Unsettled § 3146(b)(2) Consecutive-Sentence Requirement for Failure to Appear at Supervised-Release Revocation Hearings (No Plain Error)

Case: United States v. Simmons, Nos. 23-7400-cr (Lead), 23-8062-cr (Con) (2d Cir. June 1, 2026)

Court: United States Court of Appeals for the Second Circuit (Kearse, Sack, Lee, JJ.; Kearse, J., concurring)

1. Introduction

This consolidated appeal arose from (i) the Eastern District of New York’s revocation of Ashley Simmons’s supervised release and (ii) his later conviction for failing to appear at the scheduled violation-of-supervised-release (“VOSR”) hearing, in violation of 18 U.S.C. § 3146. While on supervised release for a 2009 fraud conviction, Simmons was charged with multiple supervised-release violations (including conduct amounting to wire fraud involving SBA COVID-related loan programs, unauthorized travel, and prohibited communications). On March 24, 2022, Simmons did not appear for the VOSR hearing; the district court delayed briefly, then proceeded without him, found violations on an “overwhelming” record, and issued a warrant. After Simmons’s later arrest and return to EDNY, he pleaded guilty to the § 3146 failure-to-appear offense, and the district court imposed a consecutive prison term for that conviction, believing consecutiveness was required by § 3146(b)(2).

Key issues on appeal:

  • Whether the district court erred by conducting a VOSR hearing in absentia.
  • Whether the district court procedurally erred by treating § 3146(b)(2) as mandating consecutive sentences where the missed appearance was for a VOSR hearing.
  • Whether supervised-release revocation proceedings are unconstitutional for permitting imprisonment without indictment, jury trial, or proof beyond a reasonable doubt.

2. Summary of the Opinion

The Second Circuit affirmed across the board:

  • In absentia VOSR hearing: The Court held Simmons knowingly and voluntarily waived his right to be present, and any potential error in proceeding was harmless.
  • Consecutive sentencing under § 3146(b)(2): Applying plain-error principles, the Court held the district court could not have plainly erred because the applicability of § 3146(b)(2)’s consecutive requirement to a VOSR context is an unsettled area of law in the Circuit.
  • Constitutionality of supervised release: The Court reaffirmed that the supervised-release revocation process is constitutional, relying on United States v. Peguero.

Judge Kearse concurred, agreeing with affirmance but reasoning that Simmons waived appellate review of (i) the in-absentia issue by pleading guilty to § 3146, and (ii) the consecutive-sentencing issue by urging consecutive sentences in the district court.

3. Analysis

3.1. Precedents Cited

Cited authority (as titled in the Opinion) Rule/principle used in Simmons How it influenced the decision
Smith v. Mann, 173 F.3d 73 (2d Cir. 1999) Trial in absentia requires (1) knowing/voluntary waiver and (2) prudential balancing: the public interest must clearly outweigh the absent defendant’s interest. The panel did not decide whether the Smith trial standard governs VOSR hearings, but assumed Simmons’s preferred standard and still rejected his claim—finding knowing/voluntary absence and no prejudice (harmlessness).
United States v. Carthen, 681 F.3d 94 (2d Cir. 2012) VOSR defendants lack “the full panoply of rights” enjoyed by criminal defendants. Used to frame the government’s argument that a lower standard than Smith may apply to VOSR in absentia proceedings (issue left unresolved).
United States v. Yannai, 791 F.3d 226 (2d Cir. 2015) Standard of review: de novo for whether there is a right to be present; clear-error review for factual findings on knowing/voluntary absence; abuse-of-discretion review for balancing. Provided the appellate framework the Court applied to the in-absentia challenge.
United States v. Tureseo, 566 F.3d 77 (2d Cir. 2009) Even if proceeding in absentia was an abuse of discretion, the Court asks whether there was a “reasonable possibility of prejudice”; harmless error defeats relief. Central to affirmance: Simmons’s speculative claims of what he “could potentially” have contributed did not establish prejudice in light of counsel’s participation and “overwhelming” evidence.
United States v. Tortora, 464 F.2d 1202 (2d Cir. 1972), abrogated on other grounds by Crosby v. United States, 506 U.S. 255 (1993) Knowing/voluntary absence where the defendant deliberately absents himself “without some sound reason.” Reinforced the “sound reason” concept in the waiver analysis; also featured in the majority’s refusal to treat the later guilty plea as clearly waiving the in-absentia claim without a record on “sound reason.”
United States v. Quiroz, 22 F.3d 489 (2d Cir. 1994) Government can waive a waiver argument by not raising it on appeal. Supported the majority’s footnote reasoning for not affirming on the ground that Simmons’s § 3146 guilty plea necessarily waived the in-absentia challenge (the government did not press that waiver theory on appeal).
United States v. Coston, 737 F.3d 235 (2d Cir. 2013) Plea waivers are enforced when the record shows they are knowing and voluntary. Used to question whether the plea colloquy showed a knowing waiver of the separate in-absentia challenge.
United States v. Kirkham, 195 F.3d 126 (2d Cir. 1999) § 3146 does not mandate imprisonment, but if imprisonment is imposed for failure to appear, it must run consecutively to “any sentence imposed for the underlying offenses.” Anchored the statutory baseline: the only mandatory feature is consecutiveness if imprisonment is imposed; the dispute in Simmons was whether a VOSR sentence counts as “any other offense.”
United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (en banc) Sentences reviewed for procedural error under a deferential abuse-of-discretion standard. Provided the sentencing review lens; the Court then applied plain-error review because Simmons did not object below.
United States v. Tutty, 612 F.3d 128 (2d Cir. 2010); United States v. Williams, 524 F.3d 209 (2d Cir. 2008) Procedural error includes reliance on legal error. Established what Simmons needed to show (a legal mistake) before the plain-error overlay.
United States v. Vargas, 961 F.3d 566 (2d Cir. 2020); Fed. R. Crim. P. 52(b) Unpreserved sentencing claims are reviewed for plain error. Made plain-error the decisive filter for the § 3146(b)(2) consecutiveness question.
United States v. Bonilla, 618 F.3d 102 (2d Cir. 2010) Four-part plain-error test. Structured the analysis; the Court resolved the appeal at the “plainness” step (unsettled law).
United States v. Olano, 507 U.S. 725 (1993); Johnson v. Zerbst, 304 U.S. 458 (1938); United States v. Yu-Leung, 51 F.3d 1116 (2d Cir. 1995); United States v. Bastian, 770 F.3d 212 (2d Cir. 2014) Waiver vs forfeiture; invited error doctrine; waiver can preclude even plain-error review. The majority assumed forfeiture arguendo and still affirmed; the concurrence would treat Simmons’s below-guidance as waiver barring review.
United States v. Weintraub, 273 F.3d 139 (2d Cir. 2001) (quoting United States v. Feliciano, 223 F.3d 102 (2d Cir. 2000)) To be “plain,” an error must be clear under current law; unsettled legal questions typically cannot be plain error. Dispositive: because the Circuit had not decided whether § 3146(b)(2) applies when the missed appearance is for a VOSR hearing, the district court’s view could not be “plainly” wrong.
United States v. Mangano, 128 F.4th 442 (2d Cir. 2025) Illustrates the court’s practice of rejecting claims even under plain-error review without deciding waiver/forfeiture definitively. Supported the majority’s choice to avoid resolving waiver and proceed to plain-error merits.
United States v. Peguero, 34 F.4th 143 (2d Cir. 2022) Supervised-release revocation procedures are constitutional. Foreclosed Simmons’s broad constitutional challenge.

The concurrence also relied on additional plea-waiver and guilty-plea authorities—United States v. Selby, United States v. Broce, Boykin v. Alabama, North Carolina v. Alford, and others—to argue that Simmons’s guilty plea independently waived his in-absentia challenge.

3.2. Legal Reasoning

A. Proceeding with the VOSR hearing in Simmons’s absence

The majority’s analysis proceeds in two moves: (1) constitutional permissibility (knowing/voluntary waiver) and (2) harmlessness.

  • Knowing and voluntary waiver. Applying the logic of Smith v. Mann, the Court held it was not clearly erroneous to find Simmons knew the time and place of the hearing (counsel spoke to him the night before; Simmons planned to attend with his mother), yet failed to appear and provided no “sound reason” for staying away.
  • Prudential balancing and harmless error. The district court cited witness inconvenience (including travel from Texas and New Jersey) as a public-interest basis to proceed. The panel did not need to decide whether that balancing was an abuse of discretion because Simmons could not show prejudice: counsel cross-examined witnesses and argued; the evidence was “overwhelming” (records plus testimony); Simmons’s asserted lost opportunities were speculative. Under United States v. Tureseo, any error was harmless.

A noteworthy internal tension appears between the majority and concurrence: Judge Kearse would dispose of the in-absentia issue on waiver grounds (guilty plea to § 3146), while the majority declined to do so—citing the government’s failure to argue waiver and an insufficient plea-record basis to treat the plea as a knowing waiver of this separate appellate issue.

B. Consecutive sentencing under 18 U.S.C. § 3146(b)(2)

Simmons argued that § 3146(b)(2)—requiring a prison term “under this section” to run consecutive to “any other offense”—does not apply when the “other” matter is a supervised-release violation rather than a new criminal “offense.” But because Simmons did not object at sentencing (and indeed had conceded consecutiveness below), the panel reviewed for plain error.

The Court then resolved the case at the “plainness” element: because the Second Circuit has not decided whether a supervised-release violation qualifies as an “offense” for § 3146(b)(2) purposes (as defined by § 3156(a)(2)), the legal question is unsettled, and under United States v. Weintraub the district court’s interpretation cannot be “plainly” erroneous. Accordingly, the panel affirmed without deciding the underlying statutory meaning.

C. Constitutionality of supervised-release revocation

Simmons’s constitutional claims were acknowledged to be foreclosed by Circuit precedent. Citing United States v. Peguero, the Court reaffirmed that supervised release revocation proceedings and their “attendant procedural mechanisms” are constitutional, rejecting arguments premised on the absence of indictment, jury trial, and proof beyond a reasonable doubt.

3.3. Impact

  • VOSR hearings in absentia: record-building matters. Although the panel did not settle the exact standard for VOSR in absentia proceedings, it effectively signals that—at minimum—district courts should create a clear record of notice (what the defendant knew and when), the absence of a “sound reason,” and why proceeding serves concrete public interests. The harmless-error analysis also incentivizes litigants to articulate specific prejudice, not hypotheticals.
  • § 3146(b)(2) remains open in the VOSR context—but plain-error relief is hard. The opinion establishes an important practical rule: until the Second Circuit squarely answers whether a supervised-release violation is an “offense” for § 3146(b)(2), a defendant who failed to preserve the issue will likely be unable to obtain relief on appeal under plain-error review.
  • Waiver doctrine as a litigation lever. The concurrence highlights that guilty pleas and sentencing positions may waive appellate issues. Even where the majority avoided waiver as a ground of decision, the concurrence’s approach signals future panels may be receptive to waiver arguments where the government preserves them and the record is clearer.
  • Constitutional challenges to supervised release remain largely foreclosed. By reaffirming Peguero, the panel reinforces that broad-based attacks on supervised release revocation procedures will face steep headwinds in this Circuit absent intervening Supreme Court developments.

4. Complex Concepts Simplified

  • Supervised release (and “VOSR”). Supervised release is a post-imprisonment monitoring period with conditions. A “VOSR” hearing determines whether conditions were violated and what sanctions (including imprisonment) follow.
  • Proceeding “in absentia.” A court proceeds “in absentia” when it holds a hearing without the defendant physically present. The key question is whether the defendant knowingly and voluntarily chose not to attend.
  • Waiver vs forfeiture. “Forfeiture” is failing to object in time; courts may still correct plain errors. “Waiver” is intentionally giving up a right; it generally blocks appellate review entirely. The majority treated the sentencing issue as (at most) forfeited; the concurrence treated it as waived.
  • Plain error. On unpreserved claims, an appellant must show a clear legal error under current law. If the law is unsettled, the error usually is not “plain,” and the appeal fails even if the appellant’s interpretation might ultimately prove correct in a future case.
  • Harmless error. Even if a court makes a mistake, an appellate court will affirm if the mistake likely made no difference—i.e., there is no reasonable possibility the error prejudiced the outcome.

5. Conclusion

United States v. Simmons delivers two durable, practice-shaping lessons. First, even assuming the more demanding Smith v. Mann framework applies, a VOSR hearing may proceed without the defendant where the record supports knowing and voluntary absence, and speculative claims of lost opportunity will not overcome a strong harmless-error showing. Second, and most notably, the decision establishes that because the Second Circuit has not resolved whether 18 U.S.C. § 3146(b)(2) requires consecutive sentencing when the missed proceeding is a supervised-release revocation hearing, a district court’s decision to impose consecutive terms on that theory cannot be reversed as plain error. Finally, the opinion reaffirms that broad constitutional attacks on supervised release remain foreclosed by United States v. Peguero.