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e-CFR data is current as of November 12, 2019

Title 28Chapter I → Part 2


Title 28: Judicial Administration


PART 2—PAROLE, RELEASE, SUPERVISION AND RECOMMITMENT OF PRISONERS, YOUTH OFFENDERS, AND JUVENILE DELINQUENTS


Contents

Subpart A—United States Code Prisoners and Parolees

§2.1   Definitions.
§2.2   Eligibility for parole; adult sentences.
§2.3   Same: Narcotic Addict Rehabilitation Act.
§2.4   Same: Youth offenders and juvenile delinquents.
§2.5   Sentence aggregation.
§2.6   Withheld and forfeited good time.
§2.7   Committed fines and restitution orders.
§2.8   Mental competency proceedings.
§2.9   Study prior to sentencing.
§2.10   Date service of sentence commences.
§2.11   Application for parole; notice of hearing.
§2.12   Initial hearings: Setting presumptive release dates.
§2.13   Initial hearing; procedure.
§2.14   Subsequent proceedings.
§2.15   Petition for consideration of parole prior to date set at hearing.
§2.16   Parole of prisoner in state, local, or territorial institution.
§2.17   Original jurisdiction cases.
§2.18   Granting of parole.
§2.19   Information considered.
§2.20   Paroling policy guidelines: Statement of general policy.
§2.21   Reparole consideration guidelines.
§2.22   Communication with the Commission.
§2.23   Delegation to hearing examiners.
§2.24   Review of panel recommendation by the Regional Commissioner.
§2.25   Hearings by videoconference.
§2.26   Appeal to National Appeals Board.
§2.27   Petition for reconsideration of original jurisdiction decisions.
§2.28   Reopening of cases.
§2.29   Release on parole.
§2.30   False information or new criminal conduct: Discovery after release.
§2.31   Parole to detainers: Statement of policy.
§2.32   Parole to local or immigration detainers.
§2.33   Release plans.
§2.34   Rescission of parole.
§2.35   Mandatory release in the absence of parole.
§2.36   Rescission guidelines.
§2.37   Disclosure of information concerning parolees; Statement of policy.
§2.38   Community supervision by U.S. Probation Officers.
§2.39   Jurisdiction of the Commission.
§2.40   Conditions of release.
§2.41   Travel approval.
§2.42   Probation officer's reports to Commission.
§2.43   Early termination.
§2.44   Summons to appear or warrant for retaking of parolee.
§2.45   Same; youth offenders.
§2.46   Execution of warrant and service of summons.
§2.47   Warrant placed as a detainer and dispositional review.
§2.48   Revocation: Preliminary interview.
§2.49   Place of revocation hearing.
§2.50   Revocation hearing procedure.
§2.51   Issuance of a subpoena for the appearance of witnesses or production of documents.
§2.52   Revocation decisions.
§2.53   Mandatory parole.
§2.54   Reviews pursuant to 18 U.S.C. 4215(c).
§2.55   Disclosure of file prior to parole hearing.
§2.56   Disclosure of Parole Commission file.
§2.57   Special parole terms.
§2.58   Prior orders.
§2.59   Delegation to Commissioners.
§2.60   Superior program achievement.
§2.61   Qualifications of representatives.
§2.62   Rewarding assistance in the prosecution of other offenders; criteria and guidelines.
§2.63   Quorum and voting requirements.
§2.64   Youth Corrections Act.
§2.65   Paroling policy for prisoners serving aggregate U.S. and D.C. Code sentences.
§2.66   Revocation decision without hearing.

Subpart B—Transfer Treaty Prisoners and Parolees

§2.68   Prisoners transferred pursuant to treaty.
§2.69   [Reserved]

Subpart C—District of Columbia Code: Prisoners and Parolees

§2.70   Authority and functions of the U.S. Parole Commission with respect to District of Columbia Code offenders.
§2.71   Application for parole.
§2.72   Hearing procedure.
§2.73   Parole suitability criteria.
§2.74   Decision of the Commission.
§2.75   Reconsideration proceedings.
§2.76   Reduction in minimum sentence.
§2.77   Medical parole.
§2.78   Geriatric parole.
§2.79   Good time forfeiture.
§2.80   Guidelines for D.C. Code offenders.
§2.81   Reparole decisions.
§2.82   Effective date of parole.
§2.83   Release planning.
§2.84   Release to other jurisdictions.
§2.85   Conditions of release.
§2.86   Release on parole; rescission for misconduct.
§2.87   Mandatory release.
§2.88   Confidentiality of parole records.
§2.89   Miscellaneous provisions.
§2.90   Prior orders of the Board of Parole.
§2.91   Supervision responsibility.
§2.92   Jurisdiction of the Commission.
§2.93   Travel approval.
§2.94   Supervision reports to Commission.
§2.95   Early termination from supervision.
§2.96   Order of early termination.
§2.97   Withdrawal of order of release.
§2.98   Summons to appear or warrant for retaking of parolee.
§2.99   Execution of warrant and service of summons.
§2.100   Warrant placed as detainer and dispositional review.
§2.101   Probable cause hearing and determination.
§2.102   Place of revocation hearing.
§2.103   Revocation hearing procedure.
§2.104   Issuance of subpoena for appearance of witnesses or production of documents.
§2.105   Revocation decisions.
§2.106   Youth Rehabilitation Act.
§2.107   Interstate Compact.

Subpart D—District of Columbia Supervised Releasees

§2.200   Authority, jurisdiction, and functions of the U.S. Parole Commission with respect to offenders serving terms of supervised release imposed by the Superior Court of the District of Columbia.
§2.201   Period of supervised release.
§2.202   Prerelease procedures.
§2.203   Certificate of supervised release.
§2.204   Conditions of supervised release.
§2.205   Confidentiality of supervised release records.
§2.206   Travel approval and transfers of supervision.
§2.207   Supervision reports to Commission.
§2.208   Termination of a term of supervised release.
§2.209   Order of termination.
§2.210   Extension of term.
§2.211   Summons to appear or warrant for retaking releasee.
§2.212   Execution of warrant and service of summons.
§2.213   Warrant placed as detainer and dispositional review.
§2.214   Probable cause hearing and determination.
§2.215   Place of revocation hearing.
§2.216   Revocation hearing procedure.
§2.217   Issuance of subpoena for appearance of witnesses or production of documents.
§2.218   Revocation decisions.
§2.219   Maximum terms of imprisonment and supervised release.
§2.220   Appeal.

Authority: 18 U.S.C. 4203(a)(1) and 4204(a)(6).

Source: 42 FR 39809, Aug. 5, 1977, unless otherwise noted.

Subpart A—United States Code Prisoners and Parolees

§2.1   Definitions.

As used in this part:

(a) The term Commission refers to the U.S. Parole Commission.

(b) The term Commissioner refers to members of the U.S. Parole Commission.

(c) The term National Appeals Board refers to the three-member Commission sitting as a body to decide appeals taken from decisions of a Regional Commissioner, who participates as a member of the National Appeals Board. The Vice Chairman shall be Chairman of the National Appeals Board.

(d) The term National Commissioners refers to the Chairman of the Commission and to the Commissioner who is not serving as the Regional Commissioner in respect to a particular case.

(e) The term Regional Commissioner refers to Commissioners who are assigned to make initial decisions, pursuant to the authority delegated by these rules, in respect to prisoners and parolees in regions defined by the Commission.

(f) The term eligible prisoner refers to any Federal prisoner eligible for parole pursuant to this part and includes any Federal prisoner whose parole has been revoked and who is not otherwise ineligible for parole.

(g) The term parolee refers to any Federal prisoner released on parole or as if on parole pursuant to 18 U.S.C. 4164 or 4205(f). The term mandatory release refers to release pursuant to 18 U.S.C. 4163 and 4164.

(h) The term effective date of parole refers to a parole date that has been approved following an in-person hearing held within nine months of such date, or following a pre-release record review.

(i) All other terms used in this part shall be deemed to have the same meaning as identical or comparable terms as used in chapter 311 of part IV of title 18 of the U.S. Code or 28 CFR chapter I, part 0, subpart V.

[42 FR 39809, Aug. 5, 1977, as amended at 43 FR 22707, May 26, 1978; Order No. 960-81, 46 FR 52354, Oct. 27, 1981; 60 FR 51350, Oct. 2, 1995; 61 FR 55743, Oct. 29, 1996]

§2.2   Eligibility for parole; adult sentences.

(a) A Federal prisoner serving a maximum term or terms of more than one year imposed pursuant to 18 U.S.C. 4205 (a) (or pursuant to former 18 U.S.C. 4202) may be released on parole in the discretion of the Commission after completion of one-third of such term or terms, or after completion of ten years of a life sentence or of a sentence of over thirty years.

(b) A Federal prisoner serving a maximum term or terms of more than one year imposed pursuant to 18 U.S.C. 4205(b)(1) (or pursuant to former 18 U.S.C. 4208(a)(1)) may be released on parole in the discretion of the Commission after completion of the court-designated minimum term, which may be less than but not more than one-third of the maximum sentence imposed.

(c) A Federal prisoner serving a maximum term or terms of more than one year imposed pursuant to 18 U.S.C. 4205(b)(2) (or pursuant to former 18 U.S.C. 4208(a)(2)) may be released on parole at any time in the discretion of the Commission.

(d) If the Court has imposed a maximum term or terms of more than one year pursuant to 18 U.S.C. 924(a) or 26 U.S.C. 5871 [violation of Federal gun control laws], a Federal prisoner serving such term or terms may be released in the discretion of the Commission as if sentenced pursuant to 18 U.S.C. 4205(b)(2). However, if the prisoner's offense was committed on or after October 12, 1984, and the Court imposes a term or terms under 26 U.S.C. 5871, the prisoner is eligible for parole only after service of one-third of such term or terms, pursuant to 18 U.S.C. 4205(a).

(e) A Federal prisoner serving a maximum term or terms of one year or less is not eligible for parole consideration by the Commission.

[42 FR 41408, Aug. 17, 1977, as amended at 50 FR 36423, Sept. 6, 1985; 53 FR 46870, Nov. 21, 1988]

§2.3   Same: Narcotic Addict Rehabilitation Act.

A Federal prisoner committed under the Narcotic Addict Rehabilitation Act may be released on parole in the discretion of the Commission after completion of at least six months in treatment, not including any period of time for “study” prior to final judgment of the court. Before parole is ordered by the Commission, the Surgeon General or his designated representative must certify that the prisoner has made sufficient progress to warrant his release and the Attorney General or his designated representative must also report to the Commission whether the prisoner should be released. Recertification by the Surgeon General prior to reparole consideration is not required (18 U.S.C. 4254).

[48 FR 22918, May 23, 1983]

§2.4   Same: Youth offenders and juvenile delinquents.

Committed youth offenders and juvenile delinquents may be released on parole at any time in the discretion of the Commission.

(18 U.S.C. 5017(a) and 5041)

[45 FR 44925, July 2, 1980]

§2.5   Sentence aggregation.

When multiple sentences are aggregated by the Bureau of Prisons pursuant to 18 U.S.C. 4161 and 4205, such sentences are treated as a single aggregate sentence for the purpose of every action taken by the Commission pursuant to these rules, and the prisoner has a single parole eligibility date as determined by the Bureau of Prisons.

[45 FR 44925, July 2, 1980]

§2.6   Withheld and forfeited good time.

While neither a forfeiture of good time nor a withholding of good time shall bar a prisoner from receiving a parole hearing, section 4206 of title 18 of the U.S. Code permits the Commission to parole only those prisoners who have substantially observed the rules of the institution.

[43 FR 38822, Aug. 31, 1978]

§2.7   Committed fines and restitution orders.

(a) Committed fines. In any case in which a prisoner shall have had a fine imposed upon him by the committing court for which he is to stand committed until it is paid or until he is otherwise discharged according to law, such prisoner shall not be released on parole or mandatory release until payment of the fine, or until the fine commitment order is discharged according to law under the regulations of the Bureau of Prisons. Discharge from the commitment obligation of any committed fine does not discharge the prisoner's obligation to pay the fine as a debt due the United States.

(b) Restitution orders. Where a prisoner applying for parole is under an order of restitution, and it appears that the prisoner has the ability to pay and has willfully failed to do so, the Commission shall require that approval of a parole release plan be contingent upon the prisoner first satisfying such restitution order. The prisoner shall be notified that failure to satisfy this condition shall result in retardation of parole under the provisions of §2.28(e).

[48 FR 44527, Sept. 29, 1983, as amended at 50 FR 36422, Sept. 6, 1985]

§2.8   Mental competency proceedings.

(a) Whenever a prisoner (or parolee) is scheduled for a hearing in accordance with the provisions of this part and reasonable doubt exists as to his mental competency, i.e., his ability to understand the nature of and participate in scheduled proceedings, a preliminary inquiry to determine his mental competency shall be conducted by the hearing panel, hearing examiner or other official (including a U.S. Probation Officer) designated by the Regional Commissioner.

(b) The hearing examiner(s) or designated official shall receive oral or written psychiatric or psychological testimony and other evidence that may be available. A preliminary determination of mental competency shall be made upon the testimony, evidence, and personal observation of the prisoner (or parolee). If the examiner(s) or designated official determines that the prisoner is mentally competent, the previously scheduled hearing shall be held. If they determine that the prisoner is not mentally competent, the previously scheduled hearing shall be temporarily postponed.

(c) Whenever the hearing examiner(s) or designated official determine that a prisoner is mentally incompetent and postpone the previously scheduled hearing, they shall forward the record of the preliminary hearing with their findings to the Regional Commissioner for review.

(1) In the case of a prisoner, if the Regional Commissioner concurs with their findings, the Commissioner shall order the temporarily postponed hearing to be postponed indefinitely until such time as it is determined that the prisoner has recovered sufficiently to understand the proceedings. The Regional Commissioner shall require a progress report on the mental health of the prisoner at least every six months. When the Regional Commissioner determines that the prisoner has recovered sufficiently, the Commissioner shall reschedule the hearing for the earliest feasible date.

(2) In the case of a parolee in a revocation proceeding, the Regional Commissioner shall postpone the revocation hearing and order that the parolee be given a mental health examination in a suitable facility of the Bureau of Prisons or the District of Columbia. The postponed revocation hearing shall be held within 60 days, or as soon as a satisfactory mental health report is submitted. The Regional Commissioner shall order that appointment of counsel be sought in any case where the parolee does not have counsel for the revocation hearing. If the parolee's mental incompetency is raised at a preliminary interview or probable cause hearing, the Commission (or hearing official) will make a determination of probable cause and, if probable cause is found, schedule a revocation hearing as provided in this paragraph.

(d) If the Regional Commissioner disagrees with the findings of the hearing examiner(s) or designated official as to the mental competency of the prisoner, he shall take such action as he deems appropriate.

(e) At a postponed revocation hearing under this section, the hearing examiner shall make a preliminary determination as to the parolee's mental competency, taking into account all available mental health reports, any evidence submitted on the parolee's behalf, any report from counsel as to counsel's ability to communicate with the parolee, and the parolee's own responses to the examiner's questioning.

(1) If the hearing examiner determines the parolee to be mentally competent, the examiner shall conduct the revocation hearing. If counsel has previously asserted the parolee's incompetence, the examiner shall offer counsel a brief recess to consult with the parolee before proceeding.

(2) If the hearing examiner determines the parolee to be mentally incompetent, the examiner shall conduct the revocation hearing, and shall take into full account the parolee's mental condition in determining the facts and recommending a decision as to revocation and reparole.

(3) If the Commission revokes parole, the Commission may grant reparole conditioned on the parolee's acceptance into a particular type of mental health program prior to release from prison, or may grant reparole with a special condition of supervision that requires appropriate mental health treatment, including medication. In cases where no other option appears appropriate, the Commission may grant reparole conditioned upon the parolee's voluntary self-commitment to a mental health institution until such time as the parolee has sufficiently recovered for the Commission to permit the parolee's return to supervision.

(4) If the Commission finds that the parolee did not commit the charged violations of parole, but also finds that the parolee is unable to fulfill the normal obligations of a parolee by reason of his mental condition, the Commission may reinstate the parolee to parole with any appropriate special condition, including the special condition, if necessary, that the parolee voluntarily commit himself to a mental institution until such time as the parolee has sufficiently recovered for the Commission to permit a return to supervision.

[44 FR 3408, Jan. 16, 1979, as amended at 68 FR 70711, Dec. 19, 2003]

§2.9   Study prior to sentencing.

When an adult Federal offender has been committed to an institution by the sentencing court for observation and study prior to sentencing, under the provisions of 18 U.S.C. 4205(c), the report to the sentencing court is prepared and submitted directly by the Bureau of Prisons.

[50 FR 36423, Sept. 6, 1985, as amended at 68 FR 41528, July 14, 2003]

§2.10   Date service of sentence commences.

(a) Service of a sentence of imprisonment commences to run on the date on which the person is received at the penitentiary, reformatory, or jail for service of the sentence: Provided, however, That any such person shall be allowed credit toward the service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed.

(b) The imposition of a sentence of imprisonment for civil contempt shall interrupt the running of any sentence of imprisonment being served at the time the sentence of civil contempt is imposed, and the sentence or sentences so interrupted shall not commence to run again until the sentence of civil contempt is lifted.

(c) Service of the sentence of a committed youth offender or person committed under the Narcotic Addict Rehabilitation Act commences to run from the date of conviction and is interrupted only when such prisoner or parolee:

(1) Is on court-ordered bail;

(2) Is in escape status;

(3) Has absconded from parole supervision; or

(4) Comes within the provisions of paragraph (b) of this section.

[42 FR 39809, Aug. 5, 1977, as amended at 47 FR 36634, Aug. 23, 1982]

§2.11   Application for parole; notice of hearing.

(a) A federal prisoner (including a committed youth offender or prisoner sentenced under the Narcotic Addict Rehabilitation Act) desiring to apply for parole shall execute an application form as prescribed by the Commission. Such forms shall be available at each federal institution and shall be provided to each prisoner who is eligible for an initial parole hearing pursuant to §2.12. Prisoners committed under the Federal Juvenile Delinquency Act shall be considered for parole without application and may not waive parole consideration. A prisoner who receives an initial hearing need not apply for subsequent hearings.

(b) A prisoner may knowingly and intelligently waive any parole consideration on a form provided for that purpose. If a prisoner waives parole consideration, he may later apply for parole and may be heard during the next visit of the Commission to the institution at which he is confined, provided that he has applied at least 60 days prior to the first day of the month in which such visit of the Commission occurs.

(c) A prisoner who declines either to apply for or waive parole consideration is deemed to have waived parole consideration.

(d) In addition to the above procedures relating to parole application, all prisoners prior to initial hearing shall be provided with an inmate background statement by the Bureau of Prisons for completion by the prisoner.

(e) At least sixty days prior to the initial hearing (and prior to any hearing conducted pursuant to §2.14), the prisoner shall be provided with written notice of the time and place of the hearing and of his right to review the documents to be considered by the Commission, as provided by §2.55. A prisoner may waive such notice, except that if such notice is not waived, the case shall be continued to the time of the next regularly scheduled proceeding of the Commission at the institution in which the prisoner is confined.

[42 FR 39809, Aug. 5, 1977, as amended at 45 FR 6381, Jan. 28, 1980; 47 FR 21041, May 17, 1982; 49 FR 7228, Feb. 28, 1984]

§2.12   Initial hearings: Setting presumptive release dates.

(a) An initial hearing shall be conducted within 120 days of a prisoner's arrival at a federal institution or as soon thereafter as practicable; except that in a case of a prisoner with a minimum term of parole ineligibility of ten years or more, the initial hearing will be conducted nine months prior to the completion of such a minimum term, or as soon thereafter as practicable.

(b) Following initial hearing, the Commission shall (1) set a presumptive release date (either by parole or by mandatory release) within fifteen years of the hearing; (2) set an effective date of parole; or (3) continue the prisoner to a fifteen year reconsideration hearing pursuant to §2.14(c).

(c) Notwithstanding the above paragraph, a prisoner may not be paroled earlier than the completion of any judicially set minimum term of imprisonment or other period of parole ineligibility fixed by law.

(d) A presumptive parole date shall be contingent upon an affirmative finding by the Commission that the prisoner has a continued record of good conduct and a suitable release plan and shall be subject to the provisions of §§2.14 and 2.28. In the case of a prisoner sentenced under the Narcotic Addict Rehabilitation Act, 18 U.S.C. 4254, a presumptive parole date shall also be contingent upon certification by the Surgeon General pursuant to §2.3 of these rules. Consideration of disciplinary infractions in cases with presumptive parole dates may be deferred until the commencement of the next in-person hearing or the prerelease record review required by §2.14(b). While prisoners are encouraged to earn the restoration of forfeited or withheld good time, the Commission will consider the prisoner's overall institutional record in determining whether the conditions of a presumptive parole date have been satisfied.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3405, 3407, Jan. 16, 1979; 48 FR 22919, May 23, 1983; 49 FR 34208, Aug. 29, 1984; 57 FR 41391, Sept. 10, 1992; 60 FR 51350, Oct. 2, 1995]

§2.13   Initial hearing; procedure.

(a) An initial hearing shall be conducted by a single hearing examiner unless the Regional Commissioner orders that the hearing be conducted by a panel of two examiners. The examiner shall discuss with the prisoner his offense severity rating and salient factor score as described in §2.20, his institutional conduct and, in addition, any other matter the examiner may deem relevant.

(b) A prisoner may be represented at a hearing by a person of his or her choice. The function of the prisoner's representative shall be to offer a statement at the conclusion of the interview of the prisoner by the examiner, and to provide such additional information as the examiner shall request. Interested parties who oppose parole may select a representative to appear and offer a statement. The hearing examiner shall limit or exclude any irrelevant or repetitious statement.

(c) At the conclusion of the hearing, the examiner shall discuss the decision to be recommended by the examiner and the reasons therefor, except in the extraordinary circumstance of a complex issue that requires further deliberation before a recommendation can be made. Written notice of the decision shall be mailed or transmitted to the prisoner within 21 days of the date of the hearing, except in emergencies. Whenever the Commission initially establishes a release date (or modifies the release date thereafter), the prisoner shall also receive in writing the reasons therefor.

(d) In accordance with 18 U.S.C. 4206, the reasons for establishment of a release date shall include a guidelines evaluation statement containing the prisoner's offense severity rating and salient factor score (including the points credited on each item of such score) as described in §2.20, as well as the specific factors and information relied upon for any decision outside the range indicated by the guidelines.

(e) No interviews with the Commission, or any representative thereof, shall be granted to a prisoner unless his name is docketed for a hearing in accordance with Commission procedures. Hearings shall not be open to the public.

(f) A full and complete record of every hearing shall be retained by the Commission. Upon a request, pursuant to §2.56, the Commission shall make available to any eligible prisoner such record as the Commission has retained of the hearing.

[42 FR 39809, Aug. 5, 1977, as amended at 45 FR 6381, Jan. 28, 1980; 47 FR 25736, June 15, 1982; 48 FR 23183, May 24, 1983; 59 FR 45625, Sept. 2, 1994; 68 FR 41528, July 14, 2003]

§2.14   Subsequent proceedings.

(a) Interim proceedings. The purpose of an interim hearing required by 18 U.S.C. 4208(h) shall be to consider any significant developments or changes in the prisoner's status that may have occurred subsequent to the initial hearing.

(1) Notwithstanding a previously ordered presumptive release date or fifteen year reconsideration hearing, interim hearings shall be conducted pursuant to the procedures of §2.13(b), (c), (e), and (f) at the following intervals from the date of the last hearing:

(i) In the case of a prisoner with a maximum term or terms of less than seven years, every eighteen months (until released);

(ii) In the case of a prisoner with a maximum term or terms of seven years or more, every twenty-four months (until released);

(iii) In the case of a prisoner with an unsatisfied minimum term, the first interim hearing shall be scheduled under paragraphs (a)(1)(i) or (ii) of this section, or on the docket of hearings that is nine months prior to the month of parole eligibility, whichever is later.

(2) Following an interim hearing, the Commission may:

(i) Order no change in the previous decision;

(ii) Advance a presumptive release date, or the date of a fifteen year reconsideration hearing. However, it shall be the policy of the Commission that once set, a presumptive release date or the date of a fifteen year reconsideration hearing shall be advanced only:

(1) For superior program achievement under the provisions of §2.60; or

(2) For other clearly exceptional circumstances.

(iii) Retard or rescind a presumptive parole date for reason of disciplinary infractions. In a case in which disciplinary infractions have occurred, the interim hearing shall be conducted in accordance with the procedures of §2.34(c) through (f). (Prior to each interim hearing, prisoners shall be notified on the progress report furnished by the Bureau of Prisons that any finding of misconduct by the Discipline Hearing Officer since the previous hearing will be considered for possible action under this paragraph);

(iv) If a presumptive date falls within nine months after the date of an interim hearing, the Commission may treat the interim hearing as a prerelease review in lieu of the record review required by paragraph (b) of this section.

(b) Pre-release reviews. The purpose of a pre-release review shall be to determine whether the conditions of a presumptive release date by parole have been satisfied.

(1) At least sixty days prior to a presumptive parole date, the case shall be reviewed on the record, including a current institutional progress report.

(2) Following review, the Regional Commissioner may:

(i) Approve the parole date;

(ii) Advance or retard the parole date for purpose of release planning as provided by §2.28(e);

(iii) Retard the parole date or commence rescission proceedings as provided by §2.34;

(iv) Advance the parole date for superior program achievement under the provisions of §2.60.

(3) A pre-release review pursuant to this section shall not be required if an in-person hearing has been held within nine months of the parole date.

(4) Where:

(i) There has been no finding of misconduct by an Institutional Disciplinary Committee nor any allegation of criminal conduct since the last hearing; and

(ii) No other modification of the release date appears warranted, the Executive Hearing Examiner may act for the Regional Commissioner under paragraph (b)(2) of this section to approve conversion of the presumptive parole date to an effective date of parole.

(c) Fifteen year reconsideration hearings. A fifteen year reconsideration hearing shall be a full reassessment of the case pursuant to the procedures at §2.13.

(1) A fifteen year reconsideration hearing shall be ordered following initial hearing in any case in which a release date is not set.

(2) Following a fifteen year reconsideration hearing, the Commission may take any one of the actions authorized by §2.12(b).

[46 FR 39136, July 31, 1981; 47 FR 25735, June 15, 1982, as amended at 48 FR 9247, Mar. 4, 1983; 48 FR 44525, Sept. 29, 1983; 49 FR 34208, Aug. 29, 1984; 55 FR 290, Jan. 4, 1990; 60 FR 51350, Oct. 2, 1995; 68 FR 41529, July 14, 2003]

§2.15   Petition for consideration of parole prior to date set at hearing.

When a prisoner has served the minimum term of imprisonment required by law, the Bureau of Prisons may petition the responsible Regional Commissioner for reopening the case under §2.28(a) and consideration for parole prior to the date set by the Commission at the initial or review hearing. The petition must show cause why it should be granted, i.e., an emergency, hardship, or the existence of other extraordinary circumstances that would warrant consideration of early parole.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3407, Jan. 16, 1979]

§2.16   Parole of prisoner in state, local, or territorial institution.

(a) Any person who is serving a sentence of imprisonment for any offense against the United States, but who is confined therefor in a state reformatory or other state or territorial institution, shall be eligible for parole by the Commission on the same terms and conditions, by the same authority, and subject to recommittal for the violation of such parole, as though he were confined in a Federal penitentiary, reformatory, or other correctional institution.

(b) Federal prisoners serving concurrent state and Federal sentences in state, local, or territorial institutions shall be furnished upon request parole application forms. Upon receipt of the application and any supplementary classification material submitted by the institution, parole consideration shall be made by an examiner panel of the appropriate region on the record only. If such prisoner is released from his state sentence prior to a Federal grant of parole, he shall be given a personal hearing as soon as feasible after receipt at a Federal institution.

(c) Prisoners who are serving Federal sentences exclusively but who are being boarded in State, local, or territorial institutions may be provided hearings at such facilities or may be transferred by the Bureau of Prisons to Federal Institutions for hearings by examiner panels of the Commission.

(18 U.S.C. 4203, 4204)

[42 FR 39809, Aug. 5, 1977, as amended at 45 FR 44924, July 2, 1980; 50 FR 36424, Sept. 6, 1985]

§2.17   Original jurisdiction cases.

(a) Following any hearing conducted pursuant to these rules, the Regional Commissioner may designate that a case should be decided as an original jurisdiction case. If the Regional Commissioner makes such a designation, the Regional Commissioner shall vote on the case and then refer the case to the other Commissioners for their votes. The decision in an original jurisdiction case shall be made on the basis of a majority vote of Commissioners holding office at the time of the decision.

(b) A Commissioner may designate a case as an original jurisdiction case if the case involves an offender:

(1) Who committed a serious crime against the security of the nation;

(2) Whose offense behavior included an unusual degree of sophistication or planning or was part of a large scale criminal conspiracy or continuing criminal enterprise;

(3) Who received national or unusual attention because of the nature of the crime, arrest, trial, or prisoner status, or because of the community status of the offender or a victim of the crime;

(4) Whose offense behavior caused the death of a law enforcement officer while the officer was in the line of duty; or

(5) Who was sentenced to a maximum term of at least 45 years or life imprisonment.

(c)(1) Any case designated for the original jurisdiction of the Commission shall remain an original jurisdiction case unless designation is removed pursuant to this subsection.

(2) A case found to be inappropriately designated for the Commission's original jurisdiction, or to no longer warrant such designation, may be removed from original jurisdiction under the procedures specified in paragraph (a) of this section following a regularly scheduled hearing or the reopening of the case pursuant to §2.28. Removal from original jurisdiction may also occur by majority vote of the Commission considering a petition for reconsideration pursuant to §2.27. Where the circumstances warrant, a case may be redesignated as original jurisdiction pursuant to the provisions of paragraphs (a) and (b) of this section.

[42 FR 39809, Aug. 5, 1977, as amended at 42 FR 44234, Sept. 2, 1977; 48 FR 53409, Nov. 28, 1983; 61 FR 13763, Mar. 28, 1996; 61 FR 55743, Oct. 29, 1996; 68 FR 41529, July 14, 2003; 75 FR 81459, Dec. 28, 2010]

§2.18   Granting of parole.

The granting of parole to an eligible prisoner rests in the discretion of the U.S. Parole Commission. As prerequisites to a grant of parole, the Commission must determine that the prisoner has substantially observed the rules of the institution or institutions in which he has been confined; and upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner, must determine that release would not depreciate the seriousness of his offense or promote disrespect for the law, and that release would not jeopardize the public welfare (i.e., that there is a reasonable probability that, if released, the prisoner would live and remain at liberty without violating the law or the conditions of his parole).

§2.19   Information considered.

(a) In making a parole or reparole determination the Commission shall consider, if available and relevant:

(1) Reports and recommendations which the staff of the facility in which such prisoner is confined may make;

(2) Official reports of the prisoner's prior criminal record, including a report or record of earlier probation and parole experiences;

(3) Pre-sentence investigation reports;

(4) Recommendations regarding the prisoner's parole made at the time of sentencing by the sentencing judge and prosecuting attorney;

(5) Reports of physical, mental, or psychiatric examination of the offender; and

(6) A statement, which may be presented orally or otherwise, by any victim of the offense for which the prisoner is imprisoned about the financial, social, psychological, and emotional harm done to, or loss suffered by such victim.

(b)(1) There shall also be taken into consideration such additional relevant information concerning the prisoner (including information submitted by the prisoner) as may be reasonably available (18 U.S.C. 4207). The Commission encourages the submission of relevant information concerning an eligible prisoner by interested persons.

(2) To permit adequate review of information concerning the prisoner, materials submitted to the Commission should be received by the Commission no later than the first day of the month preceding the month of the scheduled hearing docket.

(3) If material of more than six (6), double-spaced, letter-sized pages is first submitted at the time of the hearing (or preliminary interview) and the hearing panel (or person conducting the hearing or preliminary interview) concludes that it is not feasible to read all the material at that time, the person submitting the material will be permitted to summarize it briefly at the hearing (or preliminary interview). All of the material submitted will become part of the record to be considered by the Commission in its review of the proceedings.

(4) The Commission will normally consider only verbal and written evidence at hearings. Recorded audio and visual material will be reviewed at hearings only if there is no adequate substitute to permit a finding under paragraph (c) of this section. Otherwise, recorded audio and visual material should be submitted prior to the hearing for review and summarization, pursuant to paragraph (b)(2) of this section.

(c) The Commission may take into account any substantial information available to it in establishing the prisoner's offense severity rating, salient factor score, and any aggravating or mitigating circumstances, provided the prisoner is apprised of the information and afforded an opportunity to respond. If the prisoner disputes the accuracy of the information presented, the Commission shall resolve such dispute by the preponderance of the evidence standard; that is, the Commission shall rely upon such information only to the extent that it represents the explanation of the facts that best accords with reason and probability. If the Commission is given evidence of criminal behavior that has been the subject of an acquittal in a federal, state, or local court, the Commission may consider that evidence if:

(1) The Commission finds that it cannot adequately determine the prisoner's suitability for release on parole, or to remain on parole, unless the evidence is taken into account;

(2) The Commission is satisfied that the record before it is adequate notwithstanding the acquittal;

(3) The prisoner has been given the opportunity to respond to the evidence before the Commission; and

(4) The evidence before the Commission meets the preponderance standard.

In any other case, the Commission shall defer to the trial jury. Offense behavior in Category 5 or above shall presumptively support a finding under paragraph (c)(1) of this section.

(d) Recommendations and information from sentencing judges, defense attorneys, prosecutors, and other interested parties are welcomed by the Commission. In evaluating a recommendation concerning parole, the Commission must consider the degree to which such recommendation provides the Commission with specific facts and reasoning relevant to the statutory criteria for parole (18 U.S.C. 4206) and the application of the Commission's guidelines (including reasons for departure therefrom). Thus, to be most helpful, a recommendation should state its underlying factual basis and reasoning. However, no recommendation (including a prosecutorial recommendation pursuant to a plea agreement) may be considered as binding upon the Commission's discretionary authority to grant or deny parole.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 26550, May 4, 1979; 44 FR 27658, May 11, 1979; 44 FR 31638, June 1, 1979; 49 FR 34207, Aug. 29, 1984; 49 FR 44098, Nov. 2, 1984; 50 FR 36423, Sept. 6, 1985; 51 FR 7064, Feb. 28, 1986; 56 FR 16270, Apr. 22, 1991; 56 FR 30868, July 8, 1991; 58 FR 16612, Mar. 30, 1993]

§2.20   Paroling policy guidelines: Statement of general policy.

(a) To establish a national paroling policy, promote a more consistent exercise of discretion, and enable fairer and more equitable decision-making without removing individual case consideration, the U.S. Parole Commission has adopted guidelines for parole release consideration.

(b) These guidelines indicate the customary range of time to be served before release for various combinations of offense (severity) and offender (parole prognosis) characteristics. The time ranges specified by the guidelines are established specifically for cases with good institutional adjustment and program progress.

(c) These time ranges are merely guidelines. Where the circumstances warrant, decisions outside of the guidelines (either above or below) may be rendered.

(d) The guidelines contain instructions for the rating of certain offense behaviors. However, especially mitigating or aggravating circumstances in a particular case may justify a decision or a severity rating different from that listed.

(e) An evaluation sheet containing a “salient factor score” serves as an aid in determining the parole prognosis (potential risk of parole violation). However, where circumstances warrant, clinical evaluation of risk may override this predictive aid.

(f) Guidelines for reparole consideration are set forth at §2.21.

(g) The Commission shall review the guidelines, including the salient factor score, periodically and may revise or modify them at any time as deemed appropriate.

(h) If an offender was less than 18 years of age at the time of the current offense, such youthfulness shall, in itself, be considered as a mitigating factor.

(i) For criminal behavior committed while in confinement see §2.36 (Rescission Guidelines).

(j)(1) In probation revocation cases, the original federal offense behavior and any new criminal conduct on probation (federal or otherwise) is considered in assessing offense severity. The original federal conviction is also counted in the salient factor score as a prior conviction. Credit is given toward the guidelines for any time spent in confinement on any offense considered in assessing offense severity.

(2) Exception: Where probation has been revoked on a complex sentence (i.e., a committed sentence of more than six months on one count or more of an indictment or information followed by a probation term on other count(s) of an indictment or information), the case shall be considered for guideline purposes under §2.21 as if parole rather than probation had been revoked.

Guidelines for Decisionmaking

[Guidelines for decisionmaking, customary total time to be served before release (including jail time)]

Offense characteristics:
Severity of offense behavior
Offender characteristics: Parole prognosis (salient factor score 1998)
Very good
(10 to 8)
Good
(7 to 6)
Fair
(5 to 4)
Poor
(3 to 0)
   Guideline range (months)
Category:
1≤= 4≤=88-1212-16
2≤=6≤=1012-1616-22
3≤=1012-1618-2424-32
412-1820-2626-3434-44
524-3636-4848-6060-72
640-5252-6464-7878-100
752-8064-9278-110100-148
81100+120+150+180+

1Note: For Category Eight, no upper limits are specified due to the extreme variability of the cases within this category. For decisions exceeding the lower limit of the applicable guideline category by more than 48 months, the Commission will specify the pertinent case factors upon which it relied in reaching its decision, which may include the absence of any factors mitigating the offense. This procedure is intended to ensure that the prisoner understands that individualized consideration has been given to the facts of the case, and not to suggest that a grant of parole is to be presumed for any class of Category Eight offenders. However, a murder committed to silence a victim or witness, a contract murder, a murder by torture, the murder of a law enforcement officer to carry out an offense, or a murder committed to further the aims of an on-going criminal operation, shall not justify a grant of parole at any point in the prisoner's sentence unless there are compelling circumstances in mitigation (e.g., a youthful offender who participated in a murder planned and executed by his parent). Such aggravated crimes are considered, by definition, at the extreme high end of Category Eight offenses. For these cases, the expiration of the sentence is deemed to be a decision at the maximum limit of the guideline range. (The fact that an offense does not fall under the definition contained herein does not mean that the Commission is obliged to grant a parole.)

U.S. Parole Commission Offense Behavior Severity Index

Chapter One   Offenses of General Applicability

Chapter Two   Offenses Involving the Person

Subchapter A—Homicide Offenses

Subchapter B—Assault Offenses

Subchapter C—Kidnaping and Related Offenses

Subchapter D—Sexual Offenses

Subchapter E—Offenses Involving Aircraft

Subchapter F—Communication of Threats

Chapter Three   Offenses Involving Property

Subchapter A—Arson and Property Destruction Offenses

Subchapter B—Criminal Entry Offenses

Subchapter C—Robbery, Extortion, and Blackmail

Subchapter D—Theft and Related Offenses

Subchapter E—Counterfeiting and Related Offenses

Subchapter F—Bankruptcy Offenses

Subchapter G—Violations of Securities or Investment Regulations and Antitrust Offenses

Chapter Four   Offenses Involving Immigration, Naturalization, and Passports

Chapter Five   Offenses Involving Revenue

Subchapter A—Internal Revenue Offenses

Subchapter B—Customs Offenses

Subchapter C—Contraband Cigarettes

Chapter Six   Offenses Involving Governmental Process

Subchapter A—Impersonation of Officials

Subchapter B—Obstructing Justice

Subchapter C—Official Corruption

Chapter Seven   Offenses Involving Individual Rights

Subchapter A—Offenses Involving Civil Rights

Subchapter B—Offenses Involving Privacy

Chapter Eight   Offenses Involving Explosives and Weapons

Subchapter A—Explosives and Other Dangerous Articles

Subchapter B—Firearms

Chapter Nine   Offenses Involving Illicit Drugs

Subchapter A—Heroin and Opiate Offenses

Subchapter B—Marihuana and Hashish Offenses

Subchapter C—Cocaine Offenses

Subchapter D—Other Illicit Drug Offenses

Chapter Ten   Offenses Involving National Defense

Subchapter A—Treason and Related Offenses

Subchapter B—Sabotage and Related Offenses

Subchapter C—Espionage and Related Offenses

Subchapter D—Selective Service Offenses

Subchapter E—Other National Defense Offenses

Chapter Eleven   Offenses Involving Organized Criminal Activity, Gambling, Obscenity, Sexual Exploitation of Children, Prostitution, and Non-Governmental Bribery

Subchapter A—Organized Crime Offenses

Subchapter B—Gambling Offenses

Subchapter C—Obscenity

Subchapter D—Sexual Exploitation of Children

Subchapter E—Prostitution and White Slave Traffic

Subchapter F—Non-Governmental Bribery

Subchapter G—Currency Offenses

Chapter Twelve   Miscellaneous Offenses

Chapter Thirteen   General Notes and Definitions

Subchapter A—General Notes

Subchapter B—Definitions

Chapter One   Offenses of General Applicability

101   Conspiracy

Grade conspiracy in the same category as the underlying offense.

102      Attempt

Grade attempt in the same category as the offense attempted.

103   Aiding and Abetting

Grade aiding and abetting in the same category as the underlying offense.

104   Accessory After the Fact

Grade accessory after the fact as two categories below the underlying offense, but not less than Category One.

105   Solicitation to Commit a Crime of Violence

Grade solicitation to commit a crime of violence in the same category as the underlying offense if the crime solicited would be graded as Category Eight. In all other cases grade solicitation to commit a crime of violence one category below the underlying offense, but not less than Category One.

Note to Chapter One: The reasons for a conspiracy or attempt not being completed may, where the circumstances warrant, be considered as a mitigating factor (e.g., where there is voluntary withdrawal by the offender prior to completion of the offense).

Chapter Two   Offenses Involving the Person

Subchapter A—Homicide Offenses

201   Murder

Murder, or a forcible felony* resulting in the death of a person other than a participating offender, shall be graded as Category Eight.

*Terms marked by an asterisk are defined in Chapter Thirteen.

202   Voluntary Manslaughter

Category Seven.

203   Involuntary Manslaughter

Category Four.

Subchapter B—Assault Offenses

211   Assault During Commission of Another Offense

(a) If serious bodily injury* results or if ‘serious bodily injury is the result intended’*, grade as Category Seven;

(b) If bodily injury* results, or a weapon is fired by any offender, grade as Category Six;

(c) Otherwise, grade as Category Five.

212   Assault

(a) If serious bodily injury* results or if ‘serious bodily injury is the result intended’*, grade as Category Seven;

(b) If bodily injury* results or a dangerous weapon is used by any offender, grade as Category Five;

(c) Otherwise, grade as Category Two;

(d) Exception: (1) If the victim was known to be a “protected person”* or law enforcement, judicial, or correctional official, grade conduct under (a) as Category Seven, (b) as Category six, and (c) as Category Three.

(2) If an assault is committed while resisting an arrest or detention initiated by a law enforcement officer or a civilian acting under color of law, grade conduct under (a) as Category Seven, (b) as Category Six, and (c) as Category Three.

213   Firing a Weapon at a Structure Where Occupants are Physically Present

Grade according to the underlying offense if one can be established, but not less than Category Five.

Subchapter C—Kidnaping and Related Offenses

221   Kidnaping

(a) If the purpose of the kidnaping is for ransom or terrorism, grade as Category Eight;

(b) If a person is held hostage in a known place for purposes of extortion (e.g., forcing a bank manager to drive to a bank to retrieve money by holding a family member hostage at home), grade as Category Seven;

(c) If a victim is used as a shield or hostage in a confrontation with law enforcement authorities, grade as Category Seven;

(d) Otherwise, grade as Category Seven.

(e) Exception: If not for ransom or terrorism, and no bodily injury to victim, and limited duration (e.g., abducting the driver of a truck during a hijacking and releasing him unharmed within an hour), grade as Category Six.

222   Demand for Ransom

(a) If a kidnapping has, in fact, occurred, but it is established that the offender was not acting in concert with the kidnapper(s), grade as Category Seven;

(b) If no kidnapping has occurred, grade as “extortion”.

Subchapter D—Sexual Offenses

231   Rape or Forcible Sodomy

(a) Category Seven.

(b) Exception: If a prior consensual sexual relationship between victim and offender is present, grade as Category Six.

232   Carnal Knowledge* or Sodomy Involving Minors

(a) Grade as Category Four, except as provided below.

(b) If the relationship is clearly consensual and the victim is at least fourteen years old, and the age difference between the victim and offender is less than four years, grade as Category One.

(c) If the victim is less than twelve years old, grade as Category Seven.

(d) If the offender is an adult who has abused a position of trust (e.g., teacher, counselor, or physician), or the offense involved predatory sexual behavior, grade as Category Seven. Sexual behavior is deemed predatory when the offender repeatedly uses any trick or other device to attract, lure, or bribe victims into the initial contact that results in the offense.

233   Other Unlawful Sexual Conduct With Minors

(a) Category Four

(b) Exception: If the victim is less than twelve years old grade as Category Six.

Subchapter E—Offenses Involving Aircraft

241   Aircraft Piracy

Category Eight.

242   Interference with a Flight Crew

(a) If the conduct or attempted conduct has potential for creating a significant safety risk to an aircraft or passengers, grade as Category Seven.

(b) Otherwise, grade as Category Two.

Subchapter F—Communication of Threats

251   Communicating a Threat [to kill, assault, or kidnap]

(a) Category Four;

(b) Notes:

(1) Any overt act committed for the purposes of carrying out a threat in this subchapter may be considered as an aggravating factor.

(2) If for purposes of extortion or obstruction of justice, grade according to Chapter Three, subchapter C, or Chapter Six, subchapter B, as applicable.

Chapter Three   Offenses Involving Property

Subchapter A—Arson and Other Property Destruction Offenses

301   Property Destruction by Fire or Explosives

(a) If the conduct results in serious bodily injury* or if ‘serious bodily injury is the result intended’*, grade as Category Seven;

(b) If the conduct (i) involves any place where persons are present or likely to be present; or (ii) involves a residence, building, or other structure; or (iii) results in bodily injury*, grade as Category Six;

(c) Otherwise, grade as “property destruction other than listed above” but not less than Category Five.

302   Wrecking a Train

Category Seven.

303   Property Destruction Other Than Listed Above

(a) If the conduct results in bodily injury*, or serious bodily injury*, or if serious bodily injury is the result intended*, grade as if “assault during commission of another offense;”

*Terms marked by an asterisk are defined in Chapter Thirteen.

(b) If damage of more than $5,000,000 is caused, grade as Category Seven;

(c) If damage of more than $1,000,000 but not more than $5,000,000 is caused, grade as Category Six;

(d) If damage of more than $200,000 but not more than $1,000,000 is caused, grade as Category Five;

(e) If damage of at least $40,000 but not more than $200,000 is caused, grade as Category Four;

(f) If damage of at least $2,000 but less than $40,000 is caused, grade as Category Three;

(g) If damage of less than $2,000 is caused, grade as Category One;

(h) Exception: If a significant interruption of a government or public utility function is caused, grade as not less than Category Three.

Subchapter B—Criminal Entry Offenses

311   Burglary or Unlawful Entry

(a) If the conduct involves an armory or similar facility (e.g., a facility where automatic weapons or war materials are stored) for the purpose of theft or destruction of weapons or war materials, grade as Category Six;

(b) If the conduct involves an inhabited dwelling (whether or not a victim is present), or any premises with a hostile confrontation with a victim, grade as Category Five;

(c) If the conduct involves use of explosives or safecracking, grade as Category Five;

(d) Otherwise, grade as “theft” offense, but not less than Category Two.

(e) Exception: If the grade of the applicable “theft” offense exceeds the grade under this subchapter, grade as a “theft” offense.

Subchapter C—Robbery, Extortion, and Blackmail

321   Robbery

(a) Category Five.

(b) Exceptions:

(1) If the grade of the applicable “theft” offense exceeds the grade for robbery, grade as a “theft” offense.

(2) If any offender forces a victim to accompany any offender to a different location, or if a victim is forcibly detained by being tied, bound, or locked up, grade as Category Six.

(3) Pickpocketing (stealth—no force or fear), see subchapter D.

(c) Note: Grade purse snatching (fear or force) as robbery.

322   Extortion

(a) If by threat of physical injury to person or property, or extortionate extension of credit (loansharking), grade as Category Five;

(b) If by use of official governmental position, grade according to Chapter Six, subchapter C.

(c) If neither (a) nor (b) is applicable, grade under Chapter Eleven, subchapter F;

323   Blackmail [threat to injure reputation or accuse of crime]

Grade as a “theft” offense according to the value of the property demanded, but not less than Category Three. Actual damage to reputation may be considered as an aggravating factor.

Subchapter D—Theft and Related Offenses

331   Theft, Forgery, Fraud, Trafficking in Stolen Property*, Interstate Transportation of Stolen Property, Receiving Stolen Property, Embezzlement, and Related Offenses

(a) If the value of the property* is more than $5,000,000, grade as Category Seven;

(b) If the value of the property* is more than $1,000,000 but not more than $5,000,000, grade as Category Six;

*Terms marked by an asterisk are defined in Chapter Thirteen.

(c) If the value of the property* is more than $200,000 but not more than $1,000,000, grade as Category Five;

(d) If the value of the property* is at least $40,000 but not more than $200,000, grade as Category Four;

(e) If the value of the property* is at least $2,000 but less than $40,000, grade as Category Three;

(f) If the value of the property* is less than $2,000, grade as Category One.

(g) Exceptions:

(1) Offenses involving stolen checks, credit cards, money orders or mail, forgery, fraud, interstate transportation of stolen or forged securities, trafficking in stolen property, or embezzlement shall be graded as not less than Category Two;

(2) Theft of an automobile shall be graded as no less than Category Three. Note: where the vehicle was recovered within 72 hours with no significant damage and the circumstances indicate that the only purpose of the theft was temporary use (e.g., joyriding), such circumstances may be considered as a mitigating factor.

(3) Grade obtaining drugs for own use by a fraudulent or fraudulently obtained prescription as Category Two.

(4) Grade manufacture, sale, and fraudulent use of credit cards as follows:

(i) Grade the manufacture, distribution or possession of counterfeit or altered credit cards as not less than Category Four.

(ii) Grade the distribution or possession of multiple stolen credit cards as not less than Category Three.

(iii) Grade the distribution or possession of a single stolen credit card as not less than Category Two.

(h) Note: In “theft” offenses, the total amount of the theft committed or attempted by the offender, or others acting in concert with the offender, is to be used.

(2) Grade fraudulent sale of drugs (e.g., sale of sugar as heroin) as ‘fraud’.

332   Pickpocketing [stealth-no force or fear]

Grade as a “theft” offense, but not less than Category Three.

333   Fraudulent Loan Applications

Grade as a “fraud” offense according to the amount of the loan.

334   Preparation or Possession of Fraudulent Documents

(a) If for purposes of committing another offense, grade according to the offense intended;

(b) Otherwise, grade as Category Two.

335   Criminal Copyright Offenses

(a) If very large scale (e.g., more than 100,000 sound recordings or more than 10,000 audio visual works), grade as Category Five;

(b) If large scale (e.g., 20,000-100,000 sound recordings or 2,000-10,000 audio visual works), grade as Category Four;

(c) If medium scale (e.g., 2,000-19,999 sound recordings or 200-1,999 audio visual works), grade as Category Three;

(d) If small scale (e.g., less than 2,000 sound recordings or less than 200 audio visual works), grade as Category Two.

Subchapter E—Counterfeiting and Related Offenses

341   Passing or Possession of Counterfeit Currency or Other Medium of Exchange*

(a) If the face value of the currency or other medium of exchange is more than $5,000,000, grade as Category Seven;

(b) If the face value of the currency or other medium of exchange is more than $1,000,000 but not more than $5,000,000, grade as Category Six;

(c) If the face value is more than $200,000 but not more than $1,000,000, grade as Category Five;

(d) If the face value is at least $40,000 but not more than $200,000, grade as Category Four;

(e) If the face value is at least $2,000 but less than $40,000, grade as Category Three;

(f) If the face value is less than $2,000, grade as Category Two.

342   Manufacture of Counterfeit Currency or Other Medium of Exchange* or Possession of Instruments for Manufacture

Grade manufacture or possession of instruments for manufacture (e.g., a printing press or plates) according to the quantity printed (see passing or possession)), but not less than Category Five. The term manufacture refers to the capacity to print or generate multiple copies; it does not apply to pasting together parts of different notes.

Subchapter F—Bankruptcy Offenses

351   Fraud in Bankruptcy or Concealing Property

Grade as a “fraud” offense.

Subchapter G—Violation of Securities or Investment Regulations and Antitrust Offenses

361   Violation of Securities or Investment Regulations

(a) If for purposes of fraud, grade according to the underlying offense;

(b) Otherwise, grade as Category Two.

362   Antitrust Offenses

(a) If estimated economic impact is more than one million dollars, grade as Category Four;

(b) If the estimated economic impact is more than $100,000 but not more than one million dollars, grade as Category Three;

(c) Otherwise, grade as Category Two.

(d) Note: The term ‘economic impact’ refers to the estimated loss to any victims (e.g., loss to consumers from a price fixing offense).

363   Insider Trading

(a) If the estimated economic impact is more than $5,000,000, grade as Category Seven;

(b) If the estimated economic impact is more than $1,000,000 but not more than $5,000,000, grade as Category Six;

(c) If the estimated economic impact is more than $200,000 but not more than $1,000,000, grade as Category Five;

(d) If the estimated economic impact is at least $40,000 but not more than $200,000, grade as Category Four;

(e) If the estimated economic impact is at least $2,000 but less than $40,000, grade as Category Three;

(f) If the estimated economic impact is less than $2,000, grade as Category Two.

(g) Note: The term ‘economic impact’ includes the damage sustained by the victim whose information was unlawfully used, plus any other illicit profit resulting from the offense.

Chapter Four   Offenses Involving Immigration, Naturalization, and Passports

401   Unlawfully Entering the United States as an Alien

Category One.

402   Transportation of Unlawful Alien(s)

(a) If the transportation of unlawful alien(s) involves detention and demand for payment, grade as Category Five;

(b) Otherwise, grade as Category Three.

403   Offenses Involving Passports

(a) If making an unlawful passport for distribution to another, possession with intent to distribute, or distribution of an unlawful passport, grade as Category Three;

(b) If fraudulently acquiring or improperly using a passport, grade as Category Two.

404   Offenses Involving Naturalization or Citizenship Papers

(a) If forging or falsifying naturalization or citizenship papers for distribution to another, possession with intent to distribute, or distribution, grade as Category Three;

(b) If acquiring fraudulent naturalization or citizenship papers for own use or improper use of such papers, grade as Category Two;

(c) If failure to surrender canceled naturalization or citizenship certificate(s), grade as Category One.

Chapter Five   Offenses Involving Revenue

Subchapter A—Internal Revenue Offenses

501   Tax Evasion [income tax or other taxes]

(a) If the amount of tax evaded or evasion attempted is more than $5,000,000, grade as Category Seven;

(b) If the amount of tax evaded or evasion attempted is more than $1,000,000 but not more than $5,000,000, grade as Category Six;

(c) If the amount of tax evaded or evasion attempted is more than $200,000 but not more than $1,000,000, grade as Category Five;

(d) If the amount of tax evaded or evasion attempted is at least $40,000 but not more than $200,000, grade as Category Four;

(e) If the amount of tax evaded or evasion attempted is at least $2,000 but less than $40,000, grade as Category Three;

(f) If the amount of tax evaded or evasion attempted is less than $2,000, grade as Category One.

(g) Notes:

(1) Grade according to the amount of tax evaded or evasion attempted, not the gross amount of income.

(2) Tax evasion refers to failure to pay applicable taxes. Grade a false claim for a tax refund (where tax has not been withheld) as a “fraud” offense.

502   Operation of an Unregistered Still

Grade as a “tax evasion” offense.

Subchapter B—Customs Offenses

511   Smuggling Goods into the United States

(a) If the conduct is for the purpose of tax evasion, grade as a ‘tax evasion’ offense.

(b) If the article is prohibited from entry to the country absolutely (e.g., illicit drugs or weapons), use the grading applicable to possession with intent to distribute of such articles, or the grading applicable to tax evasion, whichever is higher, but not less than Category Two;

(c) If the conduct involves breaking seals, or altering or defacing customs marks, or concealing invoices, grade according to (a) or (b), as applicable, but not less than Category Two.

512   Smuggling Goods into Foreign Countries in Violation of Foreign Law (re: 18 U.S.C. 546)

Category Two.

Subchapter C—Contraband Cigarettes

521   Trafficking in Contraband Cigarettes (re: 18 U.S.C. 2342)

Grade as a tax evasion offense.

Chapter Six   Offenses Involving Governmental Process

Subchapter A—Impersonation of Officials

601   Impersonation of Official

(a) If for purposes of commission of another offense, grade according to the offense attempted, but not less than Category Two;

(b) Otherwise, grade as Category Two.

Subchapter B—Obstructing Justice

611   Perjury

(a) If the perjured testimony concerns a criminal offense, grade as accessory after the fact, but not less than Category Three;

(b) Otherwise, grade as Category Three.

(c) Suborning perjury, grade as perjury.

612   Unlawful False Statements Not Under Oath

Category One.

613   Tampering With Evidence or Witness, Victim, Informant or Juror

(a) If concerning a criminal offense, grade as accessory after the fact, but not less than Category Three.

(b) Otherwise, grade as Category Three.

(c) Exception: Intimidation by threat of physical harm, grade as not less than Category Five.

614   Misprision of a Felony*

Grade as if “accessory after the fact” but not higher than Category Three.

615   Harboring a Fugitive

Grade as if ‘accessory after the fact’ to the offense for which the fugitive is wanted, but not higher than Category Three.

616   Escape

If in connection with another offense for which a severity rating can be assessed, grade the underlying offense and apply the rescission guidelines to determine an additional penalty. Otherwise, grade as Category Three.

617   Failure To Appear*

(a) In Felony Proceedings. If in connection with an offense for which a severity rating can be assessed, add to the guidelines otherwise appropriate the following: (i) ≤6 months if voluntary return within 6 days, or (ii) 6-12 months in any other case. Otherwise, grade as Category Three.

(b) In Misdemeanor Proceedings. Grade as Category One.

(c) Note: For purposes of this subsection, a misdemeanor is defined as an offense for which the maximum penalty authorized by law (not necessarily the penalty actually imposed) does not exceed one year.

618   Contempt of Court

(a) Criminal Contempt (re: 18 U.S.C. 402). Where imposed in connection with a prisoner serving a sentence for another offense, add <<=6 months to the guidelines otherwise appropriate.

(b) Exception: If a criminal sentence is imposed under 18 U.S.C. 401 for refusal to testify concerning a criminal offense, grade such conduct as if accessory after the fact.

(c) Civil Contempt. See 28 CFR 2.10.

Subchapter C—Official Corruption

621   Bribery or Extortion [use of official position—no physical threat]

(a) Grade as a “theft offense” according to the value of the bribe demanded or received, or the favor received by the bribe-giver (whichever is greater), but not less than Category Three. The “favor received” is the gross value of the property, contract, obligation, interest, or payment intended to be awarded to the bribe-giver in return for the bribe. Grade the bribe-taker in the same manner.

(b) If the above conduct involves a pattern of corruption (e.g., multiple instances), grade as not less than Category Four.

(c) If the purpose of the conduct is the obstruction of justice, grade as if “perjury”.

(d) Notes:

(1) The grading in this subchapter applies to each party to a bribe.

(2) The extent to which the criminal conduct involves a breach of public trust, causing injury beyond that describable by monetary gain, may be considered as an aggravating factor.

622   Other Unlawful Use of Governmental Position

Category Two.

Subchapter D—Voting Fraud

631   Voting Fraud

Category Four.

Chapter Seven   Offenses Involving Individual Rights

Subchapter A—Offenses Involving Civil Rights

701   Conspiracy Against Rights of Citizens (re: 18 U.S.C. 241)

(a) If death results, grade as Category Eight;

(b) Otherwise, grade as if “assault”.

702   Deprivation of Rights Under Color of Law (re: 18 U.S.C. 242)

(a) If death results, grade as Category Eight;

(b) Otherwise, grade as if “assault”.

703   Federally Protected Activity (re: 18 U.S.C. 245)

(a) If death results, grade as Category Eight;

(b) Otherwise, grade as if “assault”.

704   Intimidation of Persons in Real Estate Transactions Based on Racial Discrimination (re: 42 U.S.C. 3631)

(a) If death results, grade as Category Eight;

(b) Otherwise, grade as if “assault”.

705   Transportation of Strikebreakers (re: 18 U.S.C. 1231)

Category Two.

Subchapter B—Offenses Involving Privacy

711   Interception and Disclosure of Wire or Oral Communications (re: 18 U.S.C. 2511)

Category Two.

712   Manufacture, Distribution, Possession, and Advertising of Wire or Oral Communication Intercepting Devices (re: 18 U.S.C. 2512)

(a) Category Three.

(b) Exception: If simple possession, grade as Category Two.

713   Unauthorized Opening of Mail

Category Two.

Chapter Eight   Offenses Involving Explosives and Weapons

Subchapter A—Explosives Offenses and Other Dangerous Articles

801   Unlawful Possession or Distribution of Explosives; or Use of Explosives During a Felony

Grade according to offense intended, but not less than Category Five.

802   Mailing Explosives or Other Injurious Articles With Intent To Commit a Crime

Grade according to offense intended, but not less than Category Five.

Subchapter B—Firearms

811   Possession by Prohibited Person (e.g., ex-felon)

(a) If single weapon (rifle, shotgun, or handgun) with ammunition of the same caliber, or ammunition of a single caliber (without weapon), grade as Category Three;

(b) If multiple weapons (rifles, shotguns, or handguns), or ammunition of different calibers, or single weapon and ammunition of a different caliber, grade as Category Four.

812   Unlawful Possession or Manufacture of Sawed-off Shotgun, Machine Gun, Silencer, or “Assassination kit”

(a) If silencer or “assassination kit”, grade as Category Six;

(b) If sawed-off shotgun or machine gun, grade as Category Five.

813   Unlawful Distribution of Weapons or Possession With Intent To Distribute

(a) If silencer(s) or “assassination kit(s)”, grade as Category Six;

(b) If sawed-off shotgun(s) or machine gun(s), grade as Category Five;

(c) If multiple weapons (rifles, shotguns, or handguns), or ammunition of different calibers, or single weapon and ammunition of a different caliber, grade as Category Four;

(d) If single weapon (rifle, shotgun, or handgun) with ammunition of the same caliber, or ammunition of a single caliber (without weapon), grade as Category Three.

Chapter Nine   Offenses Involving Illicit Drugs

Subchapter A—Heroin and Opiate* Offenses

901   Distribution or Possession With Intent To Distribute

(a) If extremely large scale (e.g., involving 3 kilograms or more of 100% pure heroin, or equivalent amount), grade as Category Eight [except as noted in (c) below];

(b) if very large scale (e.g., involving 1 kilogram but less than 3 kilograms of 100% pure heroin, or equivalent amount), grade as Category Seven [except as noted in (c) below];

(c) Where the Commission finds that the offender had only a peripheral role*, grade conduct under (a) or (b) as Category Six;

(d) If large scale (e.g., involving 50-999 grams of 100% pure heroin, or equivalent amount), grade as Category Six [except as noted in (e) below];

(e) Where the Commission finds that the offender had only a peripheral role*, grade conduct under (d) as Category Five.

(f) If medium scale (e.g., involving 5-49 grams of 100% pure heroin, or equivalent amount), grade as Category Five;

(g) If small scale (e.g., involving less than 5 grams of 100% pure heroin, or equivalent amount), grade as Category Four;

902   Simple Possession

Category One.

Subchapter B—Marihuana and Hashish Offenses

911   Distribution or Possession With Intent To Distribute

(a) If extremely large scale (e.g., involving 20,000 pounds or more of marihuana/6,000 pounds or more of hashish/600 pounds or more of hash oil), grade as Category Six [except as noted in (b) below];

(b) Where the Commission finds that the offender had only a peripheral role, grade* conduct under (a) as Category Five;

(c) If very large scale (e.g., involving 2,000-19,999 pounds of marihuana/600-5,999 pounds of hashish/60-599 pounds of hash oil), grade as Category Five;

(d) If large scale (e.g., involving 200-1,999 pounds of marihuana/60-599 pounds of hashish/6-59.9 pounds of hash oil), grade as Category Four;

(e) If medium scale (e.g., involving 50-199 pounds of marihuana/15-59.9 pounds of hashish/1.5-5.9 pounds of hash oil), grade as Category Three;

(f) If small scale (e.g., involving 10-49 pounds of marihuana/3-14.9 pounds of hashish/.3-1.4 pounds of hash oil), grade as Category Two;

(g) If very small scale (e.g., involving less than 10 pounds of marihuana/less than 3 pounds of hashish/less than .3 pounds of hash oil), grade as Category One.

912   Simple Possession

Category One.

Subchapter C—Cocaine Offenses

921 Distribution or Possession With Intent to Distribute

(a) If extremely large scale (e.g., involving 15 kilograms or more of 100% purity, or equivalent amount; or 1.5 kilograms or more of freebased cocaine), grade as Category Eight [except as noted in (c) below];

(b) If very large scale (e.g., involving 5 kilograms, but less than 15 kilograms of 100% purity, or equivalent amount; or 500 grams but less than 1.5 kilograms of freebased cocaine), grade as Category Seven [except as noted in (c) below];

(c) Where the Commission finds that the offender had only a peripheral role*, grade conduct under (a) or (b) as Category Six;

(d) If large scale (e.g., involving more than 1 kilogram, but less than 5 kilograms of 100% purity, or equivalent amount; or more than 100 grams, but less than 500 grams of freebased cocaine) grade as Category Six [except as noted in (e) below];

(e) Where the Commission finds that the offender had only a peripheral role, grade conduct under (d) as Category Five;

(f) If medium scale (e.g., involving 100 grams-1 kilogram of 100% purity, or equivalent amount; or 10 grams-100 grams of freebased cocaine), grade as Category Five;

(g) If small scale (e.g., involving 5-99 grams of 100% purity, or equivalent amount; or 1 gram-9.9 grams of freebased cocaine), grade as Category Four;

(h) If very small scale (e.g., involving less than 1.0-4.9 grams of 100% purity, or equivalent amount; or less than 1 gram of freebased cocaine), grade as Category Three;

(i) If extremely small scale (e.g., involving less than 1 gram of 100% purity, or equivalent amount), grade as Category Two.

922   Simple Possession

Category One.

Subchapter D—Other Illicit Drug Offenses

931   Distribution or Possession With Intent To Distribute

(a) If very large scale (e.g., involving more than 200,000 doses), grade as Category Six [except as noted in (b) below];

(b) Where the Commission finds that the offender had only a peripheral role*, grade conduct under (a) as Category Five;

(c) If large scale (e.g., involving 20,000-200,000 doses), grade as Category Five;

(d) If medium scale (e.g., involving 1,000-19,999 doses), grade as Category Four;

(e) If small scale (e.g., involving 200-999 doses), grade as Category Three;

(f) If very small scale (e.g., involving less than 200 doses), grade as Category Two.

932   Simple Possession

Category One.

Notes to Chapter Nine:

(1) Grade manufacture of synthetic illicit drugs as listed above, but not less than Category Five.

(2) “Equivalent amounts” for the cocaine and opiate categories may be computed as follows: 1 gram of 100% pure is equivalent to 2 grams of 50% pure and 10 grams of 10% pure, etc.

(3) Grade unlawful possession or distribution of precursors of illicit drugs as Category Five (i.e., aiding and abetting the manufacture of synthetic illicit drugs).

(4) If weight, but not purity is available, the following grading may be used:

Heroin

Extremely large scale—6 kilograms or more

Very large scale—2-5.99 kilograms

Large scale—200 gms.-1.99 kilograms

Medium scale—28.35-199.99 gms.

Small scale—Less than 28.35 gms.

Cocaine

Extremely large scale—18.75 kilograms or more

Very large scale—6.25-18.74 kilograms

Large scale—1.25-6.24 kilograms

Medium scale—200 gms.-1.24 kilograms

Small scale—20 gms.-199.99 gms.

Very small scale—4 gms.-19.99 gms.

Extremely small scale—Less than 4 gms.

Chapter Ten   Offenses Involving National Defense

Subchapter A—Treason and Related Offenses

1001   Treason

Category Eight.

1002   Rebellion or Insurrection

Category Seven.

Subchapter B—Sabotage and Related Offenses

1011   Sabotage

Category Eight.

1012   Enticing Desertion

(a) In time of war or during a national defense emergency, grade as Category Four;

(b) Otherwise, grade as Category Three.

1013   Harboring or Aiding a Deserter

Category One.

Subchapter C—Espionage and Related Offenses

1021   Espionage

Category Eight.

Subchapter D—Selective Service Offenses

1031   Failure to Register, Report for Examination or Induction

(a) If committed during time of war or during a national defense emergency, grade as Category Four;

(b) If committed when draftees are being inducted into the armed services, grade as Category Three;

(c) Otherwise, grade as Category One.

Subchapter E—Other National Defense Offenses

1041   Offenses Involving Nuclear Energy

Unauthorized production, possession, or transfer of nuclear weapons or special nuclear material or receipt of or tampering with restricted data on nuclear weapons or special nuclear material, grade as Category Eight.

1042   Violations of Export Administration Act (50 U.S.C. 2410)

Grade conduct involving “national security controls” or “nuclear nonproliferation controls” as Category Six.

1043 Violations of the Arms Control Act (22 U.S.C. 2278)

(a) Grade conduct involving export of sophisticated weaponry (e.g., aircraft, helicopters, armored vehicles, or “high technology” items) as Category Six.

(b) Grade Conduct involving export of other weapons (e.g., rifles, handguns, machine guns, or hand grenades) as if a weapons/explosive distribution offense under Offenses Involving Explosives and Weapons (Chapter Eight).

Chapter Eleven—Offenses Involving Organized Crime Activity, Gambling, Obscenity, Sexual Exploitation of Children, Prostitution, Non-Governmental Corruption, and the Environment

Subchapter A—Organized Crime Offenses

1101   Racketeer Influence and Corrupt Organizations (re: 18 U.S.C. 1961-63)

Grade according to the underlying offense attempted, but not less than Category Five.

1102   Interstate or Foreign Travel or Transportation in Aid of Racketeering Enterprise (re: 18 U.S.C. 1952)

Grade according to the underlying offense attempted, but not less than Category Three.

Subchapter B—Gambling Offenses

1111   Gambling Law Violations—Operating or Employment in an Unlawful Business (re: 18 U.S.C. 1955)

(a) If large scale operation [e.g., Sports books (estimated daily gross more than $15,000); Horse books (estimated daily gross more than $4,000); Numbers bankers (estimated daily gross more than $2,000); Dice or card games (estimated daily ‘house cut’ more than $1,000); video gambling (eight or more machines)]; grade as Category Four;

(b) If medium scale operation [e.g., Sports books (estimated daily gross $5,000—$15,000); Horse books (estimated daily gross $1,500—$4,000); Numbers bankers (estimated daily gross $750—$2,000); Dice or card games (estimated daily ‘house cut’ $400—$1,000); video gambling (four-seven machines)]; grade as Category Three;

(c) If small scale operation [e.g., Sports books (estimated daily gross less than $5,000); Horse books (estimated daily gross less than $1,500); Numbers bankers (estimated daily gross less than $750); Dice or card games (estimated daily ‘house cut’ less than $400); video gambling (three or fewer machines)]; grade as Category Two;

(d) Exception: Where it is established that the offender had no proprietary interest or managerial role, grade as Category One.

1112   Interstate Transportation of Wagering Paraphernalia (re: 18 U.S.C. 1953)

Grade as if ‘operating a gambling business’.

1113   Wire Transmission of Wagering Information (re: 18 U.S.C. 1084)

Grade as if “operating a gambling business”.

1114   Operating or Owning a Gambling Ship (re: 18 U.S.C. 1082)

Category Three.

1115   Importing or Transporting Lottery Tickets; Mailing Lottery Tickets or Related Matter (re: 18 U.S.C. 1301, 1302)

(a) Grade as if “operating a gambling business”;

(b) Exception: If non-commercial, grade as Category One.

Subchapter C—Obscenity

1121   Mailing, Importing, or Transporting Obscene Matter

(a) If for commercial purposes, grade as Category Three;

(b) Otherwise, Category One.

1122   Broadcasting Obscene Language

Category One.

Subchapter D—Sexual Exploitation of Children

1131   Sexual Exploitation of Children* (re: 18 U.S.C. 2251, 2252)

(a) Category Six;

(b) Exception: Where the Commission finds the offender had only a peripheral role (e.g., a retailer receiving such material for resale but with no involvement in the production or wholesale distribution of such material), grade as Category Five.

Subchapter E—Prostitution and White Slave Traffic

1141   Interstate Transportation for Commercial Purposes

(a) If physical coercion, or involving person(s) of age less than 18, grade as Category Six;

(b) Otherwise, grade as Category Four.

1142   Prostitution

Category One.

Subchapter F—Non-Governmental Corruption

1151   Demand or Acceptance of Unlawful Gratuity Not Involving Federal, State, or Local Government Officials

Grade as if a fraud offense according to (1) the amount of the bribe offered or demanded, or (2) the financial loss to the victim, whichever is higher.

1152   Sports Bribery

If the conduct involves bribery in a sporting contest, grade as if a theft offense according to the amount of the bribe, but not less than Category Three.

Subchapter G—Currency Offenses

1161   Reports on Monetary Instrument Transactions

(a) If extremely large scale (e.g., the estimated gross amount of currency involved is more than $5,000,000), grade as Category Seven;

(b) If very large scale (e.g., the estimated gross amount of currency involved is more than $1,000,000 but not more than $5,000,000), grade as Category Six;

(c) If large scale (e.g., the estimated gross amount of currency involved is more than $200,000 but not more than $1,000,000), grade as Category Five;

(d) If medium scale (e.g., the estimated gross amount of currency involved is at least $40,000 but not more than $200,000), grade as Category Four;

(e) If small scale (e.g., the estimated gross amount of currency involved is less than $40,000), grade as Category Three.

Subchapter H—Environmental Offenses

1171   Knowing Endangerment Resulting From Unlawful Treatment, Transportation, Storage, or Disposal of Hazardous Waste [Re: 42 U.S.C. 6928(e)]

(a) If death results, grade as Category Seven;

(b) If serious bodily injury results, grade as Category Six;

(c) Otherwise, grade as Category Five.

(d) Note: Knowing Endangerment requires a finding that the offender knowingly transported, treated, stored, or disposed of any hazardous waste and knew that he thereby placed another person in imminent danger of death or serious bodily injury.

1172   Knowing Disposal and/or Storage and Treatment of Hazardous Waste Without a Permit; Transportation of Hazardous Waste to an Unpermitted Facility [Re: 42 U.S.C. 6928(d)(1-2)]

(a) If death results, grade as Category Six;

(b) If (1) serious bodily injury results; or (2) a substantial potential for death or serious bodily injury in the future results; or (3) a substantial disruption to the environment results (e.g., estimated cleanup cost exceeds $200,000, or a community is evacuated for more than 72 hours), grade as Category Five;

(c) If (1) bodily injury results, or (2) a significant disruption to the environment results (e.g., estimated cleanup costs of $40,000-$200,000, or a community is evacuated for 72 hours or less), grade as Category Four;

(d) Otherwise, grade as Category Three;

(e) Exception: Where the offender is a non-managerial employee (i.e., a truck driver or loading dock worker) acting under the orders of another person, grade as two categories below the underlying offense, but not less than Category One.

Chapter Twelve   Miscellaneous Offenses

If an offense behavior is not listed, the proper category may be obtained by comparing the severity of the offense behavior with those of similar offense behaviors listed in Chapters One-Eleven. If, and only if, an offense behavior cannot be graded by reference to Chapters One-Eleven, the following formula may be used as a guide.

Maximum sentence authorized by statute
(not necessarily the sentence imposed)
Grading (category)
<<2 years1
2 to 3 years2
4 to 5 years3
6 to 10 years4
11 to 20 years5
21 to 29 years6
30 years to life7

Chapter Thirteen   General Notes and Definitions

Subchapter A—General Notes

1. If an offense behavior can be classified under more than one category, the most serious applicable category is to be used.

2. If an offense behavior involved multiple separate offenses, the severity level may be increased. Exception: in cases graded as Category Seven, multiple separate offenses are to be taken into account by consideration of a decision above the guidelines rather than by increasing the severity level.

(a) In certain instances, the guidelines specify how multiple offenses are to be rated. In offenses rated by monetary loss (e.g., theft and related offenses, counterfeiting, tax evasion) or drug offenses, the total amount of the property or drugs involved is used as the basis for the offense severity rating. In instances not specifically covered in the guidelines, the decision-makers must exercise discretion as to whether or not the multiple offense behavior is sufficiently aggravating to justify increasing the severity rating. The following chart is intended to provide guidance in assessing whether the severity of multiple offenses is sufficient to raise the offense severity level; it is not intended as a mechanical rule.

Multiple Separate Offenses

SeverityPointsSeverityPoints
Category One= 1/9Category Five= 9
Category Two= 1/3Category Six= 27
Category Three=   1Category Seven= 45
Category Four=   3

Examples: 3 Category Five Offense [3 × (9) = 27] = Category Six, 5 Category Five Offenses [5 × (9) = 45] = Category Seven, 2 Category Six Offenses [2 × (27) = 54] = Category Seven

(b) The term ‘multiple separate offenses’ generally refers to offenses committed at different times. However, there are certain circumstances in which offenses committed at the same time are properly considered multiple separate offenses for the purpose of establishing the offense severity rating. These include (1) unrelated offenses, and (2) offenses involving the unlawful possession of weapons during commission of another offense.

(c) For offenses graded according to monetary value (e.g., theft) and drug offenses, the severity rating is based on the amount or quantity involved and not on the number of separate instances.

(d) Intervening Arrests. Where offenses ordinarily graded by aggregation of value/quantity (e.g., property or drug offenses) are separated by an intervening arrest, grade (1) by aggregation of value/quantity or (2) as multiple separate offenses, whichever results in a higher severity category.

(e) Income Tax Violations Related to Other Criminal Activity. Where the circumstances indicate that the offender's income tax violations are related to failure to report income from other criminal activity (e.g., failure to report income from a fraud offense) grade as tax evasion or according to the underlying criminal activity established, whichever is higher. Do not grade as multiple separate offenses.

3. In cases where multiple sentences have been imposed (whether consecutive or concurrent, and whether aggregated or not) an offense severity rating shall be established to reflect the overall severity of the underlying criminal behavior. This rating shall apply whether or not any of the component sentences have expired.

4. The prisoner is to be held accountable for his own actions and actions done in concert with others; however, the prisoner is not to be held accountable for activities committed by associates over which the prisoner has no control and could not have been reasonably expected to foresee. However, if the prisoner has been convicted of a conspiracy, he must be held accountable for the criminal activities committed by his co-conspirators, provided such activities were committed in furtherance of the conspiracy and subsequent to the date the prisoner joined the conspiracy, except in the case of an independent, small-scale operator whose role in the conspiracy was neither established nor significant. An offender has an “established” role in a conspiracy if, for example, he takes orders to perform a function that assists others to further the objectives of the conspiracy, even if his activities did not significantly contribute to those objectives. For such offenders, however, a “peripheral role” reduction may be considered.

5. The following are examples of circumstances that may be considered as aggravating factors: extreme cruelty or brutality to a victim; the degree of permanence or likely permanence of serious bodily injury resulting from the offender's conduct; an offender's conduct while attempting to evade arrest that causes circumstances creating a significant risk of harm to other persons (e.g., causing a high speed chase or provoking the legitimate firing of a weapon by law enforcement officers).

6. The phrase “may be considered an aggravating/mitigating factor” is used in this index to provide guidance concerning certain circumstances which may warrant a decision above or below the guidelines. This does not restrict consideration of above or below guidelines decisions only to these circumstances, nor does it mean that a decision above or below the guidelines is mandated in every such case.

Subchapter B—Definitions

1. “Accessory after the fact” refers to the conduct of one who, knowing an offense has been committed, assists the offender to avoid apprehension, trial, or punishment (e.g., by assisting in disposal of the proceeds of an offense).

Note: Where the conduct consists of concealing an offense by making false statements not under oath, grade as “misprision of felony”. Where the conduct consists of haboring a fugitive, grade as “harboring a fugitive”.

2. “Assassination kit” refers to a disguised weapon designed to kill without attracting attention. Unlike other weapons such as sawed-off shotguns which can be used to intimidate, assassination kits are intended to be undetectable in order to make the victim and bystanders unaware of the threat. A typical assassination kit is usually, but not always, a firearm with a silencer concealed in a briefcase or similar disguise and fired without showing the weapon.

3. “Bodily injury” refers to injury of a type normally requiring medical attention [e.g., broken bone(s), laceration(s) requiring stitches, severe bruises].

4. “Carnal knowledge” refers to sexual intercourse with a female who is less than 16 years of age and is not the wife of the offender.

5. “Extortionate extension of credit” refers to any extension of credit with respect to which it is the understanding of the creditor and the debtor at the time it is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person.

6. “Failure to appear” refers to the violation of court imposed conditions of release pending trial, appeal, or imposition or execution of sentence by failure to appear before the court or to surrender for service of sentence.

7. “Forcible felony” includes, but shall not be limited to, kidnapping, rape or sodomy, aircraft piracy or interference with a flight crew, arson or property destruction offenses, escape, robbery, extortion, or criminal entry offenses, and attempts to commit such offenses.

8. “Involuntary manslaughter” refers to the unlawful killing of a human being without malice in the commission of an unlawful act not amounting to a felony, or in the commission in a unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.

9. “Misprision of felony” refers to the conduct of one who, having knowledge of the actual commission of a felony, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority. The “concealment” described above requires an act of commission (e.g., making a false statement to a law enforcement officer).

10. “Murder” refers to the unlawful killing of a human being with malice aforethought. “With malice aforethought” generally refers to a finding that the offender formed an intent to kill or do serious bodily harm to the victim without just cause or provocation.

11. “Opiate” includes heroin, morphine, opiate derivatives, and synthetic opiate substitutes.

12. “Other illicit drug offenses” include, but are not limited to, offenses involving the following: amphetamines, hallucinogens, barbiturates, methamphetamines, and phencyclidine (PCP).

13. “Other medium of exchange” includes, but is not limited to, postage stamps, governmental money orders, or governmental coupons redeemable for cash or goods.

14. “Peripheral role” in drug offenses refers to conduct such as that of a person hired as a deckhand on a marijuana boat, a person hired to help offload marijuana, a person with no special skills hired as a simple courier of drugs on a commercial airline flight, or a person hired as a chauffeur in a drug transaction. This definition does not include persons with decision-making or supervisory authority, persons with relevant special skills (e.g., a boat captain, chemist, or airplane pilot), or persons who finance such operations. Individuals who transport unusually large amounts of drugs (e.g., 50 kilos of cocaine or more) or who otherwise appear to have a high degree of trust, professionalism, or control will be considered to be “transporters” and not “simple couriers.”

15. “Protected person” refers to a person listed in 18 U.S.C. 351 (relating to Members of Congress), 1116 (relating to foreign officials, official guests, and internationally protected persons), or 1751 (relating to presidential assassination and officials in line of succession).

16. “Serious bodily injury” refers to injury creating a substantial risk of death, major disability or loss of a bodily function, or disfigurement.

17. “Serious bodily injury is the result intended” refers to a limited category of offense behaviors where the circumstances indicate that the bodily injury intended was serious (e.g., throwing acid in a person's face, or firing a weapon at a person) but where it is not established that murder was the intended object. Where the circumstances establish that murder was the intended object, grade as an ‘attempt to murder’.

18. “Sexual exploitation of children” refers to employing, using, inducing, enticing, or coercing a person less than 18 years of age to engage in any sexually explicit conduct for the purpose of producing a visual or print medium depicting such conduct with knowledge or reason to know that such visual or print medium will be distributed for sale, transported in interstate or foreign commerce, or mailed. It also includes knowingly transporting, shipping, or receiving such visual or print medium for the purposes of distributing for sale, or knowingly distribution for sale such visual or print medium.

19. “Trafficking in stolen property” refers to receiving stolen property with intent to sell.

20. The “value of the property” is determined by estimating the actual or potential replacement cost to the victim. The “actual replacement cost” is the value or money permanently lost to the victim through theft/forgery/fraud. The “potential replacement cost” refers to the total loss the offender specifically intended to cause by theft/forgery/fraud, or the total amount of the victim's money or property unlawfully exposed to risk of loss through theft/forgery/fraud notwithstanding subsequent recovery by the victim. The highest of these three values is the value to be used in rating the offense on the guidelines.

21. “Voluntary manslaughter” refers to the unlawful killing of a human being without malice upon a sudden quarrel or heat of passion.”

SALIENT FACTOR SCORING MANUAL

The following instructions serve as a guide in computing the salient factor score.

ITEM A. PRIOR CONVICTIONS/ADJUDICATIONS (ADULT OR JUVENILE) [[None = 3; One = 2; Two or three = 1; Four or more.  .  .  . = 0]]

A.1   In General.

(a) Count all convictions/adjudications (adult or juvenile) for criminal offenses (other than the current offense) that were committed prior to the present period of confinement, except as specifically noted.

(b) Convictions for prior offenses that are not separated from each other by an intervening arrest (e.g., two burglaries followed by an arrest for both offenses) are counted as a single prior conviction. Prior offenses that are separated by an intervening arrest are counted separately (e.g., three convictions for larceny and a conviction for an additional larceny committed after the arrest for the first three larcenies would be counted as two prior convictions, even if all the four offenses were adjudicated together).

(c) Do not count the current federal offense or state/local convictions resulting from the current federal offense ((i.e., offenses that are considered in assessing the severity of the current offense). Exception: Where the first and last overt acts of the current offense behavior are separated by an intervening federal conviction (e.g., after conviction for the current federal offense, the offender commits another federal offense while on appeal bond), both offenses are counted in assessing offense severity; the earlier offense is also counted as a prior conviction in the salient factor score.

A.2   Convictions. (a) Felony convictions are counted. Non-felony convictions are counted, except as listed under (b) and (c). Convictions for driving while intoxicated/while under the influence/while impaired, or leaving the scene of an accident involving injury or an attended vehicle are counted. For the purpose of scoring Item A of the salient factor score, use the offense of conviction.

(b) Convictions for the following offenses are counted only if the sentence resulting was a commitment of more than thirty days (as defined in item B) or probation of one year or more (as defined in Item E), or if the record indicates that the offense was classified by the jurisdiction as a felony (regardless of sentence):

1. Contempt of court;

2. Disorderly conduct/disorderly person/breach of the peace/disturbing the peace/uttering loud and abusive language;

3. Driving without a license/with a revoked or suspended license/with a false license;

4. False information to a police officer;

5. Fish and game violations;

6. Gambling (e.g., betting on dice, sports, cards) [Note: Operation or promotion of or employment in an unlawful gambling business is not included herein];

7. Loitering;

8. Non-support;

9. Prostitution;

10. Resisting arrest/evade and elude;

11. Trespassing;

12. Reckless driving;

13. Hindering/failure to obey a police officer;

14. Leaving the scene of an accident (except as listed under (a)).

(c) Convictions for certain minor offenses are not counted, regardless of sentence. These include:

1. Hitchhiking;

2. Local regulatory violations;

3. Public intoxication/possession of alcohol by a minor/possession of alcohol in an open container;

4. Traffic violations (except as specifically listed);

5. Vagrancy/vagabond and rogue;

6. Civil contempt.

A.3   Juvenile Conduct. Count juvenile convictions/adjudications except as follows:

(a) Do not count any status offense (e.g., runaway, truancy, habitual disobedience) unless the behavior included a criminal offense which would otherwise be counted;

(b) Do not count any criminal offense committed at age 15 or less, unless it resulted in a commitment of more than 30 days.

A.4   Military Conduct. Count military convictions by general or special court-martial (not summary court-martial or Article 15 disciplinary proceeding) for acts that are generally prohibited by civilian criminal law (e.g., assault, theft). Do not count convictions for strictly military offenses. Note: This does not preclude consideration of serious or repeated military misconduct as a negative indicant of parole prognosis (i.e., a possible reason for overriding the salient factor score in relation to this item).

A.5 Diversion. Conduct resulting in diversion from the judicial process without a finding of guilt (e.g., deferred prosecution, probation without plea, or a District of Columbia juvenile consent decree) is not to be counted in scoring this item. However, an instance of criminal behavior resulting in a judicial determination of guilt or an admission of guilt before a judicial body shall be counted as a conviction even if a conviction is not formally entered.

A.6   Setting Aside of Convictions/Restoration of Civil Rights Setting aside or removal of juvenile convictions/adjudications is normally for civil purposes (to remove civil penalties and stigma). Such convictions/adjudications are to be counted for purposes of assessing parole prognosis. This also applies to adult convictions/adjudications which may be set aside by various methods (including pardon). However, convictions/adjudications that were set aside or pardoned on grounds of innocence are not to be counted.

A.7   Convictions Reversed or Vacated on Grounds of Constitutional or Procedural Error. Exclude any conviction reversed or vacated for constitutional or procedural grounds, unless the prisoner has been retried and reconvicted. It is the Commission's presumption that a conviction/adjudication is valid, except under the limited circumstances described in the first note below. If a prisoner challenges such conviction he/she should be advised to petition for a reversal of such conviction in the court in which he/she was originally tried, and then to provide the Commission with evidence of such reversal. Note: Occasionally the presentence report documents facts clearly indicating that a conviction was unconstitutional for deprivation of counsel [this occurs only when the conviction was for a felony, or for a lesser offense for which imprisonment was actually imposed; and the record is clear that the defendant (1) was indigent, and (2) was not provided counsel, and (3) did not waive counsel]. In such case, do not count the conviction. Similarly, do not count a conviction if: (1) the offender has petitioned the appropriate court to overturn a felony conviction that occurred prior to 1964, or a misdemeanor/petty offense conviction that occurred prior to 1973 (and the offender claims he served a jail sentence for the non-felony conviction); (2) the offender asserts he was denied his right to counsel in the prior conviction; and (3) the offender provides evidence (e.g., a letter from the court clerk) that the records of the prior conviction are unavailable. Note: If a conviction found to be invalid is nonetheless supported by persuasive information that the offender committed the criminal act, this information may be considered as a negative indicant of parole prognosis (i.e., a possible reason for overriding the salient factor score).

A.8   Ancient Prior Record. If both of the following conditions are met: (1) The offender's only countable convictions under Item A occurred at least ten years prior to the commencement of the current offense behavior (the date of the last countable conviction under Item A refers to the date of the conviction, itself, not the date of the offense leading to conviction), and (2) there is at least a ten year commitment free period in the community (including time on probation or parole) between the last release from a countable commitment (under Item B) and the commencement of the current offense behavior; then convictions/commitments prior to the above ten year period are not to be counted for purposes of Item A, B, or C. Note: This provision does not preclude consideration of earlier behavior (e.g., repetition of particularly serious or assaultive conduct) as a negative indicant of parole prognosis (i.e., a possible reason for overriding the salient factor score). Similarly, a substantial crime free period in the community, not amounting to ten years, may, in light of other factors, indicate that the offender belongs in a better risk category than the salient factor score indicates.

A.9   Foreign Convictions. Foreign convictions (for behavior that would be criminal in the United States) are counted.

A.10   Tribal Court Convictions. Tribal court convictions are counted under the same terms and conditions as any other conviction.

A.11   Forfeiture of Collateral. If the only known disposition is forfeiture of collateral, count as a conviction (if a conviction for such offense would otherwise be counted).

A.12   Conditional/Unconditional Discharge (New York State). In N.Y. State, the term “conditional discharge” refers to a conviction with a suspended sentence and unsupervised probation; the term “unconditional discharge” refers to a conviction with a suspended sentence. Thus, such N.Y. State dispositions for countable offenses are counted as convictions.

A.13   Adjudication Withheld (Florida). In Florida, the term “adjudication withheld” refers to a disposition in which a formal conviction is not entered at the time of sentencing, the purpose of which is to allow the defendant to retain his civil rights and not to be classified as a convicted felon. Since the disposition of adjudication withheld is characterized by an admission of guilt and/or a finding of guilt before a judicial body, dispositions of “adjudication withheld” are to be counted as convictions for salient factor scoring purposes. However, it is not considered a conviction on which forfeiture of street time can be based.

A.14   Juvenile Consent Decree (District of Columbia). A juvenile consent decree in the District of Columbia is a diversionary disposition not requiring an admission or finding of guilt. Therefore, it is not to be used in scoring this item.

ITEM B. PRIOR COMMITMENTS OF MORE THAN THIRTY DAYS (ADULT OR JUVENILE) [[None = −2; One or two = 1; Three or more = 0]]

B.1   Count all prior commitments of more than thirty days (adult or juvenile) resulting from a conviction/adjudication listed under Item A, except as noted below. Also count commitments of more than thirty days imposed upon revocation of probation or parole where the original probation or parole resulted from a conviction/adjudication counted under Item A.

B.2   Count only commitments that were imposed prior to the commission of the last overt act of the current offense behavior. Commitments imposed after the current offense are not counted for purposes of this item. Concurrent or consecutive sentences (whether imposed as the same time or at different times) that result in a continuous period of confinement count as a single commitment. However, a new court commitment of more than thirty days imposed for an escape/attempted escape or for criminal behavior committed while in confinement/escape status counts as a separate commitment.

B.3   Definitions. (a) This item only includes commitments that were actually imposed. Do not count a suspended sentence as a commitment. Do not count confinement pending trial or sentencing or for study and observation as a commitment unless the sentence is specifically to “time served”. If a sentence imposed is subsequently reconsidered and reduced, do not count as a commitment if it is determined that the total time served, including jail time, was 30 days or less. Count a sentence to intermittent confinement (e.g., weekends) totaling more than 30 days.

(b) This item includes confinement in adult or juvenile institutions, community corrections centers, and other residential treatment centers (e.g., halfway houses and community treatment centers). It does not include foster home placement. Count confinement in a community corrections center (CCC) or other residential treatment center only when it is part of a committed sentence. Do not count confinement in a community corrections center or other residential treatment center when imposed as a condition of probation or parole. Do not count self-commitment for drug or alcohol treatment.

(c) If a committed sentence of more than 30 days is imposed prior to the current offense but the offender avoids or delays service of the sentence (e.g., by absconding, escaping, bail pending appeal), count as a prior commitment. Note: Where the subject unlawfully avoids service of a prior commitment by escaping or failing to appear for service of sentence, this commitment is also to be considered in Items D and E. Example: An offender is sentenced to a three-year prison term, released on appeal bond, and commits the current offense. Count as a previous commitment under Item B, but not under Items D and E. To be considered under Items D and E, the avoidance of sentence must have been unlawful (e.g., escape or failure to report for service of sentence). Example: An offender is sentenced to a three-year prison term, escapes, and commits the current offense. Count as a previous commitment under Items B, D, and E.

(d) District of Columbia Juvenile Commitment to Department of Human Services. In the District of Columbia, juvenile offenders may be committed to the Department of Human Services for placement ranging from a foster home to a secure juvenile facility. Such a commitment is counted only if it can be established that the juvenile was actually committed for more than 30 days to a secure juvenile institution or residential treatment center rather than a foster home.

ITEM C. AGE AT COMMENCEMENT OF THE CURRENT OFFENSE/PRIOR COMMITMENTS OF MORE THAN THIRTY DAYS (ADULT OR JUVENILE)

C.1 Score 3 if the subject was 26 years of age or more at the commencement of the current offense and has three or fewer prior commitments.

C.2 Score 2 if the subject was 26 years of age or more at the commencement of the current offense and has four prior commitments.

C.3 Score 1 if the subject was 26 years of age or more at the commencement of the current offense and has five or more prior commitments.

C.4 Score 2 if the subject was 22-25 years of age at the commencement of the current offense and has three or fewer prior commitments.

C.5 Score 1 if the subject was 22-25 years of age at the commencement of the current offense and has four prior commitments.

C.6 Score 0 if the subject was 22-25 years of age at the commencement of the current offense and has five or more prior commitments.

C.7 Score 1 if the subject was 20-21 years of age at the commencement of the current offense and has three or fewer prior commitments.

C.8 Score 0 if the subject was 20-21 years of age at the commencement of the current offense and has four prior commitments.

C.9 Score 0 if the subject was 19 years of age or less at the commencement of the current offense with any number of prior commitments.

C.10   Definitions (a) Use the age of the commencement of the subject's current offense behavior, except as noted under the special instructions for probation/parole/confinement/escape status violators.

(b) Prior commitment is defined under Item B.

ITEM D. RECENT COMMITMENT FREE PERIOD (THREE YEARS)

D.1   Score 1 if the subject has no prior commitments; or if the subject was released to the community from his/her last prior commitment at least three years prior to commencement of his/her current offense behavior.

D.2   Score 0 if the subject's last release to the community from a prior commitment occurred less than three years prior to the current offense behavior; or if the subject was in confinement/escape status at the time of the current offense.

D.3   Definitions. (a) Prior commitment is defined under Item B.

(b) Confinement/escape status is defined under Item E.

(c) Release to the community means release from confinement status (e.g., a person paroled through a CTC is released to the community when released from the CTC, not when placed in the CTC).

ITEM E. PROBATION/PAROLE/CONFINEMENT/ESCAPE STATUS VIOLATOR THIS TIME

E.1   Score 1 if the subject was not on probation or parole, nor in confinement or escape status at the time of the current offense behavior; and was not committed as a probation, parole, confinement, or escape status violator this time.

E.2   Score 0 if the subject was on probation or parole or in confinement or escape status at the time of the current offense behavior; or if the subject was committed as a probation, parole, confinement, or escape status violator this time.

E.3   Definitions. (a) The term probation/parole refers to a period of federal, state, or local probation or parole supervision. Occasionally, a court disposition such as ‘summary probation’ or ‘unsupervised probation’ will be encountered. If it is clear that this disposition involved no attempt at supervision, it will not be counted for purposes of this item. Note: Unsupervised probation/parole due to deportation is counted in scoring this item.

(b) The term “parole” includes parole, mandatory parole, supervised release, conditional release, or mandatory release supervision (i.e., any form of supervised release).

(c) The term “confinement/escape status” includes institutional custody, work or study release, pass or furlough, community corrections center or other residential treatment center confinement (when such confinement is counted as a commitment under Item B), or escape from any of the above.

Item F. Older Offenders.

F.1 Score 1 if the offender was 41 years of age or more at the commencement of the current offense and the total score from Items A-E is 9 or less.

F.2 Score 0 if the offender was less than 41 years of age at the commencement of the current offense or if the total score from Items A-E is 10.

Special Instructions—Probation Violator This Time

Item A   Count the original conviction that led to the sentence of probation as a prior conviction. Do not count the probation revocation as a prior conviction.

Item B   Count all prior commitments of more than thirty days which were imposed prior to the behavior resulting in the current probation revocation. If the subject is committed as a probation violator following a ‘split sentence’ for which more than thirty days were served, count the confinement portion of the ‘split sentence’ as a prior commitment. Note: The prisoner is still credited with the time served toward the current commitment.

Item C   Use the age at commencement of the probation violation, not the original offense.

Item D   Count backwards three years from the commencement of the probation violation.

Item E   By definition, no point is credited for this item. Exception: A person placed on unsupervised probation (other than for deportation) would not lose credit for this item.

Item F   Use the age at commencement of the probation violation, not the original offense.

Special Instructions—Parole or Supervised Release Violator This Time

Item A   The conviction from which paroled or placed on supervised release counts as a prior conviction.

Item B   The commitment from which paroled or released to supervised release (including a prison term ordered for a prior supervised release revocation), counts as a prior commitment.

Item C   Use the age at commencement of the violation behavior (including new criminal behavior).

Item D   Count backwards three years from the commencement of the violation behavior (including new criminal behavior).

Item E   By definition, no point is credited for this item.

Item F   Use the age at commencement of the violation behavior (including new criminal behavior).

Special Instructions—Confinement/Escape Status Violator With New Criminal Behavior in the Community This Time

Item A   The conviction being served at the time of the confinement/escape status violation counts as a prior conviction.

Item B   The commitment being served at the time of the confinement/escape status violation counts as a prior commitment.

Item C   Use the age at commencement of the confinement/escape status violation.

Item D   By definition, no point is credited for this item.

Item E   By definition, no point is credited for this item.

Item F   Use the age at commencement of the confinement/escape status violation.

(18 U.S.C. 4203(a)(1); 18 U.S.C. 4204(a)(6))

[47 FR 56336, Dec. 16, 1982]

Editorial Note: For Federal Register citations affecting §2.20, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§2.21   Reparole consideration guidelines.

(a)(1) If revocation is based upon administrative violation(s) only, grade the behavior as if a Category One offense under §2.20.

(2) If a finding is made that the prisoner has engaged in behavior constituting new criminal conduct, the appropriate severity rating for the new criminal behavior shall be calculated. New criminal conduct may be determined either by a new federal, state, or local conviction or by an independent finding by the Commission at revocation hearing. As violations may be for state or local offenses, the appropriate severity level may be determined by analogy with listed federal offense behaviors.

(b) The guidelines for parole consideration specified at 28 CFR 2.20 shall then be applied with the salient factor score recalculated. The conviction and commitment from which the offender was released shall be counted as a prior conviction and commitment.

(c) Time served on a new state or federal sentence shall be counted as time in custody for reparole guideline purposes. This does not affect the computation of the expiration date of the violator term as provided by §§2.47(e) and 2.52 (c) and (d).

(d) The above are merely guidelines. A decision outside these guidelines (either above or below) may be made when circumstances warrant.

[50 FR 40368, Oct. 3, 1985, as amended at 68 FR 41529, July 14, 2003]

§2.22   Communication with the Commission.

Attorneys, relatives, or interested parties wishing a personal interview to discuss a specific case with a representative of the Commission must submit a written request to the appropriate office setting forth the nature of the information to be discussed. Such interview may be conducted by a Commissioner or assigned staff, and a written summary of each such interview shall be prepared and placed in the prisoner's file.

[43 FR 22707, May 28, 1978]

§2.23   Delegation to hearing examiners.

(a) There is hereby delegated to hearing examiners the authority necessary to conduct hearings and make recommendations relative to the grant or denial of parole or reparole, revocation or reinstatement of parole or mandatory release, and conditions of parole. Any hearing may be conducted by a single examiner or by a panel of examiners. Notwithstanding the provisions of §§2.48 through 2.51, §§2.101 through 2.104 and §§2.214 through 2.217, there is also delegated to hearing examiners the authority necessary to make a probable cause finding, to determine the location of a revocation hearing, and to determine the witnesses who will attend the hearing, including the authority to issue subpoenas for witnesses and evidence.

(b) The concurrence of two examiners shall be required to obtain a panel recommendation to the Regional Commissioner. A panel recommendation is required in each case decided by a Regional Commissioner after the holding of a hearing.

(c) An examiner panel recommendation exists of two concurring examiner votes. In the event of divergent votes, the case shall be referred to another hearing examiner for another vote. If concurring votes do not result from such a referral, the case shall be referred to any available hearing examiner until a panel recommendation is obtained.

[84 FR 43690, Aug. 22, 2019]

§2.24   Review of panel recommendation by the Regional Commissioner.

(a) Upon review of the examiner panel recommendation, the Regional Commissioner may make the decision by concurring with the panel recommendation. If the Regional Commissioner does not concur, the Regional Commissioner shall refer the case to another Commissioner and the decision shall be made on the concurring votes of two Commissioners.

(b) Upon review of the panel recommendation, the Regional Commissioner may also:

(1) Designate the case for the original jurisdiction of the Commission pursuant to §2.17, vote on the case, and then refer the case to another Commissioner for further review; or

(2) Remand the case for a rehearing, with the notice of action specifying the purpose of the rehearing.

[68 FR 41529, July 14, 2003]

§2.25   Hearings by videoconference.

The Commission may conduct a parole determination hearing (including a rescission hearing), a probable cause hearing, an institutional revocation hearing, and a parole termination hearing by videoconference between the hearing examiner and the prisoner or releasee.

[83 FR 58501, Nov. 20, 2018]

§2.26   Appeal to National Appeals Board.

(a)(1) A prisoner or parolee may submit to the National Appeals Board a written appeal of any decision to grant (other than a decision to grant parole on the date of parole eligibility), rescind, deny, or revoke parole, except that any appeal of a Commission decision pursuant to §2.17 shall be submitted as a petition for reconsideration under §2.27.

(2) The appeal must be filed on a form provided for that purpose within 30 days from the date of entry of the decision that is the subject of the appeal. The appeal must include an opening paragraph that briefly summarizes the grounds for the appeal. The appellant shall then list each ground separately and concisely explain the reasons supporting each ground. Appeals that do not conform to the above requirements may be returned at the Commission's discretion, in which case the appellant shall have 30 days from the date the appeal is returned to submit an appeal that complies with the above requirements. The appellant may provide any additional information for the Commission to consider in an addendum to the appeal. Exhibits may be attached to an appeal, but the appellant should not attach exhibits that are copies of documents already in the possession of the Commission. Any exhibits that are copies of documents already in the Commission's files will not be retained by the Commission.

(b)(1) The National Appeals Board may: Affirm the decision of a Regional Commissioner on the vote of a single Commissioner other than the Commissioner who issued the decision from which the appeal is taken; or modify or reverse the decision of a Regional Commissioner, or order a new hearing, upon the concurrence of two Commissioners. The Commissioner first reviewing the case may in his discretion circulate the case for review and vote by the other Commissioners notwithstanding his own vote to affirm the Regional Commissioner's decision. In such event, the case shall be decided by the concurrence of two out of three votes.

(2) All Commissioners serve as members of the National Appeals Board, and it shall in no case be an objection to a decision of the Board that the Commissioner who issued the decision from which an appeal is taken participated as a voting member on appeal.

(c) The National Appeals Board shall act within sixty days of receipt of the appellant's papers, to affirm, modify, or reverse the decision. Decisions of the National Appeals Board shall be final.

(d) If no appeal is filed within thirty days of the date of entry of the original decision, such decision shall stand as the final decision of the Commission.

(e) Appeals under this section may be based upon the following grounds:

(1) That the guidelines were incorrectly applied as to any or all of the following:

(i) Severity rating;

(ii) Salient factor score;

(iii) Time in custody;

(2) That a decision outside the guidelines was not supported by the reasons or facts as stated;

(3) That especially mitigating circumstances (for example, facts relating to the severity of the offense or the prisoner's probability of success on parole) justify a different decision;

(4) That a decision was based on erroneous information, and the actual facts justify a different decision;

(5) That the Commission did not follow correct procedure in deciding the case, and a different decision would have resulted if the error had not occurred;

(6) There was significant information in existence but not known at the time of the hearing;

(7) There are compelling reasons why a more lenient decision should be rendered on grounds of compassion.

(f) Upon the written request of the Attorney General seeking review of a decision of a Regional Commissioner, which is received within 30 days of such decision, the National Appeals Board shall reaffirm, modify, or reverse the Regional Commissioner's decision within 60 days of receipt of the Attorney General's request. The National Appeals Board shall inform the Attorney General and the prisoner to whom the decision applies in writing of its decision and the reasons therefor. In the event the Attorney General submits new and significant information that has not previously been disclosed to the prisoner prior to a hearing under these rules, the National Appeals Board shall act within 60 days to reaffirm, modify or reverse the Regional Commissioner's decision, but shall also remand the case for a new hearing if its decision is adverse to the prisoner. The prisoner shall have disclosure of the new information, and the opportunity to dispute that information under §2.19(c) of this part. Following the hearing, the case shall be returned to the National Appeals Board, together with a recommendation from the hearing examiner, to render a final Commission decision as to the disposition of the case.

[49 FR 44098, Nov. 2, 1984, as amended at 51 FR 32785, Sept. 16, 1986; 59 FR 40258, Aug. 8, 1994; 61 FR 55743, Oct. 29, 1996; 68 FR 41699, July 15, 2003]

§2.27   Petition for reconsideration of original jurisdiction decisions.

(a) A petition for reconsideration may be filed with the Commission in a case decided under the procedure specified in §2.17 within thirty days of the date of such decision. A form is provided for this purpose. A petition for reconsideration will be reviewed at the next regularly scheduled meeting of the Commission provided the petition is received thirty days in advance of such meeting. A petition received by the Commission less than thirty days in advance of a regularly scheduled meeting will be reviewed at the next regularly scheduled meeting. The previous decision made under §2.17 may be modified or reversed only by a majority vote of the Commissioners holding office at the time of the review of the petition. If a majority vote is not obtained, the previous decision shall stand. A decision under this rule shall be final.

(b) Attorneys, relatives, and other interested parties who wish to submit written information concerning a petition for reconsideration should send such information to the National Appeals Board, United States Parole Commission, 5550 Friendship Boulevard, Chevy Chase, Maryland 20815. Petitions and all supporting material are to be submitted thirty days in advance of the meeting at which such petitions will be considered.

(c) If no petition for reconsideration is filed within 30 days of the entry of a decision under §2.17, that decision shall stand as the final decision of the Commission.

[61 FR 13763, Mar. 28, 1996, as amended at 61 FR 55743, Oct. 29, 1996; 68 FR 41530, July 14, 2003]

§2.28   Reopening of cases.

(a) Favorable information. Upon the receipt of new information of substantial significance favorable to the prisoner, the Regional Commissioner may reopen a case (including an original jurisdiction case), and order a special reconsideration hearing on the next available docket, or modify the previous decision. The advancement of a presumptive release date requires the concurrence of two Commissioners.

(b) Institutional misconduct. Consideration of disciplinary infractions and allegations of new criminal conduct occurring after the setting of a parole date are subject to the provisions of §2.14 (in the case of a prisoner with a presumptive date) and §2.34 (in the case of a prisoner with an effective date of parole).

(c) Additional sentences. If a prisoner receives an additional concurrent or consecutive federal sentence following his initial parole consideration, the Regional Commissioner shall reopen his case for a new initial hearing on the next regularly scheduled docket to consider the additional sentence and reevaluate the case. Such action shall void the previous presumptive or effective release date. However, a new initial hearing is not mandatory where the Commission has previously evaluated the new criminal behavior, which led to the additional federal sentence, at a rescission hearing under 28 CFR 2.34; except where the new sentence extends the mandatory release date for a prisoner previously continued to the expiration of his sentence.

(d) Conviction after revocation. Upon receipt of information subsequent to the revocation hearing that a prisoner whose parole has been revoked has sustained a new conviction for conduct while on parole, the Regional Commissioner may reopen the case pursuant to §2.52(c)(2) for a special reconsideration hearing on the next regularly scheduled docket to consider forfeiture of time spent on parole and such further action as may be appropriate. The entry of a new order shall void any presumptive or effective release date previously established.

(e) Release planning. When an effective date of parole has been set by the Commission, release on that date shall be conditioned upon the completion of a satisfactory plan for parole supervision. The appropriate Regional Commissioner may on his own motion reconsider any case prior to release and may reopen and advance or retard an effective parole date for purposes of release planning. Retardation without a hearing may not exceed 120 days.

(f) New adverse information. Upon receipt of new and significant adverse information that is not covered by paragraphs (a) through (e) of this section, a Commissioner may refer the case to the National Commissioners with his recommendation and vote to schedule the case for a special reconsideration hearing. Such referral shall automatically retard the prisoner's scheduled release date until a final decision is reached in the case. The decision to schedule a case for a special reconsideration hearing shall be based on the concurrence of two Commissioner votes, including the vote of the referring Commissioner. The hearing shall be conducted in accordance with the procedures set forth in §§2.12 and 2.13. The entry of a new order following such hearing shall void the previously established release date.

[44 FR 3406, Jan. 16, 1979, as amended at 46 FR 36138, July 14, 1981; 49 FR 44098, Nov. 2, 1984; 61 FR 55743, Oct. 29, 1996; 68 FR 41529, July 14, 2003]

§2.29   Release on parole.

(a) A grant of parole shall not be deemed to be operative until a certificate of parole has been delivered to the prisoner.

(b) An effective date of parole shall not be set for a date more than nine months from the date of the hearing. Residence in a community corrections center as part of a parole release plan generally shall not exceed one hundred and twenty days.

(c) When an effective date of parole falls on a Saturday, Sunday, or legal holiday, the Warden of the appropriate institution shall be authorized to release the prisoner on the first working day preceding such date.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3407, Jan. 16, 1979; 60 FR 51350, Oct. 2, 1995; 68 FR 41530, July 14, 2003]

§2.30   False information or new criminal conduct: Discovery after release.

If evidence comes to the attention of the Commission after a prisoner's release that such prisoner has willfully provided false information or misrepresented information deemed significant to his application for parole or has engaged in any criminal conduct during the current sentence prior to the delivery of the parole certificate, the Regional Commissioner may reopen the case pursuant to the procedures of §2.28(f) and order the prisoner summoned or retaken for hearing pursuant to the procedures of §§2.49 and 2.50, as applicable, to determine whether the order of parole should be cancelled.

[47 FR 36635, Aug. 23, 1982]

§2.31   Parole to detainers: Statement of policy.

(a) Where a detainer is lodged against a prisoner, the Commission may grant parole if the prisoner in other respects meets the criteria set forth in §2.18. The presence of a detainer is not in itself a valid reason for the denial of parole.

(b) The Commission will cooperate in working out arrangements for concurrent supervision with other jurisdictions where it is feasible and where release on parole appears to be justified.

§2.32   Parole to local or immigration detainers.

(a) When a State or local detainer is outstanding against a prisoner whom the Commission wishes to parole, the Commission may order either of the following:

(1) Parole to the actual physical custody of the detaining authorities only. In this event, release is not to be effected except to the detainer. When such a detainer is withdrawn, the prisoner is not to be released unless and until the Commission makes a new order of parole.

(2) Parole to the actual physical custody of the detaining authorities or an approved plan. In this event, release is to be effected to the community if detaining officials withdraw the detainer or make no effort to assume custody of the prisoner, providing there is an acceptable plan for community supervision.

(b) When the Commission wishes to parole a prisoner subject to a detainer filed by Federal immigration officials, the Commission shall order the following: Parole to the actual physical custody of the immigration authorities or an approved plan. In this event, release is to be effected regardless of whether immigration officials take the prisoner into custody, providing there is an acceptable plan for community supervision.

(c) As used in this section “parole to a detainer” means release to the “physical custody” of the authorities who have lodged the detainer. Temporary detention in a jail in the county where the institution of confinement is located does not constitute release on parole to such detainer. If the authorities who lodged the detainer do not take the prisoner into custody for any reason, he shall be returned to the institution to await further order of the Commission.

[43 FR 38822, Aug. 31, 1978, as amended at 44 FR 3409, Jan. 16, 1979; 44 FR 31637, June 1, 1979; 44 FR 34494, June 15, 1979; 47 FR 36635, Aug. 23, 1982]

§2.33   Release plans.

(a) A grant of parole is conditioned upon the approval of release plans by the Regional Commissioner. In general, the following factors are considered as elements in the prisoner's release plan:

(1) Availability of legitimate employment and an approved residence for the prospective parolee; and

(2) Availability of necessary aftercare for a parolee who is ill or who requires special care.

(b) Generally, parolees will be released only to the place of their legal residence unless the Commission is satisfied that another place of residence will serve the public interest more effectively or will improve the probability of the applicant's readjustment.

(c) Where the circumstances warrant, the Commission on its own motion, or upon recommendation of the probation officer, may require that an advisor who is a responsible, reputable, and law-abiding citizen living in or near the community in which the releasee will reside be available to the releasee. Such advisor shall serve under the direction of and in cooperation with the probation officer to whom the parolee is assigned.

(d) When the prisoner has an unsatisfied fine or restitution order, a reasonable plan for payment [or performance of services, if so ordered by the court] shall, where feasible, be included in the parole release plan.

[42 FR 39809, Aug. 5, 1977; 42 FR 44234, Sept. 2, 1977, as amended at 50 FR 36422, Sept. 6, 1985; 68 FR 41530, July 14, 2003]

§2.34   Rescission of parole.

(a) When an effective date of parole has been set by the Commission, release on that date is conditioned upon continued satisfactory conduct by the prisoner. If a prisoner granted such a date has been found in violation of institution rules by a Discipline Hearing Officer or is alleged to have committed a new criminal act at any time prior to the delivery of the certificate of parole, the Regional Commissioner shall be advised promptly of such information. The prisoner shall not be released until the institution has been notified that no change has been made in the Commission's order to parole. Following receipt of such information, the Regional Commissioner may reopen the case and retard the parole date for up to 90 days without a hearing, or schedule a rescission hearing under this section on the next available docket at the institution or on the first docket following return to a federal institution from a community corrections center or a state or local halfway house.

(b) Upon the ordering of a rescission hearing under this section, the prisoner shall be afforded written notice specifying the information to be considered at the hearing. The notice shall further state that the purpose of the hearing will be to decide whether rescission of the parole date is warranted based on the charges listed on the notice, and shall advise the prisoner of the procedural rights described below.

(c) A hearing before a Discipline Hearing Officer resulting in a finding that the prisoner has committed a violation of disciplinary rules may be relied upon by the Commission as conclusive evidence of institutional misconduct. However, the prisoner will be afforded an opportunity to explain any mitigating circumstances, and to present documentary evidence in mitigation of the misconduct at the rescission hearing.

(d) In the case of allegations of new criminal conduct committed prior to delivery of the parole certificate, the Commission may consider documentary evidence and/or written testimony presented by the prisoner, arresting authorities, or other persons.

(e) The prisoner may be represented at a rescission hearing by a person of his choice. The function of the prisoner's representative shall be to offer a statement following the discussion of the charges with the prisoner, and to provide such additional information as the hearing examiner may require. However, the hearing examiner may limit or exclude any irrelevant or repetitious statement.

(f) The evidence upon which the rescission hearing is to be conducted shall be disclosed to the prisoner upon request, subject to the exemptions set forth at §2.55. If the parole grant is rescinded, the Commission shall furnish to the prisoner a written statement of its findings and the evidence relied upon.

[44 FR 3406, Jan. 16, 1979, as amended at 45 FR 59871, Sept. 11, 1980; 47 FR 2313, Jan. 15, 1982; 54 FR 15173, Apr. 17, 1989; 68 FR 41530, July 14, 2003]

§2.35   Mandatory release in the absence of parole.

(a) A prisoner shall be mandatorily released by operation of law at the end of the sentence imposed by the court less such good time deductions as he may have earned through his behavior and efforts at the institution of confinement. If released pursuant to 18 U.S.C. 4164, such prisoner shall be released, as if on parole, under supervision until the expiration of the maximum term or terms for which he was sentenced less 180 days. If released pursuant to 18 U.S.C. 4205(f), such prisoner shall remain under supervision until the expiration of the maximum term or terms for which he was sentenced. Insofar as possible, release plans shall be completed before the release of any such prisoner.

(b) It is the Commission's interpretation of the statutory scheme for parole and good time that the only function of good time credits is to determine the point in a prisoner's sentence when, in the absence of parole, the prisoner is to be conditionally released on supervision, as described in subsection (a). Once an offender is conditionally released from imprisonment, either by parole or mandatory release, the good time earned during that period of imprisonment is of no further effect either to shorten the period of supervision or to shorten the period of imprisonment which the offender may be required to serve for violation of parole or mandatory release.

(c) A prisoner committed under the Youth Corrections Act must be initially released conditionally under supervision not later than two years before the expiration of the term imposed by the court.

(d) If the Commission orders a military prisoner who is under the Commission's jurisdiction for an offense committed after August 15, 2001 continued to the expiration of his sentence (or otherwise does not grant parole), the Commission shall place such prisoner on mandatory supervision after release if the Commission determines that such supervision is appropriate to provide an orderly transition to civilian life for the prisoner and to protect the community into which such prisoner is released. The Commission shall presume that mandatory supervision is appropriate for all such prisoners unless case-specific factors indicate that supervision is inappropriate. A prisoner who is placed on mandatory supervision shall be deemed to be released as if on parole, and shall be subject to the conditions of release at §2.40 until the expiration of the maximum term for which he was sentenced, unless the prisoner's sentence is terminated early by the appropriate military clemency board.

[42 FR 39809, Aug. 5, 1977, as amended at 50 FR 46283, Nov. 7, 1985; 67 FR 67792, Nov. 7, 2002; 68 FR 16720, Apr. 7, 2003]

§2.36   Rescission guidelines.

(a) The following guidelines shall apply to the sanctioning of disciplinary infractions or new criminal conduct committed by a prisoner during any period of confinement that is credited to his current sentence (whether before or after sentence is imposed), but prior to his release on parole; and by a parole violator during any period of confinement prior to or following the revocation of his parole (except when such period of confinement has resulted from initial parole to a detainer). These guidelines specify the customary time to be served for such behavior which shall be added to the time required by the original presumptive or effective date. Credit shall be given towards service of these guidelines for any time spent in custody on a new offense that has not been credited towards service of the original presumptive or effective date. If a new concurrent or consecutive sentence is imposed for such behavior, these guidelines shall also be applied at the initial hearing on such term.

(1) Administrative rule infraction(s) (including alcohol abuse) normally can be adequately sanctioned by postponing a presumptive or effective date by 0-60 days per instance of misconduct, or by 0-8 months in the case of use or simple possession of illicit drugs or refusal to provide a urine sample. Escape or other new criminal conduct shall be considered in accordance with the guidelines set forth below.

(2) Escape/new criminal behavior in a prison facility (including a community corrections center). The time required pursuant to the guidelines set forth in paragraphs (a)(2) (i) and (ii) of this section shall be added to the time required by the original presumptive or effective date.

(i) Escape or attempted escape—(A) Escape or attempted escape, except as listed below—8-16 months.

(B) If from non-secure custody with voluntary return in 6 days or less—≤6 months.

(C) If by fear or force applied to person(s), grade under (ii) but not less than Category Five.

Notes: (1) If other criminal conduct is committed during the escape or during time spent in escape status, then time to be served for the escape/attempted escape shall be added to that assessed for the other new criminal conduct.

(2) Time in escape status shall not be credited.

(3) Voluntary return is defined as returning voluntarily to the facility or voluntarily turning one's self in to a law enforcement authority as an escapee (not in connection with an arrest on other charges).

(4) Non-secure custody refers to custody with no significant physical restraint [e.g., walkaway from a work detail outside the security perimeter of an institution; failure to return to any institution from a pass or unescorted furlough; or escape by stealth from an institution with no physical perimeter barrier (usually a camp or community corrections center)].

(ii) Other new criminal behavior in a prison facility.

Severity rating in the new
criminal behavior (from §2.20)
Guideline range
Category One<<=8 months.
Category Two<<=10 months.
Category Three12-16 months.
Category Four20-26 months.
Category Five36-48 months.
Category Six52-64 months.
Category Seven64-92 months.
Category Eight120+ months.

Note: Grade unlawful possession of a firearm or explosives in a prison facility, other than a community corrections center, as Category Six. Grade unlawful possession of a firearm in a community corrections center as Category Four. Grade unlawful possession of a dangerous weapon other than a firearm or explosives (e.g., a knife) in a prison facility or community corrections center as Category Three.

(3) New criminal behavior in the community (e.g., while on pass, furlough, work release, or on escape). In such cases, the guidelines applicable to reparole violators under §2.21 shall be applied, using the new offense severity (from §2.20) and recalculated salient factor score (such score shall be recalculated as if the prisoner had been on parole at the time of the new criminal behavior). The time required pursuant to these guidelines shall be added to the time required by the original presumptive or effective date.

Note: Offenses committed in a prison or in a community corrections center that are not limited to the confines of the prison or community corrections center (e.g., mail fraud of a victim outside the prison) are graded as new criminal behavior in the community.

(b) The above are merely guidelines. Where the circumstances warrant, a decision outside the guidelines (above or below) may be rendered provided specific reasons are given. For example, a substantial period of good conduct since the last disciplinary infraction in cases not involving new criminal conduct may be treated as a mitigating circumstance.

[45 FR 59871, Sept. 11, 1980, as amended at 51 FR 32072, Sept. 9, 1986; 52 FR 5763, Feb. 26, 1987; 52 FR 17399, May 8, 1987; 64 FR 59623, Nov. 3, 1999; 68 FR 41530, July 14, 2003]

§2.37   Disclosure of information concerning parolees; Statement of policy.

(a) Information concerning a parolee under the Commission's supervision may be disclosed to a person or persons who may be exposed to harm through contact with that particular parolee if such disclosure is deemed to be reasonably necessary to give notice that such danger exists.

(b) Information concerning parolees may be released by a Chief U.S. Probation Officer to a law enforcement agency (1) as deemed appropriate for the protection of the public or the enforcement of the conditions of parole or (2) pursuant to a request under 18 U.S.C. 4203(e).

(c) Information deemed to be “public sector” information may be disclosed to third parties without the consent of the file subject. Public sector information encompasses the following:

(1) Name;

(2) Register number;

(3) Offense of conviction;

(4) Past and current places of incarceration;

(5) Age;

(6) Sentence data on the Bureau of Prisons sentence computation record (BP-5);

(7) Date(s) of parole and parole revocation hearings; and

(8) The decision(s) rendered by the Commission following a parole or parole revocation proceeding, including the dates of continuances and parole dates. An inmate's designated future place of incarceration is not public information.

[47 FR 13521, Mar. 31, 1982, as amended at 52 FR 33408, Sept. 3, 1987; 63 FR 25772, May 11, 1998]

§2.38   Community supervision by U.S. Probation Officers.

(a) Pursuant to sections 3655 and 4203(b)(4) of title 18 of the U.S. Code, U.S. Probation Officers shall provide such parole services as the Commission may request. In conformity with the foregoing, probation officers function as parole officers and provide supervision to persons released by parole or as if on parole (mandatory release) under the Commission's jurisdiction.

(b) A parolee may be transferred to a new district of supervision with the permission of the probation officers of both the transferring and receiving district, provided such transfer is not contrary to instructions from the Commission.

[44 FR 3409, Jan. 16, 1979]

§2.39   Jurisdiction of the Commission.

(a) Jurisdiction of the Commission over a parolee shall terminate no later than the date of expiration of the maximum term or terms for which he was sentenced, except as provided by §2.35, §2.43, or §2.52.

(b) The parole of any parolee shall run concurrently with the period of parole or probation under any other Federal, State, or local sentence.

(c) Upon the termination of jurisdiction, the Commission shall issue a certificate of discharge to such parolee and to such other agencies as it may determine.

[42 FR 39809, Aug. 5, 1977, as amended at 48 FR 22919, May 23, 1983]

§2.40   Conditions of release.

(a)(1) General conditions of release and notice by certificate of release. All persons on supervision must follow the conditions of release described in §2.204(a)(3) through (6). These conditions are necessary to satisfy the purposes of release conditions stated in 18 U.S.C. 4209. Your certificate of release informs you of these conditions and special conditions that we have imposed for your supervision.

(2) Refusing to sign the certificate of release. (i) If you have been granted a parole date and you refuse to sign the certificate of release (or any other document necessary to fulfill a condition of release), we will consider your refusal as a withdrawal of your application for parole as of the date of your refusal. You will not be released on parole and you will have to reapply for parole consideration.

(ii) If you are scheduled for release to supervision through good-time deduction and you refuse to sign the certificate of release, you will be released but you still must follow the conditions listed in the certificate.

(b) Special conditions of release. We may impose a condition of release other than a condition described in §2.204(a)(3) through (6) if we determine that imposing the condition is reasonably related to the nature and circumstances of your offense or your history and characteristics, and at least one of the following purposes of criminal sentencing: The need to deter you from criminal conduct; protection of the public from further crimes; or the need to provide you with training or correctional treatment or medical care. In choosing a condition we will also consider whether the condition involves no greater deprivation of liberty than is reasonably necessary for the purposes of deterrence of criminal conduct, protection of the public from crime and offender rehabilitation. We list some examples of special conditions of release at §2.204(b)(2).

(c) Participation in a drug-treatment program, If we require your participation in a drug-treatment program, you must submit to a drug test within 15 days of your release and to at least two other drug tests, as determined by your supervision officer. If we decide not to impose the special condition on drug-treatment, because available information indicates you are a low risk for substance abuse, this decision constitutes good cause for suspending the drug testing requirements of 18 U.S.C. 4209(a). You must pass all pre-release drug tests administered by the Bureau of Prisons before you are paroled. If you fail a drug test your parole date may be rescinded.

(d) Changing conditions of release. After your release, we may change or add to the conditions of release if we decide that such action is consistent with the criteria described in paragraph (b) of this section. In making these changes we will use the procedures described in §2.204(c) and (d). You may appeal our action as provided in §§2.26 and 2.220.

(e) Application of release conditions to an absconder. If you abscond from supervision, you will stop the running of your sentence as of the date of your absconding and you will prevent the expiration of your sentence. You will still be bound by the conditions of release while you are an absconder, even after the original expiration date of your sentence. We may revoke your release for a violation of a release condition that you commit before the revised expiration date of your sentence (the original expiration date plus the time you were an absconder).

(f) Revocation for possession of a controlled substance (18 U.S.C. 4214(f)). If we find after a revocation hearing that you have illegally possessed a controlled substance, we must revoke your release. If you fail a drug test, we must consider whether the availability of appropriate substance abuse programs, or your current or past participation in such programs, justifies an exception from the requirement of mandatory revocation. We will not revoke your release on the basis of a single, unconfirmed positive drug test if you challenge the test result and there is no other violation found by us to support revocation.

(g) Supervision officer guidance. See §2.204(g).

(h) Definitions. See §2.204(h).

[79 FR 51257, Aug. 28, 2014]

§2.41   Travel approval.

(a) The probation officer may approve travel outside the district without approval of the Commission in the following situations:

(1) Vacation trips not to exceed thirty days.

(2) Trips, not to exceed thirty days, to investigate reasonably certain employment possibilities.

(3) Recurring travel across a district boundary, not to exceed fifty miles outside the district, for purpose of employment, shopping, or recreation.

(b) Specific advance approval by the Commission is required for all foreign travel, employment requiring recurring travel more than fifty miles outside the district (except employment at offshore locations), and vacation travel outside the district exceeding thirty days. A request for such permission shall be in writing and must demonstrate a substantial need for such travel.

(c) A special condition imposed by the Regional Commissioner prohibiting certain travel shall supersede any general rules relating to travel as set forth above.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3408, Jan. 16, 1979; 48 FR 9247, Mar. 4, 1983; 57 FR 59916, Dec. 17, 1992]

§2.42   Probation officer's reports to Commission.

A supervision report shall be submitted by the responsible probation officer to the Commission for each parolee after the completion of 24 months of continuous supervision and annually thereafter. The probation officer shall submit such additional reports as the Commission may direct.

[51 FR 11017, Apr. 1, 1986]

§2.43   Early termination.

(a)(1) Upon its own motion or upon request of a parolee, the Commission may terminate a parolee's supervision, and legal custody over the parolee, before the sentence expires.

(2) The Commission may terminate supervision of a committed youth offender after the offender serves one year on supervision. Upon terminating supervision before the sentence expires, the Commission shall set aside the committed youth offender's conviction and issue a certificate setting aside the conviction instead of a certificate of termination.

(b) Two years after releasing a prisoner on supervision, and at least annually thereafter, the Commission shall review the status of the parolee to determine the need for continued supervision. The Commission shall also conduct a status review whenever the supervision officer recommends early termination of the parolee's supervision.

(c) Five years after releasing a prisoner on supervision, the Commission shall terminate supervision over the parolee unless the Commission determines, after a hearing conducted in accordance with the procedures prescribed in 18 U.S.C. 4214(a)(2), that such supervision should not be terminated because there is a likelihood that the parolee will engage in conduct violating any criminal law. If the Commission does not terminate supervision under this paragraph, the parolee may request a hearing annually thereafter, and the Commission shall conduct an early termination hearing at least every two years.

(d) In calculating the two-year and five-year periods provided in paragraphs (b) and (c) of this section, the Commission shall not include any period of parole before the most recent release, or any period served in confinement on any other sentence.

(e) A parolee may appeal an adverse decision under paragraph (c) of this section under §2.26 or §2.27 as applicable.

(f) If the case is designated for the original jurisdiction of the Commission, a decision to terminate supervision under paragraphs (a)(2) and (b) of this section, or a decision to terminate or continue supervision under paragraph (c) of this section shall be made under the provisions of §2.17.

(g)(1) In determining whether to grant early termination from supervision, the Commission shall consider the guidelines of this paragraph. The guidelines are advisory and the Commission may disregard the outcome indicated by the guidelines based on case-specific factors. Termination of supervision is indicated if the parolee:

(i) Has a salient factor score in the very good risk category and has completed two continuous years of supervision free from an incident of new criminal behavior or serious parole violation; or

(ii) Has a salient factor score in a risk category other than very good and has completed three continuous years of supervision free from an incident of new criminal behavior or serious parole violation.

(2) As used in this paragraph (g), the term “an incident of new criminal behavior or serious parole violation” includes a new arrest or report of a parole violation if supported by substantial evidence of guilt, even if no conviction or parole revocation results. The Commission shall not terminate supervision of a parolee until it determines the disposition of a pending criminal charge.

(h) Case-specific factors that may justify a departure either above or below the early termination guidelines may relate to the current behavior of the parolee, or to the parolee's background and criminal history.

[75 FR 9519, Mar. 3, 2010]

§2.44   Summons to appear or warrant for retaking of parolee.

(a) If a parolee is alleged to have violated the conditions of his release, and satisfactory evidence thereof is presented, the Commission or a member thereof may:

(1) Issue a summons requiring the offender to appear for a preliminary interview or local revocation hearing.

(2) Issue a warrant for the apprehension and return of the offender to custody.

A summons or warrant may be issued or withdrawn only by the Commission, or a member thereof.

(b) Any summons or warrant under this section shall be issued as soon as practicable after the alleged violation is reported to the Commission, except when delay is deemed necessary. Issuance of a summons or warrant may be withheld until the frequency or seriousness of violations, in the opinion of the Commission, requires such issuance. In the case of any parolee charged with a criminal offense and awaiting disposition of the charge, issuance of a summons or warrant may be withheld, a warrant may be issued and held in abeyance, or a warrant may be issued and a detainer may be placed.

(c) A summons or warrant may be issued only within the prisoner's maximum term or terms except that in the case of a prisoner released as if on parole pursuant to 18 U.S.C. 4164, such summons or warrant may be issued only within the maximum term or terms, less one hundred eighty days. A summons or warrant shall be considered issued when signed and either—

(1) Placed in the mail or

(2) Sent by electronic transmission to the intended authorities.

(d) The issuance of a warrant under this section operates to bar the expiration of the parolee's sentence. Such warrant maintains the Commission's jurisdiction to retake the parolee either before or after the normal expiration date of the sentence and to reach a final decision as to revocation of parole and forfeiture of time pursuant to §2.52(c).

(e) A summons or warrant issued pursuant to this section shall be accompanied by a statement of the charges against the parolee, the applicable procedural rights under the Commission's regulations and the possible actions which may be taken by the Commission. A summons shall specify the time and place the parolee shall appear for a revocation hearing. Failure to appear in response to a summons shall be grounds for issuance of a warrant.

[42 FR 39809, Aug. 5, 1977, as amended at 45 FR 84055, Dec. 22, 1980; 54 FR 11688, Mar. 21, 1989; 63 FR 25771, May 11, 1998]

§2.45   Same; youth offenders.

(a) In addition to the issuance of a summons or warrant pursuant to §2.44 of this part, the Commission or a member thereof, when of the opinion that a youth offender will be benefited by further treatment in an institution or other facility, may direct his return to custody or issue a warrant for his apprehension and return to custody.

(b) Upon his return to custody, such youth offender shall be scheduled for a revocation hearing.

§2.46   Execution of warrant and service of summons.

(a) Any officer of any Federal correctional institution or any Federal officer authorized to serve criminal process within the United States, to whom a warrant is delivered shall execute such warrant by taking the parolee and returning him to the custody of the Attorney General.

(b) On arrest of the parolee the officer executing the warrant shall deliver to him a copy of the Warrant Application listing the charges against the parolee, the applicable procedural rights under the Commission's regulations and the possible actions which may be taken by the Commission.

(c) If execution of the warrant is delayed pending disposition of local charges, for further investigation, or for some other purpose, the parolee is to be continued under supervision by the probation officer until the normal expiration of the sentence, or until the warrant is executed, whichever first occurs. Monthly supervision reports are to be submitted, and the parolee must continue to abide by all the conditions of release.

(d) A summons to appear at a preliminary interview or revocation hearing shall be served upon the parolee in person by delivering to the parolee a copy of the summons. Service shall be made by any Federal officer authorized to serve criminal process within the United States, and certification of such service shall be returned to the appropriate regional office of the Commission.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3409, Jan. 16, 1979]

§2.47   Warrant placed as a detainer and dispositional review.

(a) When a parolee is serving a new sentence in a federal, state or local institution, a parole violation warrant may be placed against him as a detainer.

(1) If the prisoner is serving a new sentence in a federal institution, a revocation hearing shall be scheduled within 120 days of notification of placement of the detainer, or as soon thereafter as practicable, provided the prisoner is eligible for and has applied for an initial hearing on the new sentence, or is serving a new sentence of one year or less. In any other case, the detainer shall be reviewed on the record pursuant to paragraph (a)(2) of this section.

(2) If the prisoner is serving a new sentence in a state or local institution, the violation warrant shall be reviewed by the Regional Commissioner not later than 180 days following notification to the Commission of such placement. The parolee shall receive notice of the pending review, and shall be permitted to submit a written application containing information relative to the disposition of the warrant. He shall also be notified of his right to request counsel under the provisions of §2.48(b) to assist him in completing this written application.

(b) If the prisoner is serving a new federal sentence, the Regional Commissioner, following a dispositional record review, may:

(1) Pursuant to the general policy of the Commission, let the warrant stand as a detainer and order that the revocation hearing be scheduled to coincide with the initial hearing on the new federal sentence or upon release from the new sentence, whichever comes first;

(2) Withdraw the warrant, and either order reinstatement of the parolee to supervision upon release from confinement or close the case if the expiration date has passed.

(c) If the prisoner is serving a new state or local sentence, the Regional Commissioner, following a dispositional record review may:

(1) Withdraw the detainer and order reinstatement of the parolee to supervision upon release from custody, or close the case if the expiration date has passed.

(2) Order a revocation hearing to be conducted by a hearing examiner or an official designated by the Regional Commissioner at the institution in which the parolee is confined.

(3) Let the detainer stand and order further review at an appropriate time. If the warrant is not withdrawn and no revocation hearing is conducted while the prisoner is in state or local custody, an institutional revocation hearing shall be conducted after the prisoner's return to federal custody.

(d) Revocation hearings pursuant to this section shall be conducted in accordance with the provisions governing institutional revocation hearings, except that a hearing conducted at a state or local facility may be conducted by a hearing examiner, hearing examiner panel, or other official designated by the Regional Commissioner. Following a revocation hearing conducted pursuant to this section, the Commission may take any action specified in §2.52.

(e)(1) A parole violator whose parole is revoked shall be given credit for all time in federal, state, or local confinement on a new offense for purposes of satisfaction of the reparole guidelines at §2.20 and §2.21.

(2) However, it shall be the policy of the Commission that the revoked parolee's original sentence (which due to the new conviction, stopped running upon his last release from federal confinement on parole) again start to run only upon release from the confinement portion of the new sentence or the date of reparole granted pursuant of these rules, whichever comes first. This subsection does not apply to cases where, by law, the running of the original sentence is not interrupted by a new conviction (e.g., YCA; NARA; Mexican or Canadian treaty cases).

(f) If a Regional Commissioner determines that additional information is required in order to make a decision pursuant to paragraph (a)(2) of this section, he may schedule a dispositional hearing at the state or local institution where the parolee is confined to obtain such information. Such hearing may be conducted by a hearing examiner, hearing examiner panel, or other official designated by the Regional Commissioner. The parolee shall have notice of such hearing, be allowed to testify in his behalf, and have opportunity for counsel as provided in §2.48(b).

[52 FR 17400, May 8, 1987, as amended at 61 FR 33657, June 28, 1996]

§2.48   Revocation: Preliminary interview.

(a) Interviewing officer. A parolee who is retaken on a warrant issued by a Commissioner shall be given a preliminary interview by an official designated by the Regional Commissioner to enable the Commission to determine if there is probable cause to believe that the parolee has violated his parole as charged, and if so, whether a revocation hearing should be conducted. The official designated to conduct the preliminary interview may be a U.S. Probation Officer in the district where the prisoner is confined, provided he is not the officer who recommended that the warrant be issued.

(b) Notice and opportunity to postpone interview. At the beginning of the preliminary interview, the interviewing officer shall ascertain that the Warrant Application has been given to the parolee as required by §2.46(b), and shall advise the parolee that he may have the preliminary interview postponed in order to obtain representation by an attorney or arrange for the attendance of witnesses. The parolee shall also be advised that if he cannot afford to retain an attorney he may apply to a U.S. District Court for appointment of counsel to represent him at the preliminary interview and the revocation hearing pursuant to 18 U.S.C. 3006A. In addition, the parolee may request the Commission to obtain the presence of persons who have given information upon which revocation may be based. Such adverse witnesses shall be requested to attend the preliminary interview unless the parolee admits a violation or has been convicted of a new offense while on supervision or unless the interviewing officer finds good cause for their non-attendance. Pursuant to §2.51 a subpoena may issue for the appearance of adverse witnesses or the production of documents.

(c) Review of the charges. At the preliminary interview, the interviewing officer shall review the violation charges with the parolee, apprise the parolee of the evidence which has been presented to the Commission, receive the statements of witnesses and documentary evidence on behalf of the parolee, and allow cross-examination of those witnesses in attendance. Disclosure of the evidence presented to the Commission shall be made pursuant to §2.50(d).

(d) At the conclusion of the preliminary interview, the interviewing officer shall inform the parolee of his recommended decision as to whether there is probable cause to believe that the parolee has violated the conditions of his release, and shall submit to the Commission a digest of the interview together with his recommended decision.

(1) If the interviewing officer's recommended decision is that no probable cause may be found to believe that the parolee has violated the conditions of his release, the responsible Regional Commissioner shall review such recommended decision and notify the parolee of his final decision concerning probable cause as expeditiously as possible following receipt of the interviewing officer's digest. A decision to release the parolee shall be implemented without delay.

(2) If the interviewing officer's recommended decision is that probable cause may be found to believe that the parolee has violated a condition (or conditions) of his release, the responsible Regional Commissioner shall notify the parolee of his final decision concerning probable cause within 21 days of the date of the preliminary interview.

(3) Notice to the parolee of any final decision of a Regional Commissioner finding probable cause and ordering a revocation hearing shall state the charges upon which probable cause has been found and the evidence relied upon.

(e) Release notwithstanding probable cause. If the Commission finds probable cause to believe that the parolee has violated the conditions of his release, reinstatement to supervision or release pending further proceeding may nonetheless be ordered if it is determined that:

(1) Continuation of revocation proceedings is not warranted despite the violations found; or

(2) Incarceration pending further revocation proceedings is not warranted by the alleged frequency or seriousness of such violation or violations, and that the parolee is not likely to fail to appear for further proceedings, and that the parolee does not constitute a danger to himself or others.

(f) Conviction as probable cause. Conviction of a Federal, State, or local crime committed subsequent to release by a parolee shall constitute probable cause for the purposes of this section and no preliminary interview shall be conducted unless otherwise ordered by the Regional Commissioner.

(g) Local revocation hearing. A postponed preliminary interview may be conducted as a local revocation hearing by an examiner panel or other interviewing officer designated by the Regional Commissioner provided that the parolee has been advised that the postponed preliminary interview will constitute his final revocation hearing.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3408, 3409, Jan. 16, 1979; 46 FR 42842, Aug. 25, 1981; 47 FR 25735, June 15, 1982]

§2.49   Place of revocation hearing.

(a) If the parolee requests a local revocation hearing, he shall be given a revocation hearing reasonably near the place of the alleged violation(s) or arrest, if the following conditions are met:

(1) The parolee has not been convicted of a crime committed while under supervision; and

(2) The parolee denies that he has violated any condition of his release.

(b) The parolee shall also be given a local revocation hearing if he admits (or has been convicted of) one or more charged violations, but denies at least one unadjudicated charge that may be determinative of the Commission's decision regarding revocation and/or reparole, and requests the presence of one or more adverse witnesses regarding that contested charge. If the appearance of such witness at the hearing is precluded by the Commission for good cause, a local revocation hearing shall not be ordered.

(c) If there are two or more alleged violations, the hearing may be conducted near the place of the violation chiefly relied upon as a basis for the issuance of the warrant or summons as determined by the Regional Commissioner.

(d)(1) A parolee shall be given an institutional revocation hearing upon the parolee's return or recommitment to an institution if the parolee:

(i) Voluntarily waives the right to a local revocation hearing; or

(ii) Admits (or has been convicted of) one or more charged violations without contesting any unadjudicated charge that may be determinative of the Commission's decision regarding revocation and/or reparole.

(2) On his own motion, the Regional Commissioner may designate any case described in paragraph (d)(1) of this section for a local revocation hearing. The difference in procedures between a “local revocation hearing” and an “institutional revocation hearing” is set forth in §2.50(c).

(e) A parolee retaken on a warrant issued by the Commission shall be retained in custody until final action relative to revocation of his release, unless otherwise ordered by the Regional Commissioner under §2.48(e)(2). A parolee who has been given a revocation hearing pursuant to the issuance of a summons under §2.44 shall remain on supervision pending the decision of the Commission.

(f) A local revocation hearing shall be scheduled to be held within sixty days of the probable cause determination. Institutional revocation hearings shall be scheduled to be held within ninety days of the date of the execution of the violator warrant upon which the parolee was retaken. However, if a parolee requests and receives any postponement or consents to a postponed revocation proceeding, or if a parolee by his actions otherwise precludes the prompt conduct of such proceedings, the above-stated time limits may be extended. A local revocation hearing may be conducted by a hearing examiner, hearing examiner panel, or other official designated by the Regional Commissioner.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3408, 3409, Jan. 16, 1979; 68 FR 41530, July 14, 2003]

§2.50   Revocation hearing procedure.

(a) The purpose of the revocation hearing shall be to determine whether the parolee has violated the conditions of his release and, if so, whether his parole or mandatory release should be revoked or reinstated.

(b) The alleged violator may present witnesses, and documentary evidence in his behalf. However, the presiding hearing officer or examiner panel may limit or exclude any irrelevant or repetitious statement or documentary evidence.

(c) At a local revocation hearing, the Commission may on the request of the alleged violator or on its own motion, request the attendance of persons who have given statements upon which revocation may be based. Those witnesses who are present shall be made available for questioning and cross-examination in the presence of the alleged violator unless the presiding hearing officer or examiner panel finds good cause for their non-attendance. Adverse witnesses will not be requested to appear at institutional revocation hearings.

(d) All evidence upon which the finding of violation may be based shall be disclosed to the alleged violator at or before the revocation hearing. The hearing officer or examiner panel may disclose documentary evidence by permitting the alleged violator to examine the document during the hearing, or where appropriate, by reading or summarizing the document in the presence of the alleged violator.

(e) In lieu of an attorney, an alleged violator may be represented at a revocation hearing by a person of his choice. However, the role of such non-attorney representative shall be limited to offering a statement on the alleged violator's behalf with regard to reparole or reinstatement to supervision.

(f) A revocation decision may be appealed under the provisions of §2.26 or §2.27 as applicable.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3408, Jan. 16, 1979; 51 FR 32785, Sept. 16, 1986; 52 FR 33409, Sept. 3, 1987]

§2.51   Issuance of a subpoena for the appearance of witnesses or production of documents.

(a)(1) Preliminary interview or local revocation hearing: If any person who has given information upon which revocation may be based refuses, upon request by the Commission to appear, the Regional Commissioner may issue a subpoena for the appearance of such witness. Such subpoena may also be issued at the discretion of the Regional Commissioner in the event such adverse witness is judged unlikely to appear as requested.

(2) In addition, the Regional Commissioner may, upon his own motion or upon a showing by the parolee that a witness whose testimony is necessary to the proper disposition of his case will not appear voluntarily at a local revocation hearing or provide an adequate written statement of his testimony, issue a subpoena for the appearance of such witness at the revocation hearing.

(3) Both such subpoenas may also be issued at the discretion of the Regional Commissioner if it is deemed necessary for orderly processing of the case.

(b) A subpoena issued pursuant to paragraph (a) of this section above may require the production of documents as well as, or in lieu of, a personal appearance. The subpoena shall specify the time and the place at which the person named therein is commanded to appear, and shall specify any documents required to be produced.

(c) A subpoena may be served by any Federal officer authorized to serve criminal process. The subpoena may be served at any place within the judicial district in which the place specified in the subpoena is located, or any place where the witness may be found. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person.

(d) If a person refuses to obey such subpoena, the Commission may petition a court of the United States for the judicial district in which the parole proceeding is being conducted, or in which such person may be found, to require such person to appear, testify, or produce evidence. The court may issue an order requiring such person to appear before the Commission, and failure to obey such an order is punishable by contempt.

§2.52   Revocation decisions.

(a) Whenever a parolee is summoned or retaken by the Commission, and the Commission finds by a preponderance of the evidence, that the parolee has violated a condition of the parole, the Commission may take any of the following actions:

(1) Restore the parolee to supervision including where appropriate:

(i) Reprimand;

(ii) Modification of the parolee's conditions of release;

(iii) Referral to a community corrections center for all or part of the remainder of his original sentence; or

(2) Revoke parole.

(b) If parole is revoked pursuant to this section, the Commission shall also determine, on the basis of the revocation hearing, whether reparole is warranted or whether the prisoner should be continued for further review.

(c) A parolee whose release is revoked by the Commission will receive credit on service of his sentence for time spent under supervision, except as provided below:

(1) If the Commission finds that such parolee intentionally refused or failed to respond to any reasonable request, order, summons or warrant of the Commission or any agent thereof, the Commission may order the forfeiture of the time during which the parolee so refused or failed to respond, and such time shall not be credited to service of the sentence.

(2) It is the Commission's interpretation of 18 U.S.C. 4210(b)(2) that, if a parolee has been convicted of a new offense committed subsequent to his release on parole, which is punishable by any term of imprisonment, detention, or incarceration in any penal facility, forfeiture of time from the date of such release to the date of execution of the warrant is an automatic statutory penalty, and such time shall not be credited to the service of the sentence. An actual term of confinement or imprisonment need not have been imposed for such conviction; it suffices that the statute under which the parolee was convicted permits the trial court to impose any term of confinement or imprisonment in any penal facility. If such conviction occurs subsequent to a revocation hearing the Commission may reopen the case and schedule a further hearing relative to time forfeiture and such further disposition as may be appropriate. However, in no event shall the violator term imposed under this subsection, taken together with the time served before release, exceed the total length of the original sentence.

(d)(1) Notwithstanding the above, prisoners committed under the Narcotic Addict Rehabilitation Act or the Youth Corrections Act shall not be subject to any forfeiture provision, but shall serve uninterrupted sentences from the date of conviction, except as provided in §2.10 (b) and (c).

(2) The commitment of a juvenile offender under the Federal Juvenile Delinquency Act may not be extended past the offender's twenty-first birthday unless the juvenile has attained his nineteenth birthday at the time of his commitment, in which case his commitment shall not exceed the lesser of two years or the maximum term which could have been imposed on an adult convicted of the same offense.

(e) In determining whether to revoke parole for non-compliance with a condition of fine, restitution, court costs or assessment, and/or court ordered child support or alimony payment, the Parole Commission shall consider the parolee's employment status, earning ability, financial resources, and any other special circumstances that may have a bearing on the matter. Revocation shall not be ordered unless the parolee is found to be deliberately evading or refusing compliance.

Appendix to §2.52—General Statement of Policy

In the case of any revocation hearing conducted within the Ninth Circuit, the Commission will exercise discretion in determining whether or not to order forfeiture of all or part of the time spent on parole pursuant to 18 U.S.C. 4210(b)(2). The Commission's policy shall be to consider granting credit for time on parole in the case of a parole violator originally classified in the very good risk category (pursuant to 28 CFR 2.20) if the following conditions are met. The conviction must not be for a felony offense. The parole violation behavior (the offense of conviction plus any other violations) must be non-violent, and not involve a repeat of the parole violator's original offense behavior. Further, an adequate period of reimprisonment pursuant to the reparole guidelines at 28 CFR 2.21, and an adequate period of renewed supervision following release from reimprisonment or reinstatement to supervision, must be available without forfeiting street time. In the case of a parole violator originally classified in other than the “very good risk” category, it shall be the Commission's policy to order the forfeiture of all time spent on parole absent extraordinary circumstances. In no instance will the Commission grant credit in the case of a repeat violator on the current sentence.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3408, 3410, Jan. 16, 1979; 50 FR 36422, Sept. 6, 1985; 53 FR 47187, Nov. 22, 1988; 55 FR 42185, Oct. 18, 1990; 68 FR 41530, July 14, 2003]

§2.53   Mandatory parole.

(a) A prisoner (including a prisoner sentenced under the Narcotic Addict Rehabilitation Act, Federal Juvenile Delinquency Act, or the provisions of 5010(c) of the Youth Corrections Act) serving a term or terms of 5 years or longer shall be released on parole after completion of two-thirds of each consecutive term or terms or after completion of 30 years of each term or terms of more than 45 years (including life terms), whichever comes earlier, unless pursuant to a hearing under this section, the Commission determines that there is a reasonable probability that the prisoner will commit any Federal, State, or local crime or that the prisoner has frequently or seriously violated the rules of the institution in which he is confined. If parole is denied pursuant to this section, such prisoner shall serve until the expiration of his sentence less good time.

(b) When feasible, at least 60 days prior to the scheduled two-thirds date, a review of the record shall be conducted by an examiner panel. If a mandatory parole is ordered following this review, no hearing shall be conducted.

(c) A prisoner released on mandatory parole pursuant to this section shall remain under supervision until the expiration of the full term of his sentence unless the Commission terminates parole supervision pursuant to §2.43 prior to the full term date of the sentence.

(d) A prisoner whose parole has been revoked and whose parole violator term is 5 years or more shall be eligible for mandatory parole under the provisions of this section upon completion of two-thirds of the violator term and shall be considered for mandatory parole under the same terms as any other eligible prisoner.

[43 FR 38822, Aug. 31, 1978]

§2.54   Reviews pursuant to 18 U.S.C. 4215(c).

The Attorney General, within thirty days after entry of a Regional Commissioner's decision, may request in writing that the National Appeals Board review such decision. Within sixty days of the receipt of the request the National Appeals Board shall, upon the concurrence of two members, affirm, modify, or reverse the decision, or order a rehearing at the institutional or regional level. The Attorney General and the prisoner affected shall be informed in writing of the decision, and the reasons therefor.

[42 FR 39821, Aug. 5, 1977, as amended at 43 FR 17470, Apr. 25, 1978; 44 FR 3408, Jan. 16, 1979]

§2.55   Disclosure of file prior to parole hearing.

(a) Processing disclosure requests. At least 60 days prior to a hearing scheduled pursuant to 28 CFR 2.12 or 2.14 each prisoner shall be given notice of his right to request disclosure of the reports and other documents to be used by the Commission in making its determination.

(1) The Commission's file consists mainly of documents provided by the Bureau of Prisons. Therefore, disclosure of documents used by the Commission can normally be accomplished by disclosure of documents in a prisoner's institutional file. Requests for disclosure of a prisoner's institutional file will be handled under the Bureau of Prison's disclosure regulations. The Bureau of Prisons has 15 days from date of receipt of a disclosure request to respond to that request.

(2) A prisoner may also request disclosure of documents used by the Commission which are contained in the Commission's regional office file but not in the prisoner's institutional file.

(3) Upon the prisoner's request, a representative shall be given access to the presentence investigation report reasonably in advance of the initial hearing, interim hearing, and a 15-year reconsideration hearing, pursuant and subject to the regulations of the U.S. Bureau of Prisons. Disclosure shall not be permitted with respect to confidential material withheld by the sentencing court under Rule 32(c)(3)(A), F.R.Crim.P.

(b) Scope of disclosure. The scope of disclosure under this section is limited to reports and other documents to be used by the Commission in making its determination. At statutory interim hearings conducted pursuant to 28 CFR 2.14 the Commission only considers information concerning significant developments or changes in the prisoner's status since the initial hearing or a prior interim hearing. Therefore, prehearing disclosure for interim hearings will be limited to such information.

(c) Exemption to disclosure (18 U.S.C. 4208(c)). A document may be withheld from disclosure to the extent it contains:

(1) Diagnostic opinions which, if known to the prisoner, could lead to a serious disruption of his institutional program;

(2) Material which would reveal a source of information obtained upon a promise of confidentiality; or

(3) Any other information which, if disclosed, might result in harm, physical or otherwise to any person.

(d) Summarizing nondisclosable documents. If any document or portion of a document is found by the Commission, the Bureau of Prisons or the originating agency to fall within an exemption to disclosure, the agency shall:

(1) Identify the material to be withheld; and

(2) State the exemption to disclosure under paragraph (c) of this section; and

(3) Provide the prisoner with a summary of the basic content of the material withheld with as much specificity as possible without revealing the nondisclosable information.

(e) Waiver of disclosure. When a timely request has been made for disclosure, if any document or summary of a document relevant to the parole determination has not been disclosed 30 days prior to the hearing, the prisoner shall be offered the opportunity to waive disclosure of such document without prejudice to his right to later review the document or a summary of the document. The examiner panel may disclose the document and proceed with the hearing so long as the prisoner waives his right to advance disclosure. If the prisoner chooses not to waive prehearing disclosure, the examiner panel shall continue the hearing to the next docket to permit disclosure. A continuance for disclosure should not be extended beyond the next hearing docket.

(f) Late received documents. If a document containing new and significant adverse information is received after a parole hearing but before all review and appellate procedures have been concluded, the prisoner shall be given a rehearing on the next docket. A copy of the document shall be forwarded to the institution for inclusion in the prisoner's institutional file. The Commission shall notify the prisoner of the new hearing and his right to request disclosure of the document pursuant to this section. If a late received document provides favorable information, merely restates already available information or provides insignificant information, the case will not be reopened for disclosure.

(g) Reopened cases. Whenever a case is reopened for a new hearing and there is a document the Commission intends to use in making its determination, a copy of the document shall be forwarded for inclusion in the prisoner's institutional file and the prisoner shall be informed of his right to request disclosure of the document pursuant to this section.

[50 FR 40374, Oct. 3, 1985]

§2.56   Disclosure of Parole Commission file.

(a) Procedure. Copies of disclosable records pertaining to a prisoner or a parolee which are contained in the subject's Parole Commission file may be obtained by that prisoner or parolee upon written request pursuant to this section. Such requests shall be answered as soon as possible in the order of their receipt. Other persons may obtain copies of such documents only upon proof of authorization from the prisoner or parolee concerned or to the extent permissible under the Freedom of Information Act or the Privacy Act of 1974.

(b) Scope of disclosure. Disclosure under this section shall extend to Commission documents concerning the prisoner or parolee making the request. Documents which are contained in the regional file and which are prepared by agencies other than the Commission which are also subject to the provisions of the Freedom of Information Act, shall be referred to the appropriate agency for a response pursuant to its regulations, unless the document has previously been prepared for disclosure pursuant to §2.55, or is fully disclosable on its face, or has been prepared by the Bureau of Prisons. Any Bureau of Prisons documents in a parole file are duplicates of records in the inmate's institutional file. Before referring these documents to the Bureau of Prisons (BOP), the Commission will ask the requestor whether he also wants the BOP documents in his parole file processed.

(1) Requests that are only for a copy of the tape recording of a hearing will be processed ahead of requests seeking multiple documents from the Parole Commission file (priority processing). A requester may limit the scope of the request to a tape recording only (or to a tape recording and/or up to two documents) and thereby qualify for priority processing. For example, a request for the tape recording and the examiner's summary of a hearing qualifies for priority processing.

(2) [Reserved]

(c) Exemptions to disclosure. A document or segregable portion thereof may be withheld from disclosure to the extent it contains material exempt from disclosure under the Freedom of Information Act. 5 U.S.C. 552(b)(1)-(9).

(d) Specification of documents withheld. Documents that are withheld pursuant to paragraph (c) of this section shall be identified for the requester together with the applicable exemption for withholding each document or portion thereof. In addition, the requester must be informed of the right to appeal any non-disclosure to the Office of the Chairman.

(e) Hearing record. Upon request by the prisoner or parolee concerned, the Commission shall make available a copy of any verbatim record (e.g., tape recording) which it has retained of a hearing, pursuant to 18 U.S.C. 4208(f).

(f) Costs. In any case in which billable costs exceed $14.00 (based upon the provisions and fee schedules as set forth in the Department of Justice regulation 28 CFR 16.10), requesters will be notified that they will be required to reimburse the United States for such costs before copies are released.

(g) Relation to other provisions. Disclosure under this section is authorized by 28 CFR 16.85 under which the Parole Commission is exempt from the record disclosure provisions of the Privacy Act of 1974, as well as certain other provisions of the Act pursuant to 5 U.S.C. 552a(j)(2). Requests submitted under the Freedom of Information Act or the Privacy Act for the requester's own records will be processed under this section. In no event will the Commission consider satisfaction of a request under this section, the Freedom of Information Act, or the Privacy Act of 1974, to be a prerequisite to an adequate parole hearing under 18 U.S.C. 4208 (for which disclosure is exclusively governed by §2.55 of this part) or to the exercise of a parole applicant's appeal rights under 18 U.S.C. 4215. Provisions of the Freedom of Information Act not specifically addressed by these regulations (including the reading room) are covered by 28 CFR, part 16, subpart A.

(h) Appeals—(1) Appeals to the Chairman. When a request for access to Parole Commission records or a waiver of fees has been denied in whole or in part, or when the Commission fails to respond to a request within the time limits set forth in the FOIA, the requester may appeal the denial of the request to the Chairman of the Commission within thirty days from the date of the notice denying the request. An appeal to the Chairman shall be made in writing and addressed to the Office of the Chairman, U.S. Parole Commission, 5550 Friendship Boulevard, Suite 420, Chevy Chase, Maryland 20815.

(2) Decision on appeal. A decision affirming in whole or in part the denial of a request shall include a brief statement of the reason or reasons for the affirmance, including each FOIA exemption relied upon and its relation to each record withheld, and a statement that judicial review of the denial is available in the U.S. district court for the judicial district in which the requester resides or has his principal place of business, the judicial district in which the requested records are located, or in the District of Columbia. If the denial of a request is reversed on appeal to the Chairman, the requester shall be so notified and the request shall be processed promptly by Commission staff in accordance with the Chairman's decision on appeal.

(i) Expedited processing of Requests. (1) The Commission will provide expedited processing of a request when a requester has demonstrated a compelling need as defined in this section and has presented a statement certified by such person to be true and correct to the best of such person's knowledge and belief. A requester may demonstrate “compelling need” by establishing one of the following:

(i) That failure to obtain the requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or

(ii) With respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged federal government activity.

(2) A determination as to whether to provide expedited processing shall be made within ten days after the date of the request. However, the fact of lawful imprisonment in a correctional facility or revocation of parole shall not be deemed to pose an imminent threat to the life or physical safety of an individual. The Commission shall process as soon as practicable any request for records to which it has granted expedited processing. An administrative appeal of a denial of expedited processing may be made to the Chairman of the Commission within thirty days from the date of notice denying expedited processing.

[50 FR 40375, Oct. 3, 1985, as amended at 52 FR 47921, Dec. 17, 1987; 53 FR 24933, July 1, 1988; 53 FR 47187, Nov. 22, 1988; 54 FR 27839, June 30, 1989; 58 FR 51780, Oct. 5, 1993; 62 FR 51602, Oct. 2, 1997]

§2.57   Special parole terms.

(a) The Drug Abuse Prevention and Control Act, 21 U.S.C. sections 801 to 966, provides that, on conviction of certain offenses, mandatory “special parole terms” must be imposed by the court as part of the sentence. This term is an additional period of supervision which commences upon completion of any period on parole or mandatory release supervision from the regular sentence; or if the prisoner is released without supervision, commences upon such release.

(b) At the time of release under the regular sentence, whether under full term expiration or under a mandatory release certificate or a parole certificate, a separate Special Parole Term certificate will be issued to the prisoner by the Bureau of Prisons.

(c) Should a parolee be found to have violated conditions of release during supervision under his regular sentence, i.e., before commencement of the Special Parole Term, he may be returned as a violator under his regular sentence; the Special Parole Term will follow unaffected, as in paragraph (a) of this section. Should a parolee violate conditions of release during the Special Parole Term he will be subject to revocation on the Special Parole Term as provided in §2.52, and subject to reparole or mandatory release under the Special Parole Term. Notwithstanding the provisions of §2.52(c), a special parole term violator whose parole is revoked shall receive no credit for time spent on parole pursuant to 21 U.S.C. 841(c).

(d) If a prisoner is reparoled under the revoked Special Parole Term a certificate of parole to Special Parole Term is issued by the Commission. If the prisoner is mandatorily released under the revoked “special parole term” a certificate of mandatory release to Special Parole Term will be issued by the Bureau of Prisons.

(e) If regular parole or mandatory release supervision is terminated under §2.43, the Special Parole Term commences to run at that point in time. Early termination from supervision from a Special Parole Term may occur as in the case of a regular parole term, except that the time periods considered shall commence from the beginning of the Special Parole Term.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3410, Jan. 16, 1979. Redesignated at 44 FR 26551, May 4, 1979, as amended at 54 FR 11689, Mar. 21, 1989]

§2.58   Prior orders.

Any order of the United States Board of Parole entered prior to May 14, 1976, including, but not limited to, orders granting, denying, rescinding or revoking parole or mandatory release, shall be a valid order of the United States Parole Commission according to the terms stated in the order.

[42 FR 39809, Aug. 5, 1977. Redesignated at 44 FR 26551, May 4, 1979]

§2.59   Delegation to Commissioners.

There is hereby delegated to Commissioners the authority to conduct hearings, with the Commissioner's consent, and the powers enumerated in 18 U.S.C. 4203(b) to grant or deny parole or mandatory release, impose reasonable conditions of parole or mandatory release, modify or revoke parole or mandatory release.

[83 FR 66125, Dec. 26, 2018]

§2.60   Superior program achievement.

(a) Prisoners who demonstrate superior program achievement (in addition to a good conduct record) may be considered for a limited advancement of the presumptive date previously set according to the schedule below. Such reduction will normally be considered at an interim hearing or pre-release review. It is to be stressed that a clear conduct record is expected; this reduction applies only to cases with documented sustained superior program achievement over a period of 9 months or more in custody.

(b) Superior program achievement may be demonstrated in areas such as educational, vocational, industry, or counseling programs, and is to be considered in light of the specifics of each case. A report from the Bureau of Prisons based upon successful completion of a residential substance abuse program of at least 500 hours will be given prompt review by the Commission for a possible advancement under this section.

(c) Upon a finding of superior program achievement, a previously set presumptive date may be advanced. The normal maximum advancement permissible for superior program achievement during the prisoner's entire term shall be as set forth in the following schedule. It is the intent of the Commission that this maximum be exceeded only in the most clearly exceptional cases.

(d) Partial advancements may be given (for example, a case with superior program achievement during only part of the term or a case with both superior program achievement and minor disciplinary infraction(s)). Advancements may be given at different times; however, the limits set forth in the following schedule shall apply to the total combined advancement.

(e) Schedule of Permissible Reductions for Superior Program Achievement.

Total months required by
original presumptive date
Permissible reduction
14 months or lessNot applicable.
15 to 22 monthsUp to 1 month.
23 to 30 monthsUp to 2 months.
31 to 36 monthsUp to 3 months.
37 to 42 monthsUp to 4 months.
43 to 48 monthsUp to 5 months.
49 to 54 monthsUp to 6 months.
55 to 60 monthsUp to 7 months.
61 to 66 monthsUp to 8 months.
67 to 72 monthsUp to 9 months.
73 to 78 monthsUp to 10 months.
79 to 84 monthsUp to 11 months.
85 to 90 monthsUp to 12 months.
91 plus monthsUp to 13 months.1

1Plus up to 1 additional month for each 6 months or fraction thereof, by which the original date exceeds 96 months.

(f) For cases originally continued to expiration, the statutory good time date (calculated under 18 U.S.C. 4161) will be used for computing the maximum reduction permissible and as the base from which the reduction is to be subtracted for prisoners serving sentences of less than five years. For prisoners serving sentences of five or more, the two-thirds date (calculated pursuant to 18 U.S.C. 4206(d)) will be used for these purposes. If the prisoner's presumptive release date has been further reduced by extra good time (18 U.S.C. 4162) and such reduction equals or exceeds the reduction applicable for superior program achievement, the Commission will not give an additional reduction for superior program achievement.

[44 FR 55004, Sept. 24, 1979; 44 FR 59527, Oct. 16, 1979, as amended at 49 FR 26580, June 28, 1984; 61 FR 4351, Feb. 6, 1996]

§2.61   Qualifications of representatives.

(a) A prisoner or parolee may select any person to appear as his or her representative in any proceeding, and any representative will be deemed qualified unless specifically disqualified under paragraph (b) or (c) of this section. However, an examiner or examiner panel may bar an otherwise qualified representative from participating in a particular hearing, provided good cause for such action is found and stated in the record (e.g., willfully disruptive conduct during the hearing by repeated interruption or use of abusive language). In certain situations, good cause may be found in advance of the hearing (e.g., that the proposed representative is a prisoner in disciplinary segregation whose presence at the hearing would pose a risk to security, or has a personal interest in the case which appears to conflict with that of the parole applicant).

(b) The Commission may disqualify any representative from appearing before it for up to a five-year period if, following a hearing, the Commission finds that the representative has engaged in any conduct which demonstrates a clear lack of personal integrity or fitness to practice before the Commission (including, but not limited to, deliberate or repetitive provision of false information to the Commission, or solicitation of clients on the strength of purported personal influence with U.S. Parole Commissioners or staff).

(c)(1) In addition to the prohibitions contained in 18 U.S.C. 207, no former employee of any Federal criminal justice agency (in either the Executive or Judicial Branch of the Government) with the exception of the Federal Defender Service, shall be qualified to act as a representative for hire in any case before the Commission for one year following termination of Federal employment. However, such persons may be employed by, or perform consulting services for, a private firm or other organization providing representation before the agency, to the extent that such employment or service does not include the performance of any representational act before the Commission.

(2) No prisoner or parolee may serve as a representative before the Commission, at the hire of individual clients, in any case.

[48 FR 14377, Apr. 4, 1983, as amended at 48 FR 44528, Sept. 29, 1983]

§2.62   Rewarding assistance in the prosecution of other offenders; criteria and guidelines.

(a) The Commission may consider as a factor in the parole release decision-making a prisoner's assistance to law enforcement authorities in the prosecution of other offenders.

(1) The assistance must have been an important factor in the investigation and/or prosecution of an offender other than the prisoner. Other significant assistance (e.g., providing information critical to prison security) may also be considered.

(2) The assistance must be reported to the Commission in sufficient detail to permit a full evaluation. However, no promises, express or implied, as to a Parole Commission reward shall be given any weight in evaluating a recommendation for leniency.

(3) The release of the prisoner must not threaten the public safety.

(4) The assistance must not have been adequately rewarded by other official action.

(b) If the assistance meets the above criteria, the Commission may consider providing a reduction of up to one year from the presumptive parole date that the Commission would have deemed warranted had such assistance not occurred. If the prisoner would have been continued to the expiration of sentence, any reduction will be taken from the actual date of the expiration of the sentence. Reductions exceeding the one year limit specified above may be considered only in exceptional circumstances.

(c) In the case of an eligible DC Code prisoner whose assistance meets the criteria of this section, the Commission may consider deducting a point under Category V of the Point Assignment Table at §2.80, in addition to any other deduction for positive program achievement, when considering such prisoner for parole. In the case of a DC Code prisoner with an unserved minimum term, the Commission may consider filing an application under §2.76 for a reduction of up to one-third of such term less applicable good time.

[52 FR 44389, Nov. 19, 1987. Redesignated at 63 FR 39176, July 21, 1998, as amended at 64 FR 5613, Feb. 4, 1999]

§2.63   Quorum and voting requirements.

(a) A quorum of the Commission consists of the majority of those Commissioners holding office at the time an action is under consideration. Any action authorized by law may be decided by the majority vote of the Commissioners holding office at the time the action is taken. Voting requirements in parole decision-making are established in other provisions of this part, including paragraphs (b) and (c) of this section.

(b)(1) In the event of a tie vote of the Commission's membership on an issue that requires the vote or authorization of the Commission, the issue that is the subject of the vote is not adopted by the Commission.

(2) If the matter that is the subject of the tie vote is whether to reopen or reconsider a previous decision of the Commission, the previous decision shall remain in effect. This includes decisions as to whether to rescind a parole date, to revoke parole or supervised release, or to grant parole after parole has been denied under 18 U.S.C. 4206(d).

(3) If the matter that is the subject of a tie vote is whether to grant parole at any initial hearing, 15-year reconsideration hearing, or D.C. Code rehearing, that decision shall be the Commissioner vote that is in agreement with the hearing examiner panel. If there is a tie vote and no commissioner agrees with the hearing examiner panel, then the decision will be the Commissioner's vote most favorable to the prisoner.

(4) If the matter that is the subject of the tie vote is whether to grant or deny release at the two-thirds date of the sentence per 18 U.S.C. 4206(d), or to terminate parole after the parolee has been on parole for 5 years per 18 U.S.C. 4211(c) and D.C. Code sec. 24-404(a-1)(3), the prisoner must be granted release under the statute or parole must be terminated respectively.

(5) If the matter that is the subject of a tie vote is a decision under appellate review per §2.26, if no concurrence is reached, the decision under appellate review shall be considered affirmed. This rule also applies to decisions under §2.17 to remove a case from the original jurisdiction of the Commission.

(6) The Commission may re-vote on a case disposition to resolve a tie vote or other impasse in satisfying a voting requirement of these rules.

(c) If there is only one Commissioner holding office, all provisions in these rules requiring concurring votes or resolving split decisions are suspended until the membership of the Commission is increased, and any action may be taken by one Commissioner.

[83 FR 58499, Nov. 20, 2018]

§2.64   Youth Corrections Act.

(a) The provisions of this section only apply to offenders serving sentences imposed under former 18 U.S.C. section 5010 (b) and (c).

(b) Approval of program plans. (1) The criteria outlined in paragraph (d) of this section (on determining successful response to treatment) shall be considered in determining whether a proposed program plan will effectively reduce the risk to the public welfare presented by the YCA prisoner's release.

(2) If the prisoner's program plan has not already been approved by the Commission, the examiner panel shall be given the plan at a hearing for review and approval. The examiners shall indicate their approval or disapproval of the program plan (with relevant comments and recommendations) in the hearing summary.

(3) If the examiners consider the plan inadequate, they will discuss their concerns with institutional staff. If there is still a disagreement on the plan, the case will be referred to the Bureau's regional correctional programs administrator with the recommended changes. Unresolved disputes concerning the adequacy of the program plan shall be decided by the Regional Commissioner and the Regional Director of the Bureau of Prisons. The Regional Commissioner shall render the final decision on approving or disapproving each program plan on behalf of the Commission. Once the program plan has been approved, subsequent approvals are not necessary, unless significant modifications are made by institutional staff.

(c) Parole hearings and progress reports. (1) Initial hearings shall be conducted in accordance with §§2.12 and 2.13. The examiner panel will discuss with the prisoner and a staff member who is knowledgeable about the case the program plan and the importance of good conduct and program participation is setting the release date.

(2) An interim hearing must be scheduled for an inmate every nine months if the inmate is serving a sentence of less than seven years. If the inmate is serving a sentence of seven years or more, the interim hearing must be scheduled every twelve months. If the inmate has been continued to the expiration of his sentence, and he has less than twelve months remaining to be served prior to his release or his transfer to a community corrections center, no further hearing is required. In addition, within 60 days of receipt of any special progress report from the warden recommending parole, the prisoner shall be scheduled for a special interim hearing, unless the recommendation can be timely considered at a regularly scheduled interim hearing. An institutional staff member who has personal knowledge of the case shall be present to assist the examiners in their evaluation of the prisoner's conduct, program performance, and response to treatment.

(3) After any interim hearing or review on the record, the Commission may advance the presumptive release date, let the date stand, or retard/rescind the date if the prisoner has committed disciplinary infractions or new criminal conduct.

(4) An interim hearing will not be scheduled after receipt of a progress report, if the Commission decides on the record to parole the prisoner as soon as a release plan is approved (normally within 60 days of the decision).

(5) The institution shall send a progress report to the Commission:

(i) No more than 60 days before each interim hearing;

(ii) Upon determining that a prisoner should be recommended for parole; and

(iii) Before presumptive parole date to allow for the pre-release record review under §2.14(b).

The warden may forward progress reports to the Commission at other times in his discretion. Progress reports shall also be sent to the Commission every six months for prisoners who have waived interim hearings to enable the Commission to verify that these prisoners have satisfied the conditions of securing their release on an alternative parole date granted under the former YCA compliance plan (i.e., completion of the program plan) or the normal presumptive release date (i.e., obedience to institutional rules).

(6) For prisoners granted earlier parole dates under former compliance plans in Watts v. Bleaski: A prisoner may waive interim hearings under this section, in which case he would retain an alternative parole date previously granted to him or a presumptive parole date granted as a result of a finding that the prisoner had responded to treatment. A prisoner who waives an interim hearing under this section may, at any time, re-apply for the hearing and be considered under this section in accordance with the application/waiver provisions at §2.11. The Commission will not review the program plans for prisoners who waive interim hearings pursuant to this paragraph, unless the prisoner subsequently is scheduled for a hearing to consider new criminal conduct or a rule infraction and a modification of the original program plan appears warranted due to the prisoner's new criminal offense or infraction. If the prisoner is scheduled for a hearing that may not be waived (e.g., an interim hearing where there has been a finding of a disciplinary infraction since the last hearing, or any hearing scheduled pursuant to §2.28 (b) through (f), this section will be applied at such hearing.

(7) Warden's recommendation. Based on the completion of the program by the prisoner, and the quality of effort demonstrated by the prisoner in completing the plan, the warden will recommend to the Commission a conditional release date for its consideration. This recommendation shall be accompanied by a report on the prisoner's participation and level of achievement in different aspects of his program.

(d) Criteria for finding successful response to treatment programs. (1) In determining whether a prisoner has successfully “responded to treatment” the Commission shall examine whether the prisoner has shown that he has received sufficient corrective training, counseling, education, and therapy that the public would not be endangered by his release. See former 18 U.S.C. 5006(f) (definition of “treatment” under the YCA). The Bureau of Prisons shall assist the Commission in this determination by informing the Commission when the prisoner has completed his program plan and by advising the Commission of the quality of effort demonstrated by the prisoner in completing the plan.

(2) In determining the extent of a prisoner's positive response to treatment, the Commission shall examine the degree by which the prisoner has increased the likelihood that his release would not jeopardize public welfare through his program performance and conduct record. See 18 U.S.C. 4206(a)(2). The starting report for the analysis of a prisoner's response to treatment will be the original parole prognosis reached by the use of the salient factor score, and an evaluation of the nature of the prisoner's prior criminal history and other characteristics of the prisoner. The nature of the current offense may also be considered in determining the risk to the public welfare presented by the prisoner's release. The Commission will then proceed to evaluate whether the prisoner's program participation and institutional conduct has improved the original risk prognosis and evidences an alteration of his valued system, including an understanding of the wrongfulness of his past criminal conduct. For those prisoners who have exhibited serious or violent criminal behavior, the Commission will exercise more caution in making a finding that the prisoner has responded to treatment to the degree that he should be released.

(3) With regard to program performance, significant weight will be given to the following factors in determining a prisoner's response to treatment. This is not intended as an exhaustive list.

(i) Vocational training: Where the inmate originally had few job skills, the acquisition of a marketable job skill through vocational training or an apprenticeship program.

(ii) Education: Participation in educational programs to acquire an educational level at least the level of a high school graduate.

(iii) Psychological counseling and therapy: Where the prisoner's behavior has shown that he may be affected by personality disorders or a mental illness that has hampered his ability to lead a law-abiding life, or that he may otherwise benefit from such programs, participation in psychological and/or other specialized programs which lead to a judgment by the therapist/counselor that the prisoner has significantly improved his ability to obey the law and favorably modified his value system. Participation in these programs will normally be required for a significant advancement of the presumptive release date for a prisoner who has either committed or attempted a crime of violence.

(iv) Drug/alcohol abuse programs: Where the prisoner has a history of drug/alcohol abuse, participation in a drug/alcohol abuse program which leads to the judgment by the therapist/counselor that there is a significant likelihood that the prisoner will not revert to drug/alcohol abuse and has thereby significantly improved his ability to obey the law.

(v) Work: Assuming the prisoner is physically and mentally able to do so and is not otherwise engaged in an institutional activity which prevents him from obtaining a job, participation in a job on a regular basis so as to demonstrate a stable life pattern and a favorable modification of his value system.

(4) Prison misconduct (i.e., disobedience to institutional rules, escape) and new criminal conduct in the institution shall be considered in the decision as to whether (or to what degree) a prisoner has successfully responded to treatment. The rescission guidelines of 2.36 shall be used in retarding or rescinding the original presumptive release date set according to the guidelines and the factors described in 18 U.S.C. 4206. If the original presumptive date has been advanced based on response to treatment, the rescission guidelines may also be used to retard or rescind the new date to maintain institutional discipline, if the misconduct is not deemed serious enough to affect the decision that the prisoner has responded to treatment. But misconduct subsequent to the advancement of a release date based on a finding of response to treatment may also result in a reversal of that finding and the cancellation of any advancement of the original presumptive release date.

(e) Setting the parole date (balancing section 4206 factors with response to treatment). At any hearing or review on the record, the presumptive release date may be advanced if it is determined that the prisoner has responded to a sufficient degree to his treatment programs. The amount of the advancement should be proportional to the degree of response evidenced by the prisoner. In making the advancement, no rule restricting the amount of the reduction—whether based on the guidelines (§2.20) or the rule on superior program achievement (§2.60)—shall be used. The decision will be the result of a case-by-case evaluation in which response to treatment programs, the seriousness of the offense, and the original parole prognosis are all weighed by the Commission with no one factor capable of excluding all others.

(f) Parole violators. Parole violators returned to an institution following a local revocation hearing shall normally be considered for reparole under this section at a hearing within six months of their arrival at the institution.

(g) Early termination from supervision. (1) A review of the YCA parolee's file will be conducted at the conclusion of each year of supervision (following receipt of the annual progress report—Form F-3) and six months prior to the expiration of his sentence (after receipt of the final report).

(2) A YCA parolee shall not be continued on supervision beyond the time periods specified in the early termination guidelines (§2.43), unless case-specific factors indicate further supervision is warranted. The guidelines at §2.43 shall not be routinely used to deny early discharge to a YCA parolee who has yet to complete two (or three) years of clean supervision.

(3) The Commission shall consider the facts and circumstances of each YCA parolee's case, focusing on the risk he poses to the public and the benefit he may obtain from further supervision. The nature of the offense and parolee's past criminal record shall be taken into account only to evaluate the risk that the parolee may still pose to the public.

(4) In denying early discharge, the Commission shall inform the probation office by letter (with a copy to the YCA parolee) of the reasons for continued supervision. The reasons should pertain, whenever possible, to the facts and circumstances of the YCA parolee's case. If there are no case-specific factors which indicate that discharge should be either granted to denied and further supervision appears warranted, the Commission may inform the YCA parolee that he is continued on supervision because of its experience with similarly situated offenders.

[53 FR 49654, Dec. 9, 1988, as amended at 55 FR 289, Jan. 4, 1990. Redesignated at 63 FR 39176, July 21, 1998, and amended at 68 FR 41530, July 14, 2003]

§2.65   Paroling policy for prisoners serving aggregate U.S. and D.C. Code sentences.

(a) Applicability. This regulation applies to all prisoners serving any combination of U.S. and D.C. Code sentences that have been aggregated by the U.S. Bureau of Prisons. Such individuals are considered for parole on the basis of a single parole eligibility and mandatory release date on the aggregate sentence. Pursuant to §2.5, every decision made by the Commission, including the grant, denial, and revocation of parole, is made on the basis of the aggregate sentence.

(b) Basic policy. The Commission shall apply the guidelines at §2.20 to the prisoner's U.S. Code crimes, and the guidelines of the District of Columbia Board of Parole to the prisoner's D.C. Code crimes.

(c) Determining the federal guideline range. The Commission shall first consider the U.S. Code offenses pursuant to the guidelines at §2.20, and shall determine the appropriate number of months to be served (the prisoner's “federal time”). The Commission shall deem the “federal time” to have commenced with the prisoner's initial commitment on the current aggregate sentence, including jail time.

(d) Decisions above the federal guideline range. The “federal time” thus determined may be a decision within, below or above the federal guidelines, but it shall not exceed the limit of the U.S. Code sentence, i.e., the number of months that would be required by the statutory release date if the U.S. Code sentence is less than five years, or the two-thirds date if the U.S. Code sentence is five years or more. The D.C. Code criminal behavior may not be used as an aggravating offense factor, but may be used as predictive basis for exceeding the federal guideline range to account for the actual degree and/or seriousness of risk.

(e) Scheduling the D.C. parole hearing. The Commission shall then schedule a D.C. parole hearing to be conducted not later than four months prior to the parole eligibility date, or the expiration of the “federal time,” whichever is later. At the D.C. parole hearing the Commission shall apply the point score system of the D.C. Board of Parole, pursuant to the regulations of the D.C. Board of Parole, to determine the prisoner's suitability for release on parole.

(f) Granting parole. In determining whether or not to grant parole pursuant to the point score system of the D.C. Board of Parole, and the length of any continuance for a rehearing if parole is denied, the Commission shall presume that the eligible prisoner has satisfied basic accountability for the D.C. Code offense behavior. However, the Commission retains the authority to consider any unusual offense circumstances pursuant to 28 DCMR 204.22 to deny parole despite a favorable point score, and to set a rehearing date beyond the ordinary schedule. The Commission shall also consider whether the totality of the prisoner's offense behaviors (U.S. and D.C. Code) warrants a continuance to reflect the true seriousness or the degree of the risk that the release of the prisoner would pose for the public welfare. Nonetheless, the Commission shall not deny parole or order a continuance, solely on the ground of punishment for the U.S. Code offenses standing alone, or on grounds that have been adequately accounted for in a decision to exceed the federal guideline range.

(g) Hearings. The Commission shall, in accordance with §2.12 of these regulations, conduct an initial hearing to determine the federal time. This portion of the decision shall be subject to appeal pursuant to §2.26 of these regulations. A D.C. parole hearing to determine the prisoner's suitability for parole under the D.C. guidelines shall be conducted as ordered at the initial hearing. Prior to the D.C. parole hearing, statutory interim hearings shall be conducted pursuant to §2.14 of these regulations, including an interim hearing at eligibility on the aggregate sentence if no other interim hearing would be held. After the D.C. parole hearing, rehearings shall be conducted pursuant to the rules and policy guidelines of the D.C. Board of Parole, if release on parole is not granted.

(h) Revocation decisions. Violations of parole are violations on the aggregate sentence, and a parole violation warrant is therefore issued under the authority of the aggregate sentence. With regard to the reparole decision, the Commission shall follow the guidelines at §2.21 of these rules, but rehearings shall be scheduled according to the guidelines of the D.C. Board of Parole.

(i) Forfeiture of parole time. All time on parole shall be forfeited if required under §2.52(c) and §2.105(d) of this part. If not, the Commission shall divide the total time on parole according to the proportional relationship of the DC sentence to the U.S. sentence, and shall order the forfeiture of the portion corresponding to the DC sentence pursuant to §2.105(d). For example, if the parolee is serving a two-year DC Code sentence and a three-year U.S. Code sentence, the DC sentence is two fifths, or 40 percent, of the aggregate sentence (five years). If the parolee was on parole 100 days and parole is revoked for a misdemeanor conviction, a period of 40 days is subject to possible forfeiture under §2.105(d).

[54 FR 27842, June 30, 1989, as amended at 57 FR 41395, 41396, Sept. 10, 1992. Redesignated at 63 FR 39176, July 21, 1998, and amended at 68 FR 41530, July 14, 2003; 74 FR 28604, June 17, 2009; 74 FR 29940, June 24, 2009; 75 FR 9519, Mar. 3, 2010]

§2.66   Revocation decision without hearing.

(a) If the releasee agrees to the decision, the Commission may make a revocation decision without a hearing if—

(1) The alleged violation would be graded no higher than Category Two under the guidelines at §2.20;

(2) The alleged violation is in any category under the guidelines at §2.20 and the decision imposes the maximum sanction authorized by law; or

(3) The Commission determines that the releasee has already served sufficient time in custody as a sanction for the violation but that forfeiture of time on parole is necessary to provide an adequate period of supervision.

(b) A releasee who agrees to such a disposition shall indicate such agreement by—

(1) Accepting the decision proposed by the Commission in the Notice of Eligibility for Expedited Revocation Procedure that the Commission sent to the releasee, thereby agreeing that the releasee does not contest the validity of the charge and waives a revocation hearing; or

(2) Offering in writing, before the finding of probable cause or at a probable cause hearing, not to contest the validity of the charge, to waive a revocation hearing, and to accept a decision that is at the bottom of the applicable guideline range as determined by the Commission if the violation would be graded no higher than Category Two under the guidelines at §2.20, or is the maximum sanction authorized by law.

(c) An alleged violator's agreement under this provision shall not preclude the Commission from taking any action authorized by law or limit the statutory consequences of a revocation decision.

(d) Special procedures for swift and short-term sanctions for administrative violations of supervision. (1) An alleged violator may, at the time of the probable cause hearing or preliminary interview, waive the right to a revocation hearing and apply in writing for an immediate prison sanction of no more than 8 months. Notwithstanding the reparole guidelines at §2.21, the Commission will consider such a sanction if—

(i) The releasee has not already postponed the initial probable cause hearing/preliminary interview by more than 30 days;

(ii) The charges alleged by the Commission do not include a violation of the law;

(iii) The releasee has accepted responsibility for the violations;

(iv) The releasee has agreed to modify the non-compliant behavior to successfully complete any remaining period of supervision; and

(v) The releasee has not already been sanctioned pursuant to this paragraph (d)(1).

(2) A sanction imposed pursuant to paragraph (d)(1) of this section may include any other action authorized by §2.52, §2.105, or §2.218.

(3) Any case not approved by the Commission for a revocation sanction pursuant to paragraph (d)(1) of this section shall receive the normal revocation hearing procedures including the application of the guidelines at §2.21.

Note to paragraph (d). For purpose of paragraph (d)(1) of this section only, the Commission will consider the sanctioning of the following crimes as administrative violations if they have been charged only as misdemeanors:

1. Public Intoxication

2. Possession of an Open Container of Alcohol

3. Urinating in Public

4. Traffic Violations

5. Disorderly Conduct/Breach of Peace

6. Driving without a License or with a revoked/suspended license

7. Providing False Information to a Police Officer

8. Loitering

9. Failure to Pay court ordered support (i.e. child support/alimony)

10. Solicitation/Prostitution

11. Resisting Arrest

12. Reckless Driving

13. Gambling

14. Failure to Obey a Police Officer

15. Leaving the Scene of an Accident (only if no injury occurred)-

16. Hitchhiking

17. Vending without a License

18. Possession of Drug Paraphernalia (indicating purpose of personal use only)

19. Possession of a Controlled Substance (for personal use only)

[72 FR 53115, Sept. 18, 2007, as amended at 80 FR 52984, Sept. 2, 2015]

Subpart B—Transfer Treaty Prisoners and Parolees

§2.68   Prisoners transferred pursuant to treaty.

(a) Applicability, jurisdiction and statutory interpretation. (1) Prisoners transferred pursuant to treaty (transferees) who committed their offenses on or after November 1, 1987, shall receive a special transferee hearing pursuant to the procedures found in this section and 18 U.S.C. 4106A. Transferees who committed their offenses prior to November 1, 1987, are immediately eligible for parole and shall receive a parole hearing pursuant to procedures found at 28 CFR 2.13. The Parole Commission shall treat the foreign conviction as though it were a lawful conviction in a United States District Court.

(2) The jurisdiction of the Commission to set a release date and periods and conditions of supervised release extends until the transferee is released from prison or the transferee's case is otherwise transferred to a district court pursuant to an order of the Commission.

(3) It is the Commission's interpretation of 18 U.S.C. 4106A that every transferee is entitled to a release date determination by the Commission after considering the applicable sentencing guidelines in effect at the time of the hearing. Upon release from imprisonment the transferee may be required to serve a period of supervised release pursuant to section 5D1.2 of the sentencing guidelines. The combination of the period of imprisonment that results from the release date set by the Commission and the period of supervised release shall not exceed the full term of the sentence imposed by the foreign court. The combined periods of imprisonment and supervised release may be less than the full term of the sentence imposed by the foreign court unless the applicable treaty is found to require otherwise.

(4) The applicable offense guideline provision is determined by selecting the offense in the U.S. Code that is most similar to the offense for which the transferee was convicted in the foreign court. In so doing, the Commission considers itself required by law and treaty to respect the offense definitions contained in the foreign criminal code under which the prisoner was convicted, as well as the official documents supplied by the foreign court.

(5) The release date that is determined by the Commission under 18 U.S.C. 4106A(b)(1)(A) is a prison release determination and does not represent the imposition of a new sentence for the transferee. However, the release date shall be treated by the Bureau of Prisons as if it were the full term date of a sentence for the purpose of establishing a release date pursuant to 18 U.S.C. 4105(c)(1). The Bureau of Prisons release date shall supersede the release date established by the Parole Commission under 18 U.S.C. 4106A and shall be the date upon which the transferee's period of supervised release commences. If the Commission has ordered “continue to expiration,” the 4106A release date is the same as the full term date of the foreign sentence. It is the Commission's interpretation of 18 U.S.C. 4105(c)(1) that the deduction of service credits in either case does not operate to reduce the foreign sentence or otherwise limit the Parole Commission's authority to establish a period of supervised release extending from the date of actual release from prison to the full term date of the foreign sentence.

(6) If the Commission sets a release date under 18 U.S.C. 4106A(b)(1)(A) that is earlier than the mandatory release date established by the Bureau of Prisons under 18 U.S.C. 4105(c)(1), then the release date set by the Commission controls. If the release date set by the Commission under 18 U.S.C. 4106A(b)(1)(A) is equal to or later than the mandatory release date established by the Bureau of Prisons under 18 U.S.C. 4105(c)(1), then the mandatory release date established by the Bureau of Prisons controls.

(7) It is the Commission's interpretation of 18 U.S.C. 4106A that U.S. Code provisions for mandatory minimum terms of imprisonment and supervised release, as well as sentencing guideline provisions implementing such U.S. Code requirements (e.g., section 5G1.1(b) of the sentencing guidelines), were not intended by Congress to be applicable in an 18 U.S.C. 4106A(b)(1)(A) determination. Alternatively, it is the Commission's position that there is good cause in every transfer treaty case for a departure from any statutorily required minimum sentence provision in the sentencing guidelines, including section 5G1.1(b) of the sentencing guidelines, because Congress did not enact mandatory sentence laws with transferees in mind. Thus, in every transfer treaty case, the release date will be determined through an exercise of Commission discretion, according to the sentencing guideline range that is derived from a case-specific “similar offense” determination, rather than by reference to any provision concerning mandatory minimum sentences of imprisonment or terms of supervised release.

(b) Interview upon entry. Following the transferee's entry into the United States, the transferee shall, without unnecessary delay, be interviewed by a United States Probation Officer who shall inform the transferee of his rights under this regulation. The transferee shall be given the appropriate forms for appointment of counsel pursuant to 18 U.S.C. 3006(A) at the interview if appointment of counsel is requested.

(c) Postsentence report. A postsentence investigation report, which shall include an estimated sentencing classification and sentencing guideline range, shall be prepared by the probation office in the district of entry (or the transferee's home district). Disclosure of the postsentence report shall be made as soon as the report is completed, by delivery of a copy of the report to the transferee and his or her counsel (if any). Confidential material contained in the postsentence investigation report may be withheld pursuant to the procedures of 18 U.S.C. 4208(c). Copies of all documents provided by the transferring country relating to the transferee shall be appended to the postsentence report when disclosed to the transferee and when transmitted to the Commission.

(d) Opportunity to object. The transferee (or counsel) shall have thirty calendar days after disclosure of the postsentence report to transmit any objections to the report he or she may have, in writing, to the Commission with a copy to the probation officer. The Commission shall review the objections and may request that additional information be submitted by the probation officer in the form of an addendum to the postsentence report. Any disputes of fact or disputes concerning application of the sentencing guidelines shall be resolved at the special transferee hearing.

(e) Special transferee hearing. A special transferee hearing shall be conducted within 180 days from the transferee's entry into the United States, or as soon as is practicable following completion of the postsentence report along with any corrections or addendum to the report and appointment of counsel for an indigent transferee.

(1) Waivers. The transferee may waive the special transferee hearing on a form provided for that purpose, and the Commission may either:

(A) Set a release date that falls within 60 days of receipt of the waiver and establish a period and conditions of supervised release; or

(B) Reject the waiver and schedule a hearing.

(2) Short-term cases. In the case of a transferee who has less than six months from the date of his entry into the United States to his release date as calculated by the Bureau of Prisons under 18 U.S.C. 4105, the Commission may, without conducting a hearing or awaiting a waiver, set a release date and a period and conditions of supervised release. In such cases, the period of supervised release shall not exceed the minimum necessary to satisfy the applicable sentencing guideline (but may extend to the full-term of the foreign sentence if such period is shorter than the minimum of applicable sentencing guideline). The transferee may petition the Commission for a more favorable decision within 60 days of the Commission's determination, and the Commission may act upon the petition regardless of whether or not the transferee has been released from prison.

(f) Representation. The transferee shall have the opportunity to be represented by counsel (retained by the transferee or, if financially unable to retain counsel, counsel shall be provided pursuant to 18 U.S.C. 3006(A)), at all stages of the proceeding set forth in this section. The transferee may select a non-lawyer representative as provided in 28 CFR 2.61.

(g) The decisionmaking criteria. The Commission will consider the United States Sentencing Guidelines as advisory guidelines in making its decisions, as though the transferee were convicted in a United States District Court of a statutory offense most nearly similar to the offense of which the transferee was convicted in the foreign court. The Commission shall take into account the offense definition under foreign law, the length of the sentence permitted by that law, and the underlying circumstances of the offense behavior, to establish a guideline range that fairly reflects the seriousness of the offense behavior committed in the foreign country.

(h) Hearing procedures. Special transferee hearings shall be conducted by a hearing examiner. Each special transferee hearing shall be recorded by the hearing examiner. The following procedures shall apply at a special transferee proceeding, unless waived by the transferee:

(1) The examiner shall inquire whether the transferee and his counsel have had an opportunity to read and discuss the postsentence investigation report and whether the transferee is prepared to go forward with the hearing. If not, the transferee shall be given the opportunity to continue the hearing.

(2) The transferee shall have an opportunity to present documentary evidence and to testify on his own behalf.

(3) Oral testimony of interested parties may be taken with prior advance permission of the Regional Commissioner.

(4) The transferee and his counsel shall be afforded the opportunity to comment upon the guideline estimate contained in the postsentence investigation report (and the addendum, if any), and to present arguments and information relating to the Commission's final guideline determination and decision.

(5) Disputes of material fact shall be resolved by a preponderance of the evidence, with written recommended findings by the examiner unless the examiner determines, on the record, not to take the controverted matter into account.

(6) The transferee shall be notified of the examiner's recommended findings of fact, and the examiner's recommended determination and reasons therefore, at the conclusion of the hearing. The case shall thereafter be reviewed by a second hearing examiner, and the Commission shall make its determination upon a panel recommendation.

(i) Final decision. (1) The Commission shall render a decision as soon as practicable and without unnecessary delay. Upon review of the examiner panel recommendation, the Commissioner may make the decision by concurring with the panel recommendation. If the Commissioner does not concur, the Commissioner shall refer the case to another Commissioner and the decision shall be made on the concurring votes of two Commissioners. The decision shall set a release date and a period and conditions of supervised release. If the Commission determines that the appropriate release date under 18 U.S.C. 4106A is the full term date of the foreign sentence, the Commission will order the transferee to “continue to expiration.”

(2) Whenever the Bureau of Prisons applies service credits under 18 U.S.C. 4105 to a release date established by the Commission, the release date used by the Bureau of Prisons shall be the date established by the Parole Commission pursuant to the sentencing guidelines and not a date that resulted from any adjustment made to achieve comparable punishment with a similarly-situated U.S. Code offender. The application of service credits under 18 U.S.C. 4105 shall supersede any previous release date set by the Commission. The Commission may, for the purpose of facilitating the application of service credits by the Bureau of Prisons, reopen any case on the record to clarify the correct release date to be used, and the period of supervised release to be served.

(3) The Commission may, in its discretion, defer a decision and order a rehearing, provided that a statement of the reason for ordering a rehearing is issued to the transferee and the transferee's counsel (if any).

(4) The Commission's final decision shall be supported by a statement of reasons explaining:

(i) The similar offense selected as the basis for the Commission's decision;

(ii) The basis for the guideline range applied; and

(iii) The reason for making a release determination above or below the guideline range. If the release date is within a guideline range that exceeds twenty-four months, the Commission shall identify the reason for the release date selected.

(j) Appeal. The transferee shall be advised of his right to appeal the decision of the Commission to the United States Court of Appeals that has jurisdiction over the district in which the transferee is confined.

(k) Reopening or modification of a determination prior to transfer of jurisdiction. (1) A hearing and assistance of counsel will be provided to the transferee whenever a case is reopened under subparagraphs (2), (3), (4), and (5) below unless:

(i) Waived by the transferee; or

(ii) The action to be taken is favorable and no factual issue must be resolved.

(2) The Commission may reopen and modify a determination based upon information which was not previously considered. Such information must, however, be contained in the record of the foreign sentencing court.

(3) The Commission may reopen and modify a determination of the terms and conditions of supervised release. Modifications may include approval or disapproval of the transferee's release plan.

(4) The Commission shall reopen and modify a determination that has been found on appeal to have been imposed in violation of the law, to have been imposed as a result of an incorrect application of the sentencing guidelines, or to have been unreasonable.

(5) The Commission may reopen and modify a determination upon consideration of the factors listed in section 5K1.1 of the sentencing guidelines if the transferee provides substantial assistance to law enforcement authorities, and that assistance was not previously considered by the Commission. The Commission will treat a request from a foreign or a domestic law enforcement authority as the equivalent of a “motion of the government.”

(6) The Commission may modify a determination based upon a clerical mistake or other error in accordance with Federal Rules of Criminal Procedure Rule 36.

(7) The Commission may reopen and modify the release date if it determines that a circumstance set forth in 18 U.S.C. 3582(c) is satisfied.

(l) Supervised release. (1) If a period of supervised release is imposed, the Commission presumes that the recommended conditions of supervised release in section 5D1.3(a) and (c) of the sentencing guidelines, a condition requiring the transferee to report to the probation office within 72 hours of release from the custody of the Bureau of Prisons, a condition that the transferee not commit another Federal, state or local crime, and a condition that the transferee not possess a firearm or other dangerous weapon are reasonably necessary in every case. These conditions, therefore, shall be imposed unless the Commission finds otherwise. The Commission may also impose special conditions of supervised release whenever deemed reasonably necessary in an individual case.

(2) If the transferee is released pursuant to a date established by the Bureau of Prisons under 18 U.S.C. 4105(c)(1), then the period of supervised release commences upon the transferee's release from imprisonment.

[54 FR 27840, June 30, 1989, as amended at 55 FR 39269, Sept. 26, 1990; 58 FR 30705, May 27, 1993; 59 FR 26425, May 20, 1994; 60 FR 18354, Apr. 11, 1995; 61 FR 38570, July 25, 1996; 61 FR 54096, 54097, Oct. 17, 1996; 62 FR 40270, July 28, 1997. Redesignated at 63 FR 39176, July 21, 1998, and amended at 67 FR 70694, Nov. 26, 2002; 73 FR 12637, Mar. 10, 2008; 83 FR 58500, Nov. 20, 2018; 84 FR 43691, Aug. 22, 2019]

§2.69   [Reserved]

Subpart C—District of Columbia Code: Prisoners and Parolees

Source: 65 FR 45888, July 26, 2000, unless otherwise noted.

§2.70   Authority and functions of the U.S. Parole Commission with respect to District of Columbia Code offenders.

(a) The U.S. Parole Commission shall exercise authority over District of Columbia Code offenders pursuant to section 11231 of the National Capital Revitalization and Self-Government Improvement Act of 1997, Public Law 105-33, 111 Stat. 712, and D.C. Code 24-409. The rules in this subpart shall govern the operation of the U.S. Parole Commission with respect to D.C. Code offenders and shall constitute the parole rules of the District of Columbia, as amended and supplemented pursuant to section 11231(a)(1) of the Act.

(b) The Commission shall have sole authority to grant parole, and to establish the conditions of release, for all District of Columbia Code prisoners who are serving sentences for felony offenses, and who are eligible for parole by statute, including offenders who have been returned to prison upon the revocation of parole or mandatory release. (D.C. Code 24-404 and 408). The above authority shall include youth offenders who are committed to prison for treatment and rehabilitation based on felony convictions under the D.C. Code. (D.C. Code 24-904(a).)

(c) The Commission shall have authority to recommend to the Superior Court of the District of Columbia a reduction in the minimum sentence of a District of Columbia Code prisoner, if the Commission deems such recommendation to be appropriate. (D.C. Code 24-401(c).)

(d) The Commission shall have authority to grant parole to a prisoner who is found to be geriatric, permanently incapacitated, or terminally ill, notwithstanding the minimum term imposed by the sentencing court. (D.C. Code 24-461 through 467.)

(e) The Commission shall have authority over all District of Columbia Code felony offenders who have been released to parole or mandatory release supervision, including the authority to return such offenders to prison upon an order of revocation. (D.C. Code 24-406.)

[65 FR 45888, July 26, 2000, as amended at 68 FR 41530, July 14, 2003]

§2.71   Application for parole.

(a) A prisoner (including a committed youth offender) desiring to apply for parole shall execute an application form as prescribed by the Commission. Such forms shall be available at each institution and shall be provided to a prisoner who is eligible for parole consideration. The Commission may then conduct an initial hearing or grant an effective date of parole on the record. A prisoner who receives an initial hearing need not apply for subsequent hearings.

(b) To the extent practicable, the initial hearing for an eligible adult prisoner who has applied for parole shall be held at least 180 days prior to such prisoner's date of eligibility for parole. The initial hearing for a committed youth offender shall be scheduled during the first 120 days after admission to the institution that is responsible for developing his rehabilitative program.

(c) A prisoner may knowingly and intelligently waive any parole consideration on a form provided for that purpose. A prisoner who declines either to apply for or waive parole consideration shall be deemed to have waived parole consideration.

(d) A prisoner who waives parole consideration may later apply for parole and be heard during the next visit of the Commission to the institution at which the prisoner is confined, provided that the prisoner has applied for parole at least 60 days prior to the first day of the month in which such visit of the Commission occurs. In no event, however, shall such prisoner be heard at an earlier date than that set forth in paragraph (b) of this section.

§2.72   Hearing procedure.

(a) At the initial hearing the examiner shall review with the prisoner the guidelines at §2.80, and shall discuss with the prisoner such information as the examiner deems relevant, including the prisoner's offense behavior, criminal history, institutional record, health status, release plans, and community support. If the examiner determines that the available file material is not adequate for this purpose the examiner may order the hearing to be postponed to the next docket so that the missing information can be requested.

(b) A prisoner may have a representative at the hearing pursuant to §2.13(b) and the opportunity for prehearing disclosure of file material pursuant to §2.55.

(c) A victim of a crime, or a representative of the immediate family of a victim if the victim has died, shall have the right:

(1) To be present at the parole hearings of each offender who committed the crime, and

(2) To testify and/or offer a written or recorded statement as to whether or not parole should be granted, including information and reasons in support of such statement. A written statement may be submitted at the hearing or provided separately. The prisoner may be excluded from the hearing room during the appearance of a victim or representative who gives testimony. In lieu of appearing at a parole hearing, a victim or representative may request permission to appear before an examiner (or other staff member), who shall record and summarize the victim's or representative's testimony. Whenever new and significant information is provided under this rule, the hearing examiner will summarize the information at the parole hearing and will give the prisoner an opportunity to respond. Such summary shall be consistent with a reasonable request for confidentiality by the victim or representative.

(d) Attorneys, family members, relatives, friends of the prisoner, or other interested persons desiring to submit information pertinent to any prisoner, may do so at any time, but such information must be received by the Commission at least 30 days prior to a scheduled hearing in order to be considered at that hearing. Such persons may also request permission to appear at the offices of the Commission to speak to a Commission staff member, provided such request is received at least 30 days prior to the scheduled hearing. The purpose of this office visit will be to supplement the Commission's record with pertinent factual information concerning the prisoner, which shall be placed in the record for consideration at the hearing. An office visit at a time other than set forth in this paragraph may be authorized only if the Commission finds good cause based upon a written request setting forth the nature of the information to be discussed. See §2.22.

(e) A full and complete recording of every parole hearing shall be retained by the Commission. Upon a request pursuant to §2.56, the Commission shall make available to any eligible prisoner such record as the Commission has retained of the hearing.

(f) Because parole decisions must be reached through a record-based hearing and voting process, no contacts shall be permitted between any person attempting to influence the Commission's decision-making process, and the examiners and Commissioners of the Commission, except as expressly provided in this subpart.

[65 FR 45888, July 26, 2000, as amended at 68 FR 41530, July 14, 2003; 69 FR 5274, Feb. 4, 2004]

§2.73   Parole suitability criteria.

(a) In accordance with D.C. Code 24-404(a), the Commission shall be authorized to release a prisoner on parole in its discretion after the prisoner has served the minimum term of the sentence imposed, if the following criteria are met:

(1) The prisoner has substantially observed the rules of the institution;

(2) There is a reasonable probability that the prisoner will live and remain at liberty without violating the law; and

(3) In the opinion of the Commission, the prisoner's release is not incompatible with the welfare of society.

(b) It is the policy of the Commission with respect to District of Columbia Code offenders that the minimum term imposed by the sentencing court presumptively satisfies the need for punishment for the crime of which the prisoner has been convicted, and that the responsibility of the Commission is to account for the degree and the seriousness of the risk that the release of the prisoner would entail. This responsibility is carried out by reference to the Salient Factor Score and the Point Assignment Table at §2.80. However, there may be exceptional cases in which the gravity of the offense is sufficient to warrant an upward departure from §2.80 and denial of parole.

[65 FR 45888, July 26, 2000, as amended at 68 FR 41530, July 14, 2003]

§2.74   Decision of the Commission.

(a) Following each initial or subsequent hearing, the Commission shall render a decision granting or denying parole, and shall provide the prisoner with a notice of action that includes an explanation of the reasons for the decision. The decision shall ordinarily be issued within 21 days of the hearing, excluding weekends and holidays.

(b) Whenever a decision is rendered within the applicable guideline established in this subpart, it will be deemed a sufficient explanation of the Commission's decision for the notice of action to set forth how the guideline was calculated. If the decision is a departure from the guidelines, the notice of action shall include the reasons for such departure.

(c) All decisions may be made by one Commissioner, except that if the Commissioner does not concur with a panel recommendation, the case shall be referred to another Commissioner for a vote and the decision shall be based on the concurring votes of two Commissioners.

[65 FR 45888, July 26, 2000, as amended at 69 FR 68792, Nov. 26, 2004; 74 FR 28605, June 17, 2009; 75 FR 9519, Mar. 3, 2010; 81 FR 13975, Mar. 16, 2016; 83 FR 58500, Nov. 20, 2018]

§2.75   Reconsideration proceedings.

(a)(1) Following an initial or subsequent hearing, the Commission may—

(i) Set an effective date of parole within nine months of the date of the hearing;

(ii) Set a presumptive parole date at least ten months but not more than three years from the date of the hearing;

(iii) Continue the prisoner to the expiration of sentence if the prisoner's mandatory release date is within three years of the date of the hearing;

(iv) Schedule a reconsideration hearing at three years from the month of the hearing; or

(v) Remand the case for a rehearing on the next available docket (but no later than 180 days from the date of the hearing) for the consideration of additional information.

(2) Exceptions. (i) With respect to the rule on three-year reconsideration hearings. If the prisoner's current offense behavior resulted in the death of a victim and, at the time of the hearing, the prisoner must serve more than three years before reaching the minimum of the applicable guideline range, the Commission may schedule a reconsideration hearing at a date up to five years from the month of the last hearing, but not beyond the minimum of the applicable guideline range.

(ii) With respect to youth offenders. Regardless of whether a presumptive parole date has been set, a reconsideration hearing shall be conducted every twelve months for a youth offender, and on the next available docket after the Commission is informed that the prisoner has completed his program plan.

(b) When a rehearing is scheduled, the prisoner shall be given a rehearing during the month specified by the Commission, or on the docket of hearings immediately preceding that month if no docket of hearings is scheduled for the month specified.

(c) At a reconsideration hearing, the Commission may take any action that it could take at an initial hearing. The scheduling of a reconsideration hearing does not imply that parole will be granted at such hearing.

(d) Prior to a parole reconsideration hearing, the Commission shall review the prisoner's record, including an institutional progress report which shall be submitted 60 days prior to the hearing. Based on its review of the record, the Commission may grant an effective date of parole without conducting the scheduled hearing.

(e) Notwithstanding a previously established reconsideration hearing, the Commission may reopen any case for a special reconsideration hearing, as provided in §2.28, upon the receipt of new and significant information concerning the prisoner.

[65 FR 70664, Nov. 27, 2000, as amended at 67 FR 57945, Sept. 13, 2002; 69 FR 5274, Feb. 4, 2004]

§2.76   Reduction in minimum sentence.

(a) A prisoner who has served three or more years of the minimum term of his or her sentence may request the Commission to file an application with the sentencing court for a reduction in the minimum term pursuant to D.C. Code 24-401c. The prisoner's request to the Commission shall be in writing and shall state the reasons that the prisoner believes such request should be granted. The Commission shall require the submission of a special progress report before approving such a request.

(b) A prisoner's request under this section may be approved on the vote of one Commissioner.

(c) Pursuant to D.C. Code 24-401c, the Commission may file an application to the sentencing court for a reduction of a prisoner's minimum term if the Commission finds that:

(1) The prisoner has completed three years of the minimum term imposed by the court;

(2) The prisoner has shown, by report of the responsible prison authorities, an outstanding response to the rehabilitative program(s) of the institution;

(3) The prisoner has fully observed the rules of each institution in which the prisoner has been confined;

(4) The prisoner appears to be an acceptable risk for parole based on both the prisoner's pre- and post-incarceration record; and

(5) Service of the minimum term imposed by the court does not appear necessary to achieve appropriate punishment and deterrence.

(d) If the Commission approves a prisoner's request under this section, an application for a reduction in the prisoner's minimum term shall be forwarded to the U.S. Attorney for the District of Columbia for filing with the sentencing court. If the U.S. Attorney objects to the Commission's recommendation, the U.S. Attorney shall provide the government's objections in writing for consideration by the Commission. If, after consideration of the material submitted, the Commission declines to reconsider its previous decision, the U.S. Attorney shall file the application with the sentencing court.

(e) If a prisoner's request under this section is denied by the Commission, there shall be a waiting period of two years before the Commission will again consider the prisoner's request, absent exceptional circumstances.

[65 FR 45888, July 26, 2000, as amended at 68 FR 41530, July 14, 2003; 83 FR 58500, Nov. 20, 2018]

§2.77   Medical parole.

(a) Upon receipt of a report from the institution in which the prisoner is confined that the prisoner is terminally ill, or is permanently and irreversibly incapacitated by a physical or medical condition that is not terminal, the Commission shall determine whether or not to release the prisoner on medical parole. Release on medical parole may be ordered by the Commission at any time, whether or not the prisoner has completed his or her minimum sentence. Consideration for medical parole shall be in addition to any other parole for which a prisoner may be eligible.

(b) A prisoner may be granted a medical parole on the basis of terminal illness if:

(1) The institution's medical staff has provided the Commission with a reasonable medical judgment that the prisoner is within six months of death due to an incurable illness or disease; and

(2) The Commission finds that:

(i) The prisoner will not be a danger to himself or others; and

(ii) Release on parole will not be incompatible with the welfare of society.

(c) A prisoner may be granted a medical parole on the basis of permanent and irreversible incapacitation only if the Commission finds that:

(1) The prisoner will not be a danger to himself or others because his condition renders him incapable of continued criminal activity; and

(2) Release on parole will not be incompatible with the welfare of society.

(d) The seriousness of the prisoner's crime shall be considered in determining whether or not a medical parole should be granted prior to completion of the prisoner's minimum sentence.

(e) A prisoner, or the prisoner's representative, may apply for a medical parole by submitting an application to the institution case management staff, who shall forward the application, accompanied by a medical report and any recommendations, within 15 days. The Commission shall render a decision within 15 days of receiving the application and report.

(f) A prisoner, the prisoner's representative, or the institution may request the Commission to reconsider its decision on the basis of changed circumstances.

(g) Notwithstanding any other provision of this section :

(1) A prisoner who has been convicted of first degree murder or who has been sentenced for a crime committed while armed under D.C. Code 22-4502, 22-4504(b), or 22-2803, shall not be eligible for medical parole (D.C. Code 24-467); and

(2) A prisoner shall not be eligible for medical parole on the basis of a physical or medical condition that existed at the time the prisoner was sentenced (D.C. Code 24-462).

[65 FR 45888, July 26, 2000, as amended at 68 FR 41530, July 14, 2003]

§2.78   Geriatric parole.

(a) Upon receipt of a report from the institution in which the prisoner is confined that a prisoner who is at least 65 years of age has a chronic infirmity, illness, or disease related to aging, the Commission shall determine whether or not to release the prisoner on geriatric parole. Release on geriatric parole may be ordered by the Commission at any time, whether or not the prisoner has completed his or her minimum sentence. Consideration for geriatric parole shall be in addition to any other parole for which a prisoner may be eligible.

(b) A prisoner may be granted a geriatric parole if the Commission finds that:

(1) There is a low risk that the prisoner will commit new crimes; and

(2) The prisoner's release would not be incompatible with the welfare of society.

(c) The seriousness of the prisoner's crime, and the age at which it was committed, shall be considered in determining whether or not a geriatric parole should be granted prior to completion of the prisoner's minimum sentence.

(d) A prisoner, or a prisoner's representative, may apply for a geriatric parole by submitting an application to the institution case management staff, who shall forward the application, accompanied by a medical report and any recommendations, within 30 days. The Commission shall render a decision within 30 days of receiving the application and report.

(e) In determining whether or not to grant a geriatric parole, the Commission shall consider the following factors (D.C. Code 24-465(c)(1)-(7)):

(1) Age of the prisoner;

(2) Severity of illness, disease, or infirmities;

(3) Comprehensive health evaluation;

(4) Institutional behavior;

(5) Level of risk for violence;

(6) Criminal history; and

(7) Alternatives to maintaining geriatric long-term prisoners in traditional prison settings.

(f) A prisoner, the prisoner's representative, or the institution, may request the Commission to reconsider its decision on the basis of changed circumstances.

(g) Notwithstanding any other provision of this section:

(1) A prisoner who has been convicted of first degree murder or who has been sentenced for a crime committed while armed under D.C. Code 22-4502, 22-4504(b), or 22-2803, shall not be eligible for geriatric parole (D.C. Code 24-467); and

(2) A prisoner shall not be eligible for geriatric parole on the basis of a physical or medical condition that existed at the time the prisoner was sentenced (D.C. Code 24-462).

[65 FR 45888, July 26, 2000, as amended at 68 FR 41530, July 14, 2003]

§2.79   Good time forfeiture.

Although a forfeiture of good time will not bar a prisoner from receiving a parole hearing, D.C. Code 24-404 permits the Commission to parole only those prisoners who have substantially observed the rules of the institution. Consequently, the Commission will consider a grant of parole for a prisoner with forfeited good time only after a thorough review of the circumstances underlying the disciplinary infraction(s). The Commission must be satisfied that the prisoner has served a period of imprisonment sufficient to outweigh the seriousness of the prisoner's misconduct.

[65 FR 45888, July 26, 2000, as amended at 68 FR 41531, July 14, 2003]

§2.80   Guidelines for D.C. Code offenders.

(a)(1) Applicability in general. Except as provided below, the guidelines in paragraphs (b)-(n) of this section apply at an initial hearing or rehearing conducted for any prisoner.

(2) Reparole decisions. Reparole decisions shall be made in accordance with §2.81.

(3) Youth offenders. A prisoner sentenced under the Youth Rehabilitation Act shall be considered for parole under these guidelines pursuant to paragraph (a)(1) of this section, except that the prisoner shall be given rehearings in accordance with the schedule at §2.75(a)(2)(ii) and the prisoner's program achievements shall be considered in the parole release decision in accordance with §2.106. The guidelines at paragraphs (k)-(m) of this section for awarding superior program achievement and subtracting the award in determining the total guideline range shall not apply.

(4) Prisoners considered under the guidelines of the former District of Columbia Board of Parole. For a prisoner whose initial hearing was held before August 5, 1998, the Commission shall render its decision by reference to the guidelines of the former D.C. Board of Parole in effect on August 4, 1998. However, when a decision outside such guidelines has been made by the Board, or is ordered by the Commission, the Commission may determine the appropriateness and extent of the departure by comparison with the guidelines of §2.80. The Commission may also correct any error in the calculation of the D.C. Board's guidelines.

(5) Prisoners given initial hearings under the guidelines in effect from August 5, 1998 through December 3, 2000 (the guidelines formerly found in 28 CFR 2.80, Appendix to §2.80 (2000)). For a prisoner given an initial hearing under the §2.80 guidelines in effect from August 5, 1998 through December 3, 2000, the guidelines in paragraphs (b)-(n) of this section shall be applied retroactively subject to the provisions of paragraph (o) of this section.

(b) Guidelines. In determining whether an eligible prisoner should be paroled, the Commission shall apply the guidelines set forth in this section. The guidelines assign numerical values to pre-and post-incarceration factors. Decisions outside the guidelines may be made, where warranted, pursuant to paragraph (n) of this section.

(c) Salient factor score and criminal record. The prisoner's Salient Factor Score shall be determined by reference to the Salient Factor Scoring Manual in §2.20. The Salient Factor Score is used to assist the Commission in assessing the probability that an offender will live and remain at liberty without violating the law. The prisoner's record of criminal conduct (including the nature and circumstances of the current offense) shall be used to assist the Commission in determining the probable seriousness of the recidivism that is predicted by the Salient Factor Score.

(d) Disciplinary infractions. The Commission shall assess whether the prisoner has been found guilty of committing significant disciplinary infractions while under confinement for the current offense.

(e) Program achievement. (1) The Commission shall assess whether the prisoner has demonstrated ordinary or superior achievement in the area of prison programs, industries, or work assignments while under confinement for the current offense. Superior program achievement means program achievement that is beyond the level that the prisoner might ordinarily be expected to accomplish. Credit for program achievement may be granted regardless of whether the guidelines for disciplinary infractions have been applied for misconduct during the same period. The guidelines in this section presume that the prisoner will have ordinary program achievement.

(2) In the case of a prisoner who has declined to participate in institutional programming, a decision in the upper half of the applicable guideline range generally will be warranted, except that in the case of a prisoner who has a base point score of 3 or less, or who has a criminal record involving violence or sexual offenses and who has not participated in available programming to address a potential for criminal behavior of a violent or sexual nature, a decision above the guidelines may be warranted.

(f) Base point score. Add the applicable points from Categories I-III of the Point Assignment Table to determine the base point score.

Point Assignment Table

Categories Points
CATEGORY I: RISK OF RECIDIVISM (Salient Factor Score)
10-8 (Very Good Risk)+0
7-6 (Good Risk)+1
5-4 (Fair Risk)+2
3-0 (Poor Risk)+3
CATEGORY II: CURRENT OR PRIOR VIOLENCE (Type of Risk)
Note: Use the highest applicable subcategory. If no subcategory is applicable, score = 0.
A. Violence in current offense, and any felony violence in two or more prior offenses+4
B. Violence in current offense, and any felony violence in one prior offense+3
C. Violence in current offense+2
D. No violence in current offense and any felony violence in two or more prior offenses+2
E. Possession of firearm in current offense if current offense is not scored as a crime of violence+2
F. No violence in current offense and any felony violence in one prior offense+1
CATEGORY III: DEATH OF VICTIM OR HIGH LEVEL VIOLENCE
Note: Use highest applicable subcategory. If no subcategory is applicable, score = 0. A current offense that involved high level violence must be scored under both Category II (A, B, or C) and under Category III.
A. Current offense involved violence (high level violence or other violence) with death of victim resulting+3
B. Current offense involved attempted murder, conspiracy to murder, solicitation to murder, or any willful violence in which the victim survived despite death having been the most probable result at the time the offense was committed+2
C. Current offense involved high level violence (other than the behaviors described above)+1
BASE POINT SCORE (Total of Categories I-III)

(g) Definitions and instructions for application of point assignment table—(1) Salient factor score means the salient factor score set forth at §2.20.

(2) High level violence in Category III means any of the following offenses—

(i) Murder;

(ii) Voluntary manslaughter;

(iii) Arson of a building in which a person other than the offender was present or likely to be present at the time of the offense;

(iv) Forcible rape or forcible sodomy (first degree sexual abuse);

(v) Kidnapping, hostage taking, or any armed abduction of a victim during a carjacking or other offense;

(vi) Burglary of a residence while armed with any weapon if a victim was in the residence during the offense;

(vii) Obstruction of justice through violence or threats of violence;

(viii) Any offense involving sexual abuse of a person less than sixteen years of age;

(ix) Mayhem, malicious disfigurement, or any offense defined as other violence in paragraph (g)(4) of this section that results in serious bodily injury as defined in paragraph (g)(3) of this section;

(x) Any offense defined as other violence in paragraph (g)(4) of this section in which the offender intentionally discharged a firearm;

(3) Serious bodily injury means bodily injury that involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

(4) Other violence means any of the following felony offenses that does not qualify as high level violence

(i) Robbery;

(ii) Residential burglary;

(iii) Felony assault;

(iv) Felony offenses involving a threat, or risk, of bodily harm;

(v) Felony offenses involving sexual abuse or sexual contact;

(vi) Involuntary manslaughter (excluding negligent homicide).

(5) Attempts, conspiracies, and solicitations shall be scored by reference to the substantive offense that was the object of the attempt, conspiracy, or solicitation; except that Category IIIA shall apply only if death actually resulted.

(6) Current offense means any criminal behavior that is either:

(i) Reflected in the offense of conviction, or

(ii) Is not reflected in the offense of conviction but is found by the Commission to be related to the offense of conviction (i.e., part of the same course of conduct as the offense of conviction). In probation violation cases, the current offense includes both the original offense and the violation offense, except that the original offense shall be scored as a prior conviction (with a prior commitment) rather than as part of the current offense, if the prisoner served more than six months in prison for the original offense before his probation commenced

(7) Category IIE applies whenever a firearm is possessed by the offender during, or is used by the offender to commit, any offense that is not scored under Category II(A-D). Category IIE also applies when the current offense is felony unlawful possession of a firearm and there is no other current offense. Possession for purposes of Category IIE includes constructive possession.

(8) Category IIIA applies if the death of a victim is:

(i) Caused by the offender, or

(ii) Caused by an accomplice and the killing was planned or approved by the offender in furtherance of a joint criminal venture.

(h) Determining the base guideline range. Determine the base guideline range for adult prisoners from the following table:

Base point score Base guideline range (months)
3 or less0
412-18
518-24
636-48
754-72
872-96
9110-140
10156-192

(i) Months to parole eligibility. Determine the total number of months until parole eligibility.

(j) Guideline range for disciplinary infractions. Determine the applicable guideline range from §2.36 for any significant disciplinary infractions since the beginning of confinement on the current offense in the case of an initial hearing, and since the last hearing in the case of a rehearing. If there are no significant disciplinary infractions, this step is not applicable.

(k) Guidelines for superior program achievement. If superior program achievement is found, the award for superior program achievement shall be one-third of the number of months during which the prisoner demonstrated superior program achievement. The award is determined on the basis of all time in confinement on the current offense in the case of an initial hearing, and on the basis of time in confinement since the last hearing in the case of a rehearing. If superior program achievement is not found, this step is not applicable.

Note: When superior program achievement is found, it is presumed that the award will be based on the total number of months since the beginning of confinement on the current offense in the case of an initial hearing, or since the last hearing in the case of a rehearing. Where, however, the Commission determines that the prisoner did not have superior program achievement during the entire period, it may base its decision solely on the number of months during which the prisoner had superior program achievement.

(l) Determining the total guideline range at an initial hearing. At an initial hearing

(1) Add together the minimum of the base point guideline range (from paragraph (h) of this section), the number of months required by the prisoner's parole eligibility date (from (i) of this section), and the minimum of the guideline range for disciplinary infractions, if applicable (from paragraph (j) of this section). Then subtract the award for superior program achievement, if applicable (from paragraph (k) of this section). The result is the minimum of the Total Guideline Range.

(2) Add together the maximum of the base point guideline range (from paragraph (h) of this section), the number of months required by the prisoner's parole eligibility date (from paragraph (i) of this section), and the maximum of the guideline range for disciplinary infractions, if applicable (from paragraph (j) of this section). Then subtract the award for superior program achievement, if applicable (from paragraph (k) of this section). The result is the maximum of the Total Guideline Range.

(m) Determining the total guideline range at a reconsideration hearing. At a reconsideration hearing—

(1) Add together the minimum of the Total Guideline Range from the previous hearing, and the minimum of the guideline range for disciplinary infractions since the previous hearing, if applicable (from paragraph (j) of this section). Then subtract the award for superior program achievement, if applicable (from paragraph (k) of this section). The result is the minimum of the Total Guideline Range for the current hearing.

(2) Add together the maximum of the Total Guideline Range from the previous hearing, and the maximum of the guideline range for disciplinary infractions since the previous hearing, if applicable (from paragraph (j) of this section). Then subtract the award for superior program achievement since the previous hearing, if applicable (from paragraph (k) of this section). The result is the maximum of the Total Guideline Range for the current hearing.

(n) Decisions outside the guidelines. (1) The Commission may, in unusual circumstances, grant or deny parole to a prisoner notwithstanding the guidelines. Unusual circumstances are case-specific factors that are not fully taken into account in the guidelines, and that are relevant to the grant or denial of parole. In such cases, the Commission shall specify in the notice of action the specific factors that it relied on in departing from the applicable guideline or guideline range. If the prisoner is deemed to be a poorer or more serious risk than the guidelines indicate, the Commission shall determine what Base Point Score would more appropriately fit the prisoner's case, and shall render its initial and rehearing decisions as if the prisoner had that higher Base Point Score. It is to be noted that, in some cases, an extreme level of risk presented by the prisoner may make it inappropriate for the Commission to contemplate a parole at any hearing without a significant change in the prisoner's circumstances.

(2) Factors that may warrant a decision above the guidelines include, but are not limited to, the following:

(i) Poorer parole risk than indicated by salient factor score. The offender is a poorer parole risk than indicated by the salient factor score because of—

(A) Unusually persistent failure under supervision (pretrial release, probation, or parole);

(B) Unusually persistent history of criminally related substance (drug or alcohol) abuse and resistance to treatment efforts; or

(C) Unusually extensive prior record (sufficient to make the offender a poorer risk than the “poor” prognosis category).

(ii) More serious parole risk. The offender is a more serious parole risk than indicated by the total point score because of—

(A) Prior record of violence more extensive or serious than that taken into account in the guidelines;

(B) Current offense demonstrates extraordinary criminal sophistication, criminal professionalism in the employment of violence or threats of violence, or leadership role in instigating others to commit a serious offense;

(C) Unusual cruelty to the victim (beyond that accounted for by scoring the offense as high level violence), or predation upon extremely vulnerable victim;

(D) Unusual propensity to inflict unprovoked and potentially homicidal violence, as demonstrated by the circumstances of the current offense; or

(E) Additional serious offense(s) committed after (or while on bond or fugitive status from) current offense that show unusual capacity for sustained, repeated violent criminal activity.

(3) Factors that may warrant a decision below the guidelines include, but are not limited to, the following:

(i) Better parole risk than indicated by salient factor score. The offender is a better parole risk than indicated by the salient factor score because of (applicable only to offenders who are not already in the very good risk category)—

(A) A prior criminal record resulting exclusively from minor offenses;

(B) A substantial crime-free period in the community for which credit is not already given on the Salient Factor Score;

(C) A change in the availability of community resources leading to a better parole prognosis;

(ii) Other factors:

(A) Unusually lengthy period of incarceration on the minimum sentence (in relation to the seriousness of the offense and prior record) that warrants an initial parole determination as if the offender were being considered at a rehearing;

(B) Substantial period in custody on other sentence(s) sufficient to warrant a finding in paragraph (n)(3) of this section; or

(C) Clearly exceptional program achievement.

(o) (1) A prisoner who is eligible under the criteria of paragraph (o)(2) may receive a parole determination using the 1987 guidelines of the former District of Columbia Board of Parole (hereinafter “the 1987 Board guidelines”).

(2) A prisoner must satisfy the following criteria to obtain a determination using the 1987 Board guidelines:

(i) The prisoner committed the offense of conviction after March 3, 1985 and before August 5, 1998;

(ii) The prisoner is not incarcerated as a parole violator;

(iii) The prisoner received his initial hearing after August 4, 1998; and

(iv) The prisoner does not have a parole effective date, or a presumptive parole date before January 1, 2010.

(3) For a prisoner eligible for application of the 1987 Board guidelines, a hearing examiner shall first review the case on the record. If the hearing examiner recommends that the prisoner receive a parole effective date and the Commission concurs in the recommendation, the case shall not be scheduled for a hearing. If the hearing examiner does not recommend a parole effective date, a hearing shall be conducted on an appropriate hearing docket.

(4) At the hearing, the hearing examiner shall evaluate the prisoner's case using the 1987 Board guidelines, as if the prisoner were receiving an initial hearing. If appropriate, the hearing examiner shall evaluate the case using the 1987 Board guidelines for rehearings, revising the initial point score based on the prisoner's prison conduct record and program performance. The Commission shall use the former Board's policy guidelines in making its determinations under this paragraph, according to the policy guideline in effect at the time of the prisoner's offense.

(5) If the Commission denies parole after the hearing, and the prisoner received a presumptive parole date under the parole determination that preceded the hearing under this paragraph, the prisoner shall not forfeit the presumptive parole date unless the presumptive date is rescinded for institutional misconduct, new criminal conduct, or for new adverse information.

(6) Decisions resulting from hearings under this paragraph may not be appealed to the Commission.

(p)(1) A prisoner who is eligible under the criteria of paragraph (p)(2) of this section may receive a parole determination using the parole guidelines in the 1972 regulations of the former District of Columbia Board of Parole (9 DCMR section 105.1) (hereinafter “the 1972 Board guidelines”).

(2) A prisoner must satisfy the following criteria to obtain a determination using the 1972 Board guidelines:

(i) The prisoner committed the offense of conviction on or before March 3, 1985;

(ii) The prisoner is not incarcerated as a parole violator; and

(iii) The prisoner has not been granted a parole effective date.

(3) The granting of a parole is neither a constitutional or statutory requirement, and release to parole supervision by Commission action is not mandatory.

(4) Factors considered: Among others, the U.S. Parole Commission takes into account some of the following factors in making its determination as to parole:

(i) The offense, noting the nature of the violation, mitigating or aggravating circumstances and the activities and adjustment of the offender following arrest if on bond or in the community under any pre-sentence type arrangement.

(ii) Prior history of criminality, noting the nature and pattern of any prior offenses as they may relate to the current circumstances.

(iii) Personal and social history of the offender, including such factors as his family situation, educational development, socialization, marital history, employment history, use of leisure time and prior military experience, if any.

(iv) Physical and emotional health and/or problems which may have played a role in the individual's socialization process, and efforts made to overcome any such problems.

(v) Institutional experience, including information as to the offender's overall general adjustment, his ability to handle interpersonal relationships, his behavior responses, his planning for himself, setting meaningful goals in areas of academic schooling, vocational education or training, involvements in self-improvement activity and therapy and his utilization of available resources to overcome recognized problems. Achievements in accomplishing goals and efforts put forth in any involvements in established programs to overcome problems are carefully evaluated.

(vi) Community resources available to assist the offender with regard to his needs and problems, which will supplement treatment and training programs begun in the institution, and be available to assist the offender to further serve in his efforts to reintegrate himself back into the community and within his family unit as a productive useful individual.

(5) A prisoner who committed the offense of conviction on or before March 3, 1985 who is not incarcerated as a parole violator and is serving a maximum sentence of five years or more who was denied parole at their original hearing ordinarily will receive a rehearing one year after a hearing conducted by the U.S. Parole Commission. In all cases of rehearings, the U.S. Parole Commission may establish a rehearing date at any time it feels such would be proper, regardless of the length of sentence involved. No hearing may be set for more than five years from the date of the previous hearing.

(6) If a prisoner has been previously granted a presumptive parole date under the Commission's guidelines in paragraphs (b) through (m) of this section, the presumptive date will not be rescinded unless the Commission would rescind the date for one of the accepted bases for such action, i.e., new criminal conduct, new institutional misconduct, or new adverse information.

(7) Prisoners who have previously been considered for parole under the 1987 guidelines of the former DC Board of Parole will continue to receive consideration under those guidelines.

(8) Decisions resulting from hearings under this section may not be appealed to the U.S. Parole Commission.

[65 FR 70665, Nov. 27, 2000, as amended at 67 FR 67946, Sept. 13, 2002; 74 FR 34690, July 17, 2009; 74 FR 58543, Nov. 13, 2009; 80 FR 63116, Oct. 19, 2015]

§2.81   Reparole decisions.

(a) If the prisoner is not serving a new, parolable D.C. Code sentence, the Commission's decision to grant or deny reparole on the parole violation term shall be made by reference to the reparole guidelines at §2.21. The Commission shall establish a presumptive or effective release date pursuant to §2.12(b), and conduct interim hearings pursuant to §2.14.

(b) If the prisoner is eligible for parole on a new D.C. Code felony sentence that has been aggregated with the prisoner's parole violation term, the Commission shall make a decision to grant or deny parole on the basis of the aggregate sentence, and in accordance with the guidelines at §2.80.

(c) If the prisoner is eligible for parole on a new D.C. Code felony sentence but the prisoner's parole violation term has not commenced (i.e., the warrant has not been executed), the Commission shall make a single parole/reparole decision by applying the guidelines at §2.80. The Commission shall establish an appropriate date for the execution of the outstanding warrant in order for the guidelines at §2.80 to be satisfied. In cases where the execution of the warrant will not result in the aggregation of the new sentence and the parole violation term, the Commission shall make parole and reparole decisions that are consistent with the guidelines at §2.80.

(d) All reparole hearings shall be conducted according to the procedures set forth in §2.72, and may be combined with the holding of a revocation hearing if the prisoner's parole has not previously been revoked. If the prisoner is serving a period of imprisonment imposed upon revocation of his parole by the D.C. Board of Parole, the Commission shall consider all available and relevant information concerning the prisoner's conduct while on parole, including any allegations of criminal or administrative violations left unresolved by the Board, pursuant to the procedures applicable to initial hearings under §2.72 and §2.19(c). The same procedures shall apply in the case of any new information concerning criminal or administrative violations of parole presented to the Commission for the first time following the conclusion of a revocation proceeding that resulted in the revocation of parole and the return of the offender to prison.

[65 FR 45888, July 26, 2000, as amended at 66 FR 37137, July 17, 2001]

§2.82   Effective date of parole.

(a) An effective date of parole may be granted up to nine months from the date of the hearing.

(b) Except in the case of a medical or geriatric parole, a parole that is granted prior to the completion of the prisoner's minimum term shall not become effective until the prisoner becomes eligible for release on parole.

[65 FR 45888, July 26, 2000, as amended at 67 FR 57946, Sept. 13, 2002]

§2.83   Release planning.

(a) All grants of parole shall be conditioned on the development of a suitable release plan and the approval of that plan by the Commission. A parole certificate shall not be issued until a release plan has been approved by the Commission. In the case of mandatory release, the Commission shall review each prisoner's release plan to determine whether the imposition of any special conditions should be ordered to promote the prisoner's rehabilitation and protect the public safety.

(b) If a parole date has been granted, but the prisoner has not submitted a proposed release plan, the appropriate correctional or supervision staff shall assist the prisoner in formulating a release plan for investigation.

(c) After investigation by a Supervision Officer, the proposed release plan shall be submitted to the Commission 30 days prior to the prisoner's parole or mandatory release date.

(d) A Commissioner may retard a parole date for purposes of release planning for up to 120 days without a hearing. If efforts to formulate an acceptable release plan prove futile by the expiration of such period, or if the Offender Supervision staff reports that there are insufficient resources to provide effective supervision for the individual in question, the Commission shall be promptly notified in a detailed report. If the Commission does not order the prisoner to be paroled, the Commission shall suspend the grant of parole and conduct a reconsideration hearing on the next available docket. Following such reconsideration hearing, the Commission may deny parole if it finds that the release of the prisoner without a suitable plan would fail to meet the criteria set forth in §2.73. However, if the prisoner subsequently presents an acceptable release plan, the Commission may reopen the case and issue a new grant of parole.

(e) The following shall be considered in the formulation of a suitable release plan:

(1) Evidence that the parolee will have an acceptable residence;

(2) Evidence that the parolee will be legitimately employed as soon as released; provided, that in special circumstances, the requirement for immediate employment upon release may be waived by the Commission;

(3) Evidence that the necessary aftercare will be available for parolees who are ill, or who have any other demonstrable problems for which special care is necessary, such as hospital facilities or other domiciliary care; and

(4) Evidence of availability of, and acceptance in, a community program in those cases where parole has been granted conditioned upon acceptance or participation in a specific community program.

§2.84   Release to other jurisdictions.

The Commission, in its discretion, may parole any prisoner to live and remain in a jurisdiction other than the District of Columbia.

§2.85   Conditions of release.

(a)(1) General conditions of release and notice by certificate of release. All persons on supervision must follow the conditions of release described in §2.204(a)(3) through (6). Your certificate of release informs you of these conditions and other special conditions that we have imposed for your supervision.

(2) Refusing to sign the certificate of release. (i) If you have been granted a parole date and you refuse to sign the certificate of release (or any other document necessary to fulfill a condition of release), we will consider your refusal as a withdrawal of your application for parole as of the date of your refusal. You will not be released on parole and you will have to reapply for parole consideration.

(ii) If you are scheduled for release to supervision through good-time deduction and you refuse to sign the certificate of release, you will be released but you still must follow the conditions listed in the certificate.

(b) Special conditions of release. We may impose a condition of release other than a condition described in §2.204(a)(3) through (6) if we determine that imposing the condition is reasonably related to the nature and circumstances of your offense or your history and characteristics, and at least one of the following purposes of criminal sentencing: The need to deter you from criminal conduct; protection of the public from further crimes; or the need to provide you with training or correctional treatment or medical care. In choosing a condition we will also consider whether the condition involves no greater deprivation of liberty than is reasonably necessary for the purposes of deterrence of criminal conduct, protection of the public from crime and offender rehabilitation. We list some examples of special conditions of release at §2.204(b)(2).

(c) Changing conditions of release. We may at any time change or add to the conditions of release if we decide that such action is consistent with the criteria described in paragraph (b) of this section. In making these changes we will use the procedures described in §2.204(c) and (d). You may not appeal the decision.

(d) Application of release conditions to an absconder. If you abscond from supervision, you will stop the running of your sentence as of the date of your absconding and you will prevent the expiration of your sentence. You will still be bound by the conditions of release while you are an absconder, even after the original expiration date of your sentence. We may revoke your release for a violation of a release condition that you commit before the revised expiration date of your sentence (the original expiration date plus the time you were an absconder).

(e) Supervision officer guidance. See §2.204(g).

(f) Definitions. See §2.204(h).

[79 FR 51258, Aug. 28, 2014]

§2.86   Release on parole; rescission for misconduct.

(a) When a parole effective date has been set, actual release on parole on that date shall be conditioned upon the individual maintaining a good conduct record in the institution or prerelease program to which the prisoner has been assigned.

(b) The Commission may reconsider any grant of parole prior to the prisoner's actual release on parole, and may advance or retard a parole effective date or rescind a parole date previously granted based upon the receipt of any new and significant information concerning the prisoner, including disciplinary infractions. The Commission may retard a parole date for disciplinary infractions (e.g., to permit the use of graduated sanctions) for up to 120 days without a hearing, in addition to any retardation ordered under §2.83(d).

(c) If a parole effective date is rescinded for disciplinary infractions, an appropriate sanction shall be determined by reference to §2.36.

(d) After a prisoner has been granted a parole effective date, the institution shall notify the Commission of any serious disciplinary infractions committed by the prisoner prior to the date of actual release. In such case, the prisoner shall not be released until the institution has been advised that no change has been made in the Commission's order granting parole.

(e) A grant of parole becomes operative upon the authorized delivery of a certificate of parole to the prisoner, and the signing of that certificate by the prisoner, who thereafter becomes a parolee.

[65 FR 70669, Nov. 27, 2000, as amended at 67 FR 57946, Sept. 13, 2002]

§2.87   Mandatory release.

(a) When a prisoner has been denied parole at the initial hearing and all subsequent considerations, or parole consideration is expressly precluded by statute, the prisoner shall be released at the expiration of his or her imposed sentence less the time deducted for any good time allowances provided by statute.

(b) Any prisoner having served his or her term or terms less deduction for good time shall, upon release, be deemed to be released on parole until the expiration of the maximum term or terms for which he or she was sentenced, except that if the offense of conviction was committed before April 11, 1987, such expiration date shall be less one hundred eighty (180) days. Every provision of these rules relating to an individual on parole shall be deemed to include individuals on mandatory release.

§2.88   Confidentiality of parole records.

(a) Consistent with the Privacy Act of 1974 (5 U.S.C. 552(b)), the contents of parole records shall be confidential and shall not be disclosed outside the Commission except as provided in paragraphs (b) and (c) of this section.

(b) Information that is subject to release to the general public without the consent of the prisoner shall be limited to the information specified in §2.37.

(c) Information other than as described in §2.37 may be disclosed without the consent of the prisoner only pursuant to the provisions of the Privacy Act of 1974 (5 U.S.C. 552(b)) and §2.56.

§2.89   Miscellaneous provisions.

Except to the extent otherwise provided by law, the following sections in Subpart A of this part are also applicable to District of Columbia Code offenders:

2.5   (Sentence aggregation)

2.7   (Committed fines and restitution orders)

2.8   (Mental competency procedures)

2.10   (Date service of sentence commences)

2.16   (Parole of prisoner in State, local, or territorial institution)

2.19   (Information considered)

2.23   (Delegation to hearing examiners)

2.25   (Hearings by video conference)

2.30   (False information or new criminal conduct; Discovery after release)

2.32   (Parole to local or immigration detainers)

2.56   (Disclosure of Parole Commission file)

2.62   (Rewarding assistance in the prosecution of other offenders: criteria and guidelines)

2.63   (Quorum)

2.65   (Paroling policy for prisoners serving aggregated U.S. and D.C. Code sentences)

2.66   (Revocation Decision Without Hearing)

[65 FR 45888, July 26, 2000, as amended at 69 FR 5274, Feb. 4, 2004; 72 FR 53116, Sept. 18, 2007; 83 FR 58500, Nov. 20, 2018]

§2.90   Prior orders of the Board of Parole.

Any order entered by the Board of Parole of the District of Columbia shall be accorded the status of an order of the Parole Commission unless duly reconsidered and changed by the Commission at a regularly scheduled hearing. It shall not constitute grounds for reopening a case that the prisoner is subject to an order of the Board of Parole that fails to conform to a provision of this part.

§2.91   Supervision responsibility.

(a) Pursuant to D.C. Code 24-133(c), the District of Columbia Court Services and Offender Supervision Agency (CSOSA) shall provide supervision, through qualified Supervision Officers, for all D.C. Code parolees and mandatory releasees under the jurisdiction of the Commission who are released to the District of Columbia. Individuals under the jurisdiction of the Commission who are released to districts outside the D.C. metropolitan area, or who are serving mixed U.S. and D.C. Code sentences, shall be supervised by a U.S. Probation Officer pursuant to 18 U.S.C. 3655.

(b) A parolee or mandatory releasee may be transferred to a new district of supervision with the permission of the supervision offices of both the transferring and receiving district, provided such transfer is not contrary to instructions from the Commission.

[65 FR 45888, July 26, 2000, as amended at 68 FR 41531, July 14, 2003]

§2.92   Jurisdiction of the Commission.

(a) The jurisdiction of the Commission over a parolee shall expire on the date of expiration of the maximum term or terms for which he was sentenced, or upon the early termination of supervision as provided in §2.95, subject to the provisions of this subpart relating to warrant issuance, time in absconder status, and the forfeiture of time on parole in the case of revocation.

(b) The parole of any parolee shall run concurrently with the period of parole, probation, or supervised release under any other Federal, State, or local sentence.

(c) When the parolee's sentence expires, the supervision officer shall issue a certificate of discharge to the parolee and to such other agencies as may be appropriate. If the Commission terminates the parolee's supervision early under §2.95, the Commission shall issue a certificate of discharge for delivery to the parolee by the supervision officer.

(d) An order of revocation shall not affect the Commission's jurisdiction to grant and enforce any further periods of parole, up to the date of expiration of the offender's maximum term, or upon the early termination of supervision under §2.95.

[65 FR 45888, July 26, 2000, as amended at 68 FR 41531, July 14, 2003; 74 FR 28605, June 17, 2009; 75 FR 9519, Mar. 3, 2010]

§2.93   Travel approval.

(a) A parolee's Supervision Officer may approve travel outside the district of supervision without approval of the Commission in the following situations:

(1) Vacation trips not to exceed thirty days.

(2) Trips, not to exceed thirty days, to investigate reasonably certain employment possibilities.

(3) Recurring travel across a district boundary, not to exceed fifty miles outside the district, for purpose of employment, shopping, or recreation.

(b) Specific advance approval by the Commission is required for all foreign travel, employment requiring recurring travel more than fifty miles outside the district, and vacation travel outside the district of supervision exceeding thirty days. A request for such permission shall be in writing and must demonstrate a substantial need for such travel.

(c) A special condition imposed by the Commission prohibiting certain travel shall apply instead of any general rules relating to travel as set forth in paragraph (a) of this section.

(d) The district of supervision for a parolee under the supervision of the D.C. Community Supervision Office of CSOSA shall be the District of Columbia, except that for the purpose of travel permission under this section the district of supervision will include the D.C. metropolitan area as defined in the certificate of parole.

§2.94   Supervision reports to Commission.

A supervision report shall be submitted by the responsible supervision officer to the Commission for each parolee after the completion of 24 months of continuous supervision and annually thereafter. The supervision officer shall submit such additional reports and information concerning both the parolee, and the enforcement of the conditions of the parolee's supervision, as the Commission may direct. All reports shall be submitted according to the format established by the Commission.

[81 FR 13976, Mar. 16, 2016]

§2.95   Early termination from supervision.

(a)(1) Upon its own motion or upon request of a parolee, the Commission may terminate a parolee's supervision, and legal custody over the parolee, before the sentence expires.

(2) The Commission may terminate supervision of a committed youth offender after the offender serves one year on supervision. Upon terminating supervision before the sentence expires, the Commission shall set aside the committed youth offender's conviction and issue a certificate setting aside the conviction instead of a certificate of termination.

(b) Two years after releasing a prisoner on supervision, and at least annually thereafter, the Commission shall review the status of the parolee to determine the need for continued supervision. The Commission shall also conduct a status review whenever the supervision officer recommends early termination of the parolee's supervision.

(c) Five years after releasing a prisoner on supervision, the Commission shall terminate supervision over the parolee unless the Commission determines, after a hearing conducted in accordance with the procedures prescribed in 18 U.S.C. 4214(a)(2), that such supervision should not be terminated because there is a likelihood that the parolee will engage in conduct violating any criminal law. If the Commission does not terminate supervision under this paragraph, the parolee may request a hearing annually thereafter, and the Commission shall conduct an early termination hearing at least every two years.

(d) In calculating the two-year and five-year periods provided in paragraphs (b) and (c) of this section, the Commission shall not include any period of parole before the most recent release, or any period the parolee served in confinement on any other sentence.

(e)(1) In determining whether to grant early termination from supervision, the Commission shall consider the guidelines of this paragraph (e). The guidelines are advisory and the Commission may disregard the outcome indicated by the guidelines based on case-specific factors. Termination of supervision is indicated if the parolee:

(i) Has a salient factor score in the very good risk category and has completed two continuous years of supervision free from an incident of new criminal behavior or serious parole violation; or

(ii) Has a salient factor score in a risk category other than very good and has completed three continuous years of supervision free from an incident of new criminal behavior or serious parole violation.

(2) As used in this paragraph (e), the term “an incident of new criminal behavior or serious parole violation” includes a new arrest or report of a parole violation if supported by substantial evidence of guilt, even if no conviction or parole revocation results. The Commission shall not terminate supervision of a parolee until it determines the disposition of a pending criminal charge.

(3) Case-specific factors that may justify a departure either above or below the early termination guidelines may relate to the current behavior of the parolee, or to the parolee's background and criminal history.

[75 FR 9520, Mar. 3, 2010]

§2.96   Order of early termination.

When the Commission orders early termination from supervision, the Commission shall issue a certificate to the parolee granting a full discharge from the sentence. The termination and discharge shall take effect only upon the actual delivery of the certificate of discharge to the parolee by the supervision officer, and may be rescinded for good cause at any time before such delivery.

[75 FR 9520, Mar. 3, 2010]

§2.97   Withdrawal of order of release.

If, after an order for release from active supervision under former §2.95 has been issued by the Commission, and prior to the expiration date of the sentence(s) being served, the parolee commits any new criminal offense or engages in any conduct that might bring discredit to the parole system, the Commission may, in its discretion, do any of the following:

(a) Issue a summons or warrant to commence the revocation process;

(b) Withdraw the order of release from supervision and return the parolee to active supervision; or

(c) Impose any special conditions to the order of release from supervision.

[65 FR 45888, July 26, 2000, as amended at 74 FR 28605, June 17, 2009; 75 FR 9520, Mar. 3, 2010]

§2.98   Summons to appear or warrant for retaking of parolee.

(a) If a parolee is alleged to have violated the conditions of his release, and satisfactory evidence thereof is presented, the Commission or a member thereof may:

(1) Issue a summons requiring the offender to appear for a probable cause hearing or local revocation hearing; or

(2) Issue a warrant for the apprehension and return of the offender to custody.

(b) A summons or warrant under paragraph (a)(1) of this section may be issued or withdrawn only by the Commission, or a member thereof.

(c) Any summons or warrant under this section shall be issued as soon as practicable after the alleged violation is reported to the Commission, except when delay is deemed necessary. Issuance of a summons or warrant may be withheld until the frequency or seriousness of the violations, in the opinion of the Commission, requires such issuance. In the case of any parolee who is charged with a criminal offense and who is awaiting disposition of such charge, issuance of a summons or warrant may be:

(1) Temporarily withheld;

(2) Issued by the Commission and held in abeyance;

(3) Issued by the Commission and a detainer lodged with the custodial authority; or

(4) Issued for the retaking of the parolee.

(d) A summons or warrant may be issued only within the prisoner's maximum term or terms, except that in the case of a prisoner who has been mandatorily released from a sentence imposed for an offense committed before April 11, 1987, such summons or warrant may be issued only within the maximum term or terms less one hundred eighty days. A summons or warrant shall be considered issued when signed and either:

(1) Placed in the mail; or

(2) Sent by electronic transmission to the appropriate law enforcement authority.

(e) The issuance of a warrant under this section operates to bar the expiration of the parolee's sentence. Such warrant maintains the Commission's jurisdiction to retake the parolee either before or after the normal expiration date of the sentence and to reach a final decision as to the revocation of parole and the forfeiture of time pursuant to D.C. Code 24-406(c).

(f) A summons or warrant issued pursuant to this section shall be accompanied by a warrant application (or other notice) stating:

(1) The charges against the parolee;

(2) The specific reports and other documents upon which the Commission intends to rely in determining whether a violation occurred and whether to revoke parole;

(3) Notice of the Commission's intent, if the parolee is arrested within the District of Columbia, to hold a probable cause hearing within five days of the parolee's arrest;

(4) A statement of the purpose of the probable cause hearing;

(5) The days of the week on which the Commission regularly holds its dockets of probable cause hearings at the Central Detention Facility;

(6) The parolee's procedural rights in the revocation process; and

(7) The possible actions that the Commission may take.

(g) Every warrant issued by the Board of Parole of the District of Columbia prior to August 5, 2000, shall be deemed to be a valid warrant of the U.S. Parole Commission unless withdrawn by the Commission. Such warrant shall be executed as provided in §2.99, and every offender retaken upon such warrant shall be treated for all purposes as if retaken upon a warrant issued by the Commission.

[65 FR 45888, July 26, 2000, as amended at 67 FR 2569, Jan. 18, 2002; 68 FR 41531, July 14, 2003; 74 FR 28605, June 17, 2009]

Editorial Note: At 75 FR 9520, Mar. 3, 2010, §2.98(e) was amended by removing “DC Code 24-406(a)” and adding in its place “DC Code 24-406(c).”; however, the amendment could not be incorporated because “DC Code 24-406(a)” does not exist in that paragraph.

§2.99   Execution of warrant and service of summons.

(a) Any officer of any Federal or District of Columbia correctional institution, any Federal Officer authorized to serve criminal process, or any officer or designated civilian employee of the Metropolitan Police Department of the District of Columbia, to whom a warrant is delivered, shall execute such warrant by taking the parolee and returning him to the custody of the Attorney General.

(b) Upon the arrest of the parolee, the officer executing the warrant shall deliver to the parolee a copy of the warrant application (or other notice provided by the Commission) containing the information described in §2.98 (f).

(c) If execution of the warrant is delayed pending disposition of local charges, for further investigation, or for some other purpose, the parolee is to be continued under supervision by the Supervision Officer until the normal expiration of the sentence, or until the warrant is executed, whichever first occurs. Monthly supervision reports are to be submitted, and the parolee must continue to abide by all the conditions of release.

(d) If any other warrant for the arrest of the parolee has been executed or is outstanding at the time the Commission's warrant is executed, the arresting officer may, within 72 hours of executing the Commission's warrant, release the parolee to such other warrant and lodge the Commission's warrant as a detainer, voiding the execution thereof, if such action is consistent with the instructions of the Commission. In other cases, a parolee may be released from an executed warrant whenever the Commission finds such action necessary to serve the ends of justice.

(e) A summons to appear at a probable cause hearing or revocation hearing shall be served upon the parolee in person by delivering to the parolee a copy of the summons and the application therefor. Service shall be made by any Federal or District of Columbia officer authorized to serve criminal process and certification of such service shall be returned to the Commission.

(f) Official notification of the issuance of a Commission warrant shall authorize any law enforcement officer within the United States to hold the parolee in custody until the warrant can be executed in accordance with paragraph (a) of this section.

[65 FR 45888, July 26, 2000, as amended at 67 FR 2569, Jan. 18, 2002]

§2.100   Warrant placed as detainer and dispositional review.

(a) When a parolee is in the custody of other law enforcement authorities, or is serving a new sentence of imprisonment imposed for a crime committed while on parole or for a violation of some other form of community supervision, a parole violation warrant may be lodged against him as a detainer.

(b) If the parolee is serving a new sentence of imprisonment, and is eligible and has applied for parole under the Commission's jurisdiction, a dispositional revocation hearing shall be scheduled simultaneously with the initial hearing on the new sentence. In such cases, the warrant shall not be executed except upon final order of the Commission following such hearing, as provided in §2.81(c). In any other cases, the detainer shall be reviewed on the record pursuant to paragraph (c) of this section.

(c) If the parolee is serving a new sentence of imprisonment that does not include eligibility for parole under the Commission's jurisdiction, the Commission shall review the detainer upon the request of the parolee. Following such review, the Commission may:

(1) Withdraw the detainer and order reinstatement of the parolee to supervision upon release from custody, or close the case if the expiration date has passed.

(2) Order a dispositional revocation hearing to be conducted by a hearing examiner or an official designated by the Commission at the institution in which the parolee is confined. In such case, the warrant shall not be executed except upon final order of the Commission following such hearing.

(3) Let the detainer stand until the new sentence is completed. Following the release of the parolee, and the execution of the Commission's warrant, an institutional revocation hearing shall be conducted after the parolee is returned to federal custody.

(d) Dispositional revocation hearings pursuant to this section shall be conducted in accordance with the provisions at §2.103 governing institutional revocation hearings, except that a hearing conducted at a state or local facility may be conducted by a hearing examiner, hearing examiner panel, or other official designated by the Commission. Following a revocation hearing conducted pursuant to this section, the Commission may take any action specified in §2.105.

(1) The date the violation term commences is the date the Commission's warrant is executed. It shall be the policy of the Commission that the parolee's violation term (i.e., the unexpired term that remained to be served at the time the parolee was last released on parole) shall start to run only upon his release from the confinement portion of the sentence for the new offense, or the date of reparole granted pursuant to this subpart, whichever comes first.

(2) A parole violator whose parole is revoked shall be given credit for all time in confinement resulting from any new offense or violation that is considered by the Commission as a basis for revocation, but solely for the limited purpose of satisfying the time ranges in the reparole guidelines at §2.81. The computation of the prisoner's sentence, and forfeiture of time on parole pursuant to D.C. Code 24-406(c), is not affected by such guideline credit.

[65 FR 45888, July 26, 2000, as amended at 68 FR 41531, July 14, 2003; 74 FR 28605, June 17, 2009]

Editorial Note: At 75 FR 9520, Mar. 3, 2010, §2.100(d)(2) was amended by removing “DC Code 24-406(a)” and adding in its place “DC Code 24-406(c).”; however, the amendment could not be incorporated because “DC Code 24-406(a)” does not exist in that paragraph.

§2.101   Probable cause hearing and determination.

(a) Hearing. A parolee who is retaken and held in custody in the District of Columbia on a warrant issued by the Commission, and who has not been convicted of a new crime, shall be given a probable cause hearing by an examiner of the Commission no later than five days from the date of such retaking. A parolee who is retaken and held in custody outside the District of Columbia, but within the Washington DC metropolitan area, and who has not been convicted of a new crime, shall be given a probable cause hearing by an examiner of the Commission within five days of the parolee's arrival at a facility where probable cause hearings are conducted. The purpose of a probable cause hearing is to determine whether there is probable cause to believe that the parolee has violated parole as charged, and if so, whether a local or institutional revocation hearing should be conducted. If the examiner finds probable cause, the examiner shall schedule a final revocation hearing to be held within 65 days of such parolee's arrest.

(b) Notice and opportunity to postpone hearing. Prior to the commencement of each docket of probable cause hearings in the District of Columbia, a list of the parolees who are scheduled for probable cause hearings, together with a copy of the warrant application for each parolee, shall be sent to the D.C. Public Defender Service. At or before the probable cause hearing, the parolee (or the parolee's attorney) may submit a written request that the hearing be postponed for any period up to thirty days, and the Commission shall ordinarily grant such requests. Prior to the commencement of the probable cause hearing, the examiner shall advise the parolee that the parolee may accept representation by the attorney from the D.C. Public Defender Service who is assigned to that docket, waive the assistance of an attorney at the probable cause hearing, or have the probable cause hearing postponed in order to obtain another attorney and/or witnesses on his behalf. In addition, the parolee may request the Commission to require the attendance of adverse witnesses (i.e., witnesses who have given information upon which revocation may be based) at a postponed probable cause hearing. Such adverse witnesses may be required to attend either a postponed probable cause hearing, or a combined postponed probable cause and local revocation hearing, provided the parolee meets the requirements of §2.102(a) for a local revocation hearing. The parolee shall also be given notice of the time and place of any postponed probable cause hearing.

(c) Review of the charges. At the beginning of the probable cause hearing, the examiner shall ascertain that the notice required by §2.99 (b) has been given to the parolee. The examiner shall then review the violation charges with the parolee and shall apprise the parolee of the evidence that has been submitted in support of the charges. The examiner shall ascertain whether the parolee admits or denies each charge listed on the warrant application (or other notice of charges), and shall offer the parolee an opportunity to rebut or explain the allegations contained in the evidence giving rise to each charge. The examiner shall also receive the statements of any witnesses and documentary evidence that may be presented by the parolee. At a postponed probable cause hearing, the examiner shall also permit the parolee to confront and cross-examine any adverse witnesses in attendance, unless good cause is found for not allowing confrontation. Whenever a probable cause hearing is postponed to secure the appearance of adverse witnesses, the Commission will ordinarily order a combined probable cause and local revocation hearing as provided in paragraph (i) of this section.

(d) Probable cause determination. At the conclusion of the probable cause hearing, the examiner shall determine whether probable cause exists to believe that the parolee has violated parole as charged, and shall so inform the parolee. The examiner shall then take either of the following actions:

(1) If the examiner determines that no probable cause exists for any violation charge, the examiner shall order that the parolee be released from the custody of the warrant and either reinstated to parole, or discharged from supervision if the parolee's sentence has expired.

(2) If the hearing examiner determines that probable cause exists on any violation charge, and the parolee has requested (and is eligible for) a local revocation hearing in the District of Columbia as provided by §2.102 (a), the examiner shall schedule a local revocation hearing for a date that is within 65 days of the parolee's arrest. After the probable cause hearing, the parolee (or the parolee's attorney) may submit a written request for a postponement. Such postponements will normally be granted if the request is received no later than fifteen days before the date of the revocation hearing. A request for a postponement that is received by the Commission less than fifteen days before the scheduled date of the revocation hearing will be granted only for a compelling reason. The parolee (or the parolee's attorney) may also request, in writing, a hearing date that is earlier than the date scheduled by the examiner, and the Commission will accommodate such request if practicable.

(e) Institutional revocation hearing. If the parolee is not eligible for a local revocation hearing as provided by §2.102 (a), or has requested to be transferred to an institution for his revocation hearing, the Commission will request the Bureau of Prisons to designate the parolee to an appropriate institution, and an institutional revocation hearing shall be scheduled for a date that is within ninety days of the parolee's retaking.

(f) Digest of the probable cause hearing. At the conclusion of the probable cause hearing, the examiner shall prepare a digest summarizing the evidence presented at the hearing, the responses of the parolee, and the examiner's findings as to probable cause.

(g) Release notwithstanding probable cause. Notwithstanding a finding of probable cause, the Commission may order the parolee's reinstatement to supervision or release pending further proceedings, if it determines that:

(1) Continuation of revocation proceedings is not warranted despite the finding of probable cause; or

(2) Incarceration pending further revocation proceedings is not warranted by the frequency or seriousness of the alleged violation(s), and the parolee is neither likely to fail to appear for further proceedings, nor is a danger to himself or others.

(h) Conviction as probable cause. Conviction of any crime committed subsequent to release by a parolee shall constitute probable cause for the purposes of this section, and no probable cause hearing shall be conducted unless a hearing is needed to consider additional violation charges that may be determinative of the Commission's decision whether to revoke parole.

(i) Combined probable cause and local revocation hearing. A postponed probable cause hearing may be conducted as a combined probable cause and local revocation hearing, provided such hearing is conducted within 65 days of the parolee's arrest and the parolee has been notified that the postponed probable cause hearing will constitute his final revocation hearing. The Commission's policy is to conduct a combined probable cause and local revocation hearing whenever adverse witnesses are required to appear and give testimony with respect to contested charges.

(j) Late received charges. If the Commission is notified of an additional charge after probable cause has been found to proceed with a revocation hearing, the Commission may:

(1) Remand the case for a supplemental probable cause hearing if the new charge may be contested by the parolee and possibly result in the appearance of witness(es) at the revocation hearing;

(2) Notify the parolee that the additional charge will be considered at the revocation hearing without conducting a supplemental probable cause hearing; or

(3) Determine that the new charge shall not be considered at the revocation hearing.

[67 FR 2569, Jan. 18, 2002, as amended at 68 FR 3390, Jan. 24, 2003]

§2.102   Place of revocation hearing.

(a) If the parolee requests a local revocation hearing, he shall be given a revocation hearing reasonably near the place of the alleged violation(s) or arrest, with the opportunity to contest the charges against him, if the following conditions are met:

(1) The parolee has not been convicted of a crime committed while under supervision; and

(2) The parolee denies all charges against him.

(b) The parolee shall also be given a local revocation hearing if he admits (or has been convicted of) one or more charged violations, but denies at least one unadjudicated charge that may be determinative of the Commission's decision regarding revocation and/or reparole, and requests the presence of one or more adverse witnesses regarding that contested charge. If the appearance of such witness at the hearing is precluded by the Commission for good cause, a local revocation hearing shall not be ordered.

(c) If there are two or more contested charges, a local revocation hearing may be conducted near the place of the violation chiefly relied upon by the Commission as a basis for the issuance of the warrant or summons.

(d)(1) A parolee shall be given an institutional revocation hearing upon the parolee's return or recommitment to an institution if the parolee:

(i) Voluntarily waives the right to a local revocation hearing; or

(ii) Admits (or has been convicted of) one or more charged violations without contesting any unadjudicated charge that may be determinative of the Commission's decision regarding revocation and/or reparole.

(2) An institutional revocation hearing may also be conducted in the District of Columbia jail or prison facility in which the parolee is being held. On his own motion, a Commissioner may designate any case described in paragraph (d)(1) of this section for a local revocation hearing. The difference in procedures between a “local revocation hearing” and an “institutional revocation hearing” is set forth in §2.103(b).

(e) A parolee retaken on a warrant issued by the Commission shall be retained in custody until final action relative to revocation of his parole, unless otherwise ordered by the Commission under §2.101(e)(3). A parolee who has been given a revocation hearing pursuant to the issuance of a summons shall remain on supervision pending the decision of the Commission, unless the Commission has provided otherwise.

(f) A local revocation hearing shall be held not later than sixty-five days from the retaking of the parolee on the parole violation warrant. An institutional revocation hearing shall be held within ninety days of the retaking of the parolee on the parole violation warrant. If the parolee requests and receives any postponement, or consents to any postponement, or by his actions otherwise precludes the prompt completion of revocation proceedings in his case, the above-stated time limits shall be correspondingly extended.

[65 FR 45888, July 26, 2000, as amended at 67 FR 2570, Jan. 18, 2002; 68 FR 41531, July 14, 2003]

§2.103   Revocation hearing procedure.

(a) The purpose of the revocation hearing shall be to determine whether the parolee has violated the conditions of his release and, if so, whether his parole or mandatory release should be revoked or reinstated.

(b) At a local revocation hearing, the alleged violator may present voluntary witnesses and documentary evidence in his behalf. The alleged violator may also seek the compulsory attendance of any adverse witnesses for cross-examination, and any relevant favorable witnesses who have not volunteered to attend. At an institutional revocation hearing, the alleged violator may present voluntary witnesses and documentary evidence in his behalf, but may not request the Commission to secure the attendance of any adverse or favorable witness. At any hearing, the presiding hearing officer or examiner may limit or exclude any irrelevant or repetitious statement or documentary evidence, and may prohibit the parolee from contesting matters already adjudicated against him in other forums.

(c) At a local revocation hearing, the Commission shall, on the request of the alleged violator, require the attendance of any adverse witnesses who have given statements upon which revocation may be based. The adverse witnesses who are present shall be made available for questioning and cross-examination in the presence of the alleged violator. The Commission may also require the attendance of adverse witnesses on its own motion, and may excuse any requested adverse witness from appearing at the hearing (or from appearing in the presence of the alleged violator) if it finds good cause for so doing. A finding of good cause for the non-appearance of a requested adverse witness may be based, for example, on a significant possibility of harm to the witness, the witness not being reasonably available, and/or the availability of documentary evidence that is an adequate substitute for live testimony.

(d) All evidence upon which a finding of violation may be based shall be disclosed to the alleged violator before the revocation hearing. Such evidence shall include the Community Supervision Officer's letter summarizing the parolee's adjustment to parole and requesting the warrant, all other documents describing the charged violation or violations of parole, and any additional evidence upon which the Commission intends to rely in determining whether the charged violation or violations, if sustained, would warrant revocation of parole. If the parolee is represented by an attorney, the attorney shall be provided, prior to the revocation hearing, with a copy of the parolee's presentence investigation report, if such report is available to the Commission. If disclosure of any information would reveal the identity of a confidential informant or result in harm to any person, that information may be withheld from disclosure, in which case a summary of the withheld information shall be disclosed to the parolee prior to the revocation hearing.

(e) An alleged violator may be represented by an attorney at either a local or an institutional revocation hearing. In lieu of an attorney, an alleged violator may be represented at any revocation hearing by a person of his choice. However, the role of such non-attorney representative shall be limited to offering a statement on the alleged violator's behalf. Only licensed attorneys shall be permitted to question witnesses, make objections, and otherwise provide legal representation for parolees, except in the case of law students appearing before the Commission as part of a court-approved clinical practice program, with the consent of the alleged violator, and under the personal direction of a lawyer or law professor who is physically present at the hearing.

(f) At a local revocation hearing, the Commission shall secure the presence of the parolee's Community Supervision Officer, or a substitute Community Supervision Officer, who shall bring the parolee's supervision file, if the parolee's Community Supervision Officer is not available. At the request of the hearing examiner, such officer shall provide testimony at the hearing concerning the parolee's adjustment to parole.

(g) After the revocation hearing, the hearing examiner shall prepare a summary of the hearing that includes a description of the evidence against the parolee and the evidence submitted by the parolee in defense or mitigation of the charges, a summary of the arguments against revocation presented by the parolee, and the examiner's recommended decision. The hearing examiner's summary, together with the parolee's file (including any documentary evidence and letters submitted on behalf of the parolee), shall be given to another examiner for review. When two hearing examiners concur in a recommended disposition, that recommendation, together with the parolee's file and the hearing examiner's summary of the hearing, shall be submitted to the Commission for decision.

[65 FR 45888, July 26, 2000, as amended at 67 FR 2570, Jan. 18, 2002]

§2.104   Issuance of subpoena for appearance of witnesses or production of documents.

(a)(1) If any adverse witness (i.e., a person who has given information upon which revocation may be based) refuses, upon request by the Commission, to appear at a probable cause hearing or local revocation hearing, a Commissioner may issue a subpoena for the appearance of such witness. Such subpoena may also be issued at the discretion of a Commissioner in the event such adverse witness is judged unlikely to appear as requested.

(2) In addition, a Commissioner may, upon a showing by the parolee that a witness whose testimony is necessary to the proper disposition of his case will not appear voluntarily at a local revocation hearing or provide an adequate written statement of his testimony, issue a subpoena for the appearance of such witness at the revocation hearing.

(3) Such subpoenas may also be issued at the discretion of a Commissioner if deemed necessary for the orderly processing of the case.

(b) A subpoena issued pursuant to paragraph (a) of this section may require the production of documents as well as, or in lieu of, a personal appearance. The subpoena shall specify the time and the place at which the person named therein is commanded to appear, and shall specify any documents required to be produced.

(c) A subpoena may be served by any Federal or District of Columbia officer authorized to serve criminal process. The subpoena may be served at any place within the judicial district in which the place specified in the subpoena is located, or any place where the witness may be found. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such a person.

(d) If a person refuses to obey such subpoena, the Commission may petition a court of the United States for the judicial district on which the parole proceeding is being conducted, or in which such person may be found, to require such person to appear, testify, or produce evidence. If the court issues an order requiring such person to appear before the Commission, failure to obey such an order is punishable as contempt. 18 U.S.C. 4214 (1976).

[65 FR 45888, July 26, 2000, as amended at 67 FR 2571, Jan. 18, 2002]

§2.105   Revocation decisions.

(a) Whenever a parolee is summoned or retaken by the Commission, and the Commission finds by a preponderance of the evidence that the parolee has violated one or more conditions of parole, the Commission may take any of the following actions:

(1) Restore the parolee to supervision, including where appropriate:

(i) Reprimand the parolee;

(ii) Modify the parolee's conditions of release; or

(iii) Refer the parolee to a residential community treatment center for all or part of the remainder of his original sentence; or

(2) Revoke parole.

(b) If parole is revoked under this section, the Commission shall determine whether immediate reparole is warranted or whether the parolee should be returned to prison. If the parolee is returned to prison, the Commission shall also determine whether to set a presumptive release date pursuant to §2.81.

(c) Decisions under this section shall be made by one Commissioner, except that a decision to override an examiner panel recommendation shall require the concurrence of two Commissioners. The final decision following a local revocation hearing shall be issued within 86 days of the retaking of the parolee on the parole violation warrant. The final decision following an institutional revocation hearing shall be issued within 21 days of the hearing, excluding weekends and holidays.

(d)(1) Except as provided in paragraphs (d)(2) and (d)(3) of this section, the Commission shall grant a revoked parolee credit toward completion of the sentence for all time served on parole.

(2)(i) The Commission shall forfeit credit for the period of parole if a parolee is convicted of a crime committed during a period of parole and that is punishable by a term of imprisonment of more than one year.

(ii) If the crime is punishable by any other term of imprisonment, the Commission shall forfeit credit for the period of parole unless the Commission determines that such forfeiture is not necessary to protect the public welfare. In making this decision, the Commission shall consider the nature and circumstances of the violation behavior, the history and characteristics of the offender, including the offender's supervision history, family support and stability, employment record, participation in applicable treatment programs, and other available and relevant information.

(3) If, during the period of parole, a parolee intentionally refuses or fails to respond to any reasonable request, order, summons, or warrant of the Commission or any member or agent of the Commission, the Commission may order that the parolee not receive credit for the period of time that the Commission determines that the parolee failed or refused to respond to such a request, order, summons, or warrant.

(4) The provisions of this paragraph (e) shall apply only to any period of parole that is being served on or after May 20, 2009, and shall not apply to any period of parole that was revoked before that date.

(e) Notwithstanding paragraphs (a) through (d) of this section, prisoners committed under the Federal Youth Corrections Act shall not be subject to forfeiture of time on parole, but shall serve uninterrupted sentences from the date of conviction except as provided in §2.10(b) and (c). DC Code 24-406(c) and paragraphs (a) through (d) of this section are fully applicable to prisoners serving sentences under the DC Youth Rehabilitation Act.

(f) In determining whether to revoke parole for non-compliance with a condition requiring payment of a fine, restitution, court costs or assessment, and/or court ordered child support or alimony payment, the Commission shall consider the parolee's employment status, earning ability, financial resources, and any other special circumstances that may have a bearing on the matter. Revocation shall not be ordered unless the parolee is found to be deliberately evading or refusing compliance.

(g) A parolee may appeal a decision made under this section to revoke parole, to grant or deny reparole, or to modify the conditions of release. The provisions of §2.26 on the time limits for filing and deciding the appeal, the grounds for appeal, the format of the appeal, the limits regarding the submission of exhibits, and voting requirements apply to an appeal submitted under this paragraph.

[65 FR 45888, July 26, 2000, as amended at 67 FR 2571, Jan. 18, 2002; 68 FR 41531, July 14, 2003; 69 FR 68793, Nov. 26, 2004; 74 FR 28605, June 17, 2009; 74 FR 29941, June 24, 2009; 75 FR 9520, Mar. 3, 2010]

§2.106   Youth Rehabilitation Act.

(a) Regulations governing YRA offenders and D.C. Code FYCA offenders. Unless the judgment and commitment order provides otherwise, the provisions of this section shall apply to an offender sentenced under the Youth Rehabilitation Act of 1985 (D.C. Code 24-901 et seq.) (YRA) who committed his offense before 5 p.m., August 11, 2000, and a D.C. Code offender sentenced under the former Federal Youth Corrections Act (former 18 U.S.C. 5005 et seq.) (FYCA). An offender sentenced under the YRA who committed his offense (or who continued to commit his offense) on or after 5 p.m., August 11, 2000, is not eligible for release on parole, but may be terminated from a term of supervised release before the expiration of the term and receive a certificate setting aside the conviction under §2.208(f). See D.C. Code 24-904(c) and 24-906(c).

(b) Application of this subpart to YRA offenders. All provisions of this subpart that apply to adult offenders also apply to YRA offenders unless a specific exception is made for YRA (or youth) offenders.

(c) No further benefit finding. If there is a finding that a YRA offender will derive no further benefit from treatment, such prisoner shall be considered for parole, and for any other action, exclusively under the provisions of this subpart that are applicable to adult offenders. Such a finding may be made pursuant to D.C. Code 24-905 by the Department of Corrections or by the Bureau of Prisons, and shall be promptly forwarded to the Commission. However, if the finding is appealed to the sentencing judge, the prisoner will continue to be treated under the provisions pertaining to YRA offenders until the judge makes a final decision denying the appeal.

(d)(1) Program plans and using program achievement to set the parole date. At a YRA prisoner's initial parole hearing, a program plan for the prisoner's treatment shall be submitted by institutional staff and reviewed by the hearing examiner. Any proposed modifications to the plan shall be discussed at the hearing, although further relevant information may be presented and considered after the hearing. The plan shall adequately account for the risk implications of the prisoner's current offense and criminal history and shall address the prisoner's need for rehabilitational training. The program plan shall also include an estimated date of completion. The criteria at §2.64(d) for successful response to treatment programs shall be considered by the Commission in determining whether the proposed program plan would effectively reduce the risk to the public welfare.

(2) The youth offender's response to treatment programs and program achievement shall be considered with other relevant factors, such as the offense and parole prognosis, in determining when the youth offender should be conditionally released under supervision. See §2.64(e). The guidelines at §2.80(k)-(m) on awarding superior program achievement and the subtraction of any award in determining the total guideline range shall not be used in the decision.

(e) Parole violators. A YRA parolee who has had his parole revoked shall be scheduled for a rehearing within six months of the revocation hearing to review the new program plan prepared by institutional staff, unless a parole effective date is granted after the revocation hearing. Such program plan shall reflect a thorough reassessment of the prisoner's rehabilitational needs in light of the prisoner's failure on parole. Decisions on reparole shall be made using the guidelines at §2.80. If a YRA parolee is sentenced to a new prison term of one year or more for a crime committed while on parole, the case shall be referred to correctional authorities for consideration of a “no further benefit” finding.

(f) Unconditional discharge from supervision. (1) A YRA parolee may be unconditionally discharged from supervision after service of one year on parole supervision if the Commission finds that supervision is no longer needed to protect the public safety. A review of the parolee's file shall be conducted after the conclusion of each year of supervision upon receipt of an annual progress report, and upon receipt of a final report to be submitted by the supervision officer six months prior to the sentence expiration date.

(2) In making a decision concerning unconditional discharge, the Commission shall consider the facts and circumstances of each case, focusing on the risk the parolee poses to the public and the benefit he may obtain from further supervision. The decision shall be made after an analysis of case-specific factors, including, but not limited to, the parolee's prior criminal history, the offense behavior that led to his conviction, record of drug or alcohol dependence, employment history, stability of residence and family relationships, and the number and nature of any incidents while under supervision (including new arrests, alleged parole violations, and criminal investigations).

(3) An order of unconditional discharge from supervision terminates the YRA offender's sentence. Whenever a YRA offender is unconditionally discharged from supervision, the Commission shall issue a certificate setting aside the offender's conviction. If the YRA offender is not unconditionally discharged from supervision prior to the expiration of his sentence, a certificate setting aside the conviction may be issued nunc pro tunc if the Commission finds that the failure to issue the decision on time was due to administrative delay or error, or that the Supervision Officer failed to present the Commission with a progress report before the end of the supervision term, and the offender's own actions did not contribute to the absence of the final report. However, the offender must have deserved to be unconditionally discharged from supervision before the end of his supervision term for a nunc pro tunc certificate to issue.

[65 FR 45888, July 26, 2000, as amended at 67 FR 57946, Sept. 13, 2002; 68 FR 41531, July 14, 2003]

§2.107   Interstate Compact.

(a) Pursuant to D.C. Code 24-133(b)(2)(G), the Director of the Court Services and Offender Supervision Agency (CSOSA), or his designee, shall be the Compact Administrator with regard to the following individuals on parole supervision pursuant to the Interstate Parole and Probation Compact authorized by D.C. Code 24-451:

(1) All D.C. Code parolees who are under the supervision of agencies in jurisdictions outside the District of Columbia; and

(2) All parolees from other jurisdictions who are under the supervision of CSOSA within the District of Columbia.

(b) Transfers of supervision pursuant to the Interstate Compact, where appropriate, may be arranged by the Compact Administrator, or his designee, and carried out with the approval of the Parole Commission. A D.C. Code parolee who is under the Parole Commission's jurisdiction will ordinarily be released or transferred to the supervision of a U.S. Probation Office outside the District of Columbia.

(c) Upon receipt of a report that a D.C. Code parolee, who is under supervision pursuant to the Interstate Compact in a jurisdiction outside the District of Columbia, has violated his or her parole, the Commission may issue a warrant pursuant to the procedures of §2.98. The warrant may be executed as provided as in §2.99. A parolee who is arrested on such a warrant shall be considered to be a prisoner in federal custody, and may be returned to the District of Columbia or designated to a facility of the Bureau of Prisons at the request of the Commission.

(d) If a parolee from another jurisdiction, who is under the supervision of CSOSA pursuant to the Interstate Compact, is alleged to have violated his or her parole, the Compact Administrator or his designee may issue a temporary warrant to secure the arrest of the parolee pending issuance of a warrant by the original paroling agency. If so requested, the Commission will conduct a courtesy revocation hearing on behalf of the original paroling agency whenever a revocation hearing within the District of Columbia is required.

(e) The term “D.C. Code parolee” shall include any felony offender who is serving a period of parole or mandatory release supervision pursuant to a sentence of imprisonment imposed under the District of Columbia Code.

[65 FR 45888, July 26, 2000, as amended at 68 FR 41531, July 14, 2003]

Subpart D—District of Columbia Supervised Releasees

Source: 68 FR 41700, July 15, 2003, unless otherwise noted.

§2.200   Authority, jurisdiction, and functions of the U.S. Parole Commission with respect to offenders serving terms of supervised release imposed by the Superior Court of the District of Columbia.

(a) The U.S. Parole Commission has jurisdiction, pursuant to D.C. Code 24-133(c)(2), over all offenders serving terms of supervised release imposed by the Superior Court of the District of Columbia under the Sentencing Reform Emergency Amendment Act of 2000.

(b) The U.S. Parole Commission shall have and exercise the same authority with respect to a term of supervised release as is vested in the United States district courts by 18 U.S.C. 3583(d) through (i), except that:

(1) The procedures followed by the Commission in exercising that authority shall be those set forth with respect to offenders on federal parole at 18 U.S.C. 4209 through 4215 (Chapter 311 of 18 United States Code); and

(2) An extension of a term of supervised release under subsection (e)(2) of 18 U.S.C. 3583 may only be ordered by the Superior Court upon motion from the Commission.

(c) Within the District of Columbia, supervision of offenders on terms of supervised release under the Commission's jurisdiction is carried out by the Community Supervision Officers of the Court Services and Offender Supervision Agency (CSOSA), pursuant to D.C. Code 24-133(c)(2). Outside the District of Columbia, supervision is carried out by United States Probation Officers pursuant to 18 U.S.C. 3655. For the purpose of this subpart, any reference to a “supervision officer” shall include both a Community Supervision Officer of CSOSA and a United States Probation Officer in the case of a releasee who is under supervision outside the District of Columbia.

§2.201   Period of supervised release.

(a) A period of supervised release that is subject to the Commission's jurisdiction begins to run on the day the offender is released from prison and continues to the expiration of the full term imposed by the Superior Court, unless early termination is granted by the Commission.

(b) A term of supervised release shall run concurrently with any federal, state, or local term of probation, parole or supervised release for another offense, but does not run while the offender is imprisoned in connection with a conviction for a federal, state, or local crime (including a term of imprisonment resulting from a probation, parole, or supervised release revocation) unless the period of imprisonment is less than 30 days. Such interruption of the term of supervised release is required by D.C. Code 24-403.01(b)(5), and is not dependent upon the issuance of a warrant or an order of revocation by the Commission.

(c)(1) For an offender serving multiple terms of supervised release imposed by the Superior Court, the duration of the Commission's jurisdiction over the offender shall be governed by the longest term imposed.

(2) If the Commission terminates such an offender from supervision on the longest term imposed, this order shall have the effect of terminating the offender from all terms of supervised release that the offender is serving at the time of the order.

(3) If the Commission issues a warrant or summons for such an offender, or revokes supervised release for such an offender, the Commission's action shall have the effect of commencing revocation proceedings on, or revoking, all terms that the offender is serving at the time of the action. In revoking supervised release the Commission shall impose a term of imprisonment and a further term of supervised release as if the Commission were revoking a single term of supervised release. For the purpose of calculating the maximum authorized term of imprisonment at first revocation and the original maximum authorized term of supervised release, the Commission shall use the unexpired supervised release term imposed for the offense punishable by the longest maximum term of imprisonment.

(4) If such an offender is released to a further term of supervised release after serving a prison term resulting from a supervised release revocation, the Commission shall consider the offender to be serving only the single term of supervised release ordered after revocation.

§2.202   Prerelease procedures.

(a) At least three months, but not more than six months, prior to the release of a prisoner who has been sentenced to a term or terms of supervised release by the Superior Court, the responsible prison officials shall have the prisoner's release plan forwarded to CSOSA (or to the appropriate U.S. Probation Office) for investigation. If the supervision officer believes that any special condition of supervised release should be imposed prior to the release of the prisoner, the officer shall forward a request for such condition to the Commission. The Commission may, upon such request or of its own accord, impose any special condition in addition to the standard conditions specified in §2.204, which shall take effect on the day the prisoner is released.

(b) Upon the release of the prisoner, the responsible prison officials shall instruct the prisoner, in writing, to report to the assigned supervision office within 72 hours, and shall inform the prisoner that failure to report on time shall constitute a violation of supervised release. If the prisoner is released to the custody of other authorities, the prisoner shall be instructed to report to the supervision office within 72 hours after his release from the physical custody of such authorities. If the prisoner is unable to report to the supervision office within 72 hours of release because of an emergency, the prisoner shall be instructed to report to the nearest U.S. Probation Office and obey the instructions given by the duty officer.

§2.203   Certificate of supervised release.

When an offender who has been released from prison to serve a term of supervised release reports to the supervision officer for the first time, the supervision officer shall deliver to the releasee a certificate listing the conditions of supervised release imposed by the Commission and shall explain the conditions to the releasee.

§2.204   Conditions of supervised release.

(a)(1) General conditions of release and notice by certificate of release. All persons on supervision must follow the conditions of release described in paragraphs (a)(3) through (6) of this section. These conditions are necessary to satisfy the purposes of release conditions stated in 18 U.S.C. 3583(d) and 3553(a)(2)(B) through (D). Your certificate of release informs you of these conditions and other special conditions that we have imposed for your supervision.

(2) Refusing to sign the certificate of release does not excuse compliance. If you refuse to sign the certificate of release, you must still follow the conditions listed in the certificate.

(3) Report your arrival. After you are released from custody, you must go directly to the district named in the certificate. You must appear in person at the supervision office and report your home address to the supervision officer. If you cannot appear in person at that office within 72 hours of your release because of an emergency, you must report to the nearest CSOSA or U.S. probation office and obey the instructions given by the duty officer. If you were initially released to the custody of another authority, you must follow the procedures described in this paragraph after you are released from the custody of the other authority.

(4) Provide information to and cooperate with the supervision officer—(i) Written reports. Between the first and third day of each month, you must make a written report to the supervision officer on a form provided to you. You must also report to the supervision officer as that officer directs. You must answer the supervision officer completely and truthfully when the officer asks you for information.

(ii) Promptly inform the supervision officer of an arrest or questioning, or a change in your job or address. Within two days of your arrest or questioning by a law-enforcement officer, you must inform your supervision officer of the contact with the law-enforcement officer. You must also inform your supervision officer of a change in your employment or address within two days of the change.

(iii) Allow visits of the supervision officer. You must allow the supervision officer to visit your home and workplace.

(iv) Allow seizure of prohibited items. You must allow the supervision officer to seize any item that the officer reasonably believes is an item you are prohibited from possessing (for example, an illegal drug or a weapon), and that is in plain view in your possession, including in your home, workplace or vehicle.

(v) Take drug or alcohol tests. You must take a drug or alcohol test whenever your supervision officer orders you to take the test.

(5) Prohibited conduct—(i) Do not violate any law. You must not violate any law and must not associate with any person who is violating any law.

(ii) Do not possess a firearm or dangerous weapon. You must not possess a firearm or other dangerous weapon or ammunition.

(iii) Do not illegally possess or use a controlled substance or drink alcohol to excess. You must not illegally possess or use a controlled substance and you must not drink alcoholic beverages to excess. You must stay away from a place where a controlled substance is illegally sold, used or given away.

(iv) Do not leave the district of supervision without permission. You must not leave the district of supervision without the written permission of your supervision officer.

(v) Do not associate with a person with a criminal record. You must not associate with a person who has a criminal record without the permission of your supervision officer.

(vi) Do not act as an informant. You must not agree to act as an informant for any law-enforcement officer without the prior approval of the Commission.

(6) Additional conditions—(i) Work. You must make a good faith effort to work regularly, unless excused by your supervision officer. You must support your children and any legal dependent. You must participate in an employment-readiness program if your supervision officer directs you to do so.

(ii) Pay court-ordered obligations. You must make a good faith effort to pay any fine, restitution order, court costs or assessment or court-ordered child support or alimony payment. You must provide financial information relevant to the payment of such a financial obligation when your supervision officer asks for such information. You must cooperate with your supervision officer in setting up an installment plan to pay the obligation.

(iii) Participate in a program for preventing domestic violence. If the term of supervision results from your conviction for a domestic violence crime, and such conviction is your first conviction for such a crime, you must attend, as directed by your supervision officer, an approved offender-rehabilitation program for the prevention of domestic violence if such a program is readily available within 50 miles of your home.

(iv) Register if you are covered by a special offender registration law. You must comply with any applicable special offender registration law, for example, a law that requires you to register as a sex-offender or a gun-offender.

(v) Provide a DNA sample. You must provide a DNA sample, as directed by your supervision officer, if collection of such sample is authorized by the DNA Analysis Backlog Elimination Act of 2000.

(vi) Comply with a graduated sanction. If you are supervised by CSOSA, you must comply with the sanction(s) imposed by the supervision officer and as established by an approved schedule of graduated sanctions. We may decide to begin revocation proceedings for you even if the supervision officer has earlier imposed a graduated sanction for your alleged violation of a release condition.

(vii) Inform another person of your criminal record or personal history as directed by the supervision officer. You must inform a person of your criminal record or personal history if your supervision officer determines that your relationship or contact with this person may pose a risk of harm to this person. The supervision officer may direct you to give this notice and then confirm with the person that you obeyed the officer's direction. The supervision officer may also give the notice directly to the person.

(b)(1) Special conditions of release. We may impose a condition of release other than a condition described in paragraphs (a)(3) through (6) of this section if we determine that imposing the condition is reasonably related to the nature and circumstances of your offense or your history and characteristics, and at least one of the following purposes of criminal sentencing: The need to deter you from criminal conduct; protection of the public from further crimes; or the need to provide you with training or correctional treatment or medical care. In choosing a condition we will also consider whether the condition involves no greater deprivation of liberty than is reasonably necessary for the purposes of deterrence of criminal conduct, protection of the public from crime and offender rehabilitation.

(2) Examples. The following are examples of special conditions that we may impose—

(i) That you reside in and/or participate in a program of a community corrections center for all or part of the period of supervision;

(ii) That you participate in a drug- or alcohol-treatment program, and not use alcohol and other intoxicants at any time;

(iii) That you remain at home during hours you are not working or going to school, and have your compliance with this condition checked by telephone or an electronic signaling device; and

(iv) That you permit a supervision officer to conduct a search of your person, or of any building, vehicle or other area under your control, at such time as that supervision officer decides, and to seize any prohibited items the officer, or a person assisting the officer, may find.

(3) Participation in a drug-treatment program. If we require your participation in a drug-treatment program, you must submit to a drug test within 15 days of your release and to at least two other drug tests, as determined by your supervision officer. If we decide not to impose the special condition on drug-treatment, because available information indicates you are a low risk for substance abuse, this decision constitutes good cause for suspending the drug testing requirements of 18 U.S.C. 3583(d).

(c)(1) Changing conditions of release. After your release, we may change or add to the conditions of release if we decide that such action is consistent with the criteria described in paragraph (b)(1) of this section.

(2) Objecting to the proposed change. (i) We will notify you of the proposed change, the reason for the proposed change and give you 10 days from your receipt of the notice to comment on the proposed change. You can waive the 10-day comment period and agree to the proposed change. You are not entitled to the notice and 10-day comment period if:

(A) You ask for the change;

(B) We make the change as part of a revocation hearing or an expedited revocation decision; or

(C) We find that the change must be made immediately to prevent harm to you or another person.

(ii) We will make a decision on the proposed change within 21 days (excluding holidays) after the 10-day comment period ends, and notify you in writing of the decision. You may appeal our action as provided in §§2.26 and 2.220.

(d) Imposing special conditions for a sex offender. (1) If your criminal record includes a conviction for a sex offense, we may impose a special condition that you undergo an evaluation for sex offender treatment, and participate in a sex offender treatment program as directed by your supervision officer. We will impose the sex offender evaluation and treatment conditions using the procedures described in paragraph (c) of this section.

(2)(i) If your criminal record does not include a conviction for a sex offense, we may decide that the nature and circumstances of your offense or your history and characteristics show that you should be evaluated for sex offender treatment. In this case, we may impose a special condition requiring an evaluation for sex offender treatment using the procedures described in paragraph (c) of this section.

(ii) At the conclusion of the evaluation, if sex offender treatment appears warranted and you object to such treatment, we will conduct a hearing to consider whether you should be required to participate in sex offender treatment. You will be given notice of the date and time of the hearing and the subject of the hearing, disclosure of the information supporting the proposed action, the opportunity to testify concerning the proposed action and to present evidence and the testimony of witnesses, the opportunity to be represented by retained or appointed counsel and written findings regarding the decision. You will have the opportunity to confront and cross-examine persons who have given information that is relied on for the proposed action, if you ask that these witnesses appear at the hearing, unless we find good cause for excusing the appearance of the witness.

(iii) A hearing is not required if we impose the sex offender treatment condition at your request, as part of a revocation hearing or an expedited revocation decision, or if a hearing on the need for sex offender treatment (including a revocation hearing) was conducted within 24 months of the request for the special condition.

(iv) In most cases we expect that a hearing conducted under this paragraph will be held in person with you, especially if you are supervised in the District of Columbia. But we may conduct the hearing by videoconference.

(3) Whether your criminal record includes a conviction for a sex offense or not, if we propose to impose other restrictions on your activities, we will use either the notice and comment procedures of paragraph (c) of this section or the hearing procedures of this paragraph, depending on a case-by-case evaluation of the your interest and the public interest.

(e) Application of release conditions to an absconder. If you abscond from supervision, you will stop the running of your supervised release term as of the date of your absconding and you will prevent the expiration of your supervised release term. But you will still be bound by the conditions of release while you are an absconder, even after the original expiration date of your supervised release term. We may revoke the term of supervised release for a violation of a release condition that you commit before the revised expiration date of the supervised release term (the original expiration date plus the time you were an absconder).

(f) Revocation for certain violations of release conditions. If we find after a revocation hearing that you have possessed a controlled substance, refused to comply with drug testing, possessed a firearm or tested positive for illegal controlled substances more than three times in one year, we must revoke your supervised release and impose a prison term as provided at §2.218. When considering mandatory revocation for repeatedly failing a drug test, we must consider whether the availability of appropriate substance abuse programs, or your current or past participation in such programs, justifies an exception from the requirement of mandatory revocation.

(g) Supervision officer guidance. We expect you to understand the conditions of release according to the plain meaning of the conditions. You should ask for guidance from your supervision officer if there are conditions you do not understand and before you take actions that may risk violation of your release conditions. The supervision officer may instruct you to refrain from particular conduct, or to take specific actions or to correct an existing violation of a release condition. If the supervision officer directs you to report on your compliance with an officer's instruction and you fail to do so, we may consider that your failure is itself a release violation.

(h) Definitions. As used for any person under our jurisdiction, the term—

(1) Supervision officer means a community supervision officer of the District of Columbia Court Services and Offender Supervision Agency or a United States probation officer;

(2) Domestic violence crime has the meaning given that term by 18 U.S.C. 3561, except that the term “court of the United States” as used in that definition shall be deemed to include the Superior Court of the District of Columbia;

(3) Approved offender-rehabilitation program means a program that has been approved by CSOSA (or the United States Probation Office) in consultation with a State Coalition Against Domestic Violence or other appropriate experts;

(4) Releasee means a person who has been released to parole supervision, released to supervision through good-time deduction or released to supervised release;

(5) Certificate of release means the certificate of supervised release delivered to the releasee under §2.203;

(6) Firearm has the meaning given by 18 U.S.C. 921;

(7) Sex offense means any “registration offense” as that term is defined at D.C. Code 22-4001(8) and any “sex offense” as that term is defined at 42 U.S.C. 16911(5); and

(8) Conviction, used with respect to a sex offense, includes an adjudication of delinquency for a juvenile, but only if the offender was 14 years of age or older at the time of the sex offense and the offense adjudicated was comparable to or more severe than aggravated sexual abuse (as described in 18 U.S.C. 2241), or was an attempt or conspiracy to commit such an offense.

[79 FR 51258, Aug. 28, 2014]

§2.205   Confidentiality of supervised release records.

(a) Consistent with the Privacy Act of 1974 (5 U.S.C 552a(b)), the contents of supervised release records shall be confidential and shall not be disclosed outside the Commission and CSOSA (or the U.S. Probation Office) except as provided in paragraphs (b) and (c) of this section.

(b) Information pertaining to a releasee may be disclosed to the general public, without the consent of the releasee, as authorized by §2.37.

(c) Information other than as described in §2.37 may be disclosed without the consent of the releasee only pursuant to the provisions of the Privacy Act of 1974 (5 U.S.C. 552a(b)) and the implementing rules of the Commission or CSOSA, as applicable.

§2.206   Travel approval and transfers of supervision.

(a) A releasee's supervision officer may approve travel outside the district of supervision without approval of the Commission in the following situations:

(1) Trips not to exceed thirty days for family emergencies, vacations, and similar personal reasons;

(2) Trips, not to exceed thirty days, to investigate reasonably certain employment possibilities; and

(3) Recurring travel across a district boundary, not to exceed fifty miles outside the district, for purpose of employment, shopping, or recreation.

(b) Specific advance approval by the Commission is required for all foreign travel, employment requiring recurring travel more than fifty miles outside the district, and vacation travel outside the district of supervision exceeding thirty days. A request for such permission shall be in writing and must demonstrate a substantial need for such travel.

(c) A special condition imposed by the Commission prohibiting certain travel shall apply instead of any general rules relating to travel as set forth in paragraph (a) of this section.

(d) The district of supervision for a releasee under the supervision of CSOSA shall be the District of Columbia, except that for the purpose of travel permission under this section, the district of supervision shall include the D.C. metropolitan area as defined in the certificate of supervised release.

(e) A supervised releasee who is under the jurisdiction of the Commission, and who is released or transferred to a district outside the District of Columbia, shall be supervised by a U.S. Probation Officer pursuant to 18 U.S.C. 3655.

(f) A supervised releasee may be transferred to a new district of supervision with the permission of the supervision offices of both the transferring and receiving district, provided such transfer is not contrary to instructions from the Commission.

§2.207   Supervision reports to Commission.

A supervision report shall be submitted by the responsible supervision officer to the Commission for each releasee after the completion of 24 months of continuous supervision and annually thereafter. The supervision officer shall submit such additional reports and information concerning both the releasee, and the enforcement of the conditions of the supervised release, as the Commission may direct. All reports shall be submitted according to the format established by the Commission.

[81 FR 13976, Mar. 16, 2016]

§2.208   Termination of a term of supervised release.

(a)(1) The Commission may terminate a term of supervised release and discharge the releasee from supervision after the expiration of one year of supervised release, if the Commission is satisfied that such action is warranted by the conduct of the releasee and the interest of justice.

(2) Upon terminating supervision of a committed youth offender before the sentence expires, the Commission shall set aside the offender's conviction and issue a certificate setting aside the conviction instead of a certificate of discharge. The Commission may issue a set-aside certificate nunc pro tunc for a youth offender previously under supervised release on the sentence and who was not considered for early termination from supervision, using the criteria stated at §2.106(f)(3). If the youth offender was sentenced only to a term of incarceration without any supervision to follow release, the Commission may issue a set-aside certificate after the expiration of the sentence. In such cases, the Commission shall determine whether to grant the set-aside certificate after considering factors such as the offender's crime, criminal history, social and employment history, record of institutional conduct, efforts at rehabilitation, and any other relevant and available information.

(b) Two years after a prisoner is released on supervision, and at least annually thereafter, the Commission shall review the status of the releasee to determine the need for continued supervision. The Commission shall also conduct a status review whenever the supervision officer recommends termination of the supervised release term. If the term of supervised release imposed by the court is two years or less, the Commission shall consider termination of supervision only if recommended by the releasee's supervision officer.

(c) In calculating the two-year period provided in paragraph (b) of this section, the Commission shall not include any period of release before the most recent release, or any period served in confinement on any other sentence.

(d)(1) In deciding whether to terminate supervised release, the Commission shall consider the guidelines of this paragraph (d). The guidelines are advisory and the Commission may disregard the outcome indicated by the guidelines based on case-specific factors. Termination of supervision is indicated if the releasee:

(i) Has a salient factor score in the very good risk category and has completed two continuous years of supervision free from an incident of new criminal behavior or serious release violation; or

(ii) Has a salient factor score in a risk category other than very good and has completed three continuous years of supervision free from an incident of new criminal behavior or serious release violation.

(2) As used in this paragraph (d), the term “an incident of new criminal behavior or serious release violation” includes a new arrest or report of a release violation if supported by substantial evidence of guilt, even if no conviction or release revocation results. The Commission shall not terminate supervision of a releasee until it determines the disposition of a pending criminal charge.

(3) Case-specific factors that may justify a departure either above or below the early termination guidelines may relate to the current behavior of the releasee, or to the releasee's background and criminal history.

[75 FR 9521, Mar. 3, 2010, as amended at 75 FR 51179, Aug. 19, 2010]

§2.209   Order of termination.

When the Commission orders the termination of a term of supervised release, it shall issue a certificate to the releasee granting the releasee a full discharge from his term of supervised release. The termination and discharge shall take effect only upon the actual delivery of the certificate of discharge to the releasee by the supervision officer, and may be rescinded for good cause at any time prior to such delivery.

§2.210   Extension of term.

(a) At any time during service of a term of supervised release, the Commission may submit to the Superior Court a motion to extend the term of supervised release to the maximum term authorized by law, if less than the maximum authorized term was originally imposed. If the Superior Court grants the Commission's motion prior to the expiration of the term originally imposed, the extension ordered by the court shall take effect upon issuance of the order.

(b) The Commission may submit the motion for an extension of a term of supervised release if the Commission finds that the rehabilitation of the releasee or the protection of the public from further crimes by the releasee is likely to require a longer period of supervision than the court originally contemplated. The Commission's grounds for making such a finding shall be stated in the motion filed with the court.

(c) The provisions of this section shall not apply to the Commission's determination of an appropriate period of further supervised release following revocation of a term of supervised release.

§2.211   Summons to appear or warrant for retaking releasee.

(a) If a releasee is alleged to have violated the conditions of his release, and satisfactory evidence thereof is presented, a Commissioner may:

(1) Issue a summons requiring the releasee to appear for a probable cause hearing or local revocation hearing; or

(2) Issue a warrant for the apprehension and return of the releasee to custody.

(b) A summons or warrant under paragraph (a) of this section may be issued or withdrawn only by a Commissioner.

(c) Any summons or warrant under this section shall be issued as soon as practicable after the alleged violation is reported to the Commission, except when delay is deemed necessary. Issuance of a summons or warrant may be withheld until the frequency or seriousness of the violations, in the opinion of a Commissioner, requires such issuance. In the case of any releasee who is charged with a criminal offense and who is awaiting disposition of such charge, issuance of a summons or warrant may be:

(1) Temporarily withheld;

(2) Issued by the Commission and held in abeyance;

(3) Issued by the Commission and a detainer lodged with the custodial authority; or

(4) Issued for the retaking of the releasee.

(d) A summons or warrant may be issued only within the maximum term or terms of the period of supervised release being served by the releasee, except as provided for an absconder from supervision in §2.204(i). A summons or warrant shall be considered issued when signed and either:

(1) Placed in the mail; or

(2) Sent by electronic transmission to the appropriate law enforcement authority.

(e) The issuance of a warrant under this section operates to bar the expiration of the term of supervised release. Such warrant maintains the Commission's jurisdiction to retake the releasee either before or after the normal expiration date of the term, and for such time as may be reasonably necessary for the Commission to reach a final decision as to revocation of the term of supervised release.

(f) A summons or warrant issued pursuant to this section shall be accompanied by a warrant application (or other notice) stating:

(1) The charges against the releasee;

(2) The specific reports and other documents upon which the Commission intends to rely in determining whether a violation of supervised release has occurred and whether to revoke supervised release;

(3) Notice of the Commission's intent, if the releasee is arrested within the District of Columbia, to hold a probable cause hearing within five days of the releasee's arrest;

(4) A statement of the purpose of the probable cause hearing;

(5) The days of the week on which the Commission regularly holds its dockets of probable cause hearings at the Central Detention Facility;

(6) The releasee's procedural rights in the revocation process; and

(7) The possible actions that the Commission may take.

(g) In the case of an offender who is serving concurrent terms of parole and supervised release under the Commission's jurisdiction, the Commission may take any action permitted by this section on the basis of one or more of the terms (e.g., the Commission may issue warrants on both terms, and order that the first warrant should be executed, and that the second warrant should be placed as a detainer and executed only when the offender is released from the prison term that begins with the execution of the first warrant). The Commission may conduct separate revocation hearings, or consider all parole and supervised release violation charges in one combined hearing and make dispositions on the parole and supervised release terms. If the Commission conducts separate revocation hearings and revokes parole or supervised release at the first hearing, the Commission may conduct the subsequent hearing on the same violation behavior as an institutional hearing.

§2.212   Execution of warrant and service of summons.

(a) Any officer of any Federal or District of Columbia correctional institution, any Federal Officer authorized to serve criminal process, or any officer or designated civilian employee of the Metropolitan Police Department of the District of Columbia, to whom a warrant is delivered, shall execute such warrant by taking the releasee and returning him to the custody of the Attorney General.

(b) Upon the arrest of the releasee, the officer executing the warrant shall deliver to the releasee a copy of the warrant application (or other notice provided by the Commission) containing the information described in §2.211(f).

(c) If execution of the warrant is delayed pending disposition of local charges, for further investigation, or for some other purpose, the releasee is to be continued under supervision by the supervision officer until the normal expiration of the sentence, or until the warrant is executed, whichever first occurs. Monthly supervision reports are to be submitted, and the releasee must continue to abide by all the conditions of release.

(d) If any other warrant for the arrest of the releasee has been executed or is outstanding at the time the Commission's warrant is executed, the arresting officer may, within 72 hours of executing the Commission's warrant, release the arrestee to such other warrant and lodge the Commission's warrant as a detainer, voiding the execution thereof, provided such action is consistent with the instructions of the Commission. In other cases, the arrestee may be released from an executed warrant whenever the Commission finds such action necessary to serve the ends of justice.

(e) A summons to appear at a probable cause hearing or revocation hearing shall be served upon the releasee in person by delivering to the releasee a copy of the summons and the application therefor. Service shall be made by any Federal or District of Columbia officer authorized to serve criminal process and certification of such service shall be returned to the Commission.

(f) Official notification of the issuance of a Commission warrant shall authorize any law enforcement officer within the United States to hold the releasee in custody until the warrant can be executed in accordance with paragraph (a) of this section.

§2.213   Warrant placed as detainer and dispositional review.

(a) When a releasee is a prisoner in the custody of other law enforcement authorities, or is serving a new sentence of imprisonment imposed for a crime (or for a violation of some other form of community supervision) committed while on supervised release, a violation warrant may be lodged against him as a detainer.

(b) The Commission shall review the detainer upon the request of the prisoner pursuant to the procedure set forth in §2.47(a)(2). Following such review, the Commission may:

(1) Withdraw the detainer and order reinstatement of the prisoner to supervision upon release from custody;

(2) Order a dispositional revocation hearing to be conducted at the institution in which the prisoner is confined; or

(3) Let the detainer stand until the new sentence is completed. Following the execution of the Commission's warrant, and the transfer of the prisoner to an appropriate federal facility, an institutional revocation hearing shall be conducted.

(c) Dispositional revocation hearings pursuant to this section shall be conducted in accordance with the provisions at §2.216 governing institutional revocation hearings. A hearing conducted at a state or local facility may be conducted either by a hearing examiner or by any federal, state, or local official designated by a Commissioner. Following a revocation hearing conducted pursuant to this section, the Commission may take any action authorized by §§2.218 and 2.219.

(d) The date the violation term commences is the date the Commission's warrant is executed. A releasee's violation term (i.e., the term of imprisonment and/or further term of supervised release that the Commission may require the releasee to serve after revocation) shall start to run only upon the offender's release from the confinement portion of the intervening sentence.

(e) An offender whose supervised release is revoked shall be given credit for all time in confinement resulting from any new offense or violation that is considered by the Commission as a basis for revocation, but solely for the purpose of satisfying the time ranges in the reparole guidelines at §2.21. The computation of the offender's sentence, and the forfeiture of time on supervised release, are not affected by such guideline credit.

§2.214   Probable cause hearing and determination.

(a) Hearing. A supervised releasee who is retaken and held in custody in the District of Columbia on a warrant issued by the Commission, and who has not been convicted of a new crime, shall be given a probable cause hearing by an examiner of the Commission no later than five days from the date of such retaking. A releasee who is retaken and held in custody outside the District of Columbia, but within the Washington D.C. metropolitan area, and who has not been convicted of a new crime, shall be given a probable cause hearing by an examiner of the Commission within five days of the releasee's arrival at a facility where probable cause hearings are conducted. The purpose of a probable cause hearing is to determine whether there is probable cause to believe that the releasee has violated the conditions of supervised release as charged, and if so, whether a local or institutional revocation hearing should be conducted. If the examiner finds probable cause, the examiner shall schedule a final revocation hearing to be held within 65 days of the releasee's arrest.

(b) Notice and opportunity to postpone hearing. Prior to the commencement of each docket of probable cause hearings in the District of Columbia, a list of the releasees who are scheduled for probable cause hearings, together with a copy of the warrant application for each releasee, shall be sent to the D.C. Public Defender Service. At or before the probable cause hearing, the releasee (or the releasee's attorney) may submit a written request that the hearing be postponed for any period up to thirty days, and the Commission shall ordinarily grant such requests. Prior to the commencement of the probable cause hearing, the examiner shall advise the releasee that the releasee may accept representation by the attorney from the D.C. Public Defender Service who is assigned to that docket, waive the assistance of an attorney at the probable cause hearing, or have the probable cause hearing postponed in order to obtain another attorney and/or witnesses on his behalf. In addition, the releasee may request the Commission to require the attendance of adverse witnesses (i.e., witnesses who have given information upon which revocation may be based) at a postponed probable cause hearing. Such adverse witnesses may be required to attend either a postponed probable cause hearing, or a combined postponed probable cause and local revocation hearing, provided the releasee meets the requirements of §2.215(a) for a local revocation hearing. The releasee shall also be given notice of the time and place of any postponed probable cause hearing.

(c) Review of the charges. At the beginning of the probable cause hearing, the examiner shall ascertain that the notice required by §2.212(b) has been given to the releasee. The examiner shall then review the violation charges with the releasee and shall apprise the releasee of the evidence that has been submitted in support of the charges. The examiner shall ascertain whether the releasee admits or denies each charge listed on the warrant application (or other notice of charges), and shall offer the releasee an opportunity to rebut or explain the allegations contained in the evidence giving rise to each charge. The examiner shall also receive the statements of any witnesses and documentary evidence that may be presented by the releasee. At a postponed probable cause hearing, the examiner shall also permit the releasee to confront and cross-examine any adverse witnesses in attendance, unless good cause is found for not allowing confrontation. Whenever a probable cause hearing is postponed to secure the appearance of adverse witnesses (or counsel in the case of a probable cause hearing conducted outside the District of Columbia), the Commission will ordinarily order a combined probable cause and local revocation hearing as provided in paragraph (i) of this section.

(d) Probable cause determination. At the conclusion of the probable cause hearing, the examiner shall determine whether probable cause exists to believe that the releasee has violated the conditions of release as charged, and shall so inform the releasee. The examiner shall then take either of the following actions:

(1) If the examiner determines that no probable cause exists for any violation charge, the examiner shall order that the releasee be released from the custody of the warrant and either reinstated to supervision, or discharged from supervision if the term of supervised release has expired.

(2) If the hearing examiner determines that probable cause exists on any violation charge, and the releasee has requested (and is eligible for) a local revocation hearing in the District of Columbia as provided by §2.215(a), the examiner shall schedule a local revocation hearing for a date that is within 65 days of the releasee's arrest. After the probable cause hearing, the releasee (or the releasee's attorney) may submit a written request for a postponement. Such postponements will normally be granted if the request is received no later than fifteen days before the date of the revocation hearing. A request for a postponement that is received by the Commission less than fifteen days before the scheduled date of the revocation hearing will be granted only for a compelling reason. The releasee (or the releasee's attorney) may also request, in writing, a hearing date that is earlier than the date scheduled by the examiner, and the Commission will accommodate such request if practicable.

(e) Institutional revocation hearing. If the releasee is not eligible for a local revocation hearing as provided by §2.215(a), or has requested to be transferred to an institution for his revocation hearing, the Commission will request the Bureau of Prisons to designate the releasee to an appropriate institution, and an institutional revocation hearing shall be scheduled for a date that is within 90 days of the releasee's retaking.

(f) Digest of the probable cause hearing. At the conclusion of the probable cause hearing, the examiner shall prepare a digest summarizing the evidence presented at the hearing, the responses of the releasee, and the examiner's findings as to probable cause.

(g) Release notwithstanding probable cause. Notwithstanding a finding of probable cause, the Commission may order the releasee's reinstatement to supervision or release pending further proceedings, if it determines that:

(1) Continuation of revocation proceedings is not warranted despite the finding of probable cause; or

(2) Incarceration pending further revocation proceedings is not warranted by the frequency or seriousness of the alleged violation(s), and the releasee is neither likely to fail to appear for further proceedings, nor is a danger to himself or others.

(h) Conviction as probable cause. Conviction of any crime committed subsequent to the commencement of a term of supervised release shall constitute probable cause for the purposes of this section, and no probable cause hearing shall be conducted unless a hearing is needed to consider additional violation charges that may be determinative of the Commission's decision whether to revoke supervised release.

(i) Combined probable cause and local revocation hearing. A postponed probable cause hearing may be conducted as a combined probable cause and local revocation hearing, provided such hearing is conducted within 65 days of the releasee's arrest and the releasee has been notified that the postponed probable cause hearing will constitute the final revocation hearing. The Commission's policy is to conduct a combined probable cause and local revocation hearing whenever adverse witnesses are required to appear and give testimony with respect to contested charges.

(j) Late received charges. If the Commission is notified of an additional charge after probable cause has been found to proceed with a revocation hearing, the Commission may:

(1) Remand the case for a supplemental probable cause hearing to determine if the new charge is contested by the releasee and if witnesses must be presented at the revocation hearing;

(2) Notify the releasee that the additional charge will be considered at the revocation hearing without conducting a supplemental probable cause hearing; or

(3) Determine that the new charge shall not be considered at the revocation hearing.

§2.215   Place of revocation hearing.

(a) If the releasee requests a local revocation hearing, the releasee shall be given a revocation hearing reasonably near the place of the alleged violation(s) or arrest, with the opportunity to contest the violation charges, if the following conditions are met:

(1) The releasee has not been convicted of a crime committed while under supervision; and

(2) The releasee denies all violation charges.

(b) The releasee shall also be given a local revocation hearing if the releasee admits (or has been convicted of) one or more charged violations, but denies at least one unadjudicated charge that may be determinative of the Commission's decision regarding revocation or the length of any new term of imprisonment, and the releasee requests the presence of one or more adverse witnesses regarding that contested charge. If the appearance of such witnesses at the hearing is precluded by the Commission for good cause, a local revocation hearing shall not be ordered.

(c) If there are two or more contested charges, a local revocation hearing may be conducted near the place of the violation chiefly relied upon by the Commission as a basis for the issuance of the warrant or summons.

(d)(1) A releasee shall be given an institutional revocation hearing upon the releasee's return or recommitment to an institution if the releasee:

(i) Voluntarily waives the right to a local revocation hearing; or

(ii) Admits (or has been convicted of) one or more charged violations without contesting any unadjudicated charge that may be determinative of the Commission's decision regarding revocation and/or imposition of a new term of imprisonment.

(2) An institutional revocation hearing may also be conducted in the District of Columbia jail or prison facility in which the releasee is being held. On his own motion, a Commissioner may designate any case described in paragraph (d)(1) of this section for a local revocation hearing. The difference in procedures between a “local revocation hearing” and an “institutional revocation hearing” is set forth in §2.216(b).

(e) Unless the Commission orders release notwithstanding a probable cause finding under §2.214(g), a releasee who is retaken on a warrant issued by the Commission shall remain in custody until a decision is made on the revocation of the term of supervised release. A releasee who has been given a revocation hearing pursuant to the issuance of a summons shall remain on supervision pending the decision of the Commission, unless the Commission has ordered otherwise.

(f) A local revocation hearing shall be held not later than 65 days from the retaking of the releasee on a supervised release violation warrant. An institutional revocation hearing shall be held within 90 days of the retaking of the releasee on a supervised release violation warrant. If the releasee requests and receives any postponement, or consents to any postponement, or by his actions otherwise precludes the prompt completion of revocation proceedings in his case, the above-stated time limits shall be correspondingly extended.

(g) A local revocation hearing may be conducted by a hearing examiner or by any federal, state, or local official who is designated by a Commissioner to be the presiding hearing officer. An institutional revocation hearing may be conducted by a hearing examiner.

§2.216   Revocation hearing procedure.

(a) The purpose of the revocation hearing shall be to determine whether the releasee has violated the conditions of the term of supervised release, and, if so, whether the term should be revoked or the releasee restored to supervised release.

(b) At a local revocation hearing, the alleged violator may present voluntary witnesses and documentary evidence. The alleged violator may also request the Commission to compel the attendance of any adverse witnesses for cross-examination, and any other relevant witnesses who have not volunteered to attend. At an institutional revocation hearing, the alleged violator may present voluntary witnesses and documentary evidence, but may not request the Commission to secure the attendance of any adverse or favorable witness. At any hearing, the presiding hearing officer may limit or exclude any irrelevant or repetitious statement or documentary evidence, and may prohibit the releasee from contesting matters already adjudicated against him in other forums.

(c) At a local revocation hearing, the Commission shall, on the request of the alleged violator, require the attendance of any adverse witnesses who have given statements upon which revocation may be based, subject to a finding of good cause as described in paragraph (d) of this section. The adverse witnesses who are present shall be made available for questioning and cross-examination in the presence of the alleged violator. The Commission may also require the attendance of adverse witnesses on its own motion.

(d) The Commission may excuse any requested adverse witness from appearing at the hearing (or from appearing in the presence of the alleged violator) if the Commission finds good cause for so doing. A finding of good cause for the non-appearance of a requested adverse witness may be based, for example, on a significant possibility of harm to the witness, or the witness not being reasonably available when the Commission has documentary evidence that is an adequate substitute for live testimony.

(e) All evidence upon which a finding of violation may be based shall be disclosed to the alleged violator before the revocation hearing. Such evidence shall include the community supervision officer's letter summarizing the releasee's adjustment to supervision and requesting the warrant, all other documents describing the charged violation or violations, and any additional evidence upon which the Commission intends to rely in determining whether the charged violation or violations, if sustained, would warrant revocation of supervised release. If the releasee is represented by an attorney, the attorney shall be provided, prior to the revocation hearing, with a copy of the releasee's presentence investigation report, if such report is available to the Commission. If disclosure of any information would reveal the identity of a confidential informant or result in harm to any person, that information may be withheld from disclosure, in which case a summary of the withheld information shall be disclosed to the releasee prior to the revocation hearing.

(f) An alleged violator may be represented by an attorney at either a local or an institutional revocation hearing. In lieu of an attorney, an alleged violator may be represented at any revocation hearing by a person of his choice. However, the role of such non-attorney representative shall be limited to offering a statement on the alleged violator's behalf. Only licensed attorneys shall be permitted to question witnesses, make objections, and otherwise provide legal representation for supervised releasees, except in the case of law students appearing before the Commission as part of a court-approved clinical practice program. Such law students must be under the personal direction of a lawyer or law professor who is physically present at the hearing, and the examiner shall ascertain that the releasee consents to the procedure.

(g) At a local revocation hearing, the Commission shall secure the presence of the releasee's community supervision officer, or a substitute community supervision officer who shall bring the releasee's supervision file if the releasee's community supervision officer is not available. At the request of the hearing examiner, such officer shall provide testimony at the hearing concerning the releasee's adjustment to supervision.

(h) After the revocation hearing, the hearing examiner shall prepare a summary of the hearing that includes a description of the evidence against the releasee and the evidence submitted by the releasee in defense or mitigation of the charges, a summary of the arguments against revocation presented by the releasee, and the examiner's recommended decision. The hearing examiner's summary, together with the releasee's file (including any documentary evidence and letters submitted on behalf of the releasee), shall be given to another examiner for review. When two hearing examiners concur in a recommended disposition, that recommendation, together with the releasee's file and the hearing examiner's summary of the hearing, shall be submitted to the Commission for decision.

§2.217   Issuance of subpoena for appearance of witnesses or production of documents.

(a)(1) If any adverse witness (i.e., a person who has given information upon which revocation may be based) refuses, upon request by the Commission, to appear at a probable cause hearing or local revocation hearing, a Commissioner may issue a subpoena for the appearance of such witness.

(2) In addition, a Commissioner may, upon a showing by the releasee that a witness whose testimony is necessary to the proper disposition of his case will not appear voluntarily at a local revocation hearing or provide an adequate written statement of his testimony, issue a subpoena for the appearance of such witness at the revocation hearing.

(3) A subpoena may also be issued at the discretion of a Commissioner if an adverse witness is judged unlikely to appear as requested, or if the subpoena is deemed necessary for the orderly processing of the case.

(b) A subpoena may require the production of documents as well as, or in lieu of, a personal appearance. The subpoena shall specify the time and the place at which the person named therein is commanded to appear, and shall specify any documents required to be produced.

(c) A subpoena may be served by any Federal or District of Columbia officer authorized to serve criminal process. The subpoena may be served at any place within the judicial district in which the place specified in the subpoena is located, or any place where the witness may be found. Service of a subpoena upon a person named therein shall be made by delivering a copy of the subpoena to such a person.

(d) If a person refuses to obey such subpoena, the Commission may petition a court of the United States for the judicial district in which the revocation proceeding is being conducted, or in which such person may be found, to require such person to appear, testify, or produce evidence. If the court issues an order requiring such person to appear before the Commission, failure to obey such an order is punishable as contempt, as provided in 18 U.S.C. 4214(a)(2).

§2.218   Revocation decisions.

(a) Whenever a releasee is summoned or retaken by the Commission, and the Commission finds by a preponderance of the evidence that the releasee has violated one or more conditions of supervised release, the Commission may take any of the following actions:

(1) Restore the releasee to supervision, and where appropriate:

(i) Reprimand the releasee;

(ii) Modify the releasee's conditions of release;

(iii) Refer the releasee to a residential community corrections center for all or part of the remainder of the term of supervised release; or

(2) Revoke the term of supervised release.

(b) If supervised release is revoked, the Commission shall determine whether the releasee shall be returned to prison to serve a new term of imprisonment, and the length of that term, or whether a new term of imprisonment shall be imposed but limited to time served. If the Commission imposes a new term of imprisonment that is less than the applicable maximum term of imprisonment authorized by law, the Commission shall also determine whether to impose a further term of supervised release to commence after the new term of imprisonment has been served. If the new term of imprisonment is limited to time served, any further term of supervised release shall commence upon the issuance of the Commission's order. Notwithstanding the above, if a releasee is serving another term of imprisonment of 30 days or more in connection with a conviction for a federal, state, or local crime (including a term of imprisonment resulting from a probation, parole, or supervised release revocation), a further term of supervised release imposed by the Commission under this paragraph shall not commence until that term of imprisonment has been served.

(c) A releasee whose term of supervised release is revoked by the Commission shall receive no credit for time spent on supervised release, including any time spent in confinement on other sentences (or in a halfway house as a condition of supervised release) prior to the execution of the Commission's warrant.

(d) The Commission's decision regarding the imposition of a term of imprisonment following revocation of supervised release, and any further term of supervised release, shall be made pursuant to the limitations set forth in §2.219. Within those limitations, the appropriate length of any term of imprisonment shall be determined by reference to the guidelines at §2.21. If the term of imprisonment authorized under §2.219 is less than the minimum of the appropriate guideline range determined under §2.21, the term authorized under §2.219 shall be the guideline range.

(e) Whenever the Commission imposes a term of imprisonment upon revocation of supervised release that is less than the authorized maximum term of imprisonment, it shall be the Commission's general policy to impose a further term of supervised release that is the maximum term of supervised release permitted by §2.219. If the Commission imposes a new term of imprisonment that is equal to the maximum term of imprisonment authorized by law (or in the case of a subsequent revocation, that uses up the remainder of the maximum term of imprisonment authorized by law), the Commission may not impose a further term of supervised release.

(f) Where deemed appropriate, the Commission may depart from the guidelines at §2.21 (with respect to the imposition of a new term of imprisonment) in order to permit the imposition of a further term of supervised release.

(g) Decisions under this section shall be made upon the vote of one Commissioner, except that a decision to override an examiner panel recommendation shall require the concurrence of two Commissioners. The final decision following a local revocation hearing shall be issued within 86 days of the retaking of the releasee on a supervised release violation warrant. The final decision following an institutional revocation hearing shall be issued within 21 days of the hearing, excluding weekends and holidays.

§2.219   Maximum terms of imprisonment and supervised release.

(a) Imprisonment; first revocation. When a term of supervised release is revoked, the maximum authorized term of imprisonment that the Commission may require the offender to serve, in accordance with D.C. Code 24-403.01(b)(7), is determined by reference to the maximum authorized term of imprisonment for the offense of conviction. The maximum authorized term of imprisonment at the first revocation shall be:

(1) Five years, if the maximum term of imprisonment authorized for the offense is life, or if the offense is statutorily designated as a Class A felony;

(2) Three years, if the maximum term of imprisonment authorized for the offense is 25 years or more, but less than life, and the offense is not statutorily designated as a Class A felony;

(3) Two years, if the maximum term of imprisonment authorized for the offense is 5 years or more, but less than 25 years; or

(4) One year, if the maximum term of imprisonment authorized for the offense is less than 5 years.

(b) Further term of supervised release; first revocation. (1) When a term of supervised release is revoked, and the Commission imposes less than the maximum term of imprisonment permitted by paragraph (a) of this section, the Commission may also impose a further term of supervised release after imprisonment. A term of imprisonment is “less than the maximum authorized term of imprisonment” if the term is one day or more shorter than the maximum authorized term of imprisonment.

(2) The maximum authorized length of such further term of supervised release shall be the original maximum term of supervised release that the sentencing court was authorized to impose for the offense of conviction, less the term of imprisonment imposed by the Commission upon revocation of supervised release. The original maximum authorized term of supervised release is as follows:

(i) Five years if the maximum term of imprisonment authorized for the offense is 25 years or more;

(ii) Three years if the maximum term of imprisonment authorized for the offense is more than one year but less than 25 years; and

(iii) Life if the person is required to register for life, and 10 years in any other case, if the offender has been sentenced for an offense for which registration is required by the Sex Offender Registration Act of 1999.

(3) For example, if the maximum authorized term of imprisonment at the first revocation is three years and the original maximum authorized term of supervised release is five years, the Commission may impose a three-year term of imprisonment with no supervised release to follow, or any term of imprisonment of less than three years with a further term of supervised release of five years minus the term of imprisonment actually imposed (such as a one-year term of imprisonment followed by a four-year term of supervised release, or a two-year term of imprisonment followed by a three-year term of supervised release).

(c) Reference table. The following table may be used in most cases as a reference to determine both the maximum authorized term of imprisonment at the first revocation and the original maximum authorized term of supervised release:

D.C. Code reference for conviction offense (former code reference in brackets) Offense description Original
maximum authorized term of supervised release
Maximum authorized term of imprisonment at the first revocation
Title 22
22-301 [22-401]Arson3 years2 years.
22-302 [22-402]Arson: own property3 years2 years.
22-303 [22-403]Destruction of property over $2003 years2 years.
22-401 [22-501]Assault: with intent to kill/rob/poison, to commit sex abuse (1st or 2nd degree) or child sex abuse3 years (10 years if SOR)2 years.
22-401, 4502 [22-501, 3202]Assault: with intent to kill etc. while armed*5 years (10 years if SOR)5 years.
22-402 [22-502]Assault: with a dangerous weapon3 years2 years.
22-403 [22-503]Assault: with intent to commit an offense other than those in §22-4013 years2 years.
22-404(d) [22-504]Stalking—2nd+ offense3 years1 year.
22-404.01, 4502 [22-504.1, 3202]Assault; aggravated while armed*5 years5 years.
22-404.01(b) [22-504.1]Assault: aggravated3 years2 years.
22-404.01(c) [22-504.1]Assault: attempted aggravated3 years2 years.
22-405(a) [22-505]Assault: on a police officer3 years2 years.
22-405(b) [22-505]Assault: on a police officer while armed3 years2 years.
22-406 [22-506]Mayhem/malicious disfigurement3 years2 years.
22-406, 4502 [22-506, 3202]Mayhem/malicious disfigurement armed*5 years5 years.
22-501 [22-601]Bigamy3 years2 years.
22-601 [22-3427]Breaking and entering machines3 years1 year.
22-704(a)Corrupt influence3 years2 years.
22-712(c)Bribery: public servant3 years2 years.
22-713(c)Bribery: witness3 years2 years.
22-722(b)Obstructing justice*5 years5 years.
22-723(b)Evidence tampering3 years1 year.
22-801(a) [22-1801]Burglary 1st degree5 years3 years
22-801(b) [22-1801]Burglary 2nd degree3 years2 years.
22-801, 4502 [22-1801, 3202]Burglary: armed*5 years5 years
22-902(b)(2) [22-752]Counterfeiting (see statute for offense circumstances)3 years1 year.
22-902(b)(3) [22-752]Counterfeiting (see statute for offense circumstances)3 years2 years.
22-1101(a), (c)(1) [22-901]Cruelty to children 1st degree3 years2 years.
22-1101(b), (c)(2) [22-901]Cruelty to children 2nd degree3 years2 years.
22-1322(d) [22-1122]Inciting riot (with injury)3 years2 years
22-1403 [22-1303]False personation3 years2 years.
22-1404 [22-1304]Impersonating a public official3 years1 year.
22-1510 [22-1410]Bad checks $100 or more3 years1 year.
22-1701 [22-1501]Illegal lottery3 years1 year.
22-1704 [22-1504]Gaming3 years2 years.
22-1710, 1711 [22-1510, 1511]Bucketing: 2nd+ offense3 years2 years.
22-1713(a) [22-1513]Corrupt influence: Athletics3 years2 years.
22-1803 [22-103]Attempted crime of violence3 years2 years.
22-1804 [22-104]Second conviction
One prior conviction
   If the underlying offense is punishable by life imprisonment5 years5 years.
   If the underlying offense is punishable by 1623 years or more5 years3 years.
   If the underlying offense is punishable by 313 years or more but less than 1623 years3 years2 years.
   If underlying offense is punishable by less than 313 years
Two or more prior convictions
3 years1 years.
   If the underlying offense is punishable by life imprisonment5 years5 years.
   If the underlying offense is punishable by 813 years or more5 years3 years.
   If the underlying offense is punishable by 123 years or more but less than 813 years3 years2 years.
   If underlying offense is punishable by less than 123 years3 years1 year.
22-1804a(a)(1) [22-104a]Three strikes for felonies*5 years5 years.
22-1804a(a)(2) [22-104a]Three strikes for violent felonies*5 years5 years.
22-1805 [22-105]Aiding or abettingsame as for the offense aided or abettedsame as for the offense aided or abetted
22-1805a(a) [22-105a]Conspiracy3 years2 years.
   If underlying offense is punishable by less than 5 years3 years1 year.
22-1806 [22-106]Accessory after the fact
   If the underlying offense is punishable by 10 years or more3 years2 years.
   If the underlying offense is punishable by more than 2 years but less than 10 years3 years1 year.
22-1807 [22-107]Offenses not covered by D.C. Code3 years2 years.
22-1810 [22-2307]Threats (felony)3 years2 years.
22-1901Incest3 years (10 years if SOR)2 years.
22-2001 [22-2101]Kidnapping*5 years5 years.
22-2201, 4502 [22-2101, 3202]Kidnapping: armed*5 years5 years.
22-2101, 2104 [22-2401, 2404]Murder 1st degree*5 years5 years.
22-2101, 2104, 4502 [22-2401, 2404, 3202]Murder 1st degree while armed*5 years5 years.
22-2102, 2104 [22-2402, 2404]Murder 1st degree: obstruction of railway*5 years5 years.
22-2103, 2104 [22-2403, 2404]Murder 2nd degree*5 years5 years.
22-2103, 2104, 4502 [22-2403, 2404, 3202]Murder 2nd degree while armed*5 years5 years.
22-2105 [22-2405]Manslaughter5 years3 years.
22-2105, 4502 [22-2405, 3202]Manslaughter: armed*5 years5 years.
22-2201(e) [22-2001]Obscenity: 2nd+ offense3 years (10 years if SOR)1 year.
22-2402(b) [22-2511]Perjury3 years2 years.
22-2403 [22-2512]Subornation of perjury3 years2 years.
22-2404(b) [22-2413]False swearing3 years1 year.
22-2501 [22-3601]Possessing implements of crime 2nd+ offense3 years2 years.
22-2601(b)Escape3 years2 years.
22-2603Introducing contraband into prison3 years2 years.
22-2704Child prostitution: abducting or harboring3 years (10 years if SOR)2 years.
22-2705 to 2712Prostitution: arranging and related offenses3 years (10 years if child victim and SOR)2 years.
22-2801 [22-2901]Robbery3 years2 years.
22-2801, 4502 [22-2901, 3202]Robbery: armed*5 years5 years.
22-2802 [22-2902]Robbery: attempted3 years1 year.
22-2802, 4502 [22-2902, 3202]Robbery: attempted while armed*5 years5 years.
22-2803(a) [22-2903]Carjacking3 years2 years.
22-2803(b) [22-2903]Carjacking: armed*5 years5 years.
22-3002 [22-4102]Sex abuse 1st degree*5 years (life if SOR)5 years.
22-3002, 4502 [22-4102, 3202]Sex abuse 1st degree while armed*5 years (life if SOR)5 years.
22-3003 [22-4103]Sex abuse 2nd degree3 years (life if SOR)2 years.
22-3003, 4502 [22-4103, 3202]Sex abuse 2nd degree while armed*5 years (life if SOR)5 years.
22-3004 [22-4104]Sex abuse 3rd degree3 years (10 years if SOR)2 years.
22-3005 [22-4105Sex abuse 4th degree3 years (10 years if SOR)2 years.
22-3008 [22-4108]Child sex abuse 1st degree*5 years (life if SOR)5 years.
22-3008, 3020 [22-4108, 4120]Child sex abuse 1st degree with aggravating circumstances*5 years (life if SOR)5 years.
22-3008, 4502 [22-4108, 3202]Child sex abuse 1st degree while armed*5 years (10 years if SOR)5 years.
22-3009 [22-4109]Child sex abuse 2nd degree3 years (10 years if SOR)2 years.
22-3009, 4502 [22-4109, 3202]Child sex abuse 2nd degree while armed*5 years (10 years if SOR)5 years.
22-3010 [22-4110]Enticing a child3 years (10 years if SOR)2 years.
22-3013 [22-4113]Sex abuse ward 1st degree3 years (10 years if SOR)2 years.
22-3014 [22-4114]Sex abuse ward 2nd degree3 years (10 years if SOR)2 years.
22-3015 [22-4115]Sex abuse patient 1st degree3 years (10 years if SOR)2 years.
22-3016 [22-4116]Sex abuse patient 2nd degree3 years (10 years if SOR)2 years.
22-3018 [22-4118]Sex abuse: attempted 1st degree/child sex abuse 1st degree3 years (life if SOR)2 years.
22-3018 [22-4118]Sex abuse: other attempts
   If offense attempted is punishable by 10 years or more3 years (life if SOR)2 years.
   If the offense attempted is punishable by more than 2 years but less than 10 years3 years (life if SOR)1 year.
22-3020 [22-4120]Sex abuse 1st degree/child sex abuse 1st degree, with aggravating circumstances5 years (life if SOR)5 years.
22-3020 [22-4120]Sex abuse: other offenses with aggravating circumstances
   If the underlying offense is punishable by life imprisonment5 years (10 years if SOR)5 years.
   If the underlying offense is punishable by 1623 years or more5 years (10 years if SOR)3 years.
   If the underlying offense is punishable by 313 years or more but less than 1623 years3 years (10 years if SOR)2 years.
   If underlying offense is punishable by less than 313 years3 years (10 years if SOR)1 year.
22-3102, 3103 [22-2012, 2013Sex performance with minors3 years (10 years if SOR)2 years.
22-3153Terrorism—Act of Murder 1st degree5 years5 years.
   Murder of law enforcement officer or public safety employee5 years5 years.
   Murder 2nd degree5 years5 years.
   Manslaughter5 years5 years.
   Kidnapping5 years5 years.
   Assault with intent to kill5 years3 years.
   Mayhem/malicious disfigurement3 years2 years.
   Arson3 years2 years.
   Malicious destruction of property3 years2 years.
   Attempt/conspiracy to commit first degree murder, murder of law enforcement officer, second degree murder, manslaughter, kidnapping5 years3 years.
   Attempt/conspiracy to commit assault with intent to kill3 years2 years.
   Attempt/conspiracy to commit mayhem, malicious disfigurement, arson, malicious destruction of property3 years2 years.
   Providing or soliciting material support for act of terrorism3 years2 years.
22-3153, 22-4502 [22-3202]Commiting any of the above acts of terrorism while armed*5 years5 years.
22-3154Manufacture/possession of weapon of mass destruction5 years5 years.
   Attempt/conspiracy to possess or manufacture weapon of mass destruction5 years3 years.
22-3155Use, dissemination, or detonation of weapon of mass destruction5 years5 years.
   Attempt/conspiracy to use, disseminate, or detonate weapon of mass destruction5 years3 years.
22-3155, 22-4502 [22-3202]Manufacture, possession, use or detonation of weapon of mass destruction while armed or attempts to commit such crimes while armed*5 years5 years.
22-3212 [22-3812]Theft 1st degree3 years2 years.
22-3214.03(d)(2) [22-3814.1]Deceptive labeling3 years2 years.
22-3215(d)(1) [22-3815]Vehicle: Unlawful use of (private)3 years2 years.
22-3215(d)(2) [22-3815]Vehicle: Unlawful use of (rental)3 years1 year.
22-3221(a), 3222(a) [22-3821, 3822]Fraud 1st degree $250 or more3 years2 years.
22-3221(b), 3222(b) [22-3821, 3822]Fraud 2nd degree $250 or more3 years1 year.
22-3223(d)(1) [22-3823]Fraud: credit card $250 or more3 years2 years.
22-3225.02, 3225.04(a) [22-3825.2, 3825.4]Fraud: insurance 1st degree3 years2 years.
22-3225.03, 3225.04(b) [22-3825.3, 3825.4]Fraud: insurance 2nd degree3 years2 years.
22-3231(d) [22-3831]Stolen Property: trafficking in3 years2 years.
22-3232(c)(1) [22-3832]Stolen property: receiving ($250 or more)3 years2 years.
22-3241, 3242 [22-3841, 3842]Forgery:
Legal tender, public record, etc.
Token, prescription
Other
3 years
3 years
3 years

2 years.
2 years.
1 years.
22-3251(b) [22-3851]Extortion3 years2 years.
22-3251(b), 3252(b), 4502 [22-3851, 3852, 3202]Extortion while armed or blackmail with threats of violence*5 years5 years.
22-3252(b) [22-3852]Blackmail3 years2 years.
22-3303 [22-3103]Grave robbing3 years1 year.
22-3305 [22-3105]Destruction of property by explosives3 years2 years.
22-3318 [22-3318]Water pollution (malicious)3 years1 year.
22-3319 [22-3119]Obstructing railways3 years2 years.
22-3601 [22-3901]Senior citizen victim of robbery, attempted robbery, theft, attempted theft, extortion, and fraud
   If the underlying offense is punishable by life imprisonment5 years5 years.
   If the underlying offense is punishable by 1623 years or more5 years3 years.
   If the underlying offense is punishable by 313 years or more but less than 1623 years3 years2 years.
   If the underlying offense is punishable by less than 313 years3 years1 year.
22-3602 [22-3902]Citizen patrol victim of various violent offenses.
   If the underlying offense is punishable by life imprisonment5 years5 years.
   If the underlying offense is punishable by 1623 years or more5 years3 years.
   If the underlying offense is punishable by 313 years or more but less than 1623 years3 years2 years.
   If the underlying offense is punishable by less than 313 years3 years1 year.
22-3703 [22-4003]Bias-related crime
   If underlying offense is punishable by life imprisonment5 years5 years.
   If underlying offense is punishable by 1623 years5 years3 years.
   If underlying offense is punishable by more than or equal to 313 years but less than 1623 years3 years2 years.
   If underlying offense is punishable by less than 313 years3 years1 year.
22-4015 [24-2235]Sex offender, failure to register (2nd offense)3 years2 years.
22-4502 [22-3202]Violent crimes: committing or attempting to commit while armed5 years5 years.
22-4502.01 [22-3202.1]Gun-free zone violations
   If underlying offense is a violation of 22-45043 years2 years.
   If underlying offense is a violation of 22-4504(b) (possession of firearm while committing crime of violence or dangerous crime)5 years3 years.
22-4503 [22-3203]Pistol: unlawful possession by a felon, etc. 2nd+ offense3 years2 years.
22-4504(a)(1)-(2) [22-3204]Pistol: carrying without a license3 years2 years.
22-4504(b) [22-3204]Firearm: possession while committing crime of violence or dangerous crime3 years2 years.
22-4514 [22-3214]Prohibited weapon: possession of 2nd+ offense3 years2 years.
22-4515a [22-3215a]Molotov cocktails—1st or 2nd offense3 years2 years.
3rd offense5 years5 years.
Title 23
23-1327(a)(1)Bail Reform Act3 years2 years.
23-1328(a)(1)Committing a felony on release3 years2 years.
Title 48
48-904.01(a)-(b) [33-541]Drugs: distribute or possess with intent to distribute
   If schedule I or II narcotics or abusive drugs (e.g., heroin, cocaine, PCP, methamphetamine)5 years3 years.
   If schedule I or II drugs other than above (e.g., marijuana/hashish), or schedule III drugs3 years2 years.
   If schedule IV drugs3 years1 year.
48-904.01, 22-4502 [33-541, 22-3202]Drugs: distribute or possess with intent to distribute while armed*5 years5 years.
48-904.03 [33-543]Drugs: acquiring by fraud3 years1 year.
48-904.03a [33-543a]Drugs: maintaining place for manufacture or distribution5 years3 years.
48-904.06 [33-546]Drugs: distribution to minors
   If a schedule I or II narcotic drug (e.g., heroin or cocaine) or PCP5 years3 years.
   If schedule I or II drugs other than above (e.g., marijuana, hashish, methamphetamine), or schedule III or IV drugs3 years2 years.
   If schedule V drugs3 years1 year.
48-904.07 [33-547]Drugs: enlisting minors to sell3 years2 years.
48-904.07a [33-547.1]Drugs: distribute or possess with intent to distribute in drug-free zones
   If schedule I or II narcotics or abusive drugs (e.g., heroin, cocaine, methamphetamine, or PCP)5 years3 years.
   If schedule I or II drugs other than above (e.g., marijuana, hashish), or schedule III or IV drugs3 years2 years.
   If schedule V drugs3 years1 year.
48-904.08 [33-548]Drugs: 2nd+ offense
Note: This section does not apply if the offender was sentenced under 48-904.06If schedule I or II narcotics or abusive drugs (e.g., heroin, cocaine, methamphetamine, or PCP)5 years3 years.
   If schedule I or II drugs other than above (e.g., marijuana, hashish), or schedule III or IV drugs3 years2 years.
   If schedule V drugs3 years1 year.
48-904.09 [33-549]Drugs: attempt/conspiracythe same as for the offense that was the object of the attempt or conspiracythe same as for the offense that was the object of the attempt or conspiracy.
48-1103(b) [33-603]Drugs: possession of drug paraphernalia with intent to deliver or sell (2nd + offense)3 years1 year.
48-1103(c) [33-603]Drugs: delivering drug paraphernalia to a minor3 years2 years.
Title 50
50-2203.01 [40-713]Negligent homicide (vehicular)3 years2 years.
50-2207.01 [40-718]Smoke screens3 years2 years.

Notes: (1) An asterisk next to the offense description indicates that the offense is statutorily designated as a Class A felony.

(2) If the defendant must register as a sex offender, the Original Maximum Authorized Term of Supervised Release is the maximum period for which the offender may be required to register as a sex offender under D.C. Code 22-4002(a) and (b) (ten years or life). See D.C. Code 24-403.01(b)(4). Sex offender registration is required for crimes such as first degree sexual abuse, and these crimes are listed in this table with the notation “10 years if SOR” or “life if SOR” as the Original Maximum Authorized Term of Supervised Release. Sex offender registration, however, may also be required for numerous crimes (such as burglary or murder) if a sexual act or contact was involved or was the offender's purpose. In such cases, the offender's status will be determined by the presence of an order from the sentencing judge certifying that the defendant is a sex offender.

(3) If the defendant committed the offense before 5 p.m., August 11, 2000, the maximum authorized terms of imprisonment and supervised release shall be determined by reference to 18 U.S.C. 3583.

(d) Imprisonment; successive revocations. (1) When the Commission revokes a term of supervised release that was imposed by the Commission after a previous revocation of supervised release, the maximum authorized term of imprisonment is the maximum term of imprisonment permitted by paragraph (a) of this section, less the term or terms of imprisonment that were previously imposed by the Commission. In calculating such previously-imposed term or terms of imprisonment, the Commission shall use the term as imposed without deducting any good time credits that may have been earned by the offender prior to his release from prison. In no case shall the total of successive terms of imprisonment imposed by the Commission exceed the maximum authorized term of imprisonment at the first revocation.

(2) For example, if the maximum authorized term of imprisonment at the first revocation is three years and the original maximum authorized term of supervised release is five years, the Commission at the first revocation may have imposed a one-year term of imprisonment and a further four-year term of supervised release. At the second revocation, the maximum authorized term of imprisonment will be two years, i.e., the maximum authorized term of imprisonment at the first revocation (three years) minus the one-year term of imprisonment that was imposed at the first revocation.

(e) Further term of supervised release; successive revocations. (1) When the Commission revokes a term of supervised release that was imposed by the Commission following a previous revocation of supervised release, the Commission may also impose a further term of supervised release. The maximum authorized length of such a term of supervised release shall be the original maximum authorized term of supervised release permitted by paragraph (b) of this section, less the total of the terms of imprisonment imposed by the Commission on the same sentence (including the term of imprisonment imposed in the current revocation).

(2) For example, if the maximum authorized term of imprisonment at the first revocation is three years and the original maximum authorized term of supervised release is five years, the Commission at the first revocation may have imposed a one-year term of imprisonment and a four-year further term of supervised release. If, at a second revocation, the Commission imposes another one-year term of imprisonment, the maximum authorized further term of supervised release will be three years (the original five-year period minus the total of two years of imprisonment).

(f) Effect of sentencing court imposing less than the original maximum authorized term of supervised release. If the Commission has revoked supervised release, the maximum authorized period of further supervised release is determined by reference to the original maximum authorized term permitted for the offense of conviction (see paragraph (b) of this section), even if the sentencing court did not impose the original maximum authorized term permitted for the offense of conviction.

§2.220   Appeal.

(a) As a supervised releasee you may appeal a decision to: Change or add a special condition of supervised release, revoke supervised release, or impose a term of imprisonment or a new term of supervised release after revocation. You may not appeal one of the general conditions of release.

(b) If we add a special condition to take effect immediately upon your supervised release, you may appeal the imposition of the special condition no later than 30 days after the date you begin your supervised release. If we change or add the special condition sometime after you begin your supervised release, you may appeal within 30 days of the notice of action changing or adding the condition. You must follow the appealed condition until we change the condition in response to your appeal.

(c) You cannot appeal if we made the decision as part of an expedited revocation, or if you asked us to change or add a special condition of release.

(d) You must follow the procedures of §2.26 in preparing your appeal. We will follow the same rule in voting on and deciding your appeal.

[79 FR 51260, Aug. 28, 2014]

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