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United States v. Diamond

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

March 23, 2017

DIAMOND, Defendant.


          BETH LABSON FREEMAN United States District Judge

         Before the Court is the motion of defendant Arlene Diamond for early termination of supervised release, presumably pursuant to 18 U.S.C. § 3583(e). See generally Mot., ECF 3; Opp'n 2, ECF 7. The Government has filed an opposition to the request for early termination. See generally Opp'n. Although the Court allowed Diamond the opportunity to file a response to the Government's submission, she has not done so. See ECF 8. Instead, Diamond filed a “Notice of Fault and Opportunity to Cure, ” which was stricken by the Court, except to the extent anything in the “Notice of Fault and Opportunity to Cure” could be construed as a response. See ECF 9, 10

         For the reasons stated herein, Defendant's motion for early termination of supervised release is DENIED.

         I. BACKGROUND

         This case arises from the Central District of Illinois where Diamond was convicted of numerous felonies, including conspiracy to commit mail and wire fraud, mail fraud, wire fraud, conspiracy to commit money laundering, and conducting monetary transactions with proceeds of illegal activity. See Amended Judgment in a Criminal Case (“Amended Judgment”), ECF 2. Diamond was sentenced to 188 months in custody and three years of supervised release. Opp'n 1. In addition to the standard conditions of supervision, the following special conditions of supervision were ordered: Defendant was prohibited from incurring new debts or opening any additional lines of credit; she was obligated to make financial disclosure; prohibited from owning, purchasing, or possessing a firearm, ammunition, or other dangerous weapon; prohibited from being employed as a multi-level marketer of any product, service or financial instrument; and was required to pay an $800 special assessment and $1, 669, 910 in restitution. See Amended Judgment. Supervision commenced on July 3, 2014.

         On September 5, 2015, jurisdiction was transferred from the Central District of Illinois to the Northern District of California.


         18 U.S.C. § 3583(e)(1) 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)-
(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 . . . .

         “[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).


         Diamond has completed her custodial sentence and approximately two years and seven months of her three-year term of supervision. Mot. 8; Opp'n 1-2. She now asks the Court to terminate her supervised release early. See generally Mot. Diamond contends that termination of her supervised release is appropriate for three reasons. First, Diamond argues that she “needs to be free from the stigma of the status of a felon so she can get employment to supplement her low Social Security income.” Mot. 8. Second, Diamond states that because she is labeled a felon, she is unable to rent a place to live. Id. Finally, Diamond “would like . . . to be able to visit with friends and family, and be productive.” Id.

         The Government opposes Diamond's request. The Government contends that Diamond's justifications for early termination do not 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.'”); 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 § ...

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