and that parole worked against minorities and the poor." Id. at 991. Some believed that judges imposed higher sentences so "that the earliest parole date would coincide with the sentence length the judge believed the defendant deserved." Mica Moore, Escaping from Release: Is Supervised Release Custodial under 18 USC § 751(a)? , 83 U. Chi. L. Rev. 2257, 2260-61 (2016).

Parole cut short an individual's prison sentence by a parole board's exercise of its discretion; supervised release is ordered at sentencing by a judge for a defined term. Supervised release is designed to assist with rehabilitation, not to punish:

Only deterrence and treatment were originally specified as purposes for courts to consider when imposing supervised release. Supervised release was not intended to be imposed for the purposes of punishment or incapacitation, since those purposes will have been served to the extent necessary by the term of imprisonment. For this reason, Congress initially declined to provide for the possibility of revocation, stating that "it does not believe that a minor violation of a condition of supervised release should result in resentencing of the defendant. Instead, compliance with the conditions of supervised release would be enforced through the use of contempt proceedings, but only after repeated or serious violations of the conditions of supervised release. If an individual committed a new crime, then new charges should be filed.

However, as a result of changes in the political climate, and skepticism from probation officers and prosecutors, that approach soon changed. Before the SRA even took effect, Congress passed the Anti-Drug Abuse Act of 1986. This Act provided for mandatory terms of supervised release for certain drug offenses, and amended the supervised release statute, establishing revocation and reimprisonment for violations of supervised release conditions.

Scott-Hayward, supra , at 191-92 (internal quotation marks removed).

In most cases, supervised release was not designed by Congress to be mandatory. Id. Courts consider the factors set forth in 18 U.S.C. § 3553(a) to determine which defendants would benefit from the rehabilitative purpose of supervised release. Id. at 192-93.

2. Rehabilitative Purpose of Supervised Release

The Supreme Court has recognized that "supervised release fulfills rehabilitative ends , distinct from those served by incarceration." United States v. Johnson , 529 U.S. 53, 59, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000) (emphasis added). "Supervised release, in contrast to probation, is not a punishment in lieu of incarceration." United States v. Granderson , 511 U.S. 39, 50, 114 S.Ct. 1259, 127 L.Ed.2d 611 (1994) (emphasis added).

Supervised release is not an alternative to incarceration, but a separate and additional period of monitoring concerned with facilitating the reintegration of the defendant into the community ... supervised release must follow imprisonment; it cannot be imposed on its own. These differences reflect the rehabilitative character of release by fully disaggregating the punitive and transitional phases of a defendant's sentence.

Moore, supra , at 2263 (emphasis added).

A congressional statement of policy accompanying the SRA succinctly stated the rehabilitative purpose of supervised release:

[T]he primary goal of [Supervised Release] is to ease the defendant's transition into the community after the service of a long prison term for a particularly serious offense, or to provide rehabilitation to a defendant who has spent a fairly short period in prison for punishment or other purposes but still needs supervision and training programs after release.

S. Rep. No. 98-225, at 124 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182, 3307.

Conditions of supervised release reflect its rehabilitative goal. For example, the court may require participation in substance abuse or mental health treatment, and the probation department can help a supervisee find a job. Doherty, supra , at 1012-13. Courts must consider "provid[ing] the defendant with needed education or vocational training, medical care, or other correctional treatment." 18 U.S.C. § 3553(a)(2)(D).

B. Revocation of Supervised Release

Although the idea of revocation as punishment for the supervisee's failure to follow Probation's instructions is foreign to the purpose of supervised release, it was included in the statute. Revocation was originally introduced by Senator Strom Thurmond, in 1985, and was adopted as a "technical" change contained within the Anti-Drug Abuse Act of 1986 ("ADAA"). Doherty, supra , at 1000.

With this "technical amendment" and the revocation mechanism it created, Congress brought back conditional release. In enacting the ADAA, however, little consideration seems to have been given to the conceptual differences between supervised release and probation incorporated into the SRA. The adoption of the revocation mechanism did not even warrant a separate header to draw attention to the change....

For those accustomed to parole and probation, the absence of a revocation mechanism for supervised release seemed like an "impractical oddit[y]." Many actors in the system wondered how supervised release could be effective unless courts and probation officers were granted systematic leverage over offenders. And leverage had always meant prison.

Procedurally, the ADAA grafted the revocation mechanism for probation onto supervised release, ignoring the different theoretical roots of those systems. Judges could now "revoke" a term of supervised release after finding, by a simple preponderance of the evidence, that the person had violated a condition of supervision. There was to be no trial and no jury; courts were to apply the same rules of diluted procedure applicable to parole and probation revocation hearings.

Id. at 1001.

The term "revoke" appears to be somewhat of a misnomer. Parole was based on early release from prison-by the grace of the parole board a person was conditionally released from prison, and the leniency could be "revoked." Id. at 985. A person on supervised release has completed his or her prison term and is serving an independent term of supervision separately ordered by the court. Supervised release is not being "revoked"; rather, a supervisee is being punished for violating conditions and for the individual or general deterrence of the punishment. A conceptual oddity exists:

The supervised release statute continued to instruct judges not to consider the goals of punishment and incapacitation when deciding whether to impose-and now revoke-supervised release. And yet, the possibility of revocation made supervised release indisputably about punishment, oversight, and coercion. Judges and probation officers were to gauge how well released prisoners were adjusting with the threat of more prison hanging overhead. Despite the statutory bar on punishment, people on supervised release could now be sent back to prison for conduct that did not even violate a federal criminal statute.

Id. at 1002.

Notwithstanding its shaky theoretical underpinnings, revocation proceedings are central to federal supervised release. A violation proved by a mere preponderance, rather than beyond a reasonable doubt, can result in substantial time in prison. The statute provides:

The Court may ... revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release without credit for time previously served on postrelease supervision, if the court, ... finds by a preponderance of the evidence that the defendant violated a condition of supervised release....

18 U.S.C. § 3583(e)(3) (emphasis added).

In addition to this general permissive revocation provision, a separate section provides that certain offenses require revocation and imprisonment:

If the defendant-

(1) possesses [marijuana or another] controlled substance in violation of the condition set forth in subsection (d);

(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 supervised release prohibiting the defendant from possessing a firearm;

(3) refuses to comply with drug testing imposed as a condition of supervised release; 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 term of supervised release and require the defendant to serve a term of imprisonment not to exceed the maximum term of imprisonment authorized under subsection (e)(3).

18 U.S.C. § 3583(g) (emphasis added).

Subdivision (d) of § 3583 emphasizes the supervisee's obligation to refrain from using drugs:

The court shall order , as an explicit condition of supervised release, that the defendant not commit another Federal, State, or local crime during the term of supervision, that the defendant make restitution in accordance with sections 3663 and 3663 A, or any other statute authorizing a sentence of restitution, and that the defendant not unlawfully possess a controlled substance ....

The court shall also order , as an explicit condition of supervised release, that the defendant refrain from any unlawful use of a controlled substance and submit to a drug test within 15 days of release on supervised release and at least 2 periodic drug tests thereafter (as determined by the court) for use of a controlled substance .... The results of a drug test administered in accordance with the preceding subsection shall be subject to confirmation only if the results are positive, the defendant is subject to possible imprisonment for such failure, and either the defendant denies the accuracy of such test or there is some other reason to question the results of the test. A drug test confirmation shall be a urine drug test confirmed using gas chromatography /mass spectrometry techniques or such test as the Director of the Administrative Office of the United States Courts after consultation with the Secretary of Health and Human Services may determine to be of equivalent accuracy. The court shall consider whether the availability of appropriate substance abuse treatment programs, or an individual's current or past participation in such programs, warrants an exception in accordance with United States Sentencing Commission guidelines from the rule of section 3583(g) when considering any action against a defendant who fails a drug test.

18 U.S.C. § 3583(d) (emphasis added).

Nearly all violations are subject to permissive revocation. Drug use, however, requires a supervisee to be placed back in prison, using three separate mechanism: drug possession, testing positive for drugs, or refusing a drug test. Cf. Jan Hoffman, She Went to Jail for a Drug Relapse. Tough Love or Too Harsh? , N.Y. Times, June 4, 2018, at A1 ("Should an addict's relapse be punished with a criminal sanction? Ms. Eldred has put that question before the Massachusetts Supreme Judicial Court, in a case that may have widespread ripples, as hundreds of thousands of addicted people tumble into the criminal justice system. Remaining drug-free is an almost universal requirement of probation. Violating it can bring sanctions ranging from a warning to, frequently, jail.").

In the Eastern District of New York, 13.45% of revocations are related to drug use, despite the Probation Department's best efforts to use sanctions short of incarceration for habitual drug users. See Letter of Eileen Kelly, Chief U.S. Probation Officer, ECF No. 540, June 15, 2018 ("[I]t is important to note, that our revocation rate is significantly lower than our non-compliance rate. As you, [the sentencing judge in the instant case], well know, officers and Judges exhaust other remedies, including treatment and intermediary sanctions long before an offender is violated and or revoked.").

District judges overwhelmingly believe that mandatory revocation for drug use is not desirable. The United States Sentencing Commission surveyed district judges in 2014 about supervised release. See United States Sentencing Commission, Results of 2014 Survey of United States District Judges Modification and Revocation of Probation and Supervised Release (2015). Judges were asked to state their position and responded as follows:

Table 11. Mandatory Bases for Revocation. The current statutory scheme governing probation and supervised release violations includes the following five bases for mandatory revocation of probation or supervised release (subject to a limited exception for drug-related violations). In your opinion, should any of the following five types of violations require mandatory revocation under the statute? Percent Responding Number Number Bases for revocation Yes No Responding Missing Table 11a. Illegal possession of a firearm 66% 34% 677 21 Table 11b. Illegal possession of a controlled substance 15% 85% 668 30 Table 11c. Failing more than 3 drug tests in one year 26% 74% 666 32 Table 11d. Refusal to take a drug test 38% 62% 664 34 Table 11e. For a sex offender on supervised release, the commission of a sex offense or kidnapping 87% 13% 678 20

Id. at 12.

Given judges' antipathy towards mandatory revocation, it is not surprising that 59% of those surveyed believed that the United States Sentencing Commission should significantly revise the supervised release guidelines to provide more alternatives to incarceration for violations. Id. at 6. In near unanimity-94%-judges requested sentencing recommendations short of incarceration that could be imposed through modification of the conditions of supervision. Id. at 11.

C. Conditions of Supervised Release

Set out below is a brief survey of recommended conditions of supervised release that will be considered in giving greater attention to supervised release. As Judge Posner noted:

Apart from a handful of conditions required by the Sentencing Reform Act itself, conditions of supervised release are discretionary. Some of the discretionary conditions are designated as "standard," others are called "special conditions" of supervised release, and are recommended for particular offenses....

[T]here are serious problems with how some district judges are handling discretionary conditions of supervised release at sentencing. Two of the problems are relatively minor, and we mention them quickly to get them out of the way. One is the number-thirty [although now slightly reduced]-and the other the variety of the listed discretionary conditions. The sheer number may induce haste in the judge's evaluation of the probation service's recommendations and is doubtless a factor in the frequent failure of judges to apply the sentencing factors in section 3553(a) to all the recommended conditions included in the sentence.... A more serious problem with the current system is that ... a number of the listed conditions, along with a number of conditions that judges modify or invent, are vague.

United States v. Siegel , 753 F.3d 705, 707-08 (7th Cir. 2014) (internal citations omitted).

1. Mandatory Conditions

Six conditions are required in all cases. See 18 U.S.C. § 3583(d). Two additional mandatory conditions apply in certain categories of cases. They are outlined below:

Mandatory in All Cases Condition Statute Guideline 1. New Crime 18 USC § § 5D1.3(a)(1) The defendant shall not commit another 3583(d) federal, state or local offense 2. Drug Possession 18 USC § § 5D1.3(a)(2) The defendant shall not unlawfully 3583(d) possess a controlled substance 3. Drug Use/Testing 18 USC § § 5D1.3(a)(4) The defendant shall refrain from any 3583(d) unlawful use of a controlled substance and submit to one drug test within 15 days of release on probation and at least two periodic drug tests thereafter (as determined by the court) for use of a controlled substance 4. Fine 18 USC § § 5D1.3(a)(5) If a fine is imposed and had not been paid 3583(d) upon release to supervised release, the defendant shall adhere to an installment schedule to pay the fine 5. Restitution 18 USC § § 5D1.3(a)(6) The defendant shall make restitution in 3583(d) accordance with 18 USC §§ 2248, 2259, 2264, 2327, 3663, 3664 and pay the assessment imposed in accordance with 18 USC § 3013 If there is a court-established payment schedule for making restitution or paying the assessment (18 USC § 3572(d)), the defendant shall adhere to the schedule 6. DNA Collection 18 USC § § 5D1.3(a)(8) The defendant shall submit to the 3583(d) collection of a DNA sample from the defendant at the direction of the United State Probation Office if the collection of such a sample is authorized pursuant to section 3 of the DNA Analysis Backlog Elimination Act of 2000 (42 USC § 14135a) Mandatory in Specific Cases 7. Sex Offender Registration 18 USC § § 5D1.3(a)(7) If the defendant is required to register 3583(d) under the Sex Offender Registration and Notification Act, the defendant shall comply with the requirements of that Act 8. Domestic Violence Program 18 USC § § 5D1.3(a)(3) The defendant who is convicted for a 3583(d) domestic violence crime as defined in 18 U.S.C. § 3561(b) for the first time shall attend a public, private, or private non-profit offender rehabilitation program that has been approved by the court,

See U.S. Sentencing Commission, Supervised Release , Appendix A, at 16-17 (April 2017).

2. Standard Conditions

In addition to mandating conditions, the statute provides:

The court may order, as a further condition of supervised release, to the extent that such condition-

(1) is reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D) [see infra Section III(D)(1) ];

(2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D) ; and

(3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a) ;

any condition set forth as a discretionary condition of probation in section 3563(b) [see infra ] and any other condition it considers to be appropriate.

The Sentencing Commission recommends thirteen conditions as "standard conditions" of supervised release. Labeling the conditions "standard" does not mean that they are required.

All discretionary conditions of supervised release must ... comply with overall federal sentencing policy as stated in 18 U.S.C. § 3553(a), especially subsection (a)(2), which requires the judge to consider "the need for the sentence imposed-(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

United States v. Siegel , 753 F.3d 705, 707 (7th Cir. 2014).

To the extent that the standard conditions are administrative, however, the Court of Appeals for the Second Circuit has stated that they are "essential to the functioning of the supervised release system[;] they are almost uniformly imposed by the district courts and have become boilerplate." United States v. Truscello , 168 F.3d 61, 63 (2d Cir. 1999) (internal citations and quotation marks omitted). "Implicit in the very nature of supervised release is that certain conditions are necessary to effect its purpose." Id. at 62. "[M]any of the standard conditions are so clearly necessary to supervised release, that the term 'discretionary' may be a misleading, if technically accurate, modifier for the standard conditions." Id. at 63 ; but see Michael P. Kenstowicz, The Imposition of Discretionary Supervised Release Conditions: Nudging Judges to Follow the Law , 82 U. Chi. L. Rev. 1411, 1411-12 (2015) ("[J]udges are required by 18 U.S.C. § 3553(a) to independently weigh the imposition of discretionary conditions ... sentencing judges regularly fail to fulfill this legal duty ... [i]n particular, judges appear to frequently impose thirteen discretionary conditions recommended by the United States Sentencing Commission-called 'standard conditions'-without considering whether they enhance public safety or rehabilitation in each case. This practice is troubling because Congress intended supervised release to be curative, not punitive.").

The following chart lists the standard conditions:

Standard Conditions Condition Statutory Sentencing Authority Guidelines 1. Reporting after Prison 18 USC § § 5D1.3 (c)(1) The defendant shall report to the probation office in 3563(3)(15) the federal judicial district where he or she is authorized to reside within 72 hours of release from imprisonment, unless the probation officer instructs the defendant to report to a different probation office or within a different time frame 2. Continued Reporting § 5D1.3 (c)(2)

After initially reporting to the probation office, the defendant will receive instructions from the court or the probation officer about how and when to report to the probation officer, and the defendant shall report to the probation officer as instructed 3. Travel 18 USC § § 5D1.3 (c)(3) The defendant shall not knowingly leave the federal 3563(b)(14) judicial district where he or she is authorized to reside without first getting permission from the court or the probation officer 4. Candor 18 USC § § 5D1.3 (c)(4) The defendant shall answer truthfully the questions 3563(b)(17) asked by the probation officer 5. Living Arrangements 18 USC § § 5D1.3 (c)(5) The defendant shall live at a place approved by the 3563(b)(13) probation officer. If the defendant plans to change & (b)(17) where he or she lives or anything about his or her living arrangements (such as the people the defendant lives with), the defendant shall notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10 days in advance is not possible due to unanticipated circumstances, the defendant shall notify the probation officer within 72 hours of becoming aware of a change or expected change 6. Search 18 USC § § 5D1.3 (c)(6) The defendant shall allow the probation officer to 3563(b)(16) visit the defendant at any time at his or her home or elsewhere, and the defendant shall permit the probation officer to take any items prohibited by the conditions of the defendant's supervision that he or she observes in plain view 7. Employment 18 USC § § 5D1.3 (c)(7) The defendant shall work full time (at least 30 hours 3563(b)(4) & per week) at a lawful type of employment, unless (b)(17) the probation officer excuses the defendant from doing so. If the defendant does not have full-time employment he or she shall try to find full-time employment, unless the probation officer excuses the defendant from doing so. If the defendant plans to change where the defendant works or anything about his or her work (such as the position or the job responsibilities), the defendant shall notify the probation officer at least 10 days before the change. If notifying the probation officer in advance is not possible due to unanticipated circumstances, the defendant shall notify the probation officer within 72 hours of becoming aware of a change or expected change 8. Criminal Association 18 USC § § 5D1.3 (c)(8) The defendant shall not communicate or interact 3563(b)(6) with someone the defendant knows is engaged in criminal activity. If the defendant knows someone has been convicted of a felony, the defendant shall not knowingly communicate or interact with that person without first getting the permission of the probation officer 9. Arrest Reporting 18 USC § § 5D1.3 (c)(9) If the defendant is arrested or questioned by a law 3563(b)(18) enforcement officer, the defendant shall notify the probation officer within 72 hours 10. Firearm 18 USC § § 5D1.3 (c)(10) The defendant shall not own, possess, or have 3563(b)(8) access to a firearm, ammunition, destructive device, or dangerous weapon 11. Informant § 5D1.3 (c)(11) The defendant shall not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without first getting the permission of the court 12. Risk Notification § 5D1.3 (c)(12) If the probation officer determines that the defendant poses a risk to another person (including an organization), the probation officer may require the defendant to notify the person about the risk and the defendant shall comply with that instruction. The probation officer may contact the person and confirm that the defendant has notified the person about the risk 13. Probations Directives § 5D1.3 (c)(13) The defendant shall follow the instructions of the probation officer related to the conditions of supervision

See U.S. Sentencing Commission, Supervised Release , Appendix A, at 17-18 (April 2017).

3. Conditions for Specific Offense Types or Characteristics

The Sentencing Commission recommends that certain conditions be implemented based on the specific type of offense or characteristics of the defendant.

Special Conditions Circumstance Condition Statutory Sentencing Authority Guidelines Dependents If the defendant has one or more § 5D1.3 (d)(1)(A) and Child dependents - a condition specifying Support that the defendant shall support his or her dependents If the defendant is ordered by the § 5D1.3 (d)(1)(B) government to make child support payments or to make payments to support a person caring for a child - a condition specifying that the defendant shall make the payments and comply with the other terms of the order Debt If an installment schedule of payment § 5D1.3 (d)(2) Obligations of restitution or a fine is imposed - a condition prohibiting the defendant from incurring new credit charges or opening additional lines of credit without approval of the probation officer unless the defendant is in compliance with the payment schedule Access to If the court imposes an order of § 5D1.3 (d)(3) Financial restitution, forfeiture, or notice to Information victims, or orders the defendant to pay a fine - a condition requiring the defendant to provide the probation officer access to any requested financial information Substance If the court has reason to believe that 18 USC § § 5D1.3 (d)(4) Abuse the defendant is an abuser of narcotics, 3563(b)(9) other controlled substances or alcohol - (A) a condition requiring the defendant to participate in a program approved by the United States Probation Office for substance abuse, which program may include testing to determine whether the defendant has reverted to the use of drugs or alcohol; and (B) a condition specifying that the defendant shall not use or possess alcohol Mental If the court has reason to believe that 18 USC § § 5D1.3 (d)(5) Health the defendant is in need of 3563(b)(9) psychological or psychiatric treatment - a condition requiring that the defendant participate in a mental health program approved by the United States Probation Office Deportation If (A) the defendant and the United § 5D1.3 (d)(6) States entered into a stipulation of deportation pursuant to section 238(c)(5) of the Immigration and Nationality Act (8 U.S.C. § 1228(c)(5)); or (B) in the absence of a stipulation of deportation, if, after notice and hearing pursuant to such section, the Attorney General demonstrates by clear and convincing evidence that the alien is deportable - a condition ordering deportation by a United States district court or a United States magistrate judge Sex Offenses If the instant offense of conviction is a § 5D1.3 (d)(7) sex offense, A condition requiring the § 5D1.3 (d)(7)(A) defendant to participate in a program approved by the United States Probation Office for the treatment and monitoring of sex offenders A condition limiting the use of § 5D1.3 (d)(7)(B) a computer or an interactive computer service in cases in which the defendant used such items A condition requiring the § 5D1.3 (d)(7)(C) defendant to submit to a search, at any time, with or without a warrant, and by any law enforcement or probation officer, of the defendant's person and any property, house, residence, vehicle, papers, computer, other electronic communication or data storage devices or media, and effects upon reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct by the defendant, or by any probation officer in the lawful discharge of the officer's supervision functions Unpaid If the defendant has any unpaid amount § 5D1.3 (d)(8) Restitution, of restitution, fines, or special Fines, or assessments, the defendant shall notify Special the probation officer of any material Assessments change in the defendant's economic circumstances that might affect the defendant's ability to pay Additional Community Confinement 18 USC § § 5D1.3 (e)(1) Conditions: Residence in a community treatment 3563(b)(11) Case-by-Case center, halfway house or similar Basis facility may be imposed as a condition of supervised release Home Detention § 5D1.3 (e)(2) Home detention may be imposed as a condition of supervised release, but only as a substitute for imprisonment Community Service 18 USC § § 5D1.3 (e)(3) Community service may be imposed as 3563(b)(12) a condition of supervised release Occupational Restrictions 18 USC § § 5D1.3 (e)(4) Occupational restrictions may be 3563(b)(5) imposed as a condition of supervised release see infra Section III(C)(3) Curfew 18 USC § § 5D1.3 (e)(5) A condition imposing a curfew may be 3563(b)(19) imposed if the court concludes that restricting the defendant to his place of residence during evening and nighttime hours is necessary to protect the public from crimes that the defendant might commit during those hours, or to assist in the rehabilitation of the defendant. Electronic monitoring may be used as a means of surveillance to ensure compliance with a curfew order Intermittent Confinement § 5D1.3 (e)(6) Intermittent confinement (custody for intervals of time) may be ordered as a condition of supervised release during the first year of supervised release, but only for a violation of a condition of supervised release in accordance with 18 U.S.C. § 3583(e)(2) and only when facilities are available

U.S. Sentencing Commission, Supervised Release , Appendix A, at 19-20 (April 20 17).

4. Case Law on Conditions

Courts may craft "special" conditions of supervised release as appropriate. Sentencing courts have "wide latitude" in doing so. United States v. Reeves , 591 F.3d 77, 80 (2d Cir. 2010). Below are some parameters set by the Court of Appeals for the Second Circuit; a review of other circuits has not been conducted.

Conditions must not be overly vague. See, e.g. , United States v. Green , 618 F.3d 120, 124 (2d Cir. 2010) (holding that a condition prohibiting a defendant from "wearing [ ] colors, insignia, or obtaining tattoos or burn marks (including branding and scars) relative to [criminal street] gangs,' " was "impermissibly vague"); 18 U.S.C. § 3583(f) ("The court shall direct that the probation officer provide the defendant with a written statement that sets forth all the conditions to which the term of supervised release is subject, and that is sufficiently clear and specific to serve as a guide for the defendant's conduct and for such supervision as is required.").

The United States Constitution constrains a sentencing court's discretion. See, e.g. , United States v. Myers , 426 F.3d 117, 126 (2d Cir. 2005) ("[W]hen a fundamental liberty interest is implicated by a sentencing condition, we must first consider the sentencing goal to which the condition relates ...[w]e must then consider whether it represents a greater deprivation of liberty than is necessary to achieve that goal."); United States v. Lifshitz , 369 F.3d 173, 190 (2d Cir. 2004) (evaluating a search condition under the Fourth Amendment "special needs" doctrine); United States v. Hernandez , 209 F.Supp.3d 542 (E.D.N.Y. 2016) (holding that a condition prohibiting a person convicted of possessing child pornography from attending a church service was unconstitutional as applied under the First Amendment).

Restrictions on internet use must be narrowly tailored. See, e.g. , United States v. Sofsky , 287 F.3d 122, 126 (2d Cir. 2002) ("Although the condition prohibiting Sofsky from accessing a computer or the Internet without his probation officer's approval is reasonably related to the purposes of his sentencing, in light of the nature of his offense, we hold that the condition inflicts a greater deprivation on Sofsky's liberty than is reasonably necessary."); cf. United States v. Bello , 310 F.3d 56 (2d Cir. 2002) (finding that a bar on watching television during probation was impermissible).

Limits have been placed on conditions of supervised release that may inhibit a defendant's employment prospects. See United States v. Doe , 79 F.3d 1309, 1319 (2d Cir. 1996) ("[W]e carefully scrutinize unusual and severe conditions, such as one requiring the defendant to give up a lawful livelihood.") (internal quotation marks omitted). The Sentencing Guidelines suggest "(1) a reasonably direct relationship existed between the defendant's occupation ... and the conduct relevant to the offense of conviction; and (2) imposition of such a restriction is reasonably necessary to protect the public because there is reason to believe that, absent such restriction, the defendant will continue to engage in unlawful conduct similar to that for which the defendant was convicted." U.S.S.G. 5F1.5 ; United States v. Lombardi , 727 Fed.Appx. 18, 20-21 (2d Cir. 2018) (applying the guidelines).

Given the rehabilitative purpose of supervised release and the strong relationship between gainful employment and recidivism, conditions that may affect employment prospects can be particularly troubling. Cf. Mark T. Berg & Beth M. Huebner, Reentry and the Ties That Bind: An Examination of Social Ties, Employment, and Recidivism , 28 Just. Q. 382 (2011); United States v. Jenkins , 854 F.3d 181, 195 (2d Cir. 2017) (vacating condition of supervised release where "the nature of these employment restrictions mean that, as a practical matter, [the defendant] may never be employable").

5. Modification of Conditions

Conditions of Supervised Release are imposed at the sentencing hearing. A court may, however, "modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release ...." 18 U.S.C. § 3583(e)(2). Prior to modification, the court must consider the factors listed in 18 U.S.C. § 3553(a) and hold a hearing. See id ; infra Section III(D); Fed. R. Crim. P. 32.1.

D. Early Termination of Supervised Release

1. Standard for Early Termination

Supervised release may be terminated early. "The court may ... terminate a term of supervised release and discharge the defendant released at any time after the expiration of one year of supervised release ... if it is satisfied that such action is [1] warranted by the conduct of the defendant released and [2] the interest of justice." 18 U.S.C. § 3583(e)(1). The court must consider several factors in deciding on early termination:

(i) "the nature and circumstances of the offense and the history and characteristics of the defendant," 18 U.S.C. § 3553(a)(1) ;

(ii) the need for the sentence imposed "to afford adequate deterrence to criminal conduct," id. § 3553(a)(2)(B), "to protect the public from further crimes of the defendant," id. § 3553(a)(2)(C), and "to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner," id. § 3553(a)(2)(D) ;

(iii) the "kinds of sentence and the sentencing range established for the applicable category of offense [or violation of probation or supervised release] committed by the applicable category of defendant" under the Sentencing Guidelines, id. § 3553(a)(4) ;

(iv) "any pertinent policy statement issued by the Sentencing Commission," id. § 3553(a)(5); and

(v) "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct...." Id. § 3553(a)(6).

United States v. Lussier , 104 F.3d 32, 35 (2d Cir. 1997). "The decision whether to grant early termination rests within the discretion of the district court." United States v. Harris , 689 F.Supp.2d 692, 694 (S.D.N.Y. 2010) ; United States v. Sheckley , 129 F.3d 114 (2d Cir. 1997) ("We have explained that the determination of early release is a discretionary decision made by the district court.").

The Court of Appeals for the Second Circuit explained:

Section 3583(e) provides the district court with retained authority to revoke, discharge, or modify terms and conditions of supervised release following its initial imposition of a supervised release term in order to account for new or unforeseen circumstances. Occasionally, changed circumstances-for instance, exceptionally good behavior by the defendant or a downward turn in the defendant's ability to pay a fine or restitution imposed as conditions of release-will render a previously imposed term or condition of release either too harsh or inappropriately tailored to serve the general punishment goals of section 3553(a).

United States v. Lussier , 104 F.3d 32, 36 (2d Cir. 1997). The appellate court's examples of grounds that may warrant early termination-"changed circumstances" and "exceptionally good behavior"-are not a limit on a district court's statutorily granted authority to terminate "if it is satisfied that such action is [1] warranted by the conduct of the defendant released and [2] the interest of justice." 18 U.S.C. § 3583(e)(1).

The Court of Appeals for the Second Circuit has declared that Lussier cannot be read to mandate additional requirements for termination or modification:

[Defendant] relies primarily on our decision in United States v. Lussier , 104 F.3d 32 (2d Cir. 1997), where we noted that a district court may modify conditions of supervised re