United States District Court, N.D. California, San Jose Division
ORDER DENYING MOTION FOR EARLY TERMINATION OF
SUPERVISED RELEASE DKT. NO. 81
EDWARD
J. DAVILA, UNITED STATES DISTRICT JUDGE
I.
INTRODUCTION
Presently
before the court is Defendant Jonathan Hoang's motion for
early termination of his supervised release to “time
already served.” Motion 1. Hoang's three-year term
of supervised release will expire on January 23, 2020. The
Government opposes the motion. the U.S. Probation Office
recommends terminating supervision as scheduled. For the
reasons set forth below, Hoang's motion will be denied.
II.
BACKGROUND
In
September of 2013, Hoang pled guilty to violation of 18
U.S.C. sections 506(a)(2) (Use and Possession of a
Counterfeit Seal of an Agency of the United States), 912
(Pretending to Be an Officer or Employee of the United
States) and 506(a)(3) (Use and Possession of a Counterfeit
Seal of an Agency of the United States), and 15 U.S.C.
§§78j(b) and 78ff, 17 C.F.R. §§240.10b-5
(Securities Fraud). On July 2, 2014, Defendant was sentenced
to 72 months imprisonment and three years of supervised
release. Defendant was also ordered to pay $3 million in
restitution to the thirty-six (36) individuals who were
victimized by Defendant. Hoang was released from custody on
January 24, 2017.
III.
STANDARDS
Pursuant
to 18 U.S.C. § 3583(e)(2), the court may, after
considering a subset of sentencing factors, “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.” 18 U.S.C. §3583(e)(2).
The sentencing factors to be considered are: “the
nature and circumstances of the offense, the need for
deterrence, the need to protect the public, the need to
provide defendant with training or medical care, and the
relevant provisions of the Sentencing Guidelines.”
United States v. Gross, 307 F.3d 1043, 1044 (9th
Cir. 2002).
“[T]he
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).
“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 (2nd Cir. 1997) (emphasis
added). The modification or termination mechanism provided by
§ 3583(e)(1) allows the court “to respond to
changes in the defendant's circumstances that may render
a previously imposed condition of release either too harsh or
inappropriately tailored to serve the general punishment
goals of § 3553(a).” United States v.
Gross, 307 F.3d at 1044.
V.
DISCUSSION
Hoang
asserts that early termination of supervised release is
appropriate for several reasons: he “is of low risk to
reoffend”; he has been gainfully and regularly employed
during his term of supervised release; he has no educational
or vocational needs that Probation could help him with; he
has made restitution payments in excess of the court-ordered
$200 per month; he has “turned [his] life around”
by staying out of trouble, keeping stable employment, and
volunteering at his church to provide support to recovering
addicts; he has the support of his fiancée and their
young daughter who inspire him daily to lead a law-abiding
life; and he poses no risk of a danger to the victims in this
case or to the general public.
After
considering all the statutory factors, the Court agrees with
the Government that Hoang has not demonstrated the type of
circumstances justifying a modification or termination of his
supervised release. Although Hoang's post-incarceration
accomplishments are commendable, his compliance with release
conditions, resumption of employment and engagement of family
life are all expected milestones rather than exceptionally
good behavior rendering continued supervision no longer
appropriate. See United States v. McKay, 352
F.Supp.3d 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)(1));
see also United States v. Wientraub, 371
F.Supp.2d 164, 167 (Dist. Conn. 2005) (“Although
Weintraub's ongoing and for compliance with all
conditions of supervised release, including payment of the
fine and restitution, is commendable, in the end that is what
is required of all criminal defendants and is not a basis for
early termination of his supervised release.”).
The
seriousness of Defendant's crimes also weighs against
early termination of supervised release. Hoang defrauded over
thirty victims by pretending to sell them stock that did not
exist. In many cases, he lulled victims by claiming he was a
DEA agent. The fraud Hoang committed was extensive not only
in terms of the number of victims, but also the amount of
loss. Over the course of several years, Hoang defrauded
victims out of $3 million. Hoang continued to defraud victims
even after his arrest. The three-year term of supervised
release is well justified by the gravity of Defendant's
conduct.
V.
CONCLUSION
For the
reasons stated above, Hoang's motion for early
termination ...