Revocation Sentences Cannot Be Reduced via Amendment 821; Criminal History Category Is Fixed at Original Supervision Sentencing

Introduction

In United States v. Grant (5th Cir. Feb. 6, 2026) (per curiam) (unpublished), the Fifth Circuit affirmed a supervised-release revocation judgment imposing the statutory maximum 24 months after Jawon Montray Grant, previously convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), was found again with a firearm (and narcotics) shortly after beginning supervision.

The appeal raised two main issues: (1) whether the revocation court should have applied Amendment 821 retroactively to lower Grant’s criminal history category at the revocation stage; and (2) whether the above-guidelines revocation sentence was unreasonable, particularly in light of the court’s reference to Grant’s “lack of respect for the law.”

Summary of the Opinion

The Fifth Circuit held that the district court properly refused to apply Amendment 821 to recalibrate Grant’s criminal history category for revocation purposes because: (a) U.S.S.G. policy statements (specifically U.S.S.G. § 1B1.10 cmt. n.8(A)) do not authorize reducing a prison term imposed upon revocation based on retroactive guideline amendments; and (b) the revocation guideline commentary states that the criminal history category is the one determined at the time the defendant originally was sentenced to the term of supervision and “is not to be recalculated.” U.S.S.G. § 7B1.4 cmt. n.1 (2010).

On reasonableness, the court found no reversible error in the upward variance to the statutory maximum. Revocation was mandatory under 18 U.S.C. § 3583(g) due to firearm/narcotics possession, and the district court’s “respect for the law” language was read in context as a recidivism/breach-of-trust assessment rather than reliance on an impermissible § 3553(a)(2)(A) factor.

Analysis

Precedents Cited

  • Rollins v. Home Depot USA, Inc., 8 F.4th 393 (5th Cir. 2021): Cited for forfeiture principles—issues not adequately briefed on appeal are forfeited. The panel used Rollins to dispose of any appeal related to the new conviction because Grant did not brief it.
  • United States v. Melendez, 57 F.4th 505 (5th Cir. 2023): Provided the standard of review for guideline application (de novo) and factual findings (clear error), framing the appellate lens for the Amendment 821/guidelines dispute.
  • United States v. Rodriguez, 15 F.3d 408 (5th Cir. 1994) and United States v. Bullard, 13 F.3d 154 (5th Cir. 1994): Used to explain issue preservation—an objection must be raised in a way that allows the district court to correct itself. This mattered because different appellate standards applied to different claims.
  • United States v. Cano, 981 F.3d 422 (5th Cir. 2020) and United States v. Sanchez, 900 F.3d 678 (5th Cir. 2018): Supplied the Fifth Circuit’s revocation-sentence framework: a two-step “plainly unreasonable inquiry” when properly preserved, contrasted here with plain-error review for an unpreserved impermissible-factor argument.
  • Esteras v. United States, 606 U.S. 185 (2025): Central to the standard-of-review pivot. Esteras held that if the defendant does not alert the district court that it may be relying on an impermissible § 3553(a)(2)(A) factor, appellate review is for plain error. The panel applied Esteras to review Grant’s “respect for the law” complaint under plain error.
  • Puckett v. United States, 556 U.S. 129 (2009) and United States v. Olano, 507 U.S. 725 (1993): Provided the plain-error test and the discretionary fourth prong (“fairness, integrity or public reputation”).
  • United States v. Walker, 742 F.3d 614 (5th Cir. 2014): Cited for the proposition that revocation sentences within the statutory maximum are authorized under 18 U.S.C. § 3583(e)(3). It supported the legality of a 24-month term (the statutory maximum on these facts).
  • United States v. Miller, 634 F.3d 841 (5th Cir. 2011): Noted that “needing to promote respect for the law” is an improper factor in ordinary § 3583(e) revocation sentencing because § 3553(a)(2)(A) is excluded. Miller thus supplied the baseline rule Grant invoked.
  • United States v. Belmontes, 807 F. App'x 292 (5th Cir. 2020): Key to the panel’s disposition. Belmontes was cited for two linked ideas: (1) revocation is mandatory under § 3583(g) when a defendant possesses controlled substances in violation of supervision; and (2) when sentencing under § 3583(g), the district court is “neither directed nor forbidden to consider any particular factors,” weakening arguments premised on excluded § 3553(a)(2)(A) factors.
  • United States v. Garner, 969 F.3d 550 (5th Cir. 2020): Reinforced that a court must revoke supervised release when the defendant possesses narcotics or a firearm, aligning the case with mandatory-revocation doctrine under § 3583(g).

Legal Reasoning

1) Amendment 821 cannot be used to “re-score” criminal history at a revocation hearing

Grant argued that Amendment 821—reducing “status points” in criminal history scoring (from two to one for committing an offense while under a criminal justice sentence)—should retroactively lower his criminal history category for the revocation table. The panel rejected this by layering guideline structure and statutory mechanism:

  1. The retroactivity vehicle is § 3582(c)(2), not revocation sentencing: The opinion explains that remedies for retroactive guideline reductions proceed through 18 U.S.C. § 3582(c)(2) and must be consistent with applicable policy statements.
  2. U.S.S.G. § 1B1.10 forecloses revocation-term reductions: Although Amendment 821 is listed as eligible in U.S.S.G. § 1B1.10(a)(2)(A)-(B) (2023), the commentary states: “[Section 1B1.10] does not authorize a reduction in the term of imprisonment imposed upon revocation of supervised release.” (U.S.S.G. § 1B1.10 cmt. n.8(A)). This is the opinion’s decisive policy-statement barrier.
  3. Revocation tables intentionally use the original criminal history category: U.S.S.G. § 7B1.4 cmt. n.1 (2010) directs that the criminal history category for revocation purposes is the one “determined at the time the defendant originally was sentenced to the term of supervision” and “is not to be recalculated,” because the revocation ranges already account for the breach-of-supervision context.

Synthesizing these sources, the Fifth Circuit articulated the operative rule of the case: retroactive guideline amendments that lower criminal history scoring do not permit recalculating the criminal history category in a revocation proceeding, nor do they authorize reducing the revocation prison term.

2) Mandatory revocation under § 3583(g) blunts § 3553(a)(2)(A) “impermissible factor” attacks

Grant’s second argument targeted the district court’s explanation for the statutory maximum revocation sentence, emphasizing the court’s reference to “lack of respect for the law.” In ordinary revocation under § 3583(e), § 3553(a)(2)(A) factors are excluded, and United States v. Miller flags “respect for the law” as improper. But the panel gave two reasons this did not warrant reversal:

  1. Contextual reading: The panel accepted the Government’s framing that the district court was describing recidivism/dangerousness and breach of trust—Grant committed the “exact same conduct” shortly after release—rather than invoking retributive “respect for the law” as an abstract sentencing aim.
  2. § 3583(g) mandatory-revocation regime: Because Grant possessed narcotics and a firearm, revocation was required under 18 U.S.C. § 3583(g). Citing United States v. Belmontes, the panel emphasized that when imposing a sentence under § 3583(g), the court is “neither directed nor forbidden to consider any particular factors.” Thus, even if one characterized the court’s remarks as touching on seriousness/just punishment, the mandatory-revocation framework made the impermissible-factor argument substantially less potent.

The upshot is a practical doctrinal point: when § 3583(g) applies, appellate challenges premised on excluded § 3553(a)(2)(A) factors face a steeper climb, particularly under Esteras-driven plain-error review when not properly preserved.

Impact

  • Limits on Amendment 821 in post-conviction practice: Defendants cannot use a revocation hearing to capture Amendment 821’s reduced status points. Any retroactive benefit must be pursued, if at all, via § 3582(c)(2) for the original sentence—and even then, policy statements bar applying it to revocation prison terms.
  • Criminal history category “freezes” for revocation-table purposes: The opinion reinforces the guideline architecture that the revocation table is keyed to the criminal history category at the time supervision was imposed, not to later guideline changes or later-acquired information.
  • § 3583(g) as a sentencing-argument constrictor: Where firearms or controlled substances trigger mandatory revocation, sentencing explanations that might be vulnerable under § 3583(e)/Miller become harder to attack—especially if the record supports recidivism and breach-of-trust rationales.
  • Preservation after Esteras: The case is a reminder that defendants must specifically alert the district court to potential reliance on § 3553(a)(2)(A) to avoid plain-error review under Esteras v. United States.

Complex Concepts Simplified

Amendment 821 (“status points”)
A Sentencing Guidelines change reducing the extra criminal-history points added when someone commits a new offense while under court supervision. It can lower a guideline range in some cases, but only through the specific retroactivity mechanism Congress and the Commission allow.
§ 3582(c)(2) retroactive reductions
A statutory procedure that lets courts reduce an original prison sentence when the Sentencing Commission later lowers the applicable guideline range— but only if the reduction matches Commission policy statements.
Revocation sentencing and “frozen” criminal history
For supervised-release violations, the guideline revocation table uses the criminal history category from when supervision was first imposed. The guidelines say it is not recalculated at revocation, because the table already accounts for the fact that supervision was violated.
§ 3553(a)(2)(A) factors
The “retribution” cluster—seriousness of the offense, promoting respect for the law, and just punishment. In many revocation contexts under § 3583(e), courts may not rely on these factors; however, this case emphasizes that the analysis shifts when mandatory revocation under § 3583(g) applies.
Plain-error review
A demanding appellate standard used when a specific objection was not made in the district court. The defendant must show an obvious error that affected substantial rights, and even then the appellate court may decline to correct it unless it seriously undermines the fairness or integrity of the proceedings.

Conclusion

United States v. Grant cements two practical rules for Fifth Circuit revocation litigation: (1) Amendment 821 cannot be used at a revocation hearing to reduce the criminal history category or the revocation prison term, because revocation uses the original criminal history category and U.S.S.G. § 1B1.10 cmt. n.8(A) bars reducing revocation imprisonment based on retroactive amendments; and (2) where § 3583(g) mandates revocation for firearms/narcotics possession, reasonableness challenges premised on excluded § 3553(a)(2)(A) factors are less likely to succeed—particularly under Esteras-driven plain-error review—when the sentencing record supports a recidivism/breach-of-trust rationale.