United States District Court, N.D. California, San Jose Division
For USA, Plaintiff: E. Jackson Boggs, Jr, John Norman Glang, LEAD ATTORNEYS, U.S. Attorney's Office, San Jose, CA.
ORDER DENYING DEFENDANT'S MOTION TO TERMINATE SUPERVISED RELEASE Re: Dkt. No. 147
EDWARD J. DAVILA, United States District Judge.
On December 6, 2006, Judge Jeremy Fogel sentenced Defendant Mario Adriano Sabatino (" Sabatino") to a custodial term of 48 months followed by five years of supervised release for one count of Possession with Intent to Distribute Methamphetamine in violation of 21 U.S.C. § 841(a)(1) and one count of Unlawful Carrying of a Firearm During and In Relation to a Drug Trafficking Crime in violation of 18 U.S.C. § 924(c)(1)(A). See Docket Item No. 135. Sabatino was released from custody on or about June 24, 2010, and thereafter began serving the imposed term of supervised release. He is scheduled to be released from supervision on June 23, 2015.
With approximately seven months remaining, Sabatino filed the present Motion to Terminate Supervised Release. See Docket Item No. 147. The Motion, construed as a request under 18 U.S.C. § 3583(e), was referred to the undersigned as the general duty judge due to Judge Fogel's unavailability. Pursuant to this court's order, the Government has filed a response and the Probation Office has provided a recommendation. Having considered all relevant submissions and documents, the court finds this matter suitable for decision without a hearing. For the reasons explained below, Sabatino's motion will be denied.
18 U.S.C. § 3583(e)(1) and (e)(2) provide, 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) -
(1) terminate a term of supervised release and discharge the defendant released at any time after the expiration of one year of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation, if it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice;
(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); see also United States v. Emmett, 749 F.3d 817, 819 (9th Cir. 2014). " 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 (2d Cir. 1997) (emphasis added). The modification or termination mechanism provided by § 3583(e) allows the court " to respond to changes in the defendant's circumstances that may render a previously imposed condition of release" no longer justified. United States v. Gross, 307 F.3d 1043, 1044 (9th Cir. 2002).
Here, Sabatino contends that termination of supervised release is appropriate based on reasons that fall within two categories. The first category can be described as reintegration into family life. Specifically, Sabatino is now married, his family has purchased a new home, and Sabatino continues to be involved in his children's development. The second category involves his professional development. Sabatino has maintained employment at Testorff Construction Company and now runs construction jobs as a foreman. He has been so successful at the job that his boss would like to send him contractor school. This opportunity, it seems, triggered this request; Sabatino and his boss believe that the contractor licensing process " is likely to be more difficult and protracted as long as [Sabatino] remains on supervised release."
The Government opposes Sabatino's request. While it recognizes Sabatino's commendable post-incarceration accomplishments, the Government points out they do not themselves constitute the type of changed circumstances or " exceptionally good behavior" contemplated by Lussier and its progeny.
See, e.g., Lussier, 104 F.3d at 36; see also Folks v. United States, 733 F.Supp.2d 649, 651 (W.D. N.C. 2010) (" [E]ven '[m]odel prison conduct and full compliance with the terms of supervised release is what is expected of a person under the magnifying glass of supervised release and does not warrant early termination.'"); see also United States v. McKay, 352 F.Supp.2d 359, 361 (E.D.N.Y. 2005) (finding that defendant's resumption of his " pre-incarceration life, " including the restoration of family participation, " are expected of a person on supervised release and do not constitute the 'exceptional behavior'" contemplated by § 3583(e)); see also United States v. Grossi, No. 04-40127 DLJ, at *5-6, 2011 WL 704364 (N.D. Cal. Feb. 18, 2011) (" Mere compliance with the terms of supervised release is what is expected, and without more, is insufficient to justify early termination."). As to his desire to obtain a contractor's license, the Government notes that Sabatino did not identify any particular obstacle created by the remaining months of supervised release.
For its part, the Probation Office does not recommend early termination of supervised release for Sabatino. His probation officer reports that Sabatino violated his release terms on one occasion in 2010, but corrected the violation before it was addressed in court. Accordingly, while Sabatino has been generally compliant, his conduct on release has not been exceptional. In addition, the officer notes the seriousness of the underlying offense, Sabatino's criminal history, ...