United States District Court, D. Arizona
Cindy
K. Jortgenson, United States District Judge.
Pending
before the Court is the Motion to End 18 USC § 3563(c)
Supervised Release Conditions (Doc. 941) filed by Defendant
Moses Shepard (“Shepard”). A response, two
replies, a Notice of Errata, and a Notice of Special
Presentation have also been filed.
Shepard
asserts he has been on supervised release for more than a
year and a half and, during that time, he has not violated
any conditions of supervised release. Shepard requests the
Court terminate the release conditions under 18 U.S.C. §
3563(c).
The
government opposes early termination and asserts it is
inappropriate in this matter as Shepard has demonstrated he
has not been rehabilitated and remains a danger to the
community. The government asserts that, while no petitions to
revoke have been filed, Shepard has demonstrated a disregard
for the Court's orders, the government, and the victim:
. . . In a number of documents filed with the Court, the
defendant continued to harass the victim and revealed that he
was using the internet to gain additional information about
the victim and her family. (Docs. 911, 913.)
On May 29, 2018, this Court held a status conference to warn
the defendant not to continue using the computer on (sic)
other electronic device to investigate or attempt to find
information about the victim and her family. The Court
extended its order to cover counsel for the government[, ]and
informed the defendant that he was not to conduct any
electronic investigation of government counsel. However, on
November 10, 2018, the defendant filed a motion with the
Ninth Circuit Court of Appeals which revealed that he had
conducted research online regarding undersigned counsel for
the government. (CA 18-15988 Doc. 10.)
It is also concerning that while serving the end of his term
of imprisonment in a residential re-entry center, the
defendant exhibited obsessive and harassing behavior toward a
female resident. The defendant's behavior was egregious
enough that the defendant was removed from the re-entry
center and placed back in custody in a Bureau of Prisons
facility.
Response
(Doc. 942, pp. 1-2). Additionally, the government asserts the
victim strongly opposes the early termination of supervised
release, believes Shepard is still a significant danger to
both herself and the community at large, and remains fearful
of Shepard.
In his
reply, Shepard asserts he has not continued to harass the
victim and, if he had disregarded the Court's orders, a
petition to revoke would have been filed. Additionally, he
disputes the government's assertion that he had conducted
research upon the assigned AUSA; rather, he asserts his case
manager at the halfway house had provided some information to
Shepard which revealed the AUSA's ties to the Ninth
Circuit. Shepard acknowledges that he was returned to an
incarceration facility, but asserts it was because the
director of the halfway house retaliated against him because
he had filed an administrative grievance against her.
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) . . . 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.
18 U.S.C. 3583(e)(1). These factors concern
“‘general punishment issues such as deterrence,
public safety, rehabilitation, proportionality, and
consistency, '” as well as the need for
restitution. United States v. Sine, No. CR-S-02-079
KJM, 2012 WL 1901298 *2 (E.D.Cal. 2012), citations
omitted. An offender has the burden to demonstrate that
early termination of supervised release is justified.
United States v. Weber, 451 F.3d 552, 559 n. 9 (9th
Cir. 2006).
Federal
“[c]ourts have generally held that something more than
compliance with the terms of probation is required to justify
early termination [pursuant to 18 U.S.C. § 3583(e)(1)].
Early termination is usually granted only in cases involving
changed circumstances, such as exceptionally good
behavior.” United States v. Hawatmeh, No. LA
CR 08-00385-VBF-3, 2014 WL 11970544, at *4 (C.D. Cal. Sept.
19, 2014) (citations omitted). A defendant typically carries
his burden “by alerting the district court to
‘unforeseen' or ‘changed circumstances'
that implicate its initial sentencing decision and
analysis.” United States v. Emmett, 749 F.3d
817, 824 (9th Cir. 2014) (quoting United States
v. Miller, 205 F.3d 1098, 1101 (9th Cir. 2000)).
Changed circumstances may include “exceptionally good
behavior by the defendant” or other factors that
“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).”
Miller, 205 F.3d at 1001 (quoting United
States v. Lussier, 104 F.3d 32, 36 (2nd Cir. 1997)).
Indeed, the Ninth Circuit has stated:
A defendant's “exceptionally good behavior”
may render a previously-imposed sentence inappropriate or too
harsh, but as the district courts of our circuit have
repeatedly recognized, mere compliance is to be expected.
United States v. Miller, 205 F.3d 1098, 1101 (9th
Cir.2000) (quoting United States v. Lussier, 104 F.3d 32, 36
(2d Cir.1997)); United States v. Bauer, No.
5:09-cr-00980, 2012 WL 1259251, at *2 (N.D.Cal. Apr. 13,
2012) (it is “apparent that the reasons cited by
Defendant-compliance with release conditions, resumption of
employment and engagement of family life-are expected
milestones rather than a change of circumstances rendering
continued supervision no longer appropriate”);
United States v. Grossi, No. CR-04-40127, 2011 WL
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