United States District Court, E.D. Wisconsin
ORDER DENYING WITHOUT PREJUDICE DEFENDANT'S
SECOND MOTION FOR EARLY TERMINATION OF SUPERVISED RELEASE
(DKT. NO. 60)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
Judge Stadtmueller sentenced the defendant in March 2007, he
imposed a term of five years of supervised release to follow
the defendant's incarceration. Dkt. No. 32 at 2. The
defendant began serving that term on June 17, 2015 and is
scheduled to discharge on June 16, 2020. As of the date of
this order, he has served just over three years and ten
months of his five-year term.
December 21, 2016, the court received a motion from the
defendant, asking the court to terminate his supervised
release early. Dkt. No. 55. Although the defendant had not
served even two years of the five-year supervised release
term, he argued that he had overserved his custodial sentence
as a result of not being able to take advantage of the
reduced guidelines applicable to drug offenses. The court
concluded that the defendant would have not have been
entitled to application of the reduced guidelines (he was
released before the reduction became available), and even if
he had been entitled to a reduction in his custodial
sentence, such a reduction wouldn't have impacted his
supervised release sentence. Dkt. No. 58 at 3-5. The court
also noted that while the defendant had, for the most part,
been complying with his supervised release conditions, he had
not demonstrated the extraordinary circumstances courts in
this district look for when considering motions for early
termination. Id. at 6.
February 1, 2019, the court received a second motion from the
defendant, again asking for early termination of his release.
Dkt. No. 60. He represented in that motion that the probation
office supported his request. Id. at 1. In support
of this second motion, the defendant asserts that he
didn't have any disciplinary violations while in custody
(and he completed programming, as well), that since his
release he's graduated college and had several jobs, that
he has a stable residence with his long-time girlfriend and
has custody of his nineteen-month-old daughter and that he
has passed the test for a commercial driver's license. He
also says that he has always been compliant with the
conditions of his supervised release. Id. at 4-6.
The defendant attached to the motion certificates and letters
verifying the achievements he listed in his motion. Dkt. No.
court commends the defendant on his achievements-particularly
his educational achievements, and his care for his daughter.
He has reason to be proud of himself for these things. But as
the court pointed out in its February 2017 order denying his
first motion, the fact that a defendant has complied with the
conditions of supervised release is not enough, on its own,
to justify early termination. Courts in this district 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.” United States v. O'Hara, No.
00-170, 2011 WL 4356322 at *3 (E.D. Wis. 2011). See
also, e.g., United States v. Mitchell, No.
03-cr-194, 2013 WL 4763966 at *1 (E.D. Wis. 2013); United
States v. White, No. 06-cr-50, 2012 WL 5198364 at *2
(E.D. Wis. 2012). “[C]ourts have generally granted
early termination only in cases involving some new or
unforeseen circumstances, which may include exceptionally
good behavior, or where supervision impedes the
defendant's rehabilitation.” Mitchell, 2013 WL
4763966 at *1 (citing White, which collects other cases
holding the same). This court has granted early termination
where defendants have not only complied with supervised
release conditions, but have performed community service, or
have demonstrated that there are jobs they cannot get because
of the limitations of supervision. It generally has required
more than simply complying with the conditions of
supervision. The court understands that it isn't easy for
some people to comply with supervised release. But supervised
release is part of a court's overall punishment. And
courts expect defendants to comply with the conditions of
release-they are, after all, court orders.
the reasons the court is not comfortable considering early
termination now is its concern that the defendant does not
appear to be working. While the defendant has worked hard at
his education, presumably his reason for doing that was so
that he could obtain stable, good-paying work.
appears from the defendant's motion that, at least as of
the time he filed it, he wasn't working. He indicated
that after two years working as a bus driver and attending
college on a part-time basis, he “took a leave of
absence at work, so he could relocate to the Fox Valley Area
to finish his degree at Fox Valley Technical College.”
Dkt. No. 60 at 6. As of the date he filed the motion, the
defendant stated that he was “studying business while
trying to attain his CDL class A and real estate
license.” Dkt. No. 60 at 4. Getting an education is
always a good thing. Getting a business degree presumably
would help the defendant get jobs in the business world.
Getting his CDL would get him truck-driving jobs. Being a
licensed real estate broker is a good job in certain economic
cycles (although it is the court's understanding that
someone with a felony conviction cannot obtain a real estate
broker's license in Wisconsin). But one of the things the
court looks for in considering a request for early
termination of supervised release is steady, verifiable,
full-time employment. It doesn't appear that the
defendant has that right now, and it's not clear to the
court what he plans to do once he finishes his education.
the defendant identified any “extraordinary”
actions on his part outside of complying with the conditions
of his release. It is wonderful that he has custody of his
daughter and takes care of her, but that is what good,
responsible fathers do. It isn't the same as volunteering
at a soup kitchen, or helping out at one's
church/temple/mosque, or mentoring at-risk young people. The
court does not mean to trivialize the fact that the defendant
appears to be living a very prosocial life. It makes these
points only to explain why the defendant's good efforts
do not justify early release at this point.
plaintiff has fourteen months until he is scheduled to
discharge. He can renew his request for early discharge in
the future, if he obtains stable, verifiable employment, and
the court will consider it. In the meantime, the court
encourages the defendant to continue being the good role
model for his daughter that he has tried to be all her life.
court DENIES WITHOUT PREJUDICE the request