United States District Court, N.D. California, San Jose Division
ORDER DENYING DEFENDANT'S MOTION FOR EARLY
TERMINATION OF PROBATION
J. DAVILA, United States District Judge
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
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.
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.
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.
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).
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)).
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.
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 ...