United States District Court, N.D. California
ORDER AFFIRMING DENIAL OF EARLY TERMINATION OF
PROBATION RE: DKT. NO. 22, 24
William H. Orrick United States District Judge
Salazar has substantially complied with his conditions of
probation since his conviction on February 5, 2015, when he
was sentenced to three years' probation. Judgment (Dkt.
No. 13). He moved for early termination of his probation in
light of his good behavior, but while Magistrate Judge James
recognized Salazar's compliance with the terms of
probation, she denied his motion. Order Denying Mot. for
Early Termination ("Prior Order")(Dkt. No. 22). He
appealed to district court. The standard of review on this
appeal is abuse of discretion. United States v.
Nixon, 839 F.3d 885, 887 (9th Cir. 2016). After
considering Judge James's opinion and the briefing and
argument of counsel, I affirm.
makes a policy argument that this District grants
significantly fewer early termination motions than the
Eastern District and Central District. Mot. for Early
Termination at 4-5 (Dkt. No. 19). The statistics he cites are
by no means dispositive on that subject, since they do not
include the relevant sample sizes of potentially eligible
cases from each District. It is not easy to obtain that
information, however, and it does appear that Salazar may be
correct. Obviously, the policy argument has no bearing on
whether Judge James abused her discretion in Salazar's
case, but it is worthy of note.
also argues that United States v. Emmett, 749 F.3d
817 (9th Cir. 2014) is the most recent authority on point for
reviewing motions for early termination and that Judge James
did not cite it in her opinion. That is true. But the
statutory authority she cited is correct and the cases on
which she relied are good law, so no error was committed.
acknowledges that district courts enjoy broad discretion in
determining whether to grant a motion to terminate supervised
release. Emmett, 749 F.3d at 819. As set forth in 18
U.S.C. § 3583(e), the court is to consider a subset of
the sentencing factors in 18 U.S.C. § 3553(a) and
terminate if it is satisfied that such action is warranted by
the conduct of the defendant and the interest of justice.
Id. A court enjoys discretion to consider a wide
range of circumstances when determining whether to grant
early termination. Id. No one factor, such as undue
hardship, must be demonstrated. Id. However, a court
must explain its reasoning. Id. at 820-21.
Emmett, the Ninth Circuit remanded the case because
the district judge only explained, "Defendant has not
provided any reason demonstrating that continuing supervised
release imposes any undue hardship on defendant."
Id. at 819. Standing alone, failure to prove undue
hardship was not a reason for rejecting Emmett's
arguments. Id. The Ninth Circuit noted that the
court's reasoning need not be extensive but it must
contain an explanation that permits meaningful appellate
review. Id. at 821.
contrast to the district court in Emmett, Judge
James issued a three page decision. Prior Order (Dkt. No.
22). She correctly identified her task under 18 U.S.C. §
3564(c) to consider the relevant factors under 18 U.S.C.
§ 3553(a) and the Federal Rules of Criminal Procedure.
Id. at 1-2, and she did so. She determined that
there is no indication that Salazar would commit another
offense if his probation was terminated early. Id.
at 2. And she found no evidence of exceptional behavior or
changed circumstances that overrode her determination that
the need for deterrence favors keeping the terms of his
probation the same. Id. She noted twice that
compliance alone does not warrant early termination.
Id. at 3.
contends that Judge James failed to apply the proper legal
standard because she failed to cite Emmett and
seemed to require evidence of exceptional behavior or changed
circumstances to grant the motion. This is too narrow an
interpretation of her decision, which makes clear that she
considered all of the 3553(a) factors in relation to Salazar
and found that, while he is in compliance with the terms of
his release, she did not see a reason to terminate probation
early. Id. at 2-3 ("The § 3553(a) factors
do not compel early termination of Defendant's probation.
Moreover, his compliance with the terms of his probation thus
far, while encouraging, alone does not warrant early
termination.") To be sure, if she had considered the
3553(a) factors and terminated his probation based on his
compliance during the last two years, I would have affirmed
that decision. But the essence of Salazar's argument is
that anyone who is in compliance after a significant period
of time should be terminated unless there is a good reason to
the contrary. That may or may not be good policy in general,
but it is not the law.
burden of proof is on the defendant to show why he is
eligible for termination of probation, and the court has
broad discretion. The Ninth Circuit found in Emmett
that even though the district court mentioned only one factor
in its analysis, its finding "is best interpreted as one
reason why early termination is not in the 'interest of
justice' and held that the court did not apply an
incorrect legal standard. Emmett, 749 F.3d at 820.
Judge James gave a far more robust explanation of her
analysis than the trial court in Emmett. She
considered all the 3553(a) factors and concluded, for
Salazar, that deterrence favored serving the full term of
probation. Under Emmett, I cannot conclude that
Judge James failed to apply the correct legal standard.
behavior on probation has been encouraging, and I echo Judge
James's perspective that there is no indication that he
will commit another offense if his probation is terminated
early. But I cannot find that Judge James abused her
discretion in deciding that he should, nonetheless, serve the
remainder of his probationary term. Salazar's appeal is
OVERRULED and Judge James's decision is AFFIRMED.
 The Ninth Circuit did "not
presume [the district court's] decision rested on a
misapprehension of the law." Emmett, 749 ...