UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff,
v. No. 16-cr-215-CKK JAMES CHERRY,
Defendant.
REPORT AND RECOMMENDATION
Following Mr. Cherry’s violation of the terms of his supervised release, both Mr. Cherry
and the U.S. Probation Office provided their positions on sentencing. See Def.’s Sentencing
Memorandum (“Def.’s Memo”), ECF No. 55; see also U.S. Probation Office Sentencing
Recommendation (“USPO Sent’g Rec.”), ECF No. 53. For the reasons set forth herein, the
undersigned recommends that Mr. Cherry receive a sentence of time served with no additional
supervised release for his violation of the terms of his supervised release.1
I. BACKGROUND
On February 8, 2017, Mr. Cherry pled guilty to threatening and conveying false
information concerning use of an explosive and aiding and abetting and causing an act to be done.
See Plea Agreement 1, ECF No. 7. This conviction resulted in a sentence of thirty months’
incarceration followed by thirty-six months of supervised release. See USPO Sent’g Rec. at 1.
On February 20, 2019, Mr. Cherry began his term of supervised release. See Def.’s Memo
at 1. The period of supervision was originally set to expire on February 19, 2022. See id. However,
1 Per the Probation Office, no hearing is needed to adopt this Recommendation, as no additional supervision is recommended. Adoption of the Report and Recommendation would close this case.
1 the Probation Office filed subsequent probation petitions which extended his period of supervision.
See ECF Nos. 28; 33; 42; 43; 50.
On February 12, 2021, the Probation Office filed a petition. See Probation Office Petition
1, ECF No. 43. This petition alleged a technical violation and that Mr. Cherry tested positive for
cocaine. See id. On February 16, Judge Kollar-Kotelly issued a warrant for Mr. Cherry’s arrest.
On February 20, 2025, law enforcement executed the arrest warrant and presented
Mr. Cherry for a detention hearing. The Court released Mr. Cherry on conditions of release and
ordered him to appear for a status hearing on February 26, 2025. As promised, Mr. Cherry appeared
for that hearing. In turn, the Court set a status hearing for March 26, 2025.
On February 27, 2025, Judge Kollar-Kotelly referred this matter to the undersigned for a
Report and Recommendation. See ECF No. 49.
On March 20, 2025, the Probation Office filed an updated petition. See Probation Office
Petition (“Petition”) 1, ECF No. 50. This petition alleged that Mr. Cherry tested positive for
cocaine on two additional occasions and noted Mr. Cherry’s admission to his cocaine use. See
Petition at 3. On March 26, 2025, Mr. Cherry appeared before the undersigned. Mr. Cherry
recommitted himself to his goals, including becoming sober. The Court set another status hearing
for April 29, 2025. See Min. Entry for Apr. 29 (2025).
On April 21, 2025, the Probation Office notified the Court that Mr. Cherry had been
attending outpatient treatment at MBI Health Services and that his urinalyses returned negative for
controlled substances. See Probation Office Memorandum 2, ECF No. 52. At the April 29, 2025
status hearing, the Probation Office reported that Mr. Cherry’s urinalyses continued to return
negative results and that Mr. Cherry had begun to exhibit prosocial behavior. Mr. Cherry reported
that he was gainfully employed with a towing company and proud to be maintaining his sobriety.
2 On August 27, 2025, the Court held a final revocation hearing. The Probation Office
reported that Mr. Cherry continued to actively participate in drug treatment and that his treatment
counselor noted positive progress. The Probation Office flagged that it could no longer fund
Mr. Cherry’s drug treatment due to budget constraints. The Probation Office was attempting to
have Medicaid step in to fund continued treatment. Since the prior hearing, Mr. Cherry had
relapsed once; however, Mr. Cherry was determined to continue with treatment, prioritize his
sobriety, and secure new employment. On September 19, 2025, Mr. Cherry confirmed to the
parties and this Court that he was continuing drug treatment via Medicaid.
Mr. Cherry has admitted the outstanding violations. The Probation Office and the
government have recommended a sentence of seven months’ incarceration with no term of
supervised release to follow. See USPO Sent’g Rec., at 2. Mr. Cherry requested a sentence of time
served with no term of supervised release to follow. See Def.’s Memo, at 7. Mr. Cherry argues that
additional incarceration “is not needed to correct his breach of trust and works against his
rehabilitation efforts” and would not “take into consideration the positive strides [he] made while
on supervision.” Id.
II. DISCUSSION
18 U.S.C. § 3583 governs the revocation of supervised release. Pursuant to § 3583, a court
may “revoke a term of supervised release, and require the defendant to serve in prison all or part
of the term of supervised release authorized by statute.” 18 U.S.C. § 3583(e)(3). “[T]he length of
[ ] supervision is dependent solely upon the defendant’s need for supervision after release from
jail.” United States v. Montenegro-Rojo, 908 F.2d 425, 432 (9th Cir. 1990). In making this
determination, a court considers the sentencing factors set forth in 18 U.S.C. § 3553(a)(1),
(a)(2)(B)–(D), and (a)(4)–(7). See United States v. Byrd, No. 21-cr-27, 2024 WL 3071088, at *3–
3 4 (D.D.C. June 4, 2024); see also 18 U.S.C. § 3583(e). These factors include: (1) the nature and
circumstances of the offense and defendant’s history and characteristics; (2) deterrence of criminal
conduct; (3) protection of the public from further crimes of the defendant; (4) the need to provide
the defendant with educational or vocational training, medical care, or other correctional treatment;
(5) the applicable sentencing guideline range for the offense and pertinent policy statements issued
by the U.S. Sentencing Commission; (6) the need to avoid unwarranted sentencing disparities; and
(7) the need to provide restitution to any victims of the offense. See 18 U.S.C. § 3553(a)(1),
(a)(2)(B)–(D), and (a)(4)–(7).
Among the § 3553(a) factors the court should not consider in revocation determinations is
“the need . . . to reflect the seriousness of the offense, to promote respect for the law, and to provide
just punishment for the offense.” See 18 U.S.C. §§ 3583(e), 3553(a)(2)(A). “The legislative history
indicates that section 3553(a)(2)(A) was not included for consideration under 18 U.S.C. § 3583(c)
because the primary purpose of supervised release is to facilitate the integration of offenders back
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff,
v. No. 16-cr-215-CKK JAMES CHERRY,
Defendant.
REPORT AND RECOMMENDATION
Following Mr. Cherry’s violation of the terms of his supervised release, both Mr. Cherry
and the U.S. Probation Office provided their positions on sentencing. See Def.’s Sentencing
Memorandum (“Def.’s Memo”), ECF No. 55; see also U.S. Probation Office Sentencing
Recommendation (“USPO Sent’g Rec.”), ECF No. 53. For the reasons set forth herein, the
undersigned recommends that Mr. Cherry receive a sentence of time served with no additional
supervised release for his violation of the terms of his supervised release.1
I. BACKGROUND
On February 8, 2017, Mr. Cherry pled guilty to threatening and conveying false
information concerning use of an explosive and aiding and abetting and causing an act to be done.
See Plea Agreement 1, ECF No. 7. This conviction resulted in a sentence of thirty months’
incarceration followed by thirty-six months of supervised release. See USPO Sent’g Rec. at 1.
On February 20, 2019, Mr. Cherry began his term of supervised release. See Def.’s Memo
at 1. The period of supervision was originally set to expire on February 19, 2022. See id. However,
1 Per the Probation Office, no hearing is needed to adopt this Recommendation, as no additional supervision is recommended. Adoption of the Report and Recommendation would close this case.
1 the Probation Office filed subsequent probation petitions which extended his period of supervision.
See ECF Nos. 28; 33; 42; 43; 50.
On February 12, 2021, the Probation Office filed a petition. See Probation Office Petition
1, ECF No. 43. This petition alleged a technical violation and that Mr. Cherry tested positive for
cocaine. See id. On February 16, Judge Kollar-Kotelly issued a warrant for Mr. Cherry’s arrest.
On February 20, 2025, law enforcement executed the arrest warrant and presented
Mr. Cherry for a detention hearing. The Court released Mr. Cherry on conditions of release and
ordered him to appear for a status hearing on February 26, 2025. As promised, Mr. Cherry appeared
for that hearing. In turn, the Court set a status hearing for March 26, 2025.
On February 27, 2025, Judge Kollar-Kotelly referred this matter to the undersigned for a
Report and Recommendation. See ECF No. 49.
On March 20, 2025, the Probation Office filed an updated petition. See Probation Office
Petition (“Petition”) 1, ECF No. 50. This petition alleged that Mr. Cherry tested positive for
cocaine on two additional occasions and noted Mr. Cherry’s admission to his cocaine use. See
Petition at 3. On March 26, 2025, Mr. Cherry appeared before the undersigned. Mr. Cherry
recommitted himself to his goals, including becoming sober. The Court set another status hearing
for April 29, 2025. See Min. Entry for Apr. 29 (2025).
On April 21, 2025, the Probation Office notified the Court that Mr. Cherry had been
attending outpatient treatment at MBI Health Services and that his urinalyses returned negative for
controlled substances. See Probation Office Memorandum 2, ECF No. 52. At the April 29, 2025
status hearing, the Probation Office reported that Mr. Cherry’s urinalyses continued to return
negative results and that Mr. Cherry had begun to exhibit prosocial behavior. Mr. Cherry reported
that he was gainfully employed with a towing company and proud to be maintaining his sobriety.
2 On August 27, 2025, the Court held a final revocation hearing. The Probation Office
reported that Mr. Cherry continued to actively participate in drug treatment and that his treatment
counselor noted positive progress. The Probation Office flagged that it could no longer fund
Mr. Cherry’s drug treatment due to budget constraints. The Probation Office was attempting to
have Medicaid step in to fund continued treatment. Since the prior hearing, Mr. Cherry had
relapsed once; however, Mr. Cherry was determined to continue with treatment, prioritize his
sobriety, and secure new employment. On September 19, 2025, Mr. Cherry confirmed to the
parties and this Court that he was continuing drug treatment via Medicaid.
Mr. Cherry has admitted the outstanding violations. The Probation Office and the
government have recommended a sentence of seven months’ incarceration with no term of
supervised release to follow. See USPO Sent’g Rec., at 2. Mr. Cherry requested a sentence of time
served with no term of supervised release to follow. See Def.’s Memo, at 7. Mr. Cherry argues that
additional incarceration “is not needed to correct his breach of trust and works against his
rehabilitation efforts” and would not “take into consideration the positive strides [he] made while
on supervision.” Id.
II. DISCUSSION
18 U.S.C. § 3583 governs the revocation of supervised release. Pursuant to § 3583, a court
may “revoke a term of supervised release, and require the defendant to serve in prison all or part
of the term of supervised release authorized by statute.” 18 U.S.C. § 3583(e)(3). “[T]he length of
[ ] supervision is dependent solely upon the defendant’s need for supervision after release from
jail.” United States v. Montenegro-Rojo, 908 F.2d 425, 432 (9th Cir. 1990). In making this
determination, a court considers the sentencing factors set forth in 18 U.S.C. § 3553(a)(1),
(a)(2)(B)–(D), and (a)(4)–(7). See United States v. Byrd, No. 21-cr-27, 2024 WL 3071088, at *3–
3 4 (D.D.C. June 4, 2024); see also 18 U.S.C. § 3583(e). These factors include: (1) the nature and
circumstances of the offense and defendant’s history and characteristics; (2) deterrence of criminal
conduct; (3) protection of the public from further crimes of the defendant; (4) the need to provide
the defendant with educational or vocational training, medical care, or other correctional treatment;
(5) the applicable sentencing guideline range for the offense and pertinent policy statements issued
by the U.S. Sentencing Commission; (6) the need to avoid unwarranted sentencing disparities; and
(7) the need to provide restitution to any victims of the offense. See 18 U.S.C. § 3553(a)(1),
(a)(2)(B)–(D), and (a)(4)–(7).
Among the § 3553(a) factors the court should not consider in revocation determinations is
“the need . . . to reflect the seriousness of the offense, to promote respect for the law, and to provide
just punishment for the offense.” See 18 U.S.C. §§ 3583(e), 3553(a)(2)(A). “The legislative history
indicates that section 3553(a)(2)(A) was not included for consideration under 18 U.S.C. § 3583(c)
because the primary purpose of supervised release is to facilitate the integration of offenders back
into the community rather than punish them.” U.S. Sent’g Comm’n, Federal Offenders Sentenced
to Supervised Release (2010) (“Supervised Release Report”) 9. Indeed, “[s]upervised release
fulfills rehabilitative ends, distinct from those served by incarceration,” United States v. Johnson,
529 U.S. 53, 59 (2000), and a “court shall impose a sentence sufficient, but not greater than
necessary” to comply with the above-listed factors. 18 U.S.C. § 3553(a). Thus, when a “defendant
violates a condition of supervised release, courts must consider the forward-looking sentencing
ends, but may not consider the backward-looking purpose of retribution.” Esteras v. United States,
606 U.S. 185, 186 (2025) (holding that a district court may not revoke supervised release based on
a belief that the defendant’s original sentence was lenient).
4 Here, the first § 3553 factor, Mr. Cherry’s criminal history and characteristics, favors
Mr. Cherry. Admittedly, Mr. Cherry’s criminal history is lengthy. See Petition at 1. But it is dated.
Mr. Cherry has not been arrested or convicted of any new offenses in the last five years. See Def.’s
Memo at 4. Additionally, Mr. Cherry took responsibility for violating the conditions of his
supervision and took the further step of admitting that he needed treatment. See Petition at 3.
Mr. Cherry is making ongoing efforts to improve his mental health and undergo substance abuse
treatment. See Def.’s Memo at 5. Moreover, although at the beginning of supervision Mr. Cherry
was homeless, he overcame this obstacle by acquiring stable housing through the D.C.
government. See id. And Mr. Cherry continues to work with a housing counselor to maintain this
housing. See id. Besides the prior use of illicit substances—now being addressed by treatment—
Mr. Cherry has otherwise substantially complied with the conditions of his supervised release.
Mr. Cherry’s recent history is the better reflection of who he is—not his mistakes of the past.
Factors two, three, and four—deterrence of criminal conduct, protection of the public from
further crimes of the defendant, and the need to provide the defendant with educational or
vocational training, medical care or other correctional treatment—favor Mr. Cherry. Regarding
deterrence, Mr. Cherry has been successfully deterred. As stated above, he has not been arrested
or convicted of any new offenses in five years. See id. at 4. That is the best evidence of why
incarceration is not needed to deter criminal conduct. Indeed, “[t]here is no indication of how
additional punishment furthers deterrence.” United States v. Nwenze, No. 19-cr-285, 2024 WL
4608867, at *4 (D.D.C. Oct. 24, 2024). As to the provision of correctional treatment, further
incarceration will not further that goal. Mr. Cherry is actively participating in substance abuse
treatment in the community and has stable housing. See Def.’s Memo at 5. “[A]ny imprisonment .
5 . . could significantly interrupt or undo his [] progress.” United States v. Mosley, 312 F. Supp. 3d
1289, 1294 (M.D. Ala. 2018).
Indeed, further incarceration endangers Mr. Cherry and the public. “Exposure to the
specific and general harms that [] detainees experience can result in long-lasting trauma.” United
States v. Bryant, 778 F. Supp. 3d 14, 22 n.7 (D.D.C. 2025); see also Katie Rose Quandt & Alexi
Jones, Research Roundup: Incarceration can cause lasting damage to mental health, PRISON
POLICY INITIATIVE (May 13, 2021), at https://perma.cc/N6C2-8UWF (examining how
experiencing or witnessing violence during incarceration was significantly related to “aggressive
and antisocial behavioral tendencies as well as emotional distress.”). Additionally, sending
Mr. Cherry back to prison makes him 10 times more likely to be homeless again or in a precarious
housing situation close to homelessness. See Lucius Couloute, Nowhere to go: Homelessness
among formerly incarcerated people, PRISON POLICY INITIATIVE (Aug. 2018), at
https://perma.cc/7U4N-2NV2. This is not only dehumanizing to Mr. Cherry, but also creates safety
risks to him and the public. See David A. Sleet & Louis Hugo Francescutti, Homelessness and
Public Health: A Focus on Strategies and Solutions, INT. J. OF ENV’T RSCH. AND PUB. HEALTH
(Nov. 6, 2021), at https://perma.cc/JD6D-DQZW (discussing how homelessness is closely
connected to declines in physical and mental health); Barbara Burton, David E. Pollio, & Carol S.
North, A longitudinal study of housing status and crime in a homeless population, ANNALS OF
CLINICAL PSYCHIATRY (Nov. 2018), at https://perma.cc/5MF2-MQ38 (studying the well-
established correlation between homelessness and crime, noting that crime rates fell after subjects
obtained housing). Further, Mr. Cherry is currently seeking employment. See Def.’s Memo at 6.
Disrupting his search for gainful employment would again be counterproductive for him and the
public. See Fredj Jawadi, Sushanta K. Mallick, Abdoulkarim Idi Cheffou, & Anish Augustine,
6 Does higher unemployment lead to greater criminality? Revisiting the debate over the business
cycle, J. OF ECON. BEHAV. & ORG. (Feb. 2021), at https://perma.cc/FT5D-CZXB (finding that
higher unemployment rates tend to increase crime and that “maintaining stable economic activity
is critical in order to stabilize incidence of crime.”). Indeed, even further supervision comes at a
cost. “When the workforce is under mass supervision, key industries lose employee bargaining
power” and “may be depressing wages and hurting working conditions for all workers in certain
industries.” Leah Wang & Wanda Bertram, New data on formerly incarcerated people’s
employment reveal labor market injustices, PRISON POLICY INITIATIVE (Feb. 8, 2022), at
https://perma.cc/DS5V-BB4A. These harms undermine the goals of specific and general
deterrence.
Ultimately, re-imprisoning Mr. Cherry would be especially harmful because he would
necessarily have to spend time at the D.C. Jail. “A recent audit of the D.C. Jail by the Office of
the District of Columbia Auditor and Council for Court Excellence ‘offers the most comprehensive
review to date of facility operations, documenting a crisis marked by rising deaths, structural
decay, staff shortages, and inadequate medical and behavioral health care.’” United States v.
Hodge, No. 25-cr-204, 2026 WL 380543, at *2 (D.D.C. Feb. 11, 2026) (quoting Report by the
Office of the District of Columbia Auditor and Council for Court Excellence (May 28, 2025)), at
https://perma.cc/4SPB-XD9U. These problems are not limited to the D.C. Jail. See United States
v. Abass, 779 F. Supp. 3d 1, 10 (D.D.C. 2025) (cataloguing problems plaguing jails). The unduly
harsh conditions at detention facilities are an appropriate consideration for courts when
considering detention. See id. (citing Benjamin Weiser, Judge Refuses to Send Defendant in Drug
Case to Troubled Brooklyn Jail, N.Y. TIMES (Jan. 4, 2024), at https://perma.cc/Y2X6-V97J).
7 The Court cannot in good conscience send Mr. Cherry—a 66-year-old man—into these
deadly conditions. Indeed, Mr. Cherry is particularly vulnerable to the harms of incarceration given
his age: “older adults in prison are significantly more likely to experience disabilities, with
cognitive impairments being twice as prevalent compared to their peers living in community
settings.” Anna Piil Damm & Cédric Gorinas, Prison as a Criminal School: Peer Effects and
Criminal Learning Behind Bars, J. OF L. AND ECON. (2020), at https://perma.cc/3RAF-4VPK;
Lindsey Culli, Aging Behind Bars: Study Highlights Rising Disability Rates Among Older Adults
in Prisons, JOHNS HOPKINS DEP’T OF HEALTH POL’Y AND MGMT. (Jan. 14, 2025), at
https://perma.cc/KD8G-TTBY.
Factor five, the applicable “guideline” range, cuts against Mr. Cherry. Chapter 7 of the
Sentencing Guidelines sets forth advisory policy statements which the court may consider when
imposing sanctions following a supervised release violation. See U.S.S.G. ch. 7, pt. A § 3(a).
“Chapter 7 policy statements are not ‘sentencing guidelines.’” United States v. Blackston, 940 F.2d
877, 893 (3d Cir. 1991). The Sentencing Commission chose to promulgate policy statements in
lieu of guidelines to “provide[] greater flexibility” and “better opportunities for evaluation by the
courts[.]” U.S.S.G. ch. 7, pt. A § 3(a). Thus, a court must “merely consider (i.e., reflect on, think
about, deliberate, ponder or study) policy statements because Congress had not required adherence
to policy statements[.]” United States v. Kenny, 846 F.3d 373, 376 (D.C. Cir. 2017) (internal
quotations omitted).
To calculate the applicable range, the court first determines the grade of violation.
Violations range from Grade A to C. See U.S.S.G. § 7B1.1. The grade of supervised release
violation depends on the “conduct constituting” the violation. Id. Grade B and C violations
“constitute less serious offenses” than Grade A violations. [Redacted] v. [Redacted], 2022 WL
8 4546737, at *1 (D.D.C. Aug. 29, 2022). Here, the Probation Office alleges a Grade C violation,
which Mr. Cherry admitted. See Petition at 2; also generally Def.’s Memo. Given Mr. Cherry’s
criminal history category, the applicable range of incarceration is 7 to 13 months. See U.S.S.G.
§ 7B1.4. A sentence of time served would be lower than the low end of this range, albeit only by
seven months.
Here, the sixth and seventh factors—the need to avoid sentencing disparities and the need
to provide restitution—are of limited relevance. There are no sentences to compare against co-
defendants. However, the Court has supervised several defendants in a similar position as
Mr. Cherry, all of whom received sentences of time served. See, e.g., United States v. Akers, No.
11-cr-313, 2025 WL 2759274, at *1 (D.D.C. Sept. 29, 2025) (Judge Kollar-Kotelly imposing a
sentence of time served); United States v. Carpenter, No. 16-cr-195, 2024 WL 4723211, at *1
(D.D.C. Nov. 8, 2024) (Judge Jackson similarly imposing a sentence of time served); Nwenze,
2024 WL 4810903, at *1 (Judge Cobb similarly imposing a sentence of time served). Judge
Kollar-Kotelly suspended Mr. Cherry’s restitution obligation, which moots this factor. See Petition
at 3; Min. Entry (Jun. 10, 2019).
III. CONCLUSION
What this case calls for is celebration of Mr. Cherry, not needless supervision seeking to
punish him at everyone’s expense.
Zia Digitally signed by Zia M.Faruqui
Date: February 18, 2026 M.Faruqui Date: 2026.02.18 12:21:07 -05'00' ___________________________________ ZIA M. FARUQUI UNITED STATES MAGISTRATE JUDGE