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United States v. Roccisano, No. 10-5237-cr (2d Cir. March 14, 2012) (Katzmann, Parkjer, CJJ, Restani, JCIT) (per curiam)

Guideline section 4A1.1(d) adds two criminal history points if the defendant committed the federal offense while under a criminal justice sentence, e.g., probation, parole or supervised release. The defendant here was deported to Italy in 2006 after completing the prison portion of a federal drug sentence that included a five-year term of supervised release. He was found in the United States in 2010, before the term of supervised release had expired, and the district court assessed those points. On appeal, he argued that this was error, because he had never been actively supervised in light of his deportation.

The circuit rejected this argument, joining at least five other circuits in holding that a term of supervised release is not extinguished by the defendant’s deportation. The court also noted that the amended version of U.S.S.G. § 5D1.1 (November 1, 2011), which provides that courts should ordinarily not impose a term of supervised release at all where the defendant is an alien who will likely be deported after imprisonment, had no impact here. That provision does not apply where a term of supervised release is mandated by statute, and this was true in Roccisano’s case, since the underlying conviction was for a drug crime.