United States District Court, E.D. Wisconsin
ORDER DENYING DEFENDANT’S MOTION FOR EARLY
TERMINATION OF SUPERVISION (DKT. NO., 21)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
October 20, 2010, after he pled guilty to distributing five
grams or more of cocaine base, Judge Barbara Crabb sentenced
the defendant to serve eighty-four months in custody and four
years of supervised release. Dkt. No. 1-1. The defendant
began his term of supervised release on October 26, 2015.
Dkt. No. 8 at 1. On May 8, 2017, Judge Crabb modified the
defendant’s conditions of supervise release to include
a condition that he have no contact with his ex-wife.
Id. at 2. Approximately a week later, this court
accepted jurisdiction over the defendant’s supervised
release. Dkt. No. 2. Since then, this court allowed him to
travel to Michigan to attend his son’s middle school
graduation, dkt. no. 4, but only a month later, had to issue
a warrant for his arrest because he violated a number of
conditions (including allegations of domestic violence,
receiving a traffic citation, violating the no-contact order
with his ex-wife, failure to attend his batterer’s
intervention program, a missed drug test, moving without
notifying his supervising agent and violating the conditions
of location monitoring), dkt. no. 5. On July 21, 2017, the
court revoked the defendant’s supervised release,
sentencing him to thirty days in custody (with credit for
time served) and two years of supervised release. Dkt. No.
12. His new two-year term of supervision started on August
10, 2017. Dkt. No. 23 at 2.
two weeks later, the defendant asked the court to remove the
condition that he have no contact with his ex-wife. Dkt. No.
15. The court denied that request. Dkt. No. 19. On October
12, 2017, the defendant’s supervising officer recommend
that the court remove that condition, explaining that the
couple had been attending marriage counseling and that they
were trying to co-parent; they also had a safety plan in case
issues arose. The court removed the condition. Dkt. No. 20.
little over six months later, on April 30, 2018, the
defendant filed this motion for early termination of
supervised release. Dkt. No. 21. He explained that he had
stayed “on a positive road,” and that he and his
ex-wife wanted to relocate to Port Richey, Florida, remarry,
start a new life and raise their children. Id. The
defendant expressed confidence in his ability to handle
difficult situations and said he would like to “start
fresh” in a new state. Id.
government and probation oppose the motion. The government
notes that the court had revoked the defendant only ten or
eleven months earlier. Dkt. No. 23. The government
acknowledged that during that time, the defendant had not
committed any new offenses and had reconciled with his ex-
wife, but observed that his prior history of violence against
his ex-wife and other romantic partners was concerning. Dkt.
No. 23 at 3. The government noted that it was good that the
defendant had not demonstrated any violence against his
ex-wife in the last ten or so months, but argued that this
was not sufficient to justify terminating his supervised
release over a year early. The government also pointed out
that the defendant had done nothing extraordinary; he simply
had complied with the conditions that the court had imposed,
which the court expects all defendants to do. Id.
probation office recited the standard for early termination
of supervised release, and noted that the defendant had not
yet served half of his term of supervision. Dkt. No. 24. The
probation officer suggested that if the defendant had a
reasonable plan for relocating to Florida, he could submit
that plan to the supervising agent, who could find out
whether the Florida probation office would be willing to
accept supervision. Id.
18 U.S.C. §3583(e)(1), a district court may terminate a
defendant's supervised release after the defendant has
served at least one year if, “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),” the court finds that early termination is
“warranted by the conduct of the defendant released and
in the interest of justice.” 18 U.S.C.
§3583(e)(1). In United States v. O'Hara,
No. 00–cr–170, 2011 WL 4356322 (E.D. Wis. Sept.
16, 2011), another judge in this district considered that
law, and summarized its three requirements:
(1) the defendant has served at least one year of
(2) the government is given notice and an opportunity to be
(3) termination is in the interest of justice based on the
pertinent § 3553(a) factors and the defendant's
United States v. O'Hara, No.
00–CR–170, 2011 WL 4356322, at *3 (E.D. Wis.
Sept. 16, 2011) (citing United States v. Medina, 17
F.Supp.2d 245, 245–46 (S.D.N.Y. 1998) and United
States v. Lowe, 632 F.3d 996, 998–99 (7th Cir.
2011)). While noting that district courts “possess[ ]
wide discretion in making [the] determination [whether to
terminate supervised release early,]” the
O’Hara court recounted that courts have held
“that the conduct of the defendant necessary to justify
early termination should include more than simply following
the rules of supervision; otherwise, every defendant who
avoided revocation would be eligible for early
termination.” O'Hara, 2011 WL 4356322, at
*3 (collecting cases). The defendant carries the burden of
proving that he has done more than just follow the rules.
Id., citing United States v. Hook, 471 F.3d
766, 771 (7th Cir. 2006). The district court need not make
explicit findings on each of the relevant §3553(a)
factors, but it must give some indication that it considered
those factors. See Lowe, 632 F.3d at 998, citing
United States v. Carter, 408 F.3d 852, 854 (7th Cir.
2005); United States v. Hale, 107 F.3d 526, 530 (7th
Cir. 1997); and United States v. Nonahal, 338 F.3d
668, 671 (7th Cir. 2003).
too soon for this court to consider early termination for the
defendant-he has not yet served one year of his two-year term
of supervised release. More than that, however, the defendant
has not demonstrated that the §3553(a) factors weigh in
favor of early termination. The first factor is the nature
and circumstances of the offense that caused the court to
revoke the defendant. That factor weighs against the
defendant. The court revoked him in July of last year because
he had many violations, including an allegation that he had
physically assaulted his ex-wife. He had moved without
letting his probation officer know, violated the no-contact
order that Judge Crabb had impose and missed sessions of his
Batterer’s Intervention treatment. The fact that this
court revoked the defendant, and sentenced him to serve time
in custody, is an indicator of how seriously the court took
the offenses. The second factor is the history and
characteristics of the defendant. This factor does not weigh
in favor of early termination, either. As the government has
noted, the defendant has a history of violence toward
romantic partners. And his history of complying with the
conditions of supervised release during his first term was
§3553(a) factors also encourage courts to consider, when
they impose a sentence, making sure that the sentence is
sufficient to reflect the seriousness of the offense, to
promote respect for the law, to provide just punishment, to
deter future criminal conduct, to protect the public and to
provide defendants with needed services. When the court
sentenced the defendant to serve two years of supervised
release after it revoked him, it did that with those factors
in mind. The two-year term of supervised release is part of
the defendant’s punishment for the violations that
caused the court to revoke his release in the first place.
For the court to impose a two-year release term, and then
terminate it less than halfway through, would depreciate the
seriousness of his failure to abide by the conditions of his
first term of release.
court is very glad to hear that the defendant believes his
relationship with his ex-wife has improved so much that they
may remarry. The court ordered the defendant to participate
in a mental health treatment program as a condition of his
release-the court assumes that the defendant has been doing
that regularly. The court encourages the defendant to
continue his positive relationship ...