Summary
consulting jurisprudence on early termination of supervised release under Section 3583(e) and noting that "[c]ourts generally agree that early termination is a discretionary decision that is only warranted in cases where the defendant shows changed circumstances, such as exceptionally good behavior."
Summary of this case from United States v. HamdanOpinion
Docket No. 99-cr-037 (WGB)
April 30, 2002
AUSA Robert A. Farkas, United States Attorneys Office, District of New Jersey, Trenton, New Jersey, Attorney for United States.
Jerome Rotenberg, Esq., Boca Raton, Florida, Attorney for Defendant.
MEMORANDUM OPINION AND ORDER
Defendant Gary A. Paterno moves pursuant to 18 U.S.C. § 564(c)for early termination of probation.
I. FACTUAL BACKGROUND
On February 8, 1999, Defendant pled guilty to a one count Information charging him with Conspiracy to Bribe a Public Official in violation of 18 U.S.C. § 371. On May 3, 1999, defendant was sentenced before this Court. Under the sentencing guidelines, Defendant faced a term of imprisonment ranging from 24 to 30 months. Upon the government's motion based on Defendant's substantial assistance, the Court departed from the guidelines range. On May 4, 1999, a judgment was filed, sentencing Defendant to probation for a term of five years.
On February 14, 2002, Defendant filed this motion for early termination of probation, claiming that he has complied with all of the conditions of his probation. Additionally, Defendant contends that in the time prior and subsequent to the offense he led an exemplary life as a law abiding citizen. Moreover, he alleges that his probation officer has no objection to early termination of probation since "probation no longer serves a purpose in his life."
The government opposes early termination of Defendant's probation, arguing that complying with the terms of probation and abiding by the law are not sufficient to justify early termination of probation.
II. DISCUSSION
A district court may terminate a term of probation if, "after considering the factors set forth in section 3553(a) . . . it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice." 18 U.S.C. § 3564(c). The factors the Court must consider are the same factors considered in imposing a sentence. They include
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;(2) the need for the sentence imposed — (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;(B) to afford adequate deterrence to criminal conduct;(C) to protect the public from further crimes of the defendant; and(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;(3) the kinds of sentences available;(4) the kinds of sentence and the sentencing range established for — (A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines issued by the Sentencing Commission that are in effect on the date the defendant is sentenced; or(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission (5) any pertinent policy statement issued by the Sentencing Commission that is in effect on the date the defendant is sentenced; or (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and(7) the need to provide restitution to any victims of the offense.18 U.S.C. § 3553(a) There are few published cases where the court has applied section 3564(c). The government points to cases applying 18 U.S.C. § 3583(e)(1) for the related issue of early termination of supervised release. The difference between probation and supervised release is that a defendant receives supervised release only after an incarcerative sentence has been served, whereas a defendant on probation has received an alternative to imprisonment. 18 U.S.C. § 3583(a);accord United States v. Chavez, 204 F.3d 1305 (11th Cir. 2000). In both instances, the Court must consider the same factors in deciding whether early termination is warranted. See 18 U.S.C. § 3583(e)(1). Therefore, cases concerning early termination of supervised release are instructive.
Courts generally agree that early termination is a discretionary decision that is only warranted in cases where the defendant shows changed circumstances, such as exceptionally good behavior. United States v. Atkin, 2002 WL 378076 (6th Cir. March 8, 2002) (Slip Op.),citing, United States v. Lussier, 104 F.3d 32, 36 (2d cir. 1997). See also Karacsonyi v. United States, 1198 WL 401273 (2d Cir. June 10, 1998) (unpublished); United States v. Rasco, 2000 WL 45438 (S.D.N.Y. Jan. 19, 2000); United States v. Yung, 1998 WL 422795 (D.Kan. Jun. 12, 1998). Most Courts addressing this issue have found that compliance with the terms of supervised release and with the law alone are not enough to warrant early termination. See, e.g. United States v. Hardesty, 2002 WL 731705 (D.Kan. April 2, 2002) (Slip Op.).
For example, in United States v. Herrera, 1998 WL 684471 (S.D.N.Y. Sept. 30, 1998), the defendant argued that he should be permitted to terminate his probation early on the grounds that he had completed his community service, paid the required fines, and successfully completed all other conditions imposed on him. In denying his motion for early termination, the Court found that the fact that the defendant had "complied with the terms of his probation [was] commendable, but that ultimately is what is expected of him." Id. at *2. Similarly, in addressing the related issue of early termination of supervised release, the Court in Karacsonyi stated "[f]ull compliance, after all, is merely what is expected of all people serving terms of supervised release." 1998 WL 401273, at *1.
But See United States v. Landry, 1999 WL 605476 (E.D.La. Aug. 11, 1999) (finding early termination justified where Defendant "has been a model probationer and has shown significant progress by completing different phases of drug treatment programs ahead of schedule; has apparently never had a positive test for drug use while under supervision; neither his probation officer nor the Government have filed any objections or opposition to the petition, despite being served with notice of its hearing."); United States v. Gainer, 936 F. Supp. 785 (D.Kan. 1996) (Court terminated Defendant's supervised release where he had served 13 months, probation officer reporte that his overall adjustment to supervision was good. That he had maintained full-time employment and successfully completed a drug and alcohol program, that he was attending college, and that he was able to purchase rental property.)
Defendant here has not exhibited any new or exceptional circumstances to justify termination of his probation. He has served nearly three years of his five year probation term. The Court notes that Defendant's sentence of five years probation was already a significant departure from the 24 to 30 month term of incarceration it could have imposed. Merely complying with the terms of his probation and abiding by the law are not in and of themselves sufficient to warrant early termination of probation; rather, this is simply what is expected of Defendant.
III. CONCLUSION
For the foregoing reasons, Defendant's motion for early termination of probation is denied.
So ordered.