by Dale Chappell

The U.S. Court of Appeals for the Fourth Circuit ruled that a prisoner immediately released under the First Step Act of 2018 could not “bank” the extra time spent in prison toward a future prison sentence imposed in the event of a supervised release revocation.

While the Court’s decision wasn’t a “win” for the prisoner, it provides a glimpse into the Court’s reasoning of how it treats prisoners immediately released who have served too much time in prison.

Ronald Jackson was not the first prisoner released under a change in the law who had spent more time in prison than he should have, but his case was used by the Fourth Circuit to explain its position on what to do with the extra time such prisoners spent in prison when imposing a “time-served” sentence to allow release. Jackson was sentenced 15 years ago for conspiracy to distribute more than 50 grams of crack. Because he had a prior drug conviction, the Government filed a notice requiring the court to impose at least 20 years in federal prison without parole.

Jackson filed a motion in 2019 under the First Step Act that retroactively applied the Fair Sentencing Act of 2010 (“FSA”) to his case. The FSA raised the amount of crack needed to trigger the stiff penalty Jackson received, lowering his statutory sentencing range now to a minimum of 10 years, not 20. The district court agreed that Jackson was due to be released under the First Step Act and granted his motion. He was ordered to be released immediately.

The Government agreed with Jackson’s release, but it argued that the extra 10 years he spent in prison that he should not have should be ignored and that he should not be able to “bank” that extra time toward any future sentence he might serve. Jackson disagreed. He argued that the extra 57 months above his new mandatory minimum that he spent in prison should be given as credit in the event he violates his supervised release and be sent back to prison.

The district court recognized that Jackson legally could have banked that extra time toward a supervised release revocation sentence, but it eliminated that possibility by sentencing Jackson to “time served” of 177 months, effectively declaring all of the time he erroneously spent in prison as the lawful sentence for his offense. Judge Elizabeth Kay Dillon of the U.S. District Court for the Western District of Virginia reasoned that “the need to protect the public and the need for deterrence dictate[ ] that a defendant not be allowed to ‘bank time,’ which could allow him to commit further crimes without the fear of imprisonment.” She relied on a Fourth Circuit case decided before supervised release ever existed, Miller v. Cox, 442 F.2d 1019 (4th Cir. 1971), which reasoned that “the availability of credits against sentences for future crimes would provide a sense of immunity and an incentive to engage in criminal conduct.”

Jackson appealed. He argued that the district court abused its discretion by considering the possibility of banked time in imposing a sentence almost six years above his new mandatory minimum and more than 10 years above his new Guidelines sentencing range of 51 to 61 months.

The Fourth Circuit recognized that a prisoner may bank time toward a sentence. But it agreed with the district court that doing so in this case would fail to provide a “deterrence” for Jackson not to commit future crimes on supervised release.

Under 18 U.S.C. § 3553(a), a sentencing court must consider several factors when imposing a sentence. Two of those are the need to protect the public and to provide deterrence for future crimes. “Section 3553(a)’s broad language is consistent with the principle that district courts enjoy significant discretion in sentencing, provided, of course, that they devise reasonable sentences,” the Court reiterated.

A district court’s consideration of banking time for a future supervised release revocation sentence includes the § 3553(a) factors, the Court said. It rejected Jackson’s argument that he wasn’t asking for credit toward a new crime but only toward a possible revocation sentence. The Court said that would also defeat the purposes of supervised release. “It is reasonable for a district court to think that the prospect of returning to prison under a revocation sentence would provide a measure of deterrence against future crimes of the defendant and thereby provide a measure of protection to the public,” the Court explained.

In other words, the Court equated revocation of supervised release as a new crime to justify the need to protect the public and provide deterrence by way of supervised release and the threat of more prison time. But the Court did acknowledge that supervised release revocation “can be a tool for encouraging compliance with conditions not directly related to criminal conduct,” that the fear of going back to prison will cause a releasee to comply with supervised release conditions.

But the question Jackson raised was whether the district court’s consideration of the need to provide deterrence was a valid factor in counting his extra prison time as part of the corrected sentence under the First Step Act. The Court answered it this way: “The threat of consequences for violating the terms of a defendant’s supervision is important to the rehabilitative purposes of supervised release, including assisting the defendant in learning to become a law-abiding member of the community.” Jackson’s new sentence was still within the statutory range and therefore “legal,” so there was no issue with him having served time beyond what the law allowed. The Court did not have to face that thorny question, so it focused on the effects banking the time would have on supervised release (not exactly Jackson’s question).

Accordingly, the Court affirmed the district court’s sentence, finding that it did not abuse its discretion. See: United States v. Jackson, 952 F.3d 492 (4th Cir. 2020).

Writer’s note: Jackson and other prisoners who have served more time than they were supposed to and who have been released still have an avenue for modification of the terms of their supervised release. While the U.S. Supreme Court ruled in United States v. Johnson, 529 U.S. 53 (2000), that over-service of a sentence cannot be used by a court to impose a lower supervised release term, courts still have the authority to entertain a releasee’s request to adjust the terms of supervised release under 18 U.S.C. § 3583(e)(2) or, after completion of one year of supervised release, under § 3583(e)(1) because of extra time served on a sentence. That option may still be available to Jackson. Blackwell v. Quintana, 2019 U.S. App. LEXIS 982 (6th Cir. 2019) (unpublished opinion). 

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