Rico v. United States

P R E L I M I N A R Y P R I N T
Volume 607 U. S. Part 2
Pages 609–626
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
March 25, 2026
REBECCA A. WOMELDORF
reporter of decisions
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OCTOBER
TERM, 2025
609
Syllabus
RICO v. UNITED STATES
certiorari
to the united states court of appeals for
the ninth circuit
No. 24–1056. Argued November 3, 2025—Decided March 25, 2026
A criminal defendant, on supervised release from federal prison, must
comply with various conditions—both mandatory (commit no more
crimes, see 18 U. S. C. § 3583(d)) and discretionary (commonly, “report
to a probation offcer as directed” and “notify the probation offcer
promptly of any change in address,” §§ 3563(b)(15), (17)). Violating a
prescribed condition may result in the revocation of supervised release
and a return to prison, § 3583(e)(3), as well as an additional “term of
supervised release after imprisonment,” § 3583(h).
After petitioner Isabel Rico violated the terms of her supervised re-
lease conditions, the judge revoked her release and ordered her to serve
two months of additional imprisonment and a new 42-month term of
supervised release set to expire in 2021. When released the second
time, Ms. Rico again violated her conditions by changing her residence
without notifying her probation offcer. A warrant issued for her ar-
rest, but federal authorities did not locate her until January 2023. As
relevant here, during her abscondment, Ms. Rico committed a state law
drug offense in January 2022, which resulted in a conviction. Back in
federal district court, the judge treated Ms. Rico's drug offense as a
Grade A violation of her supervised release conditions and sentenced
her to 16 months of incarceration followed by two more years of super-
vised release. Ms. Rico appealed, arguing that the district court lacked
authority to treat her drug offense as a supervised release violation
because that offense occurred after her supervised term expired in June
2021. The Ninth Circuit disagreed, describing Ms. Rico's abscondment
as having “tolled” the clock so that her term continued to run until
federal authorities caught up with her in 2023. Because of that, the
Ninth Circuit held, Ms. Rico's January 2022 drug offense could count
as a violation of her federal supervised release. This Court granted
certiorari to resolve a circuit split on whether abscondment automati-
cally extends a term of supervised release.
Held: The Sentencing Reform Act does not authorize a rule automatically
extending a defendant's term of supervised release when the defendant
absconds. Pp. 614–623.
(a) What the Ninth Circuit's challenged rule really does is use a de-
fendant's abscondment to extend (not toll) the period of supervised re-

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610 RICO
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Syllabus
lease beyond what a judge has ordered. Automatically extending a
ter
m of supervised release is not among the many tools the Sentencing
Reform Act provides courts to address defendants who fail to report or
otherwise violate their supervised release conditions. The Act in-
structs that a term of supervised release starts “the day the person
is released from imprisonment,” § 3624(e), and generally sets maximum
lengths at one, three, or fve years depending on the severity of the
underlying offense, § 3583(b). Neither provision hints at an automatic
extension rule, and the Ninth Circuit's rule risks permitting courts to
extend supervised release beyond the statutory maximums set by Con-
gress. The Act also authorizes courts to revoke supervised release and
impose additional imprisonment and supervised release for violations,
but makes no mention of automatic extension for abscondment. Fur-
ther, an automatic extension rule disregards the limits in the Act's spe-
cifc extension and tolling rules. Section 3583(e)(2) generally permits
courts to extend supervised release only after holding a hearing and
considering various sentencing factors, and not beyond statutory maxi-
mums or after the term has expired. Section 3583(i) allows revocation
proceedings after a defendant's term of supervised release has expired
only for matters arising before expiration and only if a warrant or sum-
mons issued during the term. Section 3624(e) provides a true tolling
rule, suspending supervised release during imprisonment of 30 consecu-
tive days or more. The cumulative detail of these instructions strongly
suggests the absence of anything like the Ninth Circuit's rule is inten-
tional rather than an oversight. Pp. 615–617.
(b) The government's arguments fail to support the Ninth Circuit's
rule. The government argues because supervision requires “observa-
tion and direction,” see, e. g., §§ 3601, 3624(e), 3603(2), (3), and Ms. Rico
received neither while absconding, she should receive no “credit” for
that period. But the cited provisions merely describe the probation
offcer's duties and indicate that supervision occurs only “during the
term imposed” by the sentencing court, §§ 3601, 3624(e), which hurts
rather than helps the government's cause. Moreover, the government's
theory treats Ms. Rico as off and on supervised release at the same time.
The government's precedent arguments are also unconvincing. Mont
v. United States, 587 U. S. 514, simply recognized that § 3624(e)'s express
terms suspend a defendant's term during imprisonment for a separate
state offense, which highlights the absence of anything like the Ninth
Circuit's rule. And United States v. Johnson, 529 U. S. 53, rejected an
effort to adorn the Act with a rule Congress did not enact, much as the
Court does today.
The government's common-law argument—that courts historically
held an escaped time on the run from prison does not count toward

Cite
as: 607 U. S. 609 (2026)
611
Opinion of the Court
discharge of a sentence—may rest on sound premises but reaches an
unsound
conclusion. The government seeks not a rule that stops the
clock or ensures a defendant takes no advantage of abscondment, but
one that imposes new punishment by automatically extending super-
vised release. Unlike an escaped prisoner who is not serving his sen-
tence, under the Ninth Circuit's rule, a defendant who fails to report
remains bound by release terms and may be punished for violations.
The Act already provides many ways to ensure defendants do not proft
from violations without automatically extending the period beyond what
a judge ordered. Pp. 617–622.
(c) The gover nment's policy plea —that § 3583( i)'s warrant-or-
summons requirement may leave courts powerless when probation off-
cers do not timely realize a defendant's absence—is misdirected. The
proper place to register that complaint is with Congress, as this Court
is not free to rewrite the directions Congress has provided. P. 621–622.
Reversed and remanded.
Gorsuch, J., delivered the opinion of the Court, in which Roberts,
C. J., and Thomas, Sotomayor, Kagan, Kavanaugh, Barrett, and
Jackson, JJ., joined. Alito, J., fled a dissenting opinion, post, p. 623.
Adam G. Unikowsky argued the cause for petitioner.
With him on the briefs were Jonathan J. Marshall, Margaret
A. Farrand, and Andrew B. Talai.
Joshua K. Handell argued the cause for the United States.
With him on the brief were Solicitor General Sauer, Acting
Assistant Attorney General Galeotti, Deputy Solicitor Gen-
eral Feigin, and W. Connor Winn.*
Justice Gorsuch delivered the opinion of the Court.
Today, most criminal defendants sentenced to federal
prison must also serve a term of supervised release. If a
defendant on supervised release fails to report to his proba-
*Briefs of amici curiae urging reversal were fled for the Due Process
Institute by Vincent J. Brunkow and Shana-Tara O'Toole; for the National
Association of Federal Defenders by Jacob Schuman, Paul Alessio Mez-
zina, and Keith M. Donoghue; and for the Roderick and Solange MacAr-
thur Justice Center by Devi M. Rao.
Adeel M. Bashir and Jeffrey L. Fisher fled a brief of amicus curiae for
the National Association of Criminal Defense Lawyers.
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612 RICO
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Opinion of the Court
tion offcer, serious consequences can follow. This case
poses
a question about one of them.
I
Under the Sentencing Reform Act of 1984, supervised re-
lease serves as a transitional period between incarceration
and freedom. See Mont v. United States, 587 U. S. 514, 523
(2019). While on supervised release, a criminal defendant
must comply with various conditions. Some of those condi-
tions (like: commit no more crimes) are as mandatory as they
are obvious. 18 U. S. C. § 3583(d). Others may be imposed
at the discretion of the sentencing judge. Ibid. Common
discretionary conditions include “ `report[ing] to a probation
offcer as directed' ” and “ `notify[ing] the probation offcer
promptly of any change in address.' ” Administrative Offce
of the United States Courts, Overview of Probation and Su-
pervised Release Conditions 16, 24 (July 2024) (quoting
§§ 3563(b)(15), (17)). Should a defendant violate any pre-
scribed condition, whether mandatory or discretionary, a
judge may revoke his release and order him returned to
prison. § 3583(e)(3). A judge may also require the defend-
ant to serve an additional “term of supervised release after
[his] imprisonment.” § 3583(h).
Isabel Rico's encounter with these rules is long and com-
plex. In 2010, she pleaded guilty to federal drug traffcking
charges and was sentenced to seven years in prison followed
by four years of supervised release. App. to Pet. for Cert.
11a (App.); Brief for Petitioner 8. Only a few months after
leaving prison in January 2017, Ms. Rico violated her super-
vised release conditions. As a result, the judge revoked her
release, sent her back to prison for two months, and ordered
her to serve another 42-month term of supervised release.
App. 11a. Per the judge's order, that new supervised re-
lease term was slated to expire in June 2021 (an important
date, as we will soon see). See ibid.
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as: 607 U. S. 609 (2026)
613
Opinion of the Court
Ms. Rico's second stint on supervised release went no bet-
ter
than her frst. Shortly after leaving prison in December
2017, she changed her residence without telling her proba-
tion offcer, once again violating a condition of her release.
Ibid. In response, a judge issued a warrant for her arrest in
May 2018. Id., at 12a. But federal authorities apparently
didn't catch up with her until January 2023. Id., at 3a. In
between, too, it turned out that Ms. Rico committed new
state-law offenses. In January 2021, authorities arrested
her for evading police and driving without a license. And
in January 2022, she was charged with possessing illicit
drugs for sale. Both sets of crimes resulted in convictions.
Brief for Petitioner 9–10.
Of course, Ms. Rico faced punishment for those offenses in
state court. But what did they mean for her back in federal
court? Consulting the sentencing guidelines, the court held
that Ms. Rico's failure to report to her probation offcer and
her January 2021 offenses qualifed as two independent
“Grade C violations” of her supervised release conditions,
each carrying an advisory sentencing range of 8 to 14 months
of imprisonment. App. 25a–32a. The court also held that
Ms. Rico's January 2022 drug offense amounted to a “Grade
A violation,” with an associated advisory range of 33 to 36
months of imprisonment. Ibid. After considering these
guidelines, and varying downward from them, the court sen-
tenced Ms. Rico to another 16 months of incarceration,
followed by two more years of supervised release. Id.,
at 5a, 35a.
Ms. Rico appealed that decision. Perhaps the district
court could revoke her supervised release based on her fail-
ure to report and her January 2021 offenses. Perhaps, as
well, the district court could order her to serve 16 months in
prison (after all, she committed two Grade C violations, each
carrying an advisory sentence of 8 to 14 months) and a new
term of supervised release. But, she insisted, the court had
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614 RICO
v. UNITED STATES
Opinion of the Court
no lawful authority to treat her January 2022 state drug of-
fense
as an independent supervised release violation. The
court could not do so, Ms. Rico argued, because that offense
occurred after her pre-existing term of federal supervised
release expired in June 2021.
The Ninth Circuit disagreed. Without question, Ms. Rico's
supervised release term was set to expire in June 2021 by
court order. But, the Ninth Circuit reasoned, Ms. Rico's ab-
scondment “tolled” the clock so that her term continued to
run until federal authorities caught up with her in 2023. Id.,
at 3a. As a result, her January 2022 drug offense occurred
while she was on supervised release. And because of that,
the district court could treat that offense as a violation and
revoke her supervised release based upon it. Ibid.
We agreed to review this case to resolve a circuit split.
606 U. S. 930 (2025). Some circuits, like the Ninth, hold that
a defendant's failure to report doesn't just amount to a pun-
ishable supervised release violation but also automatically
extends his term of supervised release. Others disagree,
taking Ms. Rico's view that abscondment does not automati-
cally extend a term of supervised release. Compare United
States v. Crane, 979 F. 2d 687, 691 (CA9 1992); and United
States v. Buchanan, 638 F. 3d 448, 458 (CA4 2011), with
United States v. Hernandez-Ferrer, 599 F. 3d 63, 66–69 (CA1
2010); United States v. Talley, 83 F. 4th 1296, 1297 (CA11
2023).
II
In approaching this dispute, a preliminary note on termi-
nology is warranted. The Ninth Circuit held that a defend-
ant who absconds during supervised release “tolls” his exist-
ing, judicially ordered term of supervised release until
federal authorities fnd him. This is a misnomer. In legal
settings, the word “toll” often denotes some stop or pause.
See Artis v. District of Columbia, 583 U. S. 71, 80–82 (2018).
But under the Ninth Circuit's approach, a defendant who ab-
sconds stops or pauses nothing. Rather, he remains subject
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as: 607 U. S. 609 (2026)
615
Opinion of the Court
to the conditions of his supervised release and can be held
account
able for any violations he commits during his ab-
scondment. What the Ninth Circuit's rule really does is ex-
tend the period of supervised release beyond what a judge
has ordered. On its view, an absconding defendant's term
of supervised release does not expire when a court has di-
rected but continues to run so long as the defendant remains
out of contact with his probation offcer.
A
Whatever the wisdom of a policy like that, we see nothing
in the law authorizing it. The Sentencing Reform Act pro-
vides courts with many tools to address defendants who fail
to report or otherwise violate their supervised release condi-
tions. But automatically extending a term of supervised re-
lease is not among them. An array of textual clues proves
the point.
Start with what the Act says about when supervised re-
lease begins and ends. The Act instructs that a term of su-
pervised release starts “the day the person is released from
imprisonment.” § 3624(e). The Act then tells us when a
term of supervised release must end, generally setting its
maximum length at one, three, or fve years, depending on
the sever ity of the defendant's under ly i ng offense.
§ 3583(b). Neither provision hints at anything like the
Ninth Circuit's automatic extension rule. To the contrary,
that rule risks fouting the Act by permitting courts to ex-
tend supervised release beyond even the maximum terms set
by Congress.
Next, consider how the Act treats absconders. As a con-
dition of supervised release, a court may order a defendant
to report to a probation offcer and inform authorities if he
changes his residence. See §§ 3563(b)(15), (17). Should a
defendant violate those (or any other) conditions, a court may
(and sometimes must) revoke his supervised release and send
him back to prison with a new term of supervised release
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v. UNITED STATES
Opinion of the Court
to follow. §§ 3583(e)(3), (g). That the Act authorizes those
potent
tools for addressing absconders—but makes no men-
tion of anything like the Ninth Circuit's automatic extension
rule—is telling too.
Relevant as well, the Act authorizes other extension
and (true) tolling rules. Take a few examples. Section
3583(e)(2) permits a court to “extend a term of supervised
release,” but only subject to important limitations. A court
must generally hold a hearing and consider various sentenc-
ing factors. See § 3583(e)(2); Fed. Rule Crim. Proc. 32.1. A
court cannot extend supervised release beyond the maximum
term set by statute. See § 3583(e)(2). Nor may a court ex-
tend a term of supervised release if that term has already
expired. See ibid.; Brief for United States 8, 38, 45. The
Ninth Circuit's automatic extension rule disregards not just
one but each of these limits. Under its approach, no hearing
is needed, a term of supervised release may extend beyond
the statutory maximum, and a court-ordered expiration date
becomes meaningless.
Section 3583(i) also addresses extensions. It provides
that a court's power to revoke supervised release “extends
beyond the expiration of the term of supervised release for
any period reasonably necessary for the adjudication of mat-
ters arising before its expiration if, before its expiration, a
warrant or summons has been issued on the basis of an alle-
gation of such a violation.” Here, then, the Act speaks di-
rectly to what a court may do after the expiration of a de-
fendant's judicially ordered term of supervised release. But
(again) the Act bounds a court's authority. A court may ad-
judicate only “matters arising before” the expiration of the
defendant's term of supervised release. It may do so only if
a warrant or summons issued during that term. And noth-
ing in this provision allows a court to exceed statutory maxi-
mums. The Ninth Circuit's rule, meanwhile, blows past all
those constraints, allowing courts to revoke supervised re-
lease for violations arising after the judicially decreed super-
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as: 607 U. S. 609 (2026)
617
Opinion of the Court
vised release term expires—and sometimes even after the
st
atutory maximum period—all without the necessity of a
warrant or summons.
If more evidence were needed to illustrate how unlikely
the Ninth Circuit's rule is, § 3624(e) would supply it. That
provision indicates that a “term of supervised release does
not run during any period in which the person is imprisoned
in connection with a conviction” for 30 consecutive days or
more. This is a true tolling rule, one that stops the clock
running on a defendant's term of supervised release. Yet,
like the Act's extension rules, it is narrow in scope and noth-
ing at all like the rule the Ninth Circuit has adopted.
The quantity of all these instructions has a quality of its
own, too. Cumulatively, the Act details how long supervised
release may run, the tools courts can use to address defend-
ants who fail to report or commit other violations, when
courts may extend and toll terms of supervised release, and
how they can go about addressing violations even after a
term of supervised release has expired. To our eyes, the
absence of anything like the Ninth Circuit's rule in all these
exacting instructions is striking and strongly suggestive that
the Ninth Circuit's rule more nearly represents an adorn-
ment to Congress's work than a permissible interpretation
of it.
B
Seeking to persuade us otherwise, the government starts
this way. Under § 3601, it observes, a defendant on super-
vised release “shall, during the term imposed, be supervised
by a probation offcer.” Many other provisions speak simi-
larly. See, e. g., §§ 3603(2), (3), 3624(e). As a matter of ordi-
nary meaning, the government submits, supervision “re-
quires both observation and direction.” Brief for United
States 12. Because Ms. Rico was subject to neither of those
things from early 2018 until 2023, the government reasons,
she should receive no “credit” for serving on supervised re-
lease during that period. Ibid. And, as a result, the dis-
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618 RICO
v. UNITED STATES
Opinion of the Court
trict court was within its rights to hold that she violated
the
terms of her supervised release when she committed her
January 2022 drug offense. Id., at 18–23.
If attractive at frst blush, this line of reasoning suffers
from a few underlying faws. For one thing, the provisions
the government cites do not outline anything like the Ninth
Circuit's automatic extension rule. Instead, they merely de-
scribe the individual responsible for supervising the defend-
ant—the probation offcer—along with some of his duties.
For another, to the extent these provisions speak about the
length of supervised release at all, they indicate that a proba-
tion offcer shall supervise a defendant only “during the term
imposed” by the sentencing court. See §§ 3601, 3624(e).
And that limitation would seem to do more to hurt than help
the government's cause.
For another thing still, an anomaly lies at the heart of
the government's theory. The government contends that
Ms. Rico was not supervised from early 2018 until 2023 and,
accordingly, should not have that period counted toward her
term of supervised release. But in the same breath, the
government argues that her January 2021 state offenses and
her January 2022 state drug offense count as federal viola-
tions because her term of supervised release continued to
run during the entire length of her abscondment. In a very
real sense, then, the government asks us to imagine that
Ms. Rico was both off and on supervised release at the same
time. Really, it is quite the puzzle.
If its arguments from statutory text fall short, the govern-
ment replies, its arguments from precedent fll the gap. In
particular, the government suggests, our decisions in Mont
and United States v. Johnson, 529 U. S. 53 (2000), require us
to adopt the Ninth Circuit's rule. But here, too, we just
don't see it. Mont simply recognized that § 3624(e)'s express
terms suspend (or truly toll) a defendant's term of super-
vised release while he remains imprisoned for a separate
state offense before trial. 587 U. S., at 521. And if that

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as: 607 U. S. 609 (2026)
619
Opinion of the Court
express tolling rule highlights anything, it is only, as we have
seen,
the absence of anything like the Ninth Circuit's rule in
the statutory text. See Part II–A, supra.
Johnson is even further afeld. There, the defendant re-
mained in prison longer than he should have. 529 U. S., at
54. After realizing the mistake, the district court ordered
the defendant's release and instructed that he should begin
serving his term of supervised release. Id., at 55. The de-
fendant appealed a portion of that order, arguing that his
term of supervised release should have started “when his
lawful term of imprisonment expired.” Id., at 55–56. Ulti-
mately, we rejected that argument, reasoning that the Act's
terms could not sustain it. Id., at 56–58. How any of that
might require us to adopt the Ninth Circuit's rule escapes
us. Perhaps Johnson's only relevance to this case lies in this
parallel to our case: We proceed today much as we did there,
rejecting yet one more effort to adorn the Act with a rule
Congress could have adopted but did not enact.
Moving past our precedents, the government next appeals
to the common law. For centuries, the government ob-
serves, common-law courts have held that the time between
a defendant's escape from prison and his recapture generally
does not count toward the discharge of his sentence. It is a
rule, the government notes, premised on the commonsense
view that an escapee should take no “ `manner of advantage
from it.' ” Brief for United States 25 (quoting 2 W. Hawkins,
Pleas of the Crown 200 (6th ed. 1788)). And it is a rule, the
government says, we should assume Congress meant to
carry forward under the Sentencing Reform Act—and one
that should ultimately lead us to adopt the Ninth Circuit's
rule. Brief for United States 29.
The government's premises here may be sound, but
its conclusion is not. Congress may sometimes legislate
against the backdrop of the common law. We can also as-
sume for argument's sake that the government is right about
the common-law rule and courts generally paused the clock
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on a defendant's sentence and its attendant conditions when
he
escaped from prison and remained at large. But, as we
have seen, the government seeks a very different rule here.
Its proposed rule does not stop any clock or merely ensure
a defendant does not take advantage of his abscondment. It
imposes a new punishment on him by automatically extend-
ing his term of supervised release.
Look at it this way. When a prisoner escapes, he is in
no sense serving his prison sentence. In contrast, when a
defendant on supervised release fails to report, everyone
agrees he remains bound by the terms of his release. That
is why, for failing to report and any other violation he may
commit during his judicially ordered term of supervised re-
lease, a court may send a defendant to prison and authorize
more supervised release yet. § 3583(e)(3). The court can
do all that, too, even after the defendant's prescribed term
of supervised release expires, so long as a warrant or sum-
mons issues beforehand. § 3583(i). The Act thus already
provides courts with many ways to ensure a defendant does
not proft from a supervised release violation. But what the
Act does not do is automatically extend the defendant's pe-
riod of supervised release beyond what a judge has ordered.
And that additional rule is hardly necessary to ensure that
a defendant should take “no manner of advantage” from his
abscondment.
The government urges us to consider Anderson v. Corall,
263 U. S. 193 (1923). That case, the government insists, il-
lustrates how background common-law principles should in-
form our understanding of the Act. In Corall, a federal
court sentenced the defendant to prison, followed by a term
of parole, a form of conditional release different from (but
not wholly unlike) supervised release. Id., at 193–194.
While the defendant was on parole, he committed a new state
crime and was sentenced to state prison. Id., at 194. After
his release, federal authorities revoked the defendant's pa-
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as: 607 U. S. 609 (2026)
621
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role and returned him to federal prison. Id., at 194–195.
The
defendant protested that his federal parole clock had
expired while he was in state prison, but we disagreed. In-
stead, applying background common-law principles, we held
that the defendant's state confnement stopped the clock on
his federal parole much as a prisoner's escape stops the clock
on his prison sentence. Id., at 196–197.
We fail to see how any of this moves the needle. Corall
might teach that, thanks to background common-law princi-
ples, a defendant's federal parole clock stops running during
his time in state prison. But what does that prove? When
it comes to supervised release, as we have seen, Congress
has already codifed a similar rule, providing that a defend-
ant's incarceration for 30 days or more pauses his term of
supervised release. § 3624(e). And none of that means the
government is entitled to an additional and very different
rule that would automatically extend a defendant's term of
supervised release beyond what a court has ordered and pos-
sibly even beyond the statutory maximum. Simply put,
Corall did not even contemplate, let alone endorse, anything
like the Ninth Circuit's rule.
In the end, the government is left to resort to a policy
plea. The Act may supply courts with many tools to address
absconding defendants. A court may even revoke a defend-
ant's supervised release after his judicially ordered term of
supervised release has expired so long as a warrant or sum-
mons issues before the term ends. See § 3583(i). But in
cases where a defendant absconds late in his supervised re-
lease term, the government protests, a probation offcer may
not realize his absence in time to secure a warrant or sum-
mons, leaving a court powerless to address violations after
the term expires. It's a problem, the government insists,
we should remedy by endorsing the Ninth Circuit's rule.
Th is plea is misdirec ted. If the gover nment th i nks
§ 3583(i)'s warrant-or-summons requirement too demanding,

622 RICO
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Opinion of the Court
the proper place to register that complaint is with those who
draf
ted it. This Court is not free to rewrite the directions
Congress has provided. Nor is it clear to us, for that matter,
how serious the government's supposed problem is. De-
fendants may commit many violations late in their terms of
supervised release. Some of those violations, like secretive
or nascent criminal activities, may be diffcult to detect. By
comparison, a defendant's failure to report to a probation of-
fcer as instructed is presumably among the easiest viola-
tions for federal authorities to notice. So even if we had the
authority to rewrite the law's terms to address “late-in-
term-and-diffcult-to-detect-violations,” it is not clear why
we would start with failure to report violations.*
*
Because the Sentencing Reform Act does not authorize the
rule the Court of Appeals adopted and the government ad-
vances, the judgment of the Ninth Circuit is reversed, and
*The dissent maintains that, even if Ms. Rico's January 2022 offense did
not qualify as an independent supervised release violation, the district
court could have considered that offense under the Sentencing Reform Act
when fashioning an appropriate sentence for the violations she committed
before June 2021. See post, at 623–626 (opinion of Alito, J.). But that,
of course, is not what happened. Instead, the district court treated
Ms. Rico's January 2022 offense as an independent supervised release vio-
lation. And the Ninth Circuit affrmed that decision based on its “tolling ”
rule. As we have explored (and the dissent hardly contests), those deci-
sions are inconsistent with the Act's terms. At bottom, then, and despite
its insistence otherwise, post, at 626, n. 2, the dissent believes those errors
are harmless because, it says, the district court could have accounted for
Ms. Rico's January 2022 offense by a different means than the one it em-
ployed. We think it inappropriate to engage in that kind of speculation.
The Ninth Circuit decision under review never addressed the question of
harmless error. Nor does the government press a harmless-error argu-
ment before us. In these circumstances, it is “normal practice” to leave
any question about harmless error for resolution on remand “in the frst
instance.” Neder v. United States, 527 U. S. 1, 25 (1999). No sound rea-
son exists to deviate from that practice here.
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as: 607 U. S. 609 (2026)
623
Alito, J., dissenting
the case is remanded for further proceedings consistent with
th
is opinion.
It is so ordered.
Justice Alito, dissenting.
This case is much simpler than the Court's opinion sug-
gests, and we have no need to consider whether petitioner's
term of supervised release was “tolled” when she absconded
and evaded supervision.
I
I will start with what is undisputed. In December 2017,
petitioner began a 42-month term of supervised release and,
during that time, was required not to use illegal drugs or
commit any other crimes and was ordered to notify her pro-
bation offcer if her address changed. In May 2018, she
moved without telling her probation offcer, and a warrant
was issued for her arrest. She remained a fugitive until
January 2023, but during the intervening months, she com-
mitted three state-law criminal offenses, including a drug
crime in January 2022. The sentencing judge, exercising his
authority under 18 U. S. C. §§ 3583(e)(3) and (h), revoked
petitioner's term of supervised release, sent her back to
prison for 16 months, and required her to serve a new 2-year
term of supervised release after her release from confnement.
In determining the length of petitioner's new term of im-
prisonment, the judge turned frst to the Sentencing Guide-
lines. Without the January 2022 drug offense, the sentenc-
ing range recommended by the Guidelines was 8 to 14
months, but with the drug offense the range jumped to 33 to
36 months. The judge started with the higher range, but
he made a large downward “variance” and set her sentence
at 16 months, just 2 months longer than the top of the range
that would have applied if the drug offense were disregarded.
II
The question before us is whether the sentencing judge's
consideration of the drug offense was lawful, and based on
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624 RICO
v. UNITED STATES
Alito, J., dissenting
the terms of the Sentencing Reform Act of 1984, it clearly
was.
Under 18 U. S. C. § 3583(e), the judge was permitted
to take into account most of the factors set out in § 3553(a),
and several of those factors permitted consideration of the
January 2022 drug crime. For example, imprisoning peti-
tioner for 16 months could deter her from committing crimi-
nal offenses, including drug crimes, during and after her new
2-year term of supervised release. See § 3553(a)(2)(B). The
16-month term could also deter others from violating super-
vised release and committing serious crimes. See ibid.
And by confning petitioner for 16 months, the sentence pro-
tected the public from crimes that petitioner, a serial recidi-
vist, might have committed if she were not in prison. See
§ 3553(a)(2)(C).
1
Although the Sentencing Reform Act plainly authorized
the sentencing judge to consider the January 2022 drug of-
fense, petitioner challenges her sentence based on her inter-
pretation of the Sentencing Guidelines. That argument
should be rejected for at least two reasons. First, the Sen-
tencing Commission cannot take away important authority
that the Sentencing Reform Act unequivocally gives to dis-
trict courts. Second, the Sentencing Guidelines, properly
read, do not prevent a judge from considering all crimes
that a prisoner commits after absconding from supervised
release.
Petitioner's contrary argument rests on what she under-
stands to be the combined operation of several provisions of
the Sentencing Guidelines. At the time of her sentencing,
§ 7B1.1 set out several grades of supervised released viola-
tions, ranging from Grade A for the worst transgressions
(including drug felonies) to Grade C for the least serious.
United States Sentencing Commission, Guidelines Manual
1
Even petitioner concedes that the “supervisee's conduct after the expi-
ration of the term can still be considered by the sentencing court as part
of the relevant 18 U. S. C. § 3553(a) analysis when selecting the appropriate
revocation sentence.” Brief for Petitioner 46 (emphasis in original).
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625
Alito, J., dissenting
§ 7B1.1 (Nov. 2023). Sec ti on 7B1.4(a) prov ided recom-
mended
ranges of imprisonment for each violation grade.
Petitioner contends that a supervised release violation is
one that occurs while a prisoner is on supervised release and
that she was no longer on supervised release when she com-
mitted the drug crime in January 2022 because her term of
supervised release continued to run while she was a fugitive
and thus expired in 2021. As a result, she maintains, the
drug offense should not have been considered in calculating
the sentence recommended by the Guidelines.
I am bemused by the notion that petitioner was on super-
vised release when she was evading all supervision. (I sup-
pose she was on “unsupervised supervised release.”) And
it seems strange to regard a crime committed after the expi-
ration of “unsupervised supervised release” as a non-event.
By that logic, if petitioner had gone on a murder spree after
the expiration of the period of unsupervised supervised re-
lease, the sentencing judge would have been required to put
that out of his mind.
As I see it, however, the whole debate about whether peti-
tioner's term of supervised release continued to run or was
“tolled” while she was on the lam is pointless. The Guide-
lines are merely advisory, and this Court has made it clear
that a judge is allowed to impose a sentence outside the rec-
ommended Guidelines range when that range “fails properly
to refect § 3553(a) considerations.” Rita v. United States,
551 U. S. 338, 351 (2007).
That is what the judge did here, and it makes no difference
that he started with the 33-to-36-month range and then var-
ied downward to 16 months instead of starting with the
lower range of 8 to 14 months and varying upward by 2
months based on the drug crime. Not only was this permit-
ted by the Guidelines, but the judge stated that Rico's sen-
tence was imposed “regardless of the applicable sentencing
guideline range.” App. to Pet. for Cert. 35a. By taking
petitioner's January 2022 drug crime into account in this
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626 RICO
v. UNITED STATES
Alito, J., dissenting
way, the judge acted in conformity with the Sentencing Re-
for
m Act, the Sentencing Guidelines, and the authority that
this Court recognized in Rita.
2
I would therefore affrm.
2
Contrary to the Court's argument, see ante, at 622, n., I do not contend
that we should affrm based on harmless error. Rather, the District
Judge made no error at all.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 616, line 11 from bottom: “a” is inserted before “violation”