During the first year of his supervised release, he committed another drug offense and absconded from supervision. He was ultimately apprehended. Defendant argues that the imposition of this supervised release term violated the constitutional prohibition on ex post facto laws. Under the version of the supervised probation statute in effect in 1990, as construed by the Third Circuit, the court could have imprisoned defendant for five years for violating the terms of his supervised release but could not have imposed a combination of incarceration and supervised release. By 1998, when defendant's supervised release was revoked, the statute had been amended to allow the court to impose such a combination.
Supervised release is a restraint on a convict's liberty as is imprisonment.
Punishment for a violation of supervised release is considered punishment for the original crime of conviction because it subjects persons to reincarceration for activities which would not be crimes if committed by persons not under supervision and because violations need only be proved by a preponderance of the evidence. Imposing on a supervised release violator a combination of incarceration and supervised release, even if impermissible under 3583 when defendant committed his original crime of conviction, does not violate the ex post facto clause if his original crime at the time he committed it carried a possible supervised release term equal to or greater than the combination of imprisonment and supervised release to which he was sentenced at the time his original supervised release was revoked. Dozier is inapposite. The defendant in Dozier was convicted of a class D felony and was sentenced upon revocation of supervised release to six months of imprisonment and a new 24 month supervised release term. At the time he committed his crime, and at the time he was sentenced for violating supervised release, he was subject to a maximum of two years of imprisonment for violating the terms of supervised release.