United States of America v. Marquis Smalls, a/k/a Speedy

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 25-1383
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UNITED STATES OF AMERICA
v.
MARQUIS SMALLS, a/k/a Speedy,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1:13-cr-00226-001)
District Judge: Honorable Christine P. O’Hearn
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Before: KRAUSE, MATEY, and SCIRICA, Circuit Judges
(Opinion filed: September 5, 2025)
Alison Brill
Office of Federal Public Defender
800 Cooper Street, Suite 350
Camden, NJ 08102
Counsel for Appellant

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Mark E. Coyne
Richard J. Ramsay
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Counsel for Appellee
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OPINION OF THE COURT
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KRAUSE, Circuit Judge.
Supervised release is a common component of a
sentence, but it is also conditional, so when a defendant is
found by the district court to have violated its terms, the court
has authority to revoke his supervised release and return him
to detention. See 18 U.S.C. § 3583(e). But what about the
period between the defendant’s initial appearance for a
violation and the district court’s finding that it, in fact,
occurred?
In this case, Appellant Marquis Smalls argued
unsuccessfully before the District Court that it lacked authority
to detain him pending his revocation hearing. On appeal,
Smalls moved for release from custody; we denied the motion
in a summary order; and Smalls then filed the petition for
rehearing now before us. We will again deny the motion, but
because we have not spoken precedentially on this issue, we
will grant the petition for rehearing to provide a fuller
explanation for our decision.

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I. Background
After Smalls pleaded guilty in 2013 to conspiring to
distribute heroin in violation of 21 U.S.C. §§ 841 and 846, the
District Court sentenced him to 110 months’ imprisonment to
be followed by five years’ supervised release. As set forth in
his judgment of conviction, his supervised release was
conditioned on compliance with certain terms, including, as
relevant here, that the defendant “shall not commit another
federal, state, or local crime” and that he “shall not illegally
possess a controlled substance.” D.C. Dkt. No. 23 at 4.
Smalls has been on supervised release since December
2020 and has repeatedly violated its terms, resulting in multiple
remands to home detention. But the violations continued. In
June 2024, Smalls was arrested and detained by state officials
on heroin-trafficking charges. The United States Probation
Office then charged Smalls with eight violations of his terms
of supervised release and successfully petitioned the District
Court for an arrest warrant. As a result, when Smalls was
released from state custody, he was transferred to the custody
of the United States Marshals Service and presented before the
District Court1 for an initial appearance pursuant to Federal
1 Federal Rule of Criminal Procedure 32.1 provides that a
magistrate judge presides at the initial appearance and
preliminary hearing in revocation proceedings. Fed. R. Crim.
P. 32.1(a), (b)(1). Because magistrate judges assist with
district court dockets, see Prater v. Dep’t of Corr., 76 F.4th
184, 193 (3d Cir. 2023); 28 U.S.C. § 636, we refer, here, to
proceedings before either the Magistrate Judge or District
Court as “District Court” or “Court” proceedings.

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Rule of Criminal Procedure 32.1(b)(1). The Court then
ordered him detained pending his final revocation hearing.
Although Smalls was entitled to a preliminary hearing,
at which the Probation Office would need to establish probable
cause, Smalls waived that opportunity. Six months later,
Smalls identified a then-valid district court opinion in United
States v. Mercado, holding that “no statute . . . authorizes [a
defendant’s] detention prior to a determination of his guilt on
[a] charged [supervised release] violation” and that—because
the Non-Detention Act of 1971, 18 U.S.C. § 4001(a), prohibits
courts from detaining citizens absent an “Act of Congress”—
district courts lacked authority to order such interim detention
under the auspices of Rule 32.1(a)(6). 774 F. Supp. 3d 446,
454 (D. Conn. 2025), vacated sub nom. United States v.
Fernandez, No. 25-206, 2025 WL 2433528 (2d Cir. Aug. 25,
2025). Based on that authority, Smalls moved for release from
custody. The District Court denied the motion, concluding that
it had authority to detain Smalls and continuing his detention
based on both flight risk and danger to the community. See
Fed. R. Crim. P. 32.1(a)(6); 18 U.S.C. § 3143(a)(1).
Smalls next appealed to us, moving for release from
custody, and we denied relief in a summary Order dated June
6, 2025.2 That brings us to Smalls’s petition for rehearing, to
which we now turn. In it, Smalls argues that this Court should
order full briefing and follow the district court’s reasoning in
Mercado to hold that district courts do not have authority to
2 Smalls appealed pursuant to 18 U.S.C. § 3145(c), which
allows defendants to appeal post-judgment detention orders.
Our Court requires such an appeal be brought by motion. See
L.A.R. 9.1; see also Fed. R. App. P. 9.

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detain defendants awaiting their revocation determinations.
We are not persuaded. Neither, as it turns out, was the Second
Circuit, which just issued its opinion vacating the district court
in Mercado, and concluding that “Section 3143(a)(1)
authorizes the detention of a defendant alleged to have violated
the terms of his supervised release pending revocation
proceedings.” United States v. Fernandez, No. 25-206, 2025
WL 2433528, at *6 (2d Cir. Aug. 25, 2025). We agree with
Judge Bianco’s cogent opinion in that case, so while we will
grant Smalls’s petition for rehearing to provide a fuller
explanation of our reasoning, we will once again deny his
motion for release.3
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 18 U.S.C. § 3145(c). We
review these “questions of statutory interpretation” de novo.
United States v. Poellnitz, 372 F.3d 562, 570 (3d Cir. 2004).
III. Discussion
In his petition for rehearing, Smalls contends that we
erred in denying his motion for release in our June 6th Order
and that his detention pending a final revocation hearing
violates the Non-Detention Act because the District Court
3 Smalls’s motion continues to present a live issue. At the
parties’ request, the District Court has postponed Smalls’s final
revocation hearing during the pendency of these proceedings,
ostensibly to await the conclusion of the pending state charges.
Thus, absent relief, Smalls will remain in detention until at
least September 24, 2025.

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lacked statutory authority for that order.4 We will adhere to
our original disposition because § 3143(a)(1) allows a court to
detain a defendant from initial appearance through the final
revocation decision. Below, we first describe the conditional
nature of supervised release as part of a sentence, then turn to
the District Court’s statutory authority under § 3143(a)(1) to
detain a defendant pending a final revocation hearing.
A. Supervised Release and Revocation
Supervised release is “a form of postconfinement
monitoring” that permits a defendant “conditional liberty by
allowing him to serve part of his sentence outside of prison.”
Mont v. United States, 587 U.S. 514, 523 (2019) (quoting
Johnson v. United States, 529 U.S. 694, 697 (2000)). It is
imposed as a result of the defendant’s initial offense and
“constitutes part of the original sentence.” United States v.
Island, 916 F.3d 249, 252 (3d Cir. 2019) (quoting United States
v. Buchanan, 638 F.3d 448, 455 (4th Cir. 2011)). As a
“conditional liberty,” however, supervised release is subject to
the conditions imposed by the court at sentencing and may be
revoked if a defendant violates its terms. See 18 U.S.C.
4 The Government counters that, even assuming no statute
authorized detention pending a final revocation proceeding, the
Non-Detention Act did not supplant judicial detention
authority, as Congress enacted § 4001(a) to guard against
executive detention. Although we acknowledge the
Government’s argument, we need not reach the issue because
18 U.S.C. § 3143(a)(1), an Act of Congress, provides authority
for Smalls’s detention. See Armstrong v. Guccione, 470 F.3d
89, 105 n.2 (2d Cir. 2006); cf. Hamdi v. Rumsfeld, 542 U.S.
507, 517 (2004) (plurality opinion).

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§ 3583(a), (d), (e)(3), (g). Thus, the initial sentence of
conviction includes the terms of supervised release—as well as
possible revocation. See United States v. Haymond, 588 U.S.
634, 635 (2019) (plurality opinion); id. at 658 (Breyer, J.,
concurring); United States v. Seighman, 966 F.3d 237, 245 (3d
Cir. 2020).
Federal Rule of Criminal Procedure 32.1, along with 18
U.S.C. §§ 3583 and 3606, work in concert to prescribe the
revocation process. To begin, the Probation Office petitions
the court for a summons for the defendant to appear, see, e.g.,
United States v. Simmons, 69 F.4th 91, 93 (3d Cir. 2023), or
arrests the defendant predicated on a finding of probable cause
that the defendant has violated his terms of supervised release,
18 U.S.C. § 3606. Upon arrest, a defendant must be “taken
without unnecessary delay” for an initial appearance before a
magistrate judge. Id.; Fed. R. Crim. P. 32.1(a)(1). Regardless
of whether the defendant is summoned or arrested, at the initial
appearance, Rule 32.1(a)(6) states that the district court “may
release or detain the person under 18 U.S.C. § 3143(a)(1)
pending further proceedings,” with the burden on the defendant
to show “by clear and convincing evidence that [he] will not
flee or pose a danger to any other person or to the community.”
Fed. R. Crim. P. 32.1(a)(6).
For persons who have been arrested or ordered detained,
the judge “must promptly conduct a [preliminary] hearing to
determine whether there is probable cause to believe that a
violation occurred,” unless—as in Smalls’s case—the
defendant waives his right to such a hearing. Id. at (b)(1)(A);
see also id. at (a)(3)(C). Absent probable cause, the judge
“must dismiss the proceeding,” resulting in a defendant’s
immediate release, but if there is probable cause, “the [district]

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court must hold the [final] revocation hearing within a
reasonable time.” Id. at (b)(1)(C), (b)(2). At that final hearing,
“if the court . . . finds by a preponderance of the evidence that
the defendant violated a condition of supervised release,” it
may revoke release and remand the defendant to prison. 18
U.S.C. § 3583(e)(3).
B. Statutory Authority for Detention
Congress explicitly authorized detention at both ends of
the revocation process: upon the arrest of a person on
supervised release, id. § 3606, and at the final revocation
hearing if a court determines that a violation occurred, id.
§ 3583(e)(3).5 The question we consider today is whether
courts have statutory authority to detain a defendant between
his initial court appearance and his final hearing, as
contemplated by Rule 32.1(a)(6).
Rule 32.1(a)(6) purports to rely on 18 U.S.C.
§ 3143(a)(1) for that authority, and § 3143(a)(1), in turn,
provides that a judicial officer:
shall order that a person who has been found
guilty of an offense and who is awaiting
imposition or execution of sentence . . . be
detained, unless the judicial officer finds by clear
and convincing evidence that the person is not
5 We need not decide today the limits of courts’ authority to
detain defendants under 18 U.S.C. § 3606, and whether that
statute, too, authorizes detention of a person on supervised
release pending his final revocation hearing.

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likely to flee or pose a danger to the safety of any
other person or the community if released . . . .
18 U.S.C. § 3143(a)(1). So this statute sets two requirements
for detention: A defendant must (1) have been found guilty of
an offense, and (2) be “awaiting imposition or execution of
sentence.”6 Id. And if both requirements are satisfied, then
§ 3143(a)(1) empowers a judge to detain a defendant through
the conclusion of the execution of his sentence.
Such is the case here because defendants like Smalls,
who are on supervised release and awaiting a revocation
hearing, meet both criteria.
First, a person serving a term of supervised release, a
fortiori, “has been found guilty of an offense.” Id. Section
3143(a)(1)’s language and structure make clear that the
“offense” in question is the offense of conviction—and not the
violation of a term of supervised release. See United States v.
Smith, 500 F.3d 27, 31 n.3 (1st Cir. 2007). Specifically,
Congress defined “offense,” as used in § 3143, to mean a
“criminal offense . . . which is in violation of any Act of
Congress and is triable by any court established by Act of
Congress.” 18 U.S.C. § 3156(a)(2). A supervised release
violation is neither: It is subject to a hearing, not a trial, see id.
§ 3583, and it need not be criminal, see Johnson, 529 U.S. at
700 (observing violations leading to revocation “need not be
criminal and need only be found by a judge under a
6 This is subject to an exception inapplicable here: The statute
does not apply to “a person for whom the applicable guideline
promulgated pursuant to 28 U.S.C. § 994 does not recommend
a term of imprisonment.” 18 U.S.C. § 3143(a)(1).

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preponderance of the evidence standard”). So the offense for
which a defendant must have been found guilty in § 3143(a)(1)
could only be the offense of conviction, and Smalls, having
been found guilty of violating 21 U.S.C. §§ 841 and 846,
fulfills this requirement.
Second, a person charged with violating a condition of
his supervised release and awaiting the determination on
whether that portion of his previously imposed sentence will
be served on release or in custody is “awaiting . . . execution”
of his sentence. “Execution” is the carrying out of the
defendant’s sentence. See Execution, Black’s Law Dictionary
(5th ed. 1979) (“Carrying out some act or course of conduct to
its completion.”); cf. Woodall v. Fed. Bureau of Prisons, 432
F.3d 235, 243 (3d Cir. 2005) (defining “execution” as the
“carrying out” of a sentence under 28 U.S.C. § 2241). And the
supervised-release portion of any sentence originally imposed
is, by its terms, conditional, incorporating the possibility of
revocation. See Haymond, 588 U.S. at 635; id. at 658 (Breyer,
J., concurring); Seighman, 966 F.3d at 245. For that reason, “it
is the original sentence that is executed when the defendant is
returned to prison after a violation of the terms” of his release,
United States v. Paskow, 11 F.3d 873, 881 (9th Cir. 1993), and
§ 3143(a)(1) applies to persons on supervised release, like
Smalls, who are waiting for that original sentence—whether on
release or in detention—to be carried out.
This interpretation is bolstered by three additional
considerations.
For one, Rule 32.1(a)(6) cites to § 3143(a)(1) for the
authority to detain a defendant pending revocation. The
Federal Rules of Criminal Procedure, issued by the Supreme

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Court and reviewed by Congress have the force and effect of
law, see United States v. Marion, 404 U.S. 307, 319 (1971),
and enjoy presumptive validity, see Burlington N. R.R. Co. v.
Woods, 480 U.S. 1, 6 (1987). Indeed, the Supreme Court, thus
far, has “rejected every statutory challenge to a Federal Rule
that has come before” it, Shady Grove Orthopedic Assocs.,
P.A. v. Allstate Ins. Co., 559 U.S. 393, 407 (2010), and we have
no reason to believe Rule 32.1 would be an exception.
For another, Smalls asserts that our interpretation of
§ 3143(a)(1) raises the specter of double jeopardy because it
would subject those charged with violations to an additional
sentence for their crime of conviction. He is mistaken. No
doubt, if revocation of supervised release constituted an
additional sentence or punishment, the interpretation we adopt
today “would raise an issue of double jeopardy.” Johnson, 529
U.S. at 700. But detention pending a final revocation hearing
is neither an additional sentence nor punishment. The period
of supervised release—including the possibility of
revocation—“constitutes part of the original sentence,” Island,
916 F.3d at 252 (emphasis added) (quoting Buchanan, 638
F.3d at 455)—and “punishments for revocation of supervised
release . . . [are] part of the penalty for the initial offense.”
Haymond, 588 U.S. at 635 (quoting Johnson, 529 U.S. at 700–
01); accord Seighman, 966 F.3d at 245. So Smalls’s detention
is not the imposition of an additional sentence; his detention
through the final revocation hearing is detention pending
execution of his originally imposed sentence.
Finally, although a defendant may be detained under
§ 3143(a)(1) from his initial appearance to the conclusion of
his final hearing, district courts do not have unfettered
discretion to detain those on supervised release through the

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duration of their sentence. That power is cabined by several
important safeguards, including the procedures laid out in Title
18 of the United States Code and Rule 32.1. For example, a
defendant may only be arrested for a supervised release
violation upon “probable cause,” 18 U.S.C. § 3606, and he then
must be taken before the court for an initial appearance
“without unnecessary delay,” id.; accord Fed. R. Crim. P.
32.1(a)(1). The preliminary hearing, requiring yet another
determination of probable cause, must be held “promptly,”
Fed. R. Crim. P. 32.1(b)(1)(A), and, if probable cause is found
at the preliminary hearing, the final revocation hearing must be
held “within a reasonable time,” id. at (b)(2). Even when the
court determines that a violation occurred, § 3583(e) provides
additional constraints on the length of confinement a court may
enforce upon revocation. 18 U.S.C. § 3583(e). These limits
serve to balance the court’s authority with the defendant’s
rights and to encourage courts to complete the revocation
process swiftly.
In sum, as the Second Circuit recently observed in
overruling Mercado, “when a defendant has been charged with
a supervised release violation, the initial carceral component of
the sentence has been executed, the term of supervised release
is being executed, and any consequences for the violation,
including the initiation of revocation proceedings, are awaiting
execution.” Fernandez, 2025 WL 2433528, at *8. Thus,
Smalls qualified under § 3143(a)(1) as “a person who has been
found guilty of an offense and who is awaiting . . . execution
of sentence[,]” and when he did not carry his burden to show
that he was neither a flight risk nor a danger to the community
if released, the District Court was authorized under that statute
to order his detention.

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IV. Conclusion
For the foregoing reasons we will grant Smalls’s
petition for rehearing and deny his motion for release from
custody.

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