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United States v. Haberli

United States District Court, Ninth Circuit

October 23, 2013



EDWARD J. DAVILA, District Judge.


Defendant Ernesto Gabriel Haberli ("Defendant") plead guilty to seven counts of mail fraud in violation of 18 U.S.C. § 1341. See Docket Item Nos. 5, 6. As a result, this court ultimately sentenced Defendant to a custodial term of 15 months and a subsequent three-year term of supervised release. See Docket Item No. 20.

Defendant was incarcerated in the Southern District of Texas and was released from custody on or about August 15, 2013. He thereafter began serving the imposed term of supervised release. As a condition of supervision, Defendant is subject to a standard condition prohibiting him from leaving the Southern District of Texas without the permission of the court or the probation officer.

Presently before the court is Defendant's motion to modify the condition restricting travel, filed August 29, 2013. See Docket Item No. 37. Pursuant to the court's instruction, the Government has filed a response to the motion and the Probation Office has provided a recommendation to the court. Having considered all relevant submissions and documents, the court finds this matter suitable for decision without a hearing. For the reasons stated below, Defendant's motion will be denied.


18 U.S.C. § 3583(e)(2) provides, in pertinent part:

The court may, after considering 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) -
(2) extend a term of supervised release if less than the maximum authorized term was previously imposed, and may modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the terms and conditions of post-release supervision.

"[T]he plain language of the statute indicates that the district courts have broad discretion to alter the conditions of a defendant's supervised release." United States v. Miller , 205 F.3d 1098, 1100 (9th Cir. 2000). "Occasionally, changed circumstances - for instance, exceptionally good behavior by the defendant or a downward turn in the defendant's ability to pay a fine or restitution imposed as conditions of release - will render a previously imposed term or condition of release either too harsh or inappropriately tailored to serve the general punishment goals of section 3553(a)." United States v. Lussier , 104 F.3d 32, 36 (2nd Cir. 1997) (emphasis added).

Here, Defendant seeks to modify the travel restriction for two reasons. First, Defendant believes the condition should be modified so that he may accept an employment offer from ArkPhil IT Solutions ("ArkPhil"), a company based in Wichita, Kansas. According to Defendant, while ArkPhil will allow him to work from his home in Houston, he will also be required to travel to Wichita in order to work on hardware and "attend in-person meetings with customers and clients." Defendant further states that the position may require other domestic and international travel.

Second, Defendant would like to visit his family in Venezuela. He states that he was authorized to travel to Venezuela during pretrial supervision and complied with all conditions imposed at that time.

The Government opposes Defendant's request. As to the request to travel for work, the Government notes that Defendant provided very little information concerning the ArkPhil offer outside of a copy of the employment contract. In addition, the Government's independent research concerning ArkPhil apparently revealed that the company is based in the Philippines and the Wichita address corresponds to a residential house rather than a commercial office. As to the request for personal travel, the Government points out that the lack of an extradition treaty between the United States and Venezuela as well as Defendant's significant restitution order could provide the opportunity and motivation for Defendant to violate any order requiring him to return after travel.

For its part, the Probation Office does not recommend a modification of the travel restriction considering Defendant's term of supervised release recently commenced. In addition, the Probation Office indicates that the condition in its current form allows for specific ...

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