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United States v. Pacileo

United States District Court, N.D. California, San Jose Division

March 2, 2017



          EDWARD J. DAVILA, United States District Judge

         Presently before the court is Defendant Carlos Pacileo's (“Defendant”) motion for early termination of probation pursuant to 18 U.S.C. § 3564(c). For the reasons stated below, the court DENIES Defendant's motion.

         I. BACKGROUND

         In January 2015, the grand jury returned an indictment against Defendant and four other individuals, charging them with (1) seven counts of accessing a protected computer and obtaining information and aiding and abetting in violation of 18 U.S.C. §§ 1030(a)(2)(C), 1030(c)(2)(B)(i) and 2; (2) one count of conspiracy to violate 18 U.S.C. § 1030(a); and (3) two counts of interception of electronic communications and aiding and abetting in violation of 18 U.S.C. §§ 2511(1)(a), 4(a) and 2. Dkt. No. 1. In July 2015, Defendant pled guilty pursuant to a written plea agreement to the conspiracy count and one count of violating §§ 1030(a)(2)(C), 1030(c)(2)(B)(i) and 2. Dkt. Nos. 40, 41.

         On November 13, 2015, the court heard from all parties concerning sentencing, and sentenced Defendant to three years of probation with a condition that he complete 400 hours of community service. The court did not impose a fine and declined to order restitution based on a finding that the loss to the victim company had been satisfied by a civil judgment. Dkt. No. 77. Judgment was entered accordingly on November 19, 2015. Dkt. No. 79.

         Defendant is scheduled to be released from probation on November 13, 2018. He filed this motion on November 28, 2016, after having served twelve months and thirteen days of the ordered term. The Government filed a response objecting to early termination. In addition, the probation officer supervising Defendant opposes his request.


         A court may terminate probation before the expiration of a fully-imposed term “if it is satisfied that such action is warranted by the conduct of the defendant and the interest of justice.” 18 U.S.C. § 3564(c). When determining whether early termination is appropriate, the court must consider the “factors set forth in section 3553(a) to the extent that they are applicable.” Id. Generally, the relevant factors include:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) deterrence; (3) protection of the public; (4) the need to provide the defendant with educational, vocational training, medical care or other rehabilitation; (5) the sentence and sentencing range established for the category of defendant; (6) any pertinent policy statement by the Sentencing Commission; (7) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (8) the need to provide restitution to any victims of the offense.

United States v. Khan, No. 4:03-cr-40210 WDB-2 (KAW), 2012 U.S. Dist. LEXIS 97776, at *5, 2012 WL 2906590 (N.D. Cal. July 13, 2012); United States v. Arnaiz, No. 13-cr-00617-MEJ-1, 2016 U.S. Dist. LEXIS 147870, at *4 (N.D. Cal. Oct. 25, 2016).

         “The defendant bears the burden of showing that he is entitled to early termination.” United States v. Robins, 2014 U.S. Dist. LEXIS 83117, at *7, 2014 WL 11790802 (C.D. Cal. May 27, 2014) (citing United States v. Weber, 451 F.3d 552, 559 n.9 (9th Cir. 2006)).


         Examining the relevant § 3553(a) factors, some weigh in favor of Defendant's request. Indeed, the nature and circumstances of Defendant's offenses do not give rise to a significant obstacle to early termination. Nor does anything in the record suggest Defendant would reoffend or pose a danger to the public if left without supervision.

         Defendant's history and personal characteristics are also positive overall. They do not, however, significantly advance his request under § 3564(c). Defendant argues that early termination of probation is appropriate because he has accepted responsibility for his conduct, has complied with his sentence, and has positively reunified with his family. He also points out that he completed the community service requirement within one month of the sentencing hearing by working full-time, and sometimes more than full-time, at the chosen site in an effort to return to his family who was living abroad. But while these are accurate observations, they do not demonstrate, as Defendant puts it, that he has “gone above and beyond what was required of him to satisfy his conditions of probation.” Acceptance of responsibility, particularly in connection with a guilty plea, is not an exceptional development. And though his effort to expeditiously satisfy the community service component of his sentence is commendable, it is not as extraordinary as Defendant describes it when his rather unique circumstances are ...

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