IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40389

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee,

v.

SANDRA RIVERA, 

 Defendant – Appellant.

Appeal from the United States District Court

for the Southern District of Texas

ON PETITION FOR REHEARING

Before STEWART, Chief Judge, and KING and ELROD, Circuit Judges.

PER CURIAM:

The petition for rehearing is DENIED.

Applying our earlier decision in United States v. Miller, 634 F.3d 841 

(5th Cir. 2011), our opinion held that a district court may not “rely upon the 

seriousness of the offense and the need for just punishment when sentencing 

a defendant for violation of the conditions of his supervised release.” United 

States v. Rivera, 784 F.3d 1012, 1017 (5th Cir. 2015). In reaching that holding, 

we observed that Congress’s decision to exclude the “seriousness of the offense” 

from consideration in a district court’s decision to revoke supervised release 

United States Court of Appeals

Fifth Circuit

FILED

August 7, 2015

Lyle W. Cayce

Clerk
No. 14-40389

2

“may be counterintuitive.” Id. This exclusion likely arises from the fact that 

“construing revocation and reimprisonment as punishment for the violation of 

the conditions of supervised release” would raise “serious constitutional 

questions.” Johnson v. United States, 529 U.S. 694, 700 (2000). For example, 

“[a]lthough such violations often lead to reimprisonment, the violative conduct 

need not be criminal and need only be found by a judge under a preponderance 

of the evidence standard, not by a jury beyond a reasonable doubt.” Id. 

Further, “[w]here the acts of violation are criminal in their own right, they may 

be the basis for separate prosecution, which would raise an issue of double 

jeopardy if the revocation of supervised release were also punishment for the 

same offense.” Id.; see also United States v. Johnson, 640 F.3d 195, 203 (6th 

Cir. 2011) (“When the violations are criminal and the subject of a separate 

prosecution, as in this case, the defendant may be placed in double jeopardy if 

punished for the same conduct in both proceedings.”).1 “Treating 

postrevocation sanctions as part of the penalty for the initial offense,” rather 

than a penalty for the offense constituting a violation of the terms of supervised 

release, “avoids these difficulties.” Johnson, 529 U.S. at 700.

But at the same time, consideration of the “seriousness of the offense” 

constituting a supervised release violation seems inevitable in the revocation 

context. Indeed, the reason the exclusion of that factor is “counterintuitive” is 

that there seems little else on which to base the revocation sentence aside from 

the conduct constituting a violation of the conditions of supervised release. 

Moreover, the other factors expressly referred to in section 3583 appear to 

contemplate consideration of the seriousness of the supervised release 

 

1 Because of these constitutional issues, at least one of our sister circuits has read 

“offense” in the cross-referenced section 3553(a) factors to refer to the offense of conviction, 

not the offense constituting a supervised release violation. See, e.g., Johnson, 640 F.3d at 

203.
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violation. See 18 U.S.C. § 3583(e) (instructing district courts to consider the 

factors set forth in, inter alia, 18 U.S.C. § 3553(a)(1) and 18 U.S.C. 

§ 3553(a)(2)(B) and (C) in determining the appropriate sanction for a violation 

of supervised release); 18 U.S.C. § 3553(a)(1) (“the nature and circumstances 

of the offense and the history and characteristics of the defendant”); 18 U.S.C. 

§ 3553(a)(2)(B)–(C) (“the need for the sentence imposed—(B) to afford adequate 

deterrence to criminal conduct; (C) to protect the public from further crimes of 

the defendant”). Further, the policy statements regarding supervised release 

in the United States Sentencing Guidelines Manual are centered around 

grading the seriousness of the conduct constituting a violation of the conditions 

of supervised release. The Guidelines begin by classifying supervised release 

violations into Grade A, B, or C. U.S.S.G. § 7B1.1(a). Grade A violations are 

those involving felonies that are crimes of violence, controlled substance 

offenses, involve firearms or “destructive device[s],” or felonies punishable by 

more than twenty years in prison. U.S.S.G. § 7B1.1(a)(1). Grade B violations 

are all other felonies. U.S.S.G. § 7B1.1(a)(2). Grade C violations are 

misdemeanors and all other supervised release violations. U.S.S.G. 

§ 7B1.1(a)(3). The Grade of the supervised release violation determines, in 

combination with the defendant’s criminal history category, the Guidelines 

sentencing range in the “Revocation Table.” U.S.S.G. § 7B1.4. 

As such, the Guidelines rely on the “seriousness” of the supervised 

release violation, at least in some sense, in determining the appropriate 

sentence. Moreover, one of the factors expressly included in the supervised 

release statute is “any pertinent policy statement . . . issued by the Sentencing 

Commission.” See 18 U.S.C. § 3583(e) (listing 18 U.S.C. § 3553(a)(5) as a factor 

the court must consider in revoking supervised release); 18 U.S.C. § 3553(a)(5) 

(“The court, in determining the particular sentence to be imposed, shall 

consider . . . (5) any pertinent policy statement—(A) issued by the Sentencing 
No. 14-40389

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Commission . . . .”). Section 3583 therefore contemplates, at least to some 

degree, reliance on the seriousness of the supervised release violation insofar 

as the grading of the violation in the Sentencing Guidelines is concerned.

This dissonance may, in later cases, be mitigated by differentiating 

between punishment for the offense constituting the supervised release 

violation, and sanctioning the violation itself. See United States v. Miqbel, 444 

F.3d 1173, 1182 (9th Cir. 2006) (“Although a court may consider the need to 

sanction an individual for violating the conditions of probation or supervised 

release when formulating its sentence at a revocation proceeding, that type of 

‘sanction’ is distinct from the ‘just punishment’ referred to in § 3553(a)(2)(A).”); 

Johnson, 640 F.3d at 203 (“But the sanction for failing to abide by conditions 

of supervised release is to be distinguished from ‘the imposition of an 

appropriate punishment for any new criminal conduct’ which may occur only 

following a conviction in a separate criminal proceeding.” (quoting U.S. 

Sentencing Guidelines Manual ch. 7, pt. A, introductory cmt. (U.S. Sentencing 

Comm’n 2014)). Indeed, the Sentencing Manual contemplates exactly that 

distinction. The Introduction to the revocation section of the Guidelines 

Manual indicates that the revoking court should not sentence the defendant 

with an aim to punish the offense that constitutes the supervised release 

violation. See U.S. Sentencing Guidelines Manual ch. 7, pt. A, introductory 

cmt. (U.S. Sentencing Comm’n 2014). Drawing a (very) fine line, the 

Guidelines Manual states that the district court is instead punishing the 

defendant’s breach of the court’s trust and that punishment of the offense 

constituting the violation is best left to the court responsible for imposing the 

sentence for the offense itself. Id. Nevertheless, the Manual also states that 

“the nature of the conduct leading to the revocation [may] be considered in 

measuring the extent of the breach of trust.” Id.
No. 14-40389

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Our opinion holds only that “making the seriousness of the [offense 

constituting the supervised release violation] and the need for just punishment 

dominant factors in [the] revocation sentence” was error. Rivera, 784 F.3d at 

1017. Determining precisely to what extent a district court may rely on the 

“seriousness of the offense” in applying the other section 3583(e) factors, e.g., 

the “nature and circumstances of the offense,” and the Guidelines is an issue 

left unaddressed by our opinion, and it is best left to future cases.