Stipulations (Policy Statement)

(a) A plea agreement may be accompanied by a written stipulation of facts relevant to sentencing. Except to the extent that a party may be privileged not to disclose certain information, stipulations shall: (1) set forth the relevant facts and circumstances of the actual offense conduct and offender characteristics; (2) not contain misleading facts; and (3) set forth with meaningful specificity the reasons why the sentencing range resulting from the proposed agreement is appropriate. (b) To the extent that the parties disagree about any facts relevant to sentenc- ing, the stipulation shall identify the facts that are in dispute. (c) A district court may, by local rule, identify categories of cases for which the parties are authorized to make the required stipulation orally, on the rec- ord, at the time the plea agreement is offered. (d) The court is not bound by the stipulation, but may with the aid of the presentence report, determine the facts relevant to sentencing. Commentary This provision requires that when a plea agreement includes a stipulation of fact, the stipulation must fully and accurately disclose all factors relevant to the determination of sentence. This provision does not obligate the parties to reach agreement on issues that remain in dispute or to present the court with an appearance of agreement in areas where agreement does not exist. Rather, the overrid- ing principle is full disclosure of the circumstances of the actual offense and the agreement of the parties. The stipulation should identify all areas of agreement, disagreement and uncertainty that may be relevant to the determination of sentence. Similarly, it is not appropriate for the parties to Guidelines Manual (November 1, 2024) ║ 505 §6B1.4 stipulate to misleading or non-existent facts, even when both parties are willing to assume the exist- ence of such “facts” for purposes of the litigation. Rather, the parties should fully disclose the actual facts and then explain to the court the reasons why the disposition of the case should differ from that which such facts ordinarily would require under the guidelines. Because of the importance of the stipulations and the potential complexity of the factors that can affect the determination of sentences, stipulations ordinarily should be in writing. However, exceptions to this practice may be allowed by local rule. The Commission intends to pay particular attention to this aspect of the plea agreement procedure as experience under the guidelines develops. See Com- mentary to §6A1.2 (Disclosure of Presentence Report; Issues in Dispute). Section 6B1.4(d) makes clear that the court is not obliged to accept the stipulation of the parties. Even though stipulations are expected to be accurate and complete, the court cannot rely exclusively upon stipulations in ascertaining the factors relevant to the determination of sentence. Rather, in determining the factual basis for the sentence, the court will consider the stipulation, together with the results of the presentence investigation, and any other relevant information. Historical Note Effective November 1, 1987. 506 ║ Guidelines Manual (November 1, 2024) CHAPTER SEVEN Ch. 7 Pt. A VIOLATIONS OF PROBATION AND SUPERVISED RELEASE PART A ― INTRODUCTION TO CHAPTER SEVEN 1. Authority Under 28 U.S.C. § 994(a)(3), the Sentencing Commission is required to issue guidelines or policy statements applicable to the revocation of probation and supervised release. At this time, the Commission has chosen to promulgate policy statements only. These policy state- ments will provide guidance while allowing for the identification of any substantive or proce- dural issues that require further review. The Commission views these policy statements as evolutionary and will review relevant data and materials concerning revocation determina- tions under these policy statements. Revocation guidelines will be issued after federal judges, probation officers, practitioners, and others have the opportunity to evaluate and comment on these policy statements. 2. Background (a) Probation. Prior to the implementation of the federal sentencing guidelines, a court could stay the imposition or execution of sentence and place a defendant on probation. When a court found that a defendant violated a condition of probation, the court could continue probation, with or without extending the term or modifying the conditions, or revoke probation and either impose the term of imprisonment previously stayed, or, where no term of imprisonment had originally been imposed, impose any term of imprisonment that was available at the initial sentencing. The statutory authority to “suspend” the imposition or execution of sentence in order to impose a term of probation was abolished upon implementation of the sentencing guidelines. Instead, the Sentencing Reform Act recognized probation as a sentence in itself. 18 U.S.C. § 3561. Under current law, if the court finds that a defendant violated a condition of proba- tion, the court may continue probation, with or without extending the term or modifying the conditions, or revoke probation and impose any other sentence that initially could have been imposed. 18 U.S.C. § 3565. For certain violations, revocation is required by statute. (b) Supervised Release. Supervised release, a new form of post-imprisonment supervision created by the Sen- tencing Reform Act, accompanied implementation of the guidelines. A term of supervised release may be imposed by the court as a part of the sentence of imprisonment at the time of Guidelines Manual (November 1, 2024) ║ 507 Ch. 7 Pt. A initial sentencing. 18 U.S.C. § 3583(a). Unlike parole, a term of supervised release does not replace a portion of the sentence of imprisonment, but rather is an order of supervision in addition to any term of imprisonment imposed by the court. Accordingly, supervised release is more analogous to the additional “special parole term” previously authorized for certain drug offenses. The conditions of supervised release authorized by statute are the same as those for a sentence of probation, except for intermittent confinement. (Intermittent confinement is available for a sentence of probation, but is available as a condition of supervised release only for a violation of a condition of supervised release.) When the court finds that the defendant violated a condition of supervised release, it may continue the defendant on supervised re- lease, with or without extending the term or modifying the conditions, or revoke supervised release and impose a term of imprisonment. The periods of imprisonment authorized by stat- ute for a violation of the conditions of supervised release generally are more limited, however, than those available for a violation of the conditions of probation. 18 U.S.C. § 3583(e)(3). 3. Resolution of Major Issues (a) Guidelines versus Policy Statements. At the outset, the Commission faced a choice between promulgating guidelines or issu- ing advisory policy statements for the revocation of probation and supervised release. After considered debate and input from judges, probation officers, and prosecuting and defense attorneys, the Commission decided, for a variety of reasons, initially to issue policy state- ments. Not only was the policy statement option expressly authorized by statute, but this approach provided greater flexibility to both the Commission and the courts. Unlike guide- lines, policy statements are not subject to the May 1 statutory deadline for submission to Congress, and the Commission believed that it would benefit from the additional time to consider complex issues relating to revocation guidelines provided by the policy statement option. Moreover, the Commission anticipates that, because of its greater flexibility, the policy statement option will provide better opportunities for evaluation by the courts and the Com- mission. This flexibility is important, given that supervised release as a method of post-in- carceration supervision and transformation of probation from a suspension of sentence to a sentence in itself represent recent changes in federal sentencing practices. After an adequate period of evaluation, the Commission intends to promulgate revocation guidelines. (b) Choice Between Theories. The Commission debated two different approaches to sanctioning violations of probation and supervised release. The first option considered a violation resulting from a defendant’s failure to follow the court-imposed conditions of probation or supervised release as a “breach of trust.” While the nature of the conduct leading to the revocation would be considered in measuring the extent of the breach of trust, imposition of an appropriate punishment for any new criminal conduct 508 ║ Guidelines Manual (November 1, 2024) Ch. 7 Pt. A would not be the primary goal of a revocation sentence. Instead, the sentence imposed upon revocation would be intended to sanction the violator for failing to abide by the conditions of the court-ordered supervision, leaving the punishment for any new criminal conduct to the court responsible for imposing the sentence for that offense. The second option considered by the Commission sought to sanction violators for the particular conduct triggering the revocation as if that conduct were being sentenced as new federal criminal conduct. Under this approach, offense guidelines in Chapters Two and Three of the Guidelines Manual would be applied to any criminal conduct that formed the basis of the violation, after which the criminal history in Chapter Four of the Guidelines Manual would be recalculated to determine the appropriate revocation sentence. This option would also address a violation not constituting a criminal offense. After lengthy consideration, the Commission adopted an approach that is consistent with the theory of the first option; i.e., at revocation the court should sanction primarily the defendant’s breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator. The Commission adopted this approach for a variety of reasons. First, although the Commission found desirable several aspects of the second option that provided for a detailed revocation guideline system similar to that applied at the initial sentencing, extensive testing proved it to be impractical. In particular, with regard to new criminal conduct that consti- tuted a violation of state or local law, working groups expert in the functioning of federal criminal law noted that it would be difficult in many instances for the court or the parties to obtain the information necessary to apply properly the guidelines to this new conduct. The potential unavailability of information and witnesses necessary for a determination of spe- cific offense characteristics or other guideline adjustments could create questions about the accuracy of factual findings concerning the existence of those factors. In addition, the Commission rejected the second option because that option was incon- sistent with its views that the court with jurisdiction over the criminal conduct leading to revocation is the more appropriate body to impose punishment for that new criminal conduct, and that, as a breach of trust inherent in the conditions of supervision, the sanction for the violation of trust should be in addition, or consecutive, to any sentence imposed for the new conduct. In contrast, the second option would have the revocation court substantially dupli- cate the sanctioning role of the court with jurisdiction over a defendant’s new criminal con- duct and would provide for the punishment imposed upon revocation to run concurrently with, and thus generally be subsumed in, any sentence imposed for that new criminal con- duct. Further, the sanctions available to the courts upon revocation are, in many cases, more significantly restrained by statute. Specifically, the term of imprisonment that may be im- posed upon revocation of supervised release is limited by statute to not more than five years for persons convicted of Class A felonies, except for certain title 21 drug offenses; not more than three years for Class B felonies; not more than two years for Class C or D felonies; and not more than one year for Class E felonies. 18 U.S.C. § 3583(e)(3). Given the relatively narrow ranges of incarceration available in many cases, combined with the potential difficulty in obtaining information necessary to determine specific offense Guidelines Manual (November 1, 2024) ║ 509 Ch. 7 Pt. A characteristics, the Commission felt that it was undesirable at this time to develop guidelines that attempt to distinguish, in detail, the wide variety of behavior that can lead to revocation. Indeed, with the relatively low ceilings set by statute, revocation policy statements that at- tempted to delineate with great particularity the gradations of conduct leading to revocation would frequently result in a sentence at the statutory maximum penalty. Accordingly, the Commission determined that revocation policy statements that pro- vided for three broad grades of violations would permit proportionally longer terms for more serious violations and thereby would address adequately concerns about proportionality, without creating the problems inherent in the second option. 4. The Basic Approach The revocation policy statements categorize violations of probation and supervised re- lease in three broad classifications ranging from serious new felonious criminal conduct to less serious criminal conduct and technical violations. The grade of the violation, together with the violator’s criminal history category calculated at the time of the initial sentencing, fix the applicable sentencing range. The Commission has elected to develop a single set of policy statements for revocation of both probation and supervised release. In reviewing the relevant literature, the Commis- sion determined that the purpose of supervision for probation and supervised release should focus on the integration of the violator into the community, while providing the supervision designed to limit further criminal conduct. Although there was considerable debate as to whether the sanction imposed upon revocation of probation should be different from that imposed upon revocation of supervised release, the Commission has initially concluded that a single set of policy statements is appropriate. 5. A Concluding Note The Commission views these policy statements for revocation of probation and super- vised release as the first step in an evolutionary process. The Commission expects to issue revocation guidelines after judges, probation officers, and practitioners have had an oppor- tunity to apply and comment on the policy statements. In developing these policy statements, the Commission assembled two outside working groups of experienced probation officers representing every circuit in the nation, officials from the Probation Division of the Administrative Office of the U.S. Courts, the General Counsel’s office at the Administrative Office of the U.S. Courts, and the U.S. Parole Commission. In addition, a number of federal judges, members of the Criminal Law and Probation Admin- istration Committee of the Judicial Conference, and representatives from the Department of Justice and federal and community defenders provided considerable input into this effort. Historical Note Effective November 1, 1990 (amendment 362). Amended effective November 1, 2002 (amendment 646); No- vember 1, 2009 (amendment 733); November 1, 2023 (amendment 824). 510 ║ Guidelines Manual (November 1, 2024) Ch. 7 Pt. A §§7A1.1 – 7A1.4 [Deleted] Historical Note Sections 7A1.1 (Reporting of Violations of Probation and Supervised Release), 7A1.2 (Revocation of Proba- tion), 7A1.3 (Revocation of Supervised Release), and 7A1.4 (No Credit for Time Under Supervision), effective November 1, 1987, were deleted as part of an overall revision of this chapter effective November 1, 1990 (amendment 362). Guidelines Manual (November 1, 2024) ║ 511 §7B1.1 PART B ― PROBATION AND SUPERVISED RELEASE VIOLATIONS Introductory Commentary The policy statements in this chapter seek to prescribe penalties only for the violation of the judicial order imposing supervision. Where a defendant is convicted of a criminal charge that also is a basis of the violation, these policy statements do not purport to provide the appropriate sanction for the criminal charge itself. The Commission has concluded that the determination of the appropriate sentence on any new criminal conviction should be a separate determination for the court having ju- risdiction over such conviction. Because these policy statements focus on the violation of the court-ordered supervision, this chapter, to the extent permitted by law, treats violations of the conditions of probation and supervised release as functionally equivalent. Under 18 U.S.C. § 3584, the court, upon consideration of the factors set forth in 18 U.S.C. § 3553(a), including applicable guidelines and policy statements issued by the Sentencing Commission, may order a term of imprisonment to be served consecutively or concurrently to an undischarged term of imprisonment. It is the policy of the Commission that the sanction imposed upon revocation is to be served consecutively to any other term of imprisonment imposed for any criminal conduct that is the basis of the revocation. This chapter is applicable in the case of a defendant under supervision for a felony or Class A misdemeanor. Consistent with §1B1.9 (Class B or C Misdemeanors and Infractions), this chapter does not apply in the case of a defendant under supervision for a Class B or C misdemeanor or an infraction. Historical Note Effective November 1, 1990 (amendment 362).