Sentencing courts are not limited to charged conduct, but may consider defendant's actual conduct, in determining whether defendant violated his supervised release

In United States v. Khalil Carter, Nos. 12-3754 & 12-3755 (3d Cir. Sept. 13, 2013), the Third Circuit addressed the question of what evidence a sentencing court may consider in the revocation context for determining the grade of a charged violation. Appellant Carter was charged with two violations of supervised release. One, a new state conviction for access device fraud, was indisputably a Grade B violation. The other, new state convictions for misdemeanor endangering the welfare of a child and corruption of a minor, was also a B violation unless the district court found that the offenses constituted crimes of violence as forcible sex offenses, which would result in a Grade A violation of supervised release. A Grade B violation resulted in a sentencing range of 6 to 12 months, while a Grade A violation produced a sentencing range of 27 to 33 months imprisonment.

In making its determination that Carter's misdemeanor charges constituted crimes of violence, the district examined evidence including the victim's statement, Carter's guilty plea transcript, a toxicology report on the victim, testimony by the victim's mother, and an oral statement by Carter. The court credited the mother's testimony, which indicated that Carter had taken the 13 year old victim out to dinner, provided her with alcohol, made inappropriate comments, and touched her genitals while she pretended to be asleep. On this evidence, the district court concluded that Carter's conduct amounted to a forcible sexual offense and, under the Guidelines, a "crime of violence" and a Grade A violation of supervised release.

On appeal, Carter contested the determination that his misdemeanor offenses constituted a Grade A violation of supervised release because he had not been charged with a forcible sex offense. The Third Circuit rejected this argument, clarifying that a district court is not limited to the actual charges or convictions in determining the grade of a violation in the revocation context, but may consider the defendant's actual conduct. In fact, a revocation can proceed without charges even being filed. Accordingly, the sentencing court was permitted to rely on the facts presented at the revocation hearing in analyzing the nature of Carter's violation, and was not limited by the charges filed or the offenses of conviction.

However, in determining that Carter committed a forcible sex offense under the Guidelines, the district court failed to name the forcible sex offense that it believed Carter had committed. It was not enough for the court to say that Carter's actions were violent or forcible without pointing to a specific local, state or federal offense containing those same elements. Nevertheless, the Third Circuit found any error harmless because the sentencing court specified that a sentence of 37 months imprisonment was the appropriate sentence whether Carter committed a Grade A or B violation and listed a number of factors supporting that conclusion. Accordingly, the Third Circuit affirmed the sentence based on the district court's alternative sentence calculation and explanation.

Chief Judge McKee filed a concurring opinion, emphasizing that "[w]hen the basis of a supervised release violation is the commission of a new crime, the supervising court should not impose a sentence to punish the defendant for that new offense. Punishment is best left to the judge who is assigned to handle the new criminal case. The judge whose supervised release is violated should instead 'sanction the violator for failing to abide by the conditions of the court-ordered supervision,' ... and impose a sentence that will 'facilitate the integration of offenders back into the community.'"