Opinion
CRIMINAL NO. 02-056(JAG).
December 20, 2007.
Carlos R. Cardona, Vernon Benet Miles, United States Attorneys Office, San Juan, PR, for Plaintiff.
Joseph C. Laws, Francisco Valcarcel, Victor J. Gonzalez-Bothwell, Yasmin A. Irizarry, Federal Public Defender's Office, Max J. Perez-Bouret, Melanie CarrilloJimenez; Hato Rey, PR, Marlene AponteCabrera, Aponte-Cabrera Law Offices, San Juan, PR, Luis A. Guzman-Dupont, Luis A. Guzman Dupont Law Office, San Juan, PR, Rachel Brill, Raymond L. Sanchez-Maceira, Sanchez Maceira Law Office, Thomas R. Lincoln-San-Juan, Vanessa M. Torres-Quinones, Martinez Torres Law Offices, PSC, San Juan, PR, Ramon Garcia-Garcia, Santurce, PR, Ernesto Reyes-Blassino, ERB Law Office, Guaynabo, PR, Carlos R. Sosa-Padro, Carlos R. Sosa Padro Law Office, San Juan, PR, for Defendants.
OPINION AND ORDER
Pending before the Court is Melvin Rivera Ortiz's ("Releasee") Motion to Modify his Conditions of Supervised Release. (Docket No. 1121). For the reasons set forth below, the Court DENIES the Motion.
FACTUAL AND PROCEDURAL BACKGROUND
On January 7, 2004, Releasee was sentenced to serve 70 months with 4 years of supervised release. A condition of supervised release was imposed requiring Releasee to pay the cost of supervision at a rate of $283.23 per month. On June 13, 2007, Releasee filed the pending Motion to Modify his Conditions of Supervised Release in which he requested that this Court eliminate the cost of supervision he is required to pay. Releasee also requested that this Court schedule a hearing and that an attorney be appointed to represent him in the hearing. (Docket No. 1121). Releasee's Motion was referred to Magistrate Judge Justo Arenas. (Docket No. 1127).
On July 10, 2007, a hearing was held by Magistrate Judge Justo Arenas to discuss the above referenced matter. In the hearing, the Court ordered the appointment of the Federal Public Defender's Office to represent Releasee. U.S. Probation Officer Jose Soto ("USPO") was present at the hearing and opposed the elimination of the cost of supervision condition but agreed to have it reduced. The Government concurred with the USPO's position. (Docket No. 1135). On September 26, 2007, another hearing was held where the Government requested a reduction of the cost of supervision to $50.00 monthly. (Docket No. 1156).
On November 13, 2007, after another hearing took place, Magistrate Judge Justo Arenas issued a Report and Recommendation in which he recommended that Releasee pay $50 a month. (Docket No. 1172). Releasee objected to the Report and Recommendation stating that he was unable to pay any cost of supervision and, as such, it should be eliminated. (Docket No. 1176).
On December 7, 2007, this Court ordered the U.S. Probation Office to reply to the Magistrate Judge's recommendation and Releasee's objection. The U.S. Probation office complied with said order and informed the Court that Releasee has not paid any of the costs of supervision. Moreover, the U.S. Probation office informed this Court that it believes that the Court was more than lenient when it decided to reduce the cost of supervision from $283.23 to $50. Furthermore, the U.S. Probation office stated that Releasee was employed and skilled and, therefore, able to comply with the $50 cost of supervision. (Docket No. 1184).
STANDARD OF REVIEW
1) Standard for Reviewing a Magistrate-Judge's Report and Recommendation
Pursuant to 28 U.S.C. §§ 636(b)(1)(B); Fed.R.Civ.P. 72(b); and Local Rule 503; a District Court may refer dispositive motions to a United States Magistrate-Judge for a Report and Recommendation.See Alamo Rodriguez v. Pfizer Pharmaceuticals, Inc., 286 F. Supp. 2d 144, 146 (D.P.R. 2003). The adversely affected party may "contest the Magistrate-Judge's report and recommendation by filing objections `within ten days of being served' with a copy of the order." United States of America v. Mercado Pagan, 286 F. Supp. 2d 231, 233 (D.P.R. 2003) (quoting 28 U.S.C. §§ 636(b)(1).) If objections are timely filed, the District Judge shall "make a de novo determination of those portions of the report or specified findings or recommendation to which [an] objection is made." Rivera-De-Leon v. Maxon Eng'g Servs., 283 F. Supp. 2d 550, 555 (D.P.R. 2003). The Court can "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate", however, if the affected party fails to timely file objections, the district court can assume that they have agreed to the magistrate's recommendation. Alamo Rodriguez, 286 F. Supp. 2d at 146 (quoting Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir. 1985)).
DISCUSSION
In the case at bar, Releasee's cost of supervision was not imposed as a fine but was a condition of supervised release. Therefore, U.S.S.G. § 5E1.2 and 18 U.S.C.A. § 3572, which relate to the imposition of fines, are inapplicable to Releasee's judgment. United States v. O'Quinn, 1995 U.S. App. LEXIS 9835 (4th Cir. 1995). The relevant statute in this case is 18 U.S.C. 3583, which requires that the conditions of supervised release be "clearly related to several of the [18 U.S.C.] § 3553 purposes and [be] no more restrictive than necessary to accomplish them."Id.
Section § 5E1.2 of the Sentencing Guidelines allows the Court to impose a fine that is at least sufficient to pay the costs to the government of any supervised release ordered. Subsection (e) reads as follows:
If the defendant establishes that (1) he is not able and, even with the use of a reasonable installment schedule, is not likely to become able to pay all or part of the fine required by the preceding provisions, or (2) imposition of a fine would unduly burden the defendant's dependents, the court may impose a lesser fine or waive the fine.
Subsection (e) places the burden upon the defendant of establishing that he or she is unable to pay a fine. See United States v. Hays, 1997 U.S. App. LEXIS 19757 (10th Cir. 1997);United States v. Klein, 93 F.3d 698, 705 (10th Cir. 1996). Nonetheless, our Circuit has held that the costs of supervised release constitute an additional fine under § 5E1.2(a) of the Sentencing Guidelines and should not be imposed where a defendant has been found indigent and, thus, exempt from a punitive fine.United States v. Pineda, 981 F.2d 569, 576 (1st Cir. 1992);United States v. Corral, 964 F.2d 83, 84 (1st Cir. 1992).
This section sets forth the factors, in addition to the factors set forth in 18 U.S.C. § 3553(a), that a Court should consider in determining whether to impose a fine, the amount, the time for payment, and the method of payment.
Section 3553 states the factors to be considered in imposing a sentence. Said statute states in pertinent part that:
(a) . . . The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider —
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner . . . 18 U.S.C. § 3553.
If a Releasee cannot make the monthly installments when he is on supervised release, the condition would be more restrictive than necessary to effectuate the purposes of sentencing. Id. (citing 18 U.S.C.A. § 3583(d)(2)). "Upon proof of such a situation, however, the sentencing court has broad authority to modify the condition of supervised release by reducing the amount due or even by obviating the condition." Id. (citing 18 U.S.C. § 3583(e)(1)).
In the present case, both the Government and the U.S. Probation Office agree that Releasee will be able to comply with a $50 cost of supervision. The U.S. Probation office believes that Releasee will be able to comply with said amount because he is employed and is a skilled laborer. As such, this Court finds that Releasee has failed to establish his inability to pay $50 for the cost of his supervision.
CONCLUSION
For the reasons stated above, the Court hereby ADOPTS the Magistrate Judge's Report and Recommendation, (Docket No. 1172), and, accordingly, DENIES Releasee's Motion to Modify his Conditions of Supervised Release. (Docket No. 1121). Releasee is ordered to pay a $50 monthly cost of supervision.
IT IS SO ORDERED.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
JUSTO ARENAS, United States Chief Magistrate Judge.
I recommend that releasee pay $50 a month. The arguments of the releasee are garden-variety deadbeat arguments, begging an easy way out and making a mockery of the sentence.
Under the provisions of Rule 72(d), Local Rules, District of Puerto Rico, any party who objects to this report and recommendation must file a written objection thereto with the Clerk of this Court within ten (10) days of the party's receipt of this report and recommendation. The written objections must specifically identify the portion of the recommendation, or report to which objection is made and the basis for such objections. Failure to comply with this rule precludes further appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985);Davet v. Maccorone, 973 F.2d 22, 30-31 (1st Cir. 1992); Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988); Borden v. Sec'y of Health Human Servs., 836 F.2d 4, 6 (1st Cir. 1987); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir. 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).
At San Juan, Puerto Rico, this 13th day of November, 2007.