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United States v. Schwartz

United States District Court, E.D. California

December 18, 2019

UNITED STATES, Plaintiff,
v.
PAUL SCHWARTZ, Defendant.

          ORDER

          TROY L. NUNLEY UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Paul Schwartz's (“Defendant”) Request for Modification of the Conditions or Terms of Supervised Release. (ECF No. 6.) The Government filed an opposition. (ECF No. 11.) Defendant filed a reply. (ECF No. 12.) For the reasons set forth below, Defendant's Request for Modification is GRANTED IN PART and DENIED IN PART. (ECF No. 6.)

         I. Factual and Procedural Background

         On March 28, 2011, Defendant pleaded guilty before a district court in the Western District of Pennsylvania to one count of conspiracy to receive and distribute child pornography in violation of 18 U.S.C. § 2252(b)(1). (ECF No. 5 at 5.) The district court sentenced Defendant to 84 months of imprisonment followed by a lifetime of supervised release. (Id. at 6-10.)

         During his imprisonment, Defendant requested to reside in the Eastern District of California upon release. (ECF No. 6 at 39.) The United States Probation Office for the Eastern District of California requested modified conditions of supervised release as a prerequisite to Defendant's relocation. (Id. at 38.) Defendant waived his right to a hearing on the modified conditions and accepted those conditions. (Id. at 41-42.) Defendant commenced supervised release on April 24, 2017. (ECF No. 2 at 1.) On August 1, 2018, Defendant, proceeding pro se, filed the instant request to modify conditions of his supervised release. (ECF No. 6.)

         II. Standard of Law

         Courts may modify conditions of supervised release “at any time prior to the expiration or termination of the term of supervised release.” 18 U.S.C. § 3582(e)(2). “District courts have significant discretion in crafting conditions of supervised release pursuant to 18 U.S.C. § 3583(d).” United States v. Quinzon, 643 F.3d 1266, 1270 (9th Cir. 2011). However, such conditions must: (1) be reasonably related to the factors set forth in 18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D); (2) involve no greater deprivation of liberty than is reasonably necessary for the purposes set forth in 18 U.S.C. § 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and (3) be consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a). Id. at 1270-71; 18 U.S.C. § 3583(d)(1)-(3).

         “In sum, conditions are permissible if they are reasonably related to . . . deterrence, protection of the public, or rehabilitation of the offender, taking into account the offender's history and personal characteristics, and involve no greater deprivation of liberty than is reasonably necessary for the purposes of supervised release.” United States v. Goddard, 537 F.3d 1087, 1089 (9th Cir. 2008).

         III. Analysis

         Defendant asks the Court to modify ten conditions of supervised release.[1] (ECF No. 6 at 1.) The Court will address each of Defendant's requests in turn.

         A. Travel Defendant first takes issue with the following standard travel condition: “Defendant shall not leave the judicial district without the permission of the court or the probation officer.” (Id. at 27); see also U.S.S.G. § 5D1.3(c)(3).

         Defendant emphasizes that he lives only 40 miles from the border of the Northern District of California, where he has friends, doctors, and “work sources, ” and he also has family and friends in other states. (ECF No. 6 at 5.) Defendant argues that his conviction did not include solicitation or travelling to another state to have sex with a minor. (Id. at 5.) Defendant also argues that probation does not respond to his travel requests in a timely manner and has denied his travel requests without justification.[2] (ECF No. 12 at 4.)

         It appears that Defendant's primary issue with the travel condition is the discretion it gives to his probation officer. However, courts often give probation officers considerable discretion. See United States v. Stephens, 424 F.3d 876, 880-81 (9th Cir. 2005) (“Congress has given probation officers broad statutory authority to supervise offenders and to enforce a sentencing court's terms and conditions of supervised release and probation.”); see also 18 U.S.C. § 3603. Indeed, Congress has explicitly approved a probation officer's ability to grant or deny a defendant's travel requests. Under 18 U.S.C. § 3563(b)(14), a court may require a defendant to “remain within the jurisdiction of the court, unless granted permission to leave by the court or a probation officer.” See also U.S.S.G. § 5D1.3(c)(3).

         The standard travel condition as written is reasonably related to public protection because it allows a probation officer to effectively monitor Defendant's whereabouts and activities in order to assess potential risks Defendant might pose during travel. See 18 U.S.C. § 3553(a)(2)(C). The travel condition is particularly appropriate here because Defendant's conviction involved conspiring with others to sexually exploit children through the receipt and distribution of child pornography, and many of Defendant's co-conspirators are located throughout the United States and specifically in the Northern District of California. The evidence also showed that Defendant attempted to meet with at least one of those co-conspirators during his offense conduct. Based on the risks Defendant poses, the standard travel condition involves no greater deprivation of liberty than is reasonably necessary to protect the public, especially because it allows Defendant to travel if he gets approval from his probation officer.

         Defendant asks the Court to allow him to travel out of state without asking permission from probation or the Court. (ECF No. 6 at 5.) Defendant also asks the Court to allow him to travel anywhere in California without even notifying probation. (Id.) Yet Defendant provides no basis - other than his own personal inconvenience - for effectively removing the well-supported standard travel condition. Although Defendant alleges his probation officer has unfairly denied his travel requests, Defendant fails to provide sufficient evidence to convince the Court that his probation officer acted improperly.

         For these reasons, the Court DENIES Defendant's request to modify the standard travel condition.

         B. Work Requirement

         Defendant challenges the standard work condition, which states, “Defendant shall work regularly at a lawful occupation unless excused by the probation officer for schooling, training, or other acceptable reasons.” (Id. at 27); see also U.S.S.G. § 5D1.3(c)(7).

         Defendant asks the Court to remove this condition because his conviction was not related to financial gain. (ECF No. 6 at 6.) Defendant also argues that he does not owe any fines or restitution and has the legal means to support himself without the need for life-long employment. (Id. at 6.) In opposition, the Government asserts that the work condition is a standard condition that is necessary because Defendant needs to be able to afford sex offender treatment and mental health treatment. (ECF No. 11 at 5.)

         The Government's justification for the work condition is unpersuasive because, as Defendant points out, a person may be financially capable of affording therapy without having to work. However, despite the Government's insufficient justification, the standard work condition is otherwise well-supported. Under 18 U.S.C. § 3563(b)(4), a court may require a defendant to “work conscientiously at suitable employment, ” and the work condition is reasonably related to public protection and rehabilitation by providing defendants with a structured, productive routine. See 18 U.S.C. §§ 3553(a)(2)(C)-(D).

         In this case, the Court believes that gainful employment will prevent Defendant from becoming involved with child pornography by keeping him productively occupied. Further, the condition does not deprive Defendant's liberty greater than is reasonably necessary to protect the public and promote his rehabilitation because it allows Defendant to seek an excuse from the work requirement for “schooling, training, or other acceptable reasons.” (ECF No. 6 at 27.)

         The Court therefore DENIES Defendant's request to modify the standard work condition.

         C. Communicating or ...


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