United States of America v. Erik D. Zahursky

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 5, 2026
Decided April 8, 2026
Before
MICHAEL B. BRENNAN, Chief Judge
NANCY L. MALDONADO, Circuit Judge
REBECCA TAIBLESON, Circuit Judge
Nos. 25-3007 & 25-3217
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERIK D. ZAHURSKY,
Defendant-Appellant.
Appeals from the United States District
Court for the Northern District of
Indiana, Hammond Division.
No. 2:06 CR 109
James T. Moody,
Judge.
O R D E R
Erik Zahursky was sentenced to prison after the district court revoked his
supervised release for attempting to cash a fraudulent check. Pursuant to 18 U.S.C.
§ 3401(i), a magistrate judge conducted the hearing that precipitated Zahursky’s
revocation. The magistrate judge recommended a disposition and sentence, which the
district judge adopted, without a second hearing, after the 14-day period for objecting to
the report and recommendation lapsed. Zahursky now appeals. Zahursky does not
challenge the magistrate judge’s report and recommendation itself, nor the procedures
employed by the magistrate judge at the revocation hearing, conceding that he has
waived any such challenge. Instead, he argues only that the district court erred by
revoking his supervised release and imposing a sentence of imprisonment without
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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Nos. 25-3007 & 25-3217 Page 2
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nonprecedential disposition in recognition of Zahursky’s request that we “issue the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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Nos. 25-3007 & 25-3217 Page 3
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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Nos. 25-3007 & 25-3217 Page 4
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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Nos. 25-3007 & 25-3217 Page 5
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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Nos. 25-3007 & 25-3217 Page 6
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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Nos. 25-3007 & 25-3217 Page 7
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.
1 Zahursky’s pro se notice of appeal and subsequent correspondence with this court in fact
suggest that Zahursky intentionally skipped this objection process, opting to seek relief from this court,
rather than from the district court, which he believed would “be too excessive and . . . unjust” based on
his “past experience” of “almost 20 years of outrageously excessive punishment.”

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Nos. 25-3007 & 25-3217 Page 8
M ALDONADO, 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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Nos. 25-3007 & 25-3217 Page 9
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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Nos. 25-3007 & 25-3217 Page 10
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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Nos. 25-3007 & 25-3217 Page 15
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. C RIM . 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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