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United States v. Witzlib

United States District Court, E.D. Wisconsin

May 18, 2016

UNITED STATES OF AMERICA Plaintiff,
v.
BODIE WITZLIB Defendant.

          DECISION AND ORDER

          LYNN ADELMAN DISTRICT JUDGE

         Defendant Bodie Witzlib pleaded guilty to manufacturing and dealing explosive materials without a licence, 18 U.S.C. §§ 842(a)(1) & 844(a), and on January 9, 2015, I sentenced him to time served (about 18 months) followed by two years of supervised release. The Seventh Circuit affirmed defendant’s conviction on direct appeal. United States v. Witzlib, 796 F.3d 799 (7th Cir. 2015), cert. denied, 136 S.Ct. 919 (2016). On March 23, 2016, defendant filed a motion for early termination of his supervised release. I directed the government to respond and permitted defendant to reply. I now deny the motion.

         I. BACKGROUND

         Defendant’s aunt and uncle reported to the Germantown, Wisconsin Police Department that defendant was making M-80s in the basement of his grandmother’s house. He lacked the federal license required for this activity. As the Seventh Circuit indicated, “Illegal manufacture of M-80s is at once common and highly dangerous because of the explosive potential of the pyrotechnic flash powder that is their principal ingredient.” Witzlib, 796 F.3d at 800. The aunt further indicated that defendant held “anti-government beliefs, ” was unpredictable, and did not take the medications prescribed for his “mental health issues.” Id. at 801. The police searched the basement with the grandmother’s consent, found about 1000 M-80s, and arrested defendant.

         The government charged defendant in a four-count indictment with manufacturing and dealing explosive materials without a license, transporting and shipping explosive materials without a license, being a felon in possession of explosive materials, and storing explosive materials contrary to regulation. In the extended proceedings that followed, I ordered a competency evaluation, permitted defendant to proceed pro se after he discharged his attorneys, and denied his motion to suppress the evidence recovered from his grandmother’s basement. Defendant ultimately entered a conditional guilty plea to manufacturing and dealing explosive materials without a license, reserving his right to appeal the denial of his suppression motion.

         Prior to sentencing, the probation office prepared a pre-sentence report (“PSR”), calculating an advisory guideline range of 41-51 months’ imprisonment (offense level 18, criminal history category IV). The PSR also included a detailed discussion of defendant’s mental health issues. (PSR ¶¶ 66, 70-72, 81-89.) At the sentencing hearing, I adopted the facts and guideline calculations in the PSR.

         Pursuant to the plea agreement, the government recommended 24 months in prison, followed by three years of supervised release. On consideration of the 18 U.S.C. § 3553(a) factors, I imposed a sentence of time-served, which amounted to about 18 months, followed by two years of supervised release. Defendant requested one year of supervision, but given his prior record and treatment needs I found a longer term necessary. As special conditions of supervised release, I ordered defendant to participate in the cognitive intervention program and a mental health treatment program. I viewed the mental health treatment condition as the most important aspect of the sentence in assisting defendant in maintaining compliance and refraining from any future criminal conduct. (R. 241 at 20.)

         Defendant unsuccessfully appealed the denial of his suppression motion. He did not challenge any aspect of his sentence on direct appeal.

         II. DISCUSSION

         Under 18 U.S.C. § 3583(e),

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[.]

         Accordingly, in order to receive early termination, the defendant must have completed at least one year of supervision, the government must have been given notice and an opportunity to be heard, and the court must find that termination is in the interest of justice based on the defendant’s conduct and the pertinent sentencing factors under 18 U.S.C. § 3553(a). See United States v. Medina, 17 F.Supp.2d 245, 245-46 (S.D.N.Y. 1998).

         Defendant’s supervision term began in January 2015, so he has served more than one year, and the government has been afforded a chance to respond. The issue is whether termination is warranted ...


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