United States v. Erik Zahursky

conducting a second hearing at which Zahursky could appear before and allocute directly to the district judge.

Because Zahursky will soon be released from prison, we granted his motion to expedite this appeal and promised to "attempt to resolve this appeal quickly." We promptly scheduled a special oral argument and expeditiously prepared this nonprecedential disposition in recognition of Zahursky's request that we "issue the mandate immediately." To resolve this case, we must determine whether the uncommon procedure employed by the district court is lawful, and we find that it is permitted by Section 3401(i) and Federal Rule of Criminal Procedure 32.1. For that reason, we affirm. While defendants have the right to de novo review by the district judge in these circumstances, Zahursky did not invoke that procedure here and therefore waived it.

I

In 2007, Erik Zahursky was convicted of attempting to coerce or entice a minor to engage in unlawful sexual activity. He served 14 years in federal prison, and he began a 20-year term of supervised release in June of 2021. Zahursky twice failed to comply with the requirements of supervised release, which led to revocation proceedings in both 2021 and 2023.

First, in September of 2021, Zahursky was arrested for violating the terms of his release by obtaining an unauthorized computer, lying about it to his probation officer, and refusing mental health treatment. Zahursky admitted to these violations and agreed to a recommended sentence of ten months or time served, whichever was greater. After he had been detained for more than ten months pending a "Revocation Hearing to be set by the District Court" that was never scheduled, Zahursky filed a motion requesting that the district judge designate a magistrate judge to preside over his uncontested revocation hearing and make findings and recommendations per 18 U.S.C. § 3401(i) in order to "allow [Zahursky's] revocation hearing to be expedited." The district judge granted the motion, and the magistrate judge proceeded to hold a revocation hearing. Following this hearing, the magistrate judge recommended that the district judge adopt the parties' agreement and sentence Zahursky to time served, to be followed by the remainder of his 20-year term of supervised release. The district judge adopted this recommendation in full.

Zahursky returned to supervised release on March 9, 2023. In May of 2023, he entered Lake City Bank in Fort Wayne, Indiana and attempted to cash a fraudulent

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check. This incident triggered a new request from the Probation Office to revoke Zahursky's supervised release, and it is this second revocation proceeding that is the subject of this appeal.

At Zahursky's request, the district judge again designated a magistrate judge to conduct the revocation hearing and make findings and recommendations. The magistrate judge did just that. Unlike the first time around, this revocation was contested. At the revocation hearing, the parties presented evidence and Zahursky, represented by counsel, testified, providing his account of the fraudulent check incident. At the conclusion of the hearing, the magistrate judge found that Zahursky had violated the terms of his supervised release and testified falsely under oath, and the magistrate judge stated that he would recommend the district judge impose the maximum penalty for this violation. During the hearing, the prosecutor had represented that maximum penalty to be two years' imprisonment—but the following day, the Government filed a statement with the court clarifying that it was actually three years. Later that same day, the magistrate judge issued a report and recommendation recommending that the district judge find Zahursky had violated the terms of his release and impose a three-year sentence followed by a ten-year term of supervised release.

Zahursky did not object to the report and recommendation within the 14-day window provided under Rule 59(b)(2) of the Federal Rules of Criminal Procedure. Instead, Zahursky filed a pro se notice of appeal of the magistrate judge's report and recommendation before the district judge had even adopted it. The district judge subsequently adopted the report and recommendation in a brief order, revoking Zahursky's term of supervised release and sentencing him to the magistrate judge's recommended sentence without conducting a second hearing. Neither the district judge's order nor the magistrate judge's report and recommendation analyzed the sentencing factors relevant to revocations, as provided in 18 U.S.C. § 3583(e). Zahursky now challenges this procedure on appeal. He does not challenge the report and recommendation itself. Instead, he argues that the district court erred by revoking his supervised release and imposing a sentence of imprisonment without conducting a hearing at which Zahursky could allocute directly to the district judge. The Government argues that Zahursky waived or forfeited this claim by failing to object to the magistrate judge's report and recommendation.

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II

Only a district judge, and not a magistrate judge, has the ultimate authority to revoke supervised release where, as here, the defendant's underlying conviction was a felony. See 18 U.S.C. § 3401(a)-(b), (h)-(i). But 18 U.S.C. § 3401(i) authorizes a district judge to "designate a magistrate judge to conduct" the revocation hearing and to submit proposed findings and recommendations, including "a recommended disposition" under 18 U.S.C. § 3583(e). Section 3583(e), in turn, outlines sentencing options and considerations for a defendant whose supervised release has been revoked, including the relevant sentencing factors under 18 U.S.C. § 3553(a). Federal Rule of Criminal Procedure 32.1(b)(2) governs the revocation hearing itself. It requires that the "court" hold a revocation hearing and outlines five requirements for that hearing, including a defendant's allocution right:

Revocation Hearing. Unless waived by the person, the court must hold the revocation hearing within a reasonable time in the district having jurisdiction. The person is entitled to:

(A) written notice of the alleged violation;

(B) disclosure of the evidence against the person;

(C) an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear;

(D) notice of the person's right to retain counsel or to request that counsel be appointed if the person cannot obtain counsel; and

(E) an opportunity to make a statement and present any information in mitigation.

Fed. R. Crim. P. 32.1(b)(2).

In virtually all districts, district judges conduct revocation hearings themselves. There are good reasons for that, as the ultimate responsibility for re-imprisoning a defendant lies with the district judge when the offense of conviction was a felony. See 18 U.S.C. § 3401(a)-(b), (h)-(i). But Rule 32.1(b)(2) is also compatible with the magistrate judge referral procedure described in 18 U.S.C. § 3401(i). The Rule does not require that any portion of the revocation hearing occur in front of the district judge. Just the

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opposite, the Federal Rules define "court" to include a magistrate judge performing functions authorized by law. See Fed. R. Crim. P. 1(b)(2)-(3). And the advisory committee notes to Rule 32.1 expressly reference the district judge's ability to designate a magistrate judge to conduct revocation hearings under 18 U.S.C. § 3401(i), suggesting that Rule 32.1 was meant to work in tandem with this statutory provision. See Fed. R. Crim. P. 32.1 advisory committee's notes to 2002 amendment. Zahursky's position—that after the magistrate judge has conducted the Rule 32.1(b)(2) revocation hearing, the district judge must always hold a separate hearing so the defendant can allocute—lacks support in the text or structure of Rule 32.1. Allocution is just one of the procedural rights afforded by Rule 32.1(b)(2). There is no textual basis on which to distinguish the right of allocution in subsection (E), which Zahursky argues must occur before the district judge, from the other rights contained in

(A) through (D), which Zahursky seems to concede can be satisfied before the magistrate judge. Rule 32.1(b)(2) requires that all procedural requirements are met, but it does not specify where. And § 3401(i) expressly permits magistrate judges to satisfy the procedural requirements of revocation hearings. To adopt Zahursky's preferred approach (and that of our dissenting colleague) would render § 3401(i) a near nullity. Without support in the Rules or statute, Zahursky turns to the Constitution, arguing that the Due Process Clause mandates an opportunity to allocute to the district judge before revocation. But that is not correct either. Both the Supreme Court and this court have repeatedly emphasized that revocation "focuses on the modification of a sentence already imposed and implicates the conditional (rather than absolute) liberty that the defendant enjoys as a result of that sentence," United States v. Boultinghouse, 784 F.3d 1163, 1171 (7th Cir. 2015), so "a defendant is afforded only the minimum requirements of due process at a revocation hearing and [ ] the nature of such a proceeding is informal." United States v. Pratt, 52 F.3d 671, 676 (7th Cir. 1995) (citing Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). Those "minimum requirements of due process" do not include a right to allocute to a particular type of judge. In fact, even at an initial sentencing hearing, the Supreme Court has held that the right of allocution is not a constitutional one. Hill v. United States, 368 U.S. 424, 428 (1962) ("The failure of a trial court to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed . . . is an error which is neither jurisdictional nor constitutional.").

Finally, Zahursky argues that circuit precedent supports his proffered requirement. Here, too, we are not persuaded. First, Zahursky relies on this court's decision in United States v. Thompson, 599 F.3d 595 (7th Cir. 2010). It is true that

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Thompson, which considered whether revocation hearings could occur by videoconference, emphasized the importance of face-to-face allocution: "[A]ppearing before the court allows the defendant to plead his case personally to the judge who will decide whether to revoke supervised release and return him to prison." Id. at 599. But Thompson did not consider the question presented here, nor did it find that the allocution right has constitutional status that could supersede the provisions of federal statutes or rules. Rather, in Thompson, when asked to determine whether allocution may occur by videoconference, this court looked to Rule 32.1(b)(2) for answers. We must do the same here. And the text and structure of Rule 32.1(b)(2) indicate that allocution may properly occur in front of a magistrate judge, as provided by § 3401(i). Zahursky also points to decisions from our sister circuits requiring that a defendant have the opportunity to allocute to the district judge before being sentenced on a revocation. See United States v. Rodriguez, 23 F.3d 919 (5th Cir. 1994); United States v. Waters, 158 F.3d 933 (6th Cir. 1998); United States v. Gray, 905 F.3d 1145 (9th Cir. 2018). But Rodriguez and Waters predate the 2005 addition of the right of allocution in Rule 32.1(b)(2)(E). See Fed. R. Crim. P. 32.1 advisory committee's notes to 2005 amendment. These decisions were instead rooted in a false equivalence between initial sentencings and revocation hearings, including an inapt application of Rule 43, which we have held inapplicable to revocation hearings. See Thompson, 599 F.3d at 598-99. And while the Ninth Circuit's decision in Gray postdated the relevant amendment to Rule 32.1, its discussion of the magistrate referral issue was dicta and arose in a factually distinct context. The district judge in Gray rejected the magistrate judge's sentencing recommendation and quadrupled the proposed sentence, in reliance on new information that was not before the magistrate judge, without conducting a second hearing. 905 F.3d at 1148-49. Here, by contrast, the district judge simply adopted in full the magistrate judge's report and recommendation, to which Zahursky had raised no objections. We therefore do not see in Rodriguez, Waters, or Gray a compelling reason to depart from the language of § 3401(i) and Rule 32.1(b)(2).

In sum: While a defendant has the right to allocute at his revocation hearing, that right comes from Fed. R. Crim. P. 32(b)(2)(E), and neither that Rule, nor any other source of law cited by Zahursky, requires allocution to occur in front of the district judge. We have found no law requiring a district judge to sua sponte conduct a second revocation hearing, for the purpose of allocution, after the magistrate judge has already conducted such a hearing and made the findings and recommendations contemplated by § 3401(i). The district court therefore did not err by failing to hold a second hearing here.

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III

This is not to say that a second hearing will never be necessary. As provided by Rule 59(b), a party may object to the magistrate judge's recommendation, triggering de novo review by the district judge. Depending on the nature of the objection, that de novo review may call for a second hearing in front of the district judge—whether to hear the defendant's allocution, to take specific witness testimony, or for some other purpose. That procedural requirement is inherent to the nature of de novo review of some magistrate judge findings. See, e.g., Jackson v. United States, 859 F.3d 495, 499 (7th Cir. 2017) (in reviewing a magistrate judge's recommended disposition of a 28 U.S.C. § 2255 petition, "a district court judge may not reject a magistrate judge's material credibility findings based on a witness's live testimony, without first holding a de novo evidentiary hearing").

In this case, for example, the record indicates that Zahursky never allocuted to the magistrate judge directly about the appropriate sentence and that the magistrate judge never explained the recommended sentence other than to observe that it was the maximum allowable term. Zahursky does not challenge these procedural failings on appeal. Just the opposite, Zahursky has repeatedly conceded that he waived these challenges by failing to object to the magistrate judge's report and recommendation. ¹ But it is worth noting that had Zahursky objected to the magistrate judge's recommended sentence on these grounds, the district judge would have been obligated to conduct a second hearing to allow Zahursky the opportunity to allocute and to provide the sentencing explanation contemplated by 18 U.S.C. § 3583(e). But Zahursky did not object, and Rule 59(b)(2) is clear: "Failure to object in accordance with this rule waives a party's right to review."

The judgment of the district court is therefore AFFIRMED.

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MALDONADO, Circuit Judge, dissenting. The district court's revocation of Erik Zahursky's supervised release was replete with undisputed procedural errors. Most pertinently, the district judge sentenced Zahursky to the statutory maximum without laying eyes on him, even though Zahursky, the government, and the recommending magistrate judge expected a revocation hearing before the district judge to follow as a matter of course. Tellingly, at oral argument, veteran counsel for the government conceded that he had never seen a defendant's supervised release revoked without a hearing in front of the district judge. Oral Arg. 17:10. And while Zahursky had appeared in front of the magistrate judge, at the time the district judge issued his sentencing order, Zahursky had not yet had an opportunity to allocute to either the district judge or the magistrate judge. Standing alone, this denial of Zahursky's rights under Rule 32.1(b)(2) demands vacatur and resentencing. See Green v. United States, 365 U.S. 301, 305 (1961) ("As early as 1689, it was recognized that the court's failure to ask the defendant if he had anything to say before sentence was imposed required reversal."). In addition, there is no indication in either the magistrate judge's report and recommendation, or the district judge's sentencing order, that either considered the relevant 18 U.S.C. § 3553(a) factors that set forth "the forward-looking ends of sentencing (deterrence, incapacitation, and rehabilitation)," which courts must consider prior to revoking supervised release. 18 U.S.C. § 3583(e)(3); Esteras v. United States, 606 U.S. 185, 196 (2025) (emphasis in original).

Despite this litany of procedural oddities, some conceded by the government at oral argument, the majority blesses the district court's rare on-the-papers revocation of Zahursky's supervised release. It does so on two grounds: (1) waiver, and (2) a novel construction of Rule 32.1(b)(2) that grants magistrate judges the power to conduct revocation hearings, even where the defendant has an underlying felony conviction. This transfer of felony defendants' appearance and allocution rights out of the sole purview of the district judge takes a firm stand—in a non-precedential order—on a thorny issue of first impression where multiple readings of Rule 32.1(b)(2) are possible and where our reading would create a circuit split with the Ninth Circuit. Therefore, I respectfully dissent.

I.

Resolving Zahursky's appeal on waiver grounds obscures the complexity of this case. To understand why waiver is inappropriate here, we must retrace the procedural missteps of the district court, which cumulatively suggested to Zahursky that he would receive an opportunity to appear and allocute in front of the district judge. Zahursky's

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reasonable confusion about the requisite revocation procedure, as well as the impossibility of objecting to the magistrate judge's report and recommendation based on a violation that would only become evident after the district court's sentencing order, demonstrate that a waiver finding is inappropriate.

Key here, at the "revocation hearing," the magistrate judge did not give Zahursky the opportunity to make a statement and present mitigating information, in violation of Federal Rule of Criminal Procedure Rule 32.1(b)(2)(E). Instead, the magistrate judge focused the bulk of the hearing on determining whether Zahursky violated the terms of his supervised release. The hearing did not check all the boxes for a revocation hearing under Rule 32.1(b)(2) because the magistrate judge rightly understood he was to make a finding on whether a violation occurred and, if there was a violation, recommend an appropriate sentence. Neither at the hearing, nor in his report and recommendation did the magistrate judge consider the 18 U.S.C. § 3553(a) factors, as is required when revoking supervised release under 18 U.S.C. § 3583(e)(3). Put simply, the record reflects that the magistrate judge here did not take himself to be sentencing Zahursky. Nor did Zahursky or the government seem to take Zahursky as having been sentenced by the magistrate judge. After all, this was Zahursky's second revocation hearing within just a few years. If at his first revocation hearing—where the violation was uncontested—Zahursky needed to expressly waive his rights to appear and allocute before the district judge, then he could not have imagined that in contested revocation proceedings, the district judge would summarily deny him those rights with no on-the-record waiver before the magistrate judge. Therefore, Zahursky reasonably expected that he would later receive an independent revocation hearing before the ultimate decision-maker, the district judge. He did not.

Contrary to providing any indicia of waiver, the record below shows that Zahursky did not agree with the magistrate judge's report and recommendation, and that he made his concerns known to the district judge. Just six days after the magistrate judge filed his report and recommendation on the docket, Zahursky mailed a pro se notice of appeal of the magistrate judge's report and recommendation to this court complaining that "[t]he honorable Rodovich (Magistrate) and the honorable Moody (in Florida) deemed me not credible and sentenced the max of a court supervision violation." R. 410 at 1. This filing, dated October 13, 2025, fell well within the 14-day objection window under Rule 59(b)(2), but appeared on the district court docket on October 22, 2025. The district judge appears to have ignored it, perhaps thinking it untimely, premature (insofar as it tried to appeal a non-final decision), or inappropriate because it was filed pro se while Zahursky was represented by counsel. But a more prudent and conservative approach would have been to construe Zahursky's notice of

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appeal as a timely objection to the magistrate judge's findings, alerting the district judge to the need for de novo review of the report and recommendation. At the very least, the filing should have triggered some level of scrutiny from the district court, which could have held a short hearing or requested a statement from counsel to clarify whether Zahursky wished to object to the report and recommendation. Irrespective of whether Zahursky objected, though, we cannot forget that a district judge may always review de novo a magistrate judge's report and recommendation. Rule 59(b)(2) is not jurisdictional, so failure to object in accordance with the rule "does not prevent a district judge from reviewing a recommendation on [his] own initiative," and "[t]he district judge [i]s free to consider any issues [he] wishe[s] to." United States v. Street, 917 F.3d 586, 598 (7th Cir. 2019); Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 760 (7th Cir. 2009) ("[A]lthough the district judge must make an independent determination of a magistrate judge's order upon objection, he is not precluded from reviewing a magistrate judge's order to which a party did not object.").

Such de novo review would have suggested to the district judge that the magistrate judge's report and recommendation did not look like a final sentencing order, particularly because it contained no mention of the 18 U.S.C. § 3553(a) factors, and the underlying hearing transcript featured no allocution from Zahursky. Finding waiver—which occurs when a defendant "intentionally relinquishes or abandons a known right," United States v. Walton, 255 F.3d 437, 441 (7th Cir. 2001) (emphasis added)—on these facts is a serious stretch. Zahursky had a reasonable expectation that he would have a separate hearing before a district judge, and the record evinces significant confusion from the parties, as well as a statement from the magistrate judge that he understood he was not making a final sentencing decision ("Until further ruling by Judge Moody, the defendant is remanded . . . ."). R. 423 at 50. Our own survey suggests that less than five percent of United States district courts routinely deploy the

18 U.S.C. § 3401(i) referral procedure used here, casting significant doubt upon the notion that Zahursky could have anticipated the denial of his opportunity to appear and allocute before the district judge.

More fundamentally, waiver is temporally impossible here because Zahursky's arguments on appeal are not objections to the magistrate judge's report and recommendation, but rather, to the district judge's own procedure in adopting that report and recommendation. Nothing in the record of the proceedings before the magistrate judge could have alerted Zahursky that the district judge would ultimately sentence him on the papers alone, denying him the right to appear and allocute before the district judge specifically. Simply put, it is impossible to object to a procedural error

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that has not yet occurred. Under nearly identical circumstances, the Sixth Circuit

"decline[d] to find that [the defendant] waived his right to a sentencing hearing [before the District Judge] because the Magistrate Judge did not recommend that [the defendant] be sentenced without a hearing." United States v. Waters, 158 F.3d 933, 942 (6th Cir. 1998); see also United States v. Gray, 905 F.3d 1145, 1149 (9th Cir. 2018) ("The onus should not be on the defendant to make a prophylactic objection to the [R]&R in order to preserve [his] right to be present for the actual post-revocation sentencing, and we decline to find an enforceable waiver here.").

Thus, any way you slice it, it is inappropriate to find waiver here. Either Zahursky was justifiably confused as to whether he would receive a separate revocation hearing in front of the district judge given the magistrate judge's failure to ask Zahursky whether he wanted to waive his right to such a hearing, as had happened in Zahursky's first revocation hearing. Or, more fundamentally, Zahursky had no way to object to the denial of his right to appear and allocute before the district judge until after the district judge adopted the magistrate judge's report and recommendation without providing Zahursky with the opportunity to exercise those rights.

II.

Despite finding waiver, the majority also articulates a position on an issue of first impression in this circuit: whether a district judge may revoke the supervised release of a defendant with an underlying felony conviction by adopting the report and recommendation of a magistrate judge without holding an independent hearing at which the defendant can appear and allocute. Section II of the order holds that a district judge can, based on the text of Rule 32.1(b)(2), as well as 18 U.S.C. § 3401(i), which permits district judges to designate magistrate judges to conduct revocation hearings and make recommendations.

But I do not view this issue of the proper division of labor between district judges and magistrate judges to be so unambiguous. I think a more cautious approach on the novel issue is warranted in this non-precedential order. Rule 32.1(b)(2), informed by the Advisory Committee's Notes to the 2002 Amendments to the rule, and our precedent in United States v. Thompson, 599 F.3d 595 (7th Cir. 2010), could just as easily suggest that the procedure blessed here is impermissible. I therefore note this alternative reading of Rule 32.1(b)(2) for the benefit of future panels that may take up this issue in a precedential opinion, wherein the potential creation of a conflict with the Ninth Circuit would be a more pressing concern.

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A.

Rules 32.1(b)(2)(C) and(E) provide that at the revocation hearing, the "court"

must provide a defendant with "an opportunity to appear" and "an opportunity to make a statement and present any information in mitigation." Rule 1(b)(2) defines

"court" as "a federal judge," and Rule 1(b)(3) defines "federal judge" as including both district judges and magistrate judges. At first blush, these rules might suggest that a revocation hearing before a magistrate judge complies with Rule 32.1(b)(2), so long as the defendant is given the opportunity to appear and allocute. But there are material limitations on this procedure.

To start, the Advisory Committee's Notes to the 2002 Amendments provide that Rule 32.1(b)—which clarifies "the various procedural steps that must be met when dealing with a revocation"—intentionally deploys ambiguous terminology to describe when the magistrate judge or the district judge may act. As the Notes explain:

[I]n revocation cases, initial proceedings in both felony and misdemeanor cases will normally be conducted before a magistrate judge, although a district judge may also conduct them. But a district judge must make the revocation decision if the offense of conviction was a felony. Id. (citing 18 U.S.C. § 3401(i)). That is, the preliminary hearing discussed in Rule 32.1(b)(1) may be conducted by either a district judge or a magistrate judge. But, notwithstanding the great skill of the magistrate judges of our district courts, Congress did not grant them the power to revoke the supervised release of a defendant whose underlying conviction is a felony. See 18 U.S.C. § 3401(a), (h) (magistrate judges may only sentence persons convicted of misdemeanors and may only revoke supervised release where the defendant was sentenced by a magistrate judge). The Advisory Committee's Notes' deliberate distinction between "court" for the revocation hearing and "district judge" for the revocation decision suggests that "the court" in Rule 32.1(b)(2) means district judge when the underlying offense is a felony (or magistrate judge when it is a misdemeanor).

This reading aligns with the purpose of the appearance and allocution rights, both of which require realization before the ultimate decisionmaker, the district judge. As we explained in Thompson, "appearing before the court allows the defendant to plead his case personally to the judge who will decide whether to revoke supervised release and return him to prison." 599 F.3d at 599 (emphasis in original). We also

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explained that "the form and substantive quality of the hearing is altered when a key participant is absent from the hearing room . . . This is particularly true when the one who is absent has the power to impose a prison term." Id. at 600. Where a defendant has an underlying felony conviction, a magistrate judge cannot "decide whether to revoke supervised release" and does not "ha[ve] the power to impose a prison term." Id. at 599, 600 (emphasis added). Thus, the "face-to-face meeting between the defendant and the judge," which "permits the judge to . . . 'attempt[] to assess the credibility or to evaluate the true moral fiber of another,'" is severed from its purpose entirely where it is conducted by a judge without the ability to sentence the defendant. Id. at 599 (quoting Del Piano v. United States, 575 F.2d 1066, 1069 (3d Cir. 1978)). As a result, where a defendant with an underlying felony conviction faces revocation of supervised release, the defendant's appearance and allocution rights under Rules 32.1(b)(2)(C) and (E) properly lie with the district judge—the only judge capable of making the revocation decision. Any other reading would permit appearance and allocution before a non-decisionmaker. And such diminished rights under Rules 32.1(b)(2)(C) and (E) would only serve to negate the rights in Rules 32.1(b)(2)(A), (B) and (D), which, we have held, are derivative of the right to appear and allocute before the sentencing judge. See Thompson, 599 F.3d at 599-600 ("A defendant's appearance in court is the means by which he effectuates the other rights conferred by the rule . . . Without this personal interaction between the judge and the defendant . . . the force of the other rights guaranteed by Rule 32.1(b)(2) is diminished.").

B.

The majority's interpretation of the requirements of Rule 32.1(b)(2) has practical consequences not only for the division of labor between magistrate judges and district judges but for the rights of defendants facing revocation of supervised release. For a defendant facing revocation of supervised release, "the stakes may be months or even years in prison. A court considering the interest of justice cannot lose sight of those stakes, even if letting the defendant [exercise his rights under Rule 32.1] will require some effort or inconvenience for the prosecution or the court." United States v. Jordan,

765 F.3d 785, 788 (7th Cir. 2014). Emphasizing these high stakes, the D.C. Circuit vacated a revocation sentence where the defendant was not permitted to allocute, cogently explaining:

Imposing a criminal sentence is among the gravest powers a government exercises over its people, and a defendant's presentence allocution to the court is a significant human encounter . . . Even where the judge's sentence

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remains unaffected, ensuring the defendant's right to make a statement bolsters the integrity of the judicial process by having the judge listen to and thereby openly recognize the defendant as a fellow human being whose liberty is at stake. Allocution disrupts the reality or appearance of assembly-line justice, and thus its denial is no less threatening to the integrity of our judicial system—and, indeed, perhaps more so—when the sentence appears to be a foregone conclusion.

United States v. Abney, 957 F.3d 241, 253-54 (D.C. Cir. 2020) (internal quotation omitted). Where a district judge adopts a magistrate judge's report and recommendation, without holding his own hearing, he may be reasonably perceived as lending the court's imprimatur to "assembly-line-justice." In this case, for example, it does not appear from the docket that the district judge ever laid eyes on the defendant before sentencing him to the statutory maximum imprisonment.

With these sorts of equity concerns in mind, the Ninth Circuit held that a district court erred by revoking supervised release without holding its own hearing at which the defendant could appear and allocute, even though a magistrate judge had already conducted a full revocation hearing under 18 U.S.C. § 3401(i). See Gray, 905 F.3d at 1148. As the Ninth Circuit explained, "[i]n conducting proceedings based on an order of reference by a district court, a magistrate judge does 'not possess the authority to impose sentence; only the district court possesses that authority.'" Id. at 1149 (quoting United States v. Rodriguez, 23 F.3d 919, 921 (5th Cir. 1994)). As a result, "even if the defendant is given an opportunity to appear and speak before the magistrate judge, the district court must provide the defendant an additional opportunity before the actual sentence is imposed." Id.

Because this order is non-precedential, it is not being circulated pursuant to Circuit Rule 40(e), as would otherwise be necessary where "a panel of this court adopt[s] a position which would . . . create a conflict between or among circuits" or where "a proposed opinion . . . would establish a new rule or procedure." We expedited resolution of Zahursky's appeal given his impending release from prison, and the majority's non-precedential order should be read as resolving his appeal alone. Reading the majority's opinion as having a wider reach than it does comes with significant peril. This is a complex area of law due to the linguistic indeterminacy of Rule 32.1(b)(2), especially when read with 18 U.S.C. § 3401(i). Further, the Supreme Court recently warned against applying procedural shortcuts to supervised release that "blow[] past all th[e] constraints" of the relevant rules and statutes. Cf. Rico v. United States, 607 U.S. ___, 2026 WL 815786, at *4-5 (2026) (rejecting Ninth Circuit rule "automatically

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extending a term of supervised release" for certain defendants who "violate their supervised release conditions" and holding that said rule "disregard[ed]" the

"important limitations" set forth in 18 U.S.C. § 3583(e) and Rule 32.1 that "[a] court must generally hold a hearing and consider various sentencing factors" before extending a term of supervised release).

Ultimately, vacatur and remand for resentencing is appropriate here because no judge—neither district judge nor magistrate judge—conducted a revocation hearing that was fully compliant with Rule 32.1(b). Specifically, Zahursky never had "an opportunity to make a statement and present any information in mitigation" in front of any judge. See F ED. R. CRIM. P. 32.1(b)(2)(E). Nor has any judge "consider[ed] the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)" as required to "revoke a term of supervised release." 18 U.S.C. § 3583(e)(3). Regardless of the propriety of the sentencing procedure deployed by the district court here, Zahursky should have been resentenced.

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