Magistrate-Conducted Revocation Hearings and “On-the-Papers” Adoption: No Second Allocution Hearing Absent Rule 59 Objections

1. Introduction

In United States v. Erik Zahursky (7th Cir. Apr. 8, 2026) (nonprecedential), the Seventh Circuit addressed an uncommon revocation procedure: a magistrate judge conducted a contested supervised-release revocation hearing under 18 U.S.C. § 3401(i), issued a report and recommendation (“R&R”) proposing revocation and a prison term, and the district judge adopted the R&R without holding a second hearing at which the defendant could appear and allocute directly to the district judge.

The parties were the United States (appellee) and Erik D. Zahursky (appellant), a defendant previously convicted in 2007 of attempting to coerce or entice a minor, who was serving a lengthy term of supervised release. After a new alleged violation—attempting to cash a fraudulent check—the district court revoked supervised release and imposed a statutory-maximum prison term by adopting the magistrate judge’s R&R when the 14-day objection period passed without objections.

The appeal narrowed to a single procedural question: whether the district judge erred by revoking supervised release and imposing imprisonment without conducting a second, in-person hearing for allocution before the district judge, even though the revocation hearing had been conducted by a magistrate judge.

2. Summary of the Opinion

The court emphasized:

• Allocution at revocation is a rule-based right under Rule 32.1(b)(2)(E), not a constitutional requirement, and the rule does not specify it must be before an Article III judge.
• “Court” in the Rules includes a magistrate judge performing authorized functions, and advisory committee notes expressly contemplate § 3401(i) referrals.
• A defendant retains a path to de novo review by the district judge via objections under Rule 59(b); some objections could require a second hearing (e.g., credibility disputes), but that mechanism must be invoked.
• Waiver: Failure to object “waives a party’s right to review” under Rule 59(b)(2); Zahursky conceded he waived challenges to the R&R and the magistrate procedures.

Dissent (Maldonado, J.): The dissent would vacate and remand, stressing that (i) Zahursky never allocuted to any judge, (ii) neither the R&R nor the district court order reflected consideration of § 3553(a) factors as required by § 3583(e), and (iii) waiver was inappropriate because the procedural defect (sentencing “on the papers”) arose only when the district judge adopted the R&R without a hearing. The dissent also cautioned that the majority’s reading effectively permits shifting key appearance/allocution rights away from the ultimate decisionmaker in felony revocations.

3. Analysis

3.1 Precedents Cited

A. Due process framework for revocation proceedings

• Morrissey v. Brewer, 408 U.S. 471 (1972): The foundational case for parole revocation, supplying “minimum requirements of due process” in revocation-type proceedings. The majority used Morrissey (via Seventh Circuit precedent) to emphasize the informal, conditional-liberty character of revocation.
• United States v. Pratt, 52 F.3d 671 (7th Cir. 1995) (citing Morrissey v. Brewer): Quoted for the proposition that revocation affords only minimal due process and is informal. This supports the majority’s reluctance to constitutionalize allocution-to-a-district-judge.
• United States v. Boultinghouse, 784 F.3d 1163 (7th Cir. 2015): Cited to stress that revocation modifies an existing sentence and involves conditional liberty. The majority invoked this to frame allocution as rule-based rather than constitutionally mandated in a particular format.

B. Allocution’s constitutional status

• Hill v. United States, 368 U.S. 424 (1962): The majority relied on Hill to state that even at initial sentencing, allocution is not of constitutional dimension. This undercut Zahursky’s attempt to derive a constitutional right to allocute before an Article III judge at revocation.
• Green v. United States, 365 U.S. 301 (1961): The dissent cited Green to argue that denial of allocution has historically been treated as reversible error—here, compounded because Zahursky had no allocution before any judge. Green thus anchored the dissent’s view that Rule 32.1(b)(2)(E) error demanded vacatur.

C. Rule 32.1 and the meaning of “appear before the court”

• United States v. Thompson, 599 F.3d 595 (7th Cir. 2010): Central to both sides’ narratives. The majority distinguished Thompson as a videoconference case and used it to show the Seventh Circuit looks to Rule 32.1’s text. The dissent leaned on Thompson’s emphasis that personal appearance matters because it allows the defendant to plead to “the judge who will decide” and because absence of the one “who has the power to impose a prison term” alters the hearing’s substance.

D. Sister-circuit decisions on allocution before the district judge

• United States v. Rodriguez, 23 F.3d 919 (5th Cir. 1994): Cited by the majority as predating the explicit allocution addition to Rule 32.1 and as relying on an inapt analogy to initial sentencing. The dissent cited Rodriguez (via Ninth Circuit reasoning) for the proposition that the magistrate “does not possess the authority to impose sentence.”
• United States v. Waters, 158 F.3d 933 (6th Cir. 1998): Similarly treated by the majority as pre-amendment and analytically tied to an initial-sentencing framework. The dissent used Waters to argue waiver is not appropriate when the magistrate did not recommend sentencing without a district-judge hearing.
• United States v. Gray, 905 F.3d 1145 (9th Cir. 2018): The majority characterized Gray’s discussion as dicta and factually distinct because the district judge in Gray increased the sentence based on new information. The dissent highlighted Gray as support for requiring a district-judge opportunity to appear/allocute before “the actual sentence is imposed,” and cautioned the majority’s approach risks a circuit split.

E. De novo review and the need for a second hearing in some circumstances

• Jackson v. United States, 859 F.3d 495 (7th Cir. 2017): The majority used Jackson to illustrate that de novo review can require a new evidentiary hearing when rejecting credibility findings based on live testimony. This supported the majority’s middle position: no automatic second hearing, but one may be necessary if proper objections trigger de novo review.

F. Waiver mechanics and district-court discretion to review notwithstanding waiver

• United States v. Street, 917 F.3d 586 (7th Cir. 2019) and Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752 (7th Cir. 2009): The dissent cited these to argue that Rule 59(b)(2) waiver is not jurisdictional and the district judge could have reviewed the R&R on his own initiative.
• United States v. Walton, 255 F.3d 437 (7th Cir. 2001): The dissent used Walton’s definition of waiver (“intentional relinquishment”) to contend that Zahursky did not knowingly abandon a right to a district-judge hearing.

G. Sentencing-factor requirements and modern Supreme Court guidance

• Esteras v. United States, 606 U.S. 185 (2025): The dissent cited Esteras for the requirement that revocation decisions consider forward-looking sentencing purposes through the specified § 3553(a) factors incorporated by § 3583(e).
• Rico v. United States, 607 U.S. ___, 2026 WL 815786 (2026): The dissent cited Rico to caution against procedural shortcuts that “blow past” statutory/rule constraints, emphasizing hearings and factor-consideration under § 3583(e) and Rule 32.1.

H. Equity/integrity of allocution

• United States v. Jordan, 765 F.3d 785 (7th Cir. 2014): The dissent invoked Jordan to stress high stakes and the “interest of justice” in enforcing revocation procedures.
• United States v. Abney, 957 F.3d 241 (D.C. Cir. 2020): The dissent cited Abney to frame allocution as a “significant human encounter” and a safeguard against “assembly-line justice.”
• Del Piano v. United States, 575 F.2d 1066 (3d Cir. 1978): Cited in the dissent (through Thompson’s quotation) to emphasize allocution’s role in evaluating “moral fiber” and credibility.

3.2 Legal Reasoning

A. Statutory and rules “fit” (majority)

The majority’s reasoning begins with the division of authority:

• Only a district judge may ultimately revoke supervised release in felony cases, but § 3401(i) authorizes designation of a magistrate judge to conduct the hearing and submit proposed findings and a recommended disposition.
• Rule 32.1(b)(2) requires that the “court” provide notice, disclosure, confrontation/presentation opportunities, counsel rights, and “an opportunity to make a statement and present any information in mitigation.”
• The Federal Rules define “court” to include a magistrate judge performing authorized functions, and the advisory committee notes to Rule 32.1 reference § 3401(i).

From these premises, the majority infers that the revocation hearing’s procedural rights—including allocution—may be satisfied before the magistrate judge, and that the district judge is not required to conduct a second hearing merely to replicate the hearing’s procedural components.

B. No “special” allocution rule (majority)

A key move is the majority’s textual parity argument: Rule 32.1(b)(2)(E) (allocution) is one of five co-equal entitlements; nothing in the text indicates subsection (E) must occur before a district judge while (A)–(D) may occur before a magistrate judge. The majority viewed Zahursky’s position as effectively rewriting the rule and diminishing § 3401(i)’s utility.

C. Constitutional backstop rejected (majority)

Zahursky’s due process argument failed because revocation affords only minimum due process (citing United States v. Pratt and Morrissey v. Brewer), and allocution is not constitutionally required even at initial sentencing (citing Hill v. United States). Thus, even if allocution is important, the Constitution does not require allocution before an Article III judge in this context.

D. Sister-circuit cases distinguished (majority)

The majority treated United States v. Rodriguez and United States v. Waters as pre-dating Rule 32.1(b)(2)(E)’s explicit allocution provision (noting advisory notes), and as relying on an analogy to initial sentencing and on Rule 43 reasoning the Seventh Circuit considers inapplicable to revocations (citing United States v. Thompson). United States v. Gray was treated as dicta in a different posture where the district judge increased the sentence based on new information without a new hearing.

E. The “escape hatch” is Rule 59(b) objections (majority)

The majority emphasized that Rule 59(b) provides de novo review when objections are filed, and depending on the objection, a second hearing may be required. The court pointed to Jackson v. United States as an example of when de novo review necessitates live testimony. On the majority’s view, the system’s legitimacy rests on the availability of the objection mechanism—one Zahursky did not invoke.

F. The dissent’s alternative reading and error framing

The dissent attacked both the waiver conclusion and the merits:

• Temporal impossibility: Zahursky could not object to a district-judge “no hearing” procedure before it happened; his claim was about the district judge’s later adoption step.
• No allocution to anyone: The magistrate did not give an allocution opportunity, and the district judge never held a hearing; this was, to the dissent, a clean Rule 32.1(b)(2)(E) violation requiring vacatur (citing Green v. United States).
• § 3583(e) factor consideration: Neither the R&R nor the district order showed consideration of the incorporated § 3553(a) factors, which the dissent viewed as independently warranting remand (citing Esteras v. United States).
• Interpretive caution: Rule 32.1’s “court” language, advisory notes, and Thompson’s emphasis on addressing the judge with sentencing authority support requiring appearance/allocution before the district judge in felony revocations.

3.3 Impact

A. Practical consequences in districts using § 3401(i)

Although labeled nonprecedential, the opinion articulates an operational rule: where a magistrate judge conducts a revocation hearing and issues an R&R under § 3401(i), a district judge may adopt it without a second hearing so long as the defendant’s Rule 32.1 rights were satisfied at the referred hearing and no Rule 59 objections are filed. This encourages litigants to treat Rule 59(b) objections as essential—not optional—when seeking district-judge engagement.

B. Litigation incentives and error preservation

The decision makes preservation strategy decisive:

• Defendants who want allocution before the district judge (or who contend the magistrate hearing failed to provide allocution) must object within 14 days.
• Parties must be attentive to whether the magistrate hearing actually included a mitigation opportunity and whether the R&R addressed § 3583(e) considerations; objections are the trigger for de novo scrutiny.

C. Potential doctrinal friction (and the dissent’s warning)

The dissent highlighted tension with United States v. Gray (and older Fifth/Sixth Circuit logic), and criticized the majority for effectively taking a firm interpretive position in a nonprecedential disposition. Even if the majority is read narrowly (adoption of an unobjected-to R&R), the dissent’s emphasis on (1) allocution before the decisionmaker and (2) explicit § 3553(a) factor consideration may fuel future challenges, especially where:

• the district judge modifies the recommended sentence,
• new information enters after the magistrate hearing,
• credibility findings are contested, or
• the record is silent as to mitigation opportunity and § 3583(e) analysis.

4. Complex Concepts Simplified

• Supervised release revocation: A post-prison monitoring term can be revoked if the defendant violates conditions; revocation can result in re-imprisonment under 18 U.S.C. § 3583(e).
• 18 U.S.C. § 3401(i) referral: In felony cases, a magistrate judge may conduct the revocation hearing and recommend findings and a sentence, but the district judge retains final authority to revoke and impose imprisonment.
• Allocution: The defendant’s chance to speak to the court and present mitigation before sentence is imposed. In revocation, the explicit right arises from Fed. R. Crim. P. 32.1(b)(2)(E).
• Rule 59(b) objections and “de novo” review: If a party timely objects to an R&R on a dispositive matter, the district judge must review the contested parts anew. Some disputes (especially credibility) can require a new hearing.
• Waiver vs. forfeiture: “Waiver” is an intentional relinquishment of a known right; “forfeiture” is failure to assert a right in time. Here, the majority treated the lack of Rule 59 objections as waiver of review; the dissent argued Zahursky could not knowingly waive a district-judge hearing he reasonably expected.

5. Conclusion

The Seventh Circuit affirmed Zahursky’s revocation and sentence, holding that § 3401(i) and Rule 32.1(b)(2) permit a magistrate judge to conduct the revocation hearing and that the district judge may adopt the resulting R&R without a second hearing for allocution, absent timely Rule 59(b) objections. The majority reinforced that allocution at revocation is a rule-based right and not constitutionally required before an Article III judge.

The dissent, however, framed the case as a stark procedural failure—no allocution to any judge and no evident § 3583(e)/§ 3553(a) analysis—and warned that the majority’s approach risks diminishing the role of the sentencing decisionmaker and deepening inter-circuit tension. For practitioners, the case’s central takeaway is practical and immediate: when a revocation proceeds via magistrate R&R, timely objections are the gateway to district-judge reconsideration and (when warranted) a new hearing.

Note: The disposition is designated “NONPRECEDENTIAL,” but its reasoning provides an instructive roadmap on § 3401(i) referrals, Rule 32.1 compliance, and Rule 59 preservation in the Seventh Circuit.