Opinion
16 Cr 104
12-05-2022
UNITED STATES OF AMERICA, v. HOSTO DURAN, Defendant.
ORDER
RICHARD M. HERMAN, U.S.D.J.
The terms of supervised release set forth in the Judgment of Conviction, dated December 21, 2016, are hereby modified to delete the words "if deemed necessary by probation" on page 4, condition #1. See United States v. Peterson, 248 F.3d 79, 85 (2dCir. 2001). See also the transcript of today's supervised release hearing which includes (i) the pro se motion for early termination, dated October 31, 2022 and attached hereto as Exhibit A; and (ii) the Court report on supervised release and early termination, dated October 12,2022, and attached hereto as Exhibit B.
MOTION FOR EARLY TERMINATION OF SUPERVISED RELEASE
NOW COMES HOSTO DURAN, motioning this Court in propria persona (pro se) to terminate the imposed term of supervised release, reducing such to a "time already served" duration. This request is made pursuant to title 18 United States Code §3583(e) and Federal Rules of Criminal Procedure 32.1(c). Under the same rule of criminal procedure, no hearing is requested in this matter.
I. Procedural History
I was indicted in 2016 after accepting an Uber customer as a private client, outside the Uber platform, and transporting them to (what I now know were) illicit drug transactions. I was charged with Conspiracy to Distribute Controlled Substances, in violation of 18 U.S.C. §846, and eventually pleaded guilty to that count.
I was sentenced by this Court on December 21, 2016 under the punitive provisions of 21 U.S.C. §841(b)(1)(C). That sentenced ordered me to serve 52 months in prison to be followed by 36 months of supervised release. I served my incarceration sentence at the Federal Prison Camp at Caanan and was then released into halfway house custody in 2020, amid the COVID-19 pandemic. I completed that term of transitional custody on October 2, 2020 and began my term of supervised release. I have now served two years and one month of supervision with only eleven months remaining,
I have had no issues with my supervision, have no violations of supervision (reported or non-reported), and have completed all requirements of my supervision demanded by my judgment order,
I spoke with my former supervising officer about requesting early termination, and her stance was encouraging. Paraphrased, she instructed me to "go ahead and file," and that I was "good to go." However, she has since retired and I have not yet met my new supervising officer in person. We have spoken remotely when I needed permission to travel out of state to see my kids, but I do not know if I have the support or recommendation of the U.S. Probation Office (USPO) as I did before.
II. This Court Has The Jurisdictional And Statutory Authority To Terminate My Supervised Release Term
This Court has original jurisdiction over this case, given by 18 U.S.C. §3231. This Court is granted the authority to terminate a term of supervised release by 18 U.S.C. §3583(e) (1), which allows a district court to "terminate a term of supervised release and discharge the defendant released at any time after the expiration of one year of supervised release after considering specific sentencing factors from §3553(a).
Pursuant to the provisions of the Federal Rules of Criminal Procedure a judge may grant early termination "... if it is satisfied that such action is wan-anted by the conduct of the defendant released and in the interests of justice." §3 583(e)(1).
Paraphrased, the specific §3553(a) factors that are to be considered for an early termination request are: §§(a)(1): The nature and circumstances of the offense; §§(a)(2) (B): To afford deterrence to criminal conduct; §§(a)(2)(C): To protect the public from future crimes; §§(a)(2)(D): To provide education and job training, provide medical care or other correctional treatment; §§(a)(4): The kinds of sentences available in the guidelines; §§(a)(5): In line with relevant policy; §§(a)(6): Avoiding unwarranted differences in sentence between similar defendants with similar conduct; and §§(a)(7): To provide restitution to any victims.
Conspicuously missing from this list is §§(a)(2)(A): "the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." Congress' omission of this sentencing factor means it did not intend supeivised release to be part of the punishment phase of sentence, but serves other intentions. The clarity given by the sentencing commission in §5D1.2 is evidence of this, which cites rehabilitation completion as a valid reason for terminating a term of supervision early.
The applicable Rule of Criminal Procedure (32.1(c)) allows the modification of supervised release terms and conditions and requires a hearing unless; (1) the relief sought is favorable to the defendant, (2) the defendant waives his right to such a hearing, and (3) that the government is notified of the modification and given a reasonable opportunity to object (Fed R. Crim. P. 32.1(2)(B) & (C)).
Committee notes to this procedural rule don't spend much time on termination requests, but bring up a defendant's right to present mitigating information when a modification request would be of greater restriction to the defendant. In this case, I both waive the hearing, and request that a decision in this matter be made without such a hearing once the government is given an opportunity to proffer a written objection if it chooses to do so.
III. Precedent Supports Early Termination In My Case
District Courts have the authority to grant modifications of supervised release terms and conditions using their discretion. Precedent confers wide latitude in making that decision.
For many years, early termination of supervised release was considered an exceptional remedy, only "occasionally" justified. United States v. Lussier, 104 F.3d 32, 36 (2nd Cir. 1997). It was not warranted as part of the normal course of a sentence. United States v. Fenza, No. 01-CR-00921-3(ADS), 2013 WL 3990914 at *2 (E.D.N.Y. Aug 2, 2013). Simply complying with the conditions of supervision, without exceptionally good conduct or changed circumstances not contemplated at original sentencing, were not enough to warrant early termination. Lussier at 36, and Fenza at *2.
Through the last decade, precedent and policy shifted away from viewing early termination as exceptional, and began to treat it as a normal course of a sentence for many defendants. The Second Circuit itself recognized this and reversed its position on the matter from Lussier in 2016.
"New or changed circumstances are not required in order to modify conditions of release, but changed circumstances may in some circumstances justify modification." United States v. Parisi, 821 F.3d 343, 347 (2nd Cir. 2016).
Other Circuit Courts of Appeals have since change course just as the Second Circuit did in Parisi. For example, the Ninth Circuit relied on Lussier in 2007 when affirming a district court's denial of an unopposed early termination motion in United States v. Smith, 219 F App'x 666 (9th Cir. 2007). Earlier this year, that Court reversed:
"Smith incorrectly attributed to the Second Circuit's decision in United States v. Lussier, 104 F.3d 32, 36 (2d Cir. 1997), the proposition that early termination is 'reserved for rare cases of exceptionally good behavior.' In fact, Lussier did not interpret §3583(e) to necessarily require a showing of exceptional behavior for early termination of supervised release. Rather,
the Second Circuit correctly described the district court's authority to modify the terms and conditions of supervised release under §3583(e) and observed that changed circumstances such as 'exceptionally good behavior by the defendant' may warrant termination of supervised release. The Second Circuit has since clarified that Lussier's holding was limited and that it '[did] not require new or changed circumstances relating to the defendant in order to modify conditions of release, but simply recognize[d] that changed circumstances may in some instances justify a modification. We take this opportunity to make clear that our unpublished disposition in Smith misread Lussier, and the 'exceptional behavior' rule as restated in Evertson is incorrect as a matter of law." United States v. Ponce, 22 F.4th 1045, 1047 (9th Cir.2022).
Footnote 2 in Vonce also affirms that the Third Circuit decision in Melvin "corrected a similar- misreading of Lussier." Id. (citing United States v. Melvin, 978 F.3d 49 (3rd Cir. 2020)).
These decisions point toward a trend in the judiciary of seeing supervision for the utility it was originally intended to provide. Whereas, at one point, the Second, Third, Seventh, and Ninth Circuits had all required early termination to be a rare occurrence, requiring exceptional circumstances to justify the relief, each has reversed that position.
In Parisi.
In Melvin, supra at footnote 6.
In Kappes.
In Ponce, id.
Coupled with the new language of the updated Guide to Judiciary Policy, Vol. 8 Part E (Post-Conviction Supervision) §3 60(c), this stance is not simply more-aligned with the original design of supervised release, it conforms to the current policy conclusions of the U.S. Sentencing Commission and Judicial Conference. This is discussed in greater detail below (regarding factor §3553(a)(5)).
Transmittal 080-40, July 2,2018.
In sum, early termination of supervised release was never intended to be imposed in most cases, but only those that need it. Later it became so routinely used that, currently, essentially every felony sentence with more than one year in prison includes a term of supervised release. However, terminating that term once its purpose is served should be, and is beginning to be, a routine conclusion to a supervision term.
IV. Statutory Factors Support Early Termination In My Case
Primarily, 18 U.S.C. §3583(e)(1) requires a district judge to consider whether or not an early termination request, such as this one, is in the interests of justice. To determine what the interests of justice, themselves, are, one must look to the sentencing factors contained in §3553(a).
It's important to note here that the cross-reference factors for modification of supervised release terms intentionally omit §3553(a)(2)(A) and (a)(3). These omission directly correlate to Congressional intent when creating supervised release in the Sentencing Reform Act of 1984. Incarceration was intended to serve the punitive interests of justice, while supervised release was reserved for other, rehabilitative intents. Therefore, factor (a)(2)(A) does not apply here.
Further, supervision modifications under §3583(e) are altogether different than sentencing decisions. Due process is curtailed for revocation proceedings, as the standard of evidence/proof there is a preponderance, not beyond a reasonable doubt (as it is at trial). §3 583(e) is a separate kind of proceeding, one which is distinct from sentencing decisions and different even from §3582(c) decisions. This is why factor (a)(3) is also missing and, as a result, the limitations on sentencing decisions from mandatory minimums and plea stipulations do not apply.
See United States v. Vargas, 564 F.3d 618 (2nd Cir. 2009). (Citing United States v. Spinelle, 41 F.3d 1056 (6th Cir. 1994)). See also United States v. Trotter, 321 F.Supp.3d 337, 360 (E.D.N.Y. 2018) (quoting Pope v. Perdue, 889 F.3d 410,141 (7* Cir. 2018).
Ignoring these omitted factors, the interests of justice as outlined by the remaining §3553(a) factors are served by granting early termination. All eight remaining factors support early termination as serving the interests of justice.
Nature, Circumstances, History, Character
To begin, the nature and circumstances of my offense, along with the history and characteristics of the defendant (me), both encourage early termination here. I was sentenced below the applicable/calculated guidelines range in this case because my role in the instant offense was minimal, my criminal history was marginal, and because I took immediate responsibility for my actions. Those actions promoted the illicit drag trade and I cannot undo those actions.
However, by the time I was sentenced I had turned 40 years old and I was married with two children, and a host of friends and extended family who advocated for me. Doc. 74 at 4-5. Friends and family flooded the Court with letters advocating for sentence leniency, which the Court found "remarkably demonstrated" my strong family ties and work history. Id.
"Each of these letters described the defendant as a good, hardworking man, who takes care of his family and is a man who was greatly affected by the passing of his father." Id. at 5, In. 23-25.
I cannot change or take back my actions, actions which brought me into the supervision term that I now seek to terminate. I can, however, demonstrate to the Court the character my family and friends described in those letters. I believe I have done so, and that early termination is appropriate under this factor.
Recidivism
The concern for recidivism is paramount in relation to supervised release, and especially so when considering whether or not to terminate a supervision term. Not only are two separate sentencing factors contemplate recidivism risk, but the Sentencing Commission's only example of a defendant appropriate for early termination is one who has reduced his recidivism risk.
I have shown already that I am fully capable of living a lawful life, fully self-managed. So far, I have spent 25 months on supervised release without single reported violation. Additionally, during time between sentencing and today, the accusations of fraud against me (beginning during my time on pretrial supervision) proved meritless and the charges stemming from those accusations were dropped.
This is trouble-free time period is significant. Several studies have shown that about half (47%) of offenders who will have their supervision terms revoked will do so in the first 12 months after release.
Alper, Durose, and Markman, 2018 Update on Prisoner Recidivism: A 9-year Follow-up Period (2005-2014); (2018) DOJ - Bureau of Justice Statistics. That number jumps to 82% in the first 36 months.
The passage of time means more than simply the amount of time spent on supervision for recidivism. As offenders get older, their risk of re-offending decreases in nearly direct proportion. Controlling for criminal history is even more illuminating: my statistical chance of re-offending, according to a 2021 Sentencing Commission study, has decreased by nearly 10% from the date of my indictment date to today.
Cotter, Semisch, and Rutter, Recidivism of Federal Offenders Released in 2010; (2021) U.S. Sentencing Commission, pg 30, Table 4.
Today, my statistical risk for rearrest over a 9 year period is 30% lower than the average released (male) federal offender. That same study analyzed the effects of other metrics on recidivism and found that offenders, like me, with at least some college education are rearrested 15% less often than average.
52.3% average for all studied male offenders released in 2010 vs. 22.3%
Id. at 31, Table 5.
While statistical findings like these do not compound, or "stack", it is still true that my chance of rearrest or even re-conviction today is far below the federal average. Moreover, because I have completed the treatment and counseling requirements of my judgment order, my post-release rehabilitation is complete and my recidivism chance is further diminished.
Correctional Treatment Goals
As briefly mentioned above, my Judgment Order contained a special condition, requiring that I participate in weekly therapeutic individual counseling by a licensed therapist, if it is deemed necessaiy by the USPO. Doc. 72 at 4 (Special Condition 1).
I was so directed by my probation officer and attended those weekly sessions for more than a year. Before my release, I took advantage of dozens of programs offered by the Bureau of Prisons (BOP), many of which are well-known to reduce recidivism.
These program completions not only satisfy the interests of justice for this factor, but support early termination as serving the interests of justice for factor (a)(5) as well. Those considerations are discussed in the policy factor section, below. Here, however, it suffices to demonstrate that I have no further correctional treatment needs remaining.
The Ranges of Recommended Sentences
The Sentencing Commission's Guidelines Manual makes two, seemingly contradictory sentencing recommendations when it comes to supervised release. First, it recommends longer sentences being imposed (originally), as a reaction to the Supreme Court decision prohibiting longer incarceration sentences meant to facilitate rehabilitation programs.
Tapia v. United States, 564 U.S. 319 (2011).
"The guidelines encourage...[courts] to exercise [early termination] authority in appropriate cases, particularly noting that a court may impose a longer term of supervised release on a defendant with a drug, alcohol or other addiction, but may then terminate the supervised release term early when a defendant successfully completes a treatment program, thereby reducing the risk to the public from further crimes of the defendant." Primer: Supervised Release;. (2019) United States Sentencing Commission, Office of General Counsel.
Despite this policy application, encouraging the high-end of sentences for supervision, the Guidelines Manual suggests that supervision sentences between one and three years are appropriate for Class C & D felonies. My conviction here is within this definition, because 21 U.S.C. §841(b)(1)(C) sets a statutory maximum prison sentence at 20 years. Seel8U.S.C. §3559(a)(3).
Therefore, the two years I have now served falls well within the established sentencing ranges for my sentence, and early termination here would not be outside those established ranges.
Policy Considerations - Sentencing Commission Policy
As touched upon in the section above, the Sentencing Commission's policy on supervised release begins with the encouragement to impose longer terms of supervision at original sentencing. This is meant to provide ample time for a defendant to undertake (and complete) necessary rehabilitation and treatment. This is offset by the Commission also encouraging early termination from those longer terms once rehabilitation (and recidivism reduction) efforts are complete.
To highlight this, the explicit policy of the Sentencing Commission regarding early termination of supervised release drives this point home.
"The court is encouraged to exercise this authority in appropriate cases... For example, the court may wish to consider early termination of supervised release if the defendant is an abuser of narcotics, other controlled substances, or alcohol who, while on supervised release, successfully completes a treatment program, thereby reducing the risk to the public from further crimes of the defendant." U.S.S.G. §5D1.2 App.n. 5.
My participation in, and completion of, the weekly therapy sessions assigned to me by my former probation officers places me within the category of offender the Sentencing Commission deems an "appropriate case" for early termination.
This isn't the only applicable policy of the Commission regarding early termination, however, in relation to my case. The sheer number of courses I completed during my four-plus years in prison actually triggers another policy that recommends heavy consideration of early termination.
Previously used for inmates who were too late in their sentence to fully take advantage of retroactive reductions in base offense levels (from newly-enacted Guidelines Amendments), §1B1.10 App N. 7(B) addresses inmates who, in retrospect, spent too much time in prison.
"Modification Relating to Farlv Termination. - If the prohibition [] relating to time already served precludes a reduction in the term of imprisonment to the extent the court determines otherwise would have been appropriate as a result of the amended guideline range ... the court may consider any such reduction that it was unable to grant in connection with any motion for early termination of a term of supervised release under §3583(e)(1)" Id.
I was incarcerated when the First Step Act was passed in late 2018. That law enacted new calculations for good-conduct credits and added time-credit awards for completion of specific recidivism-reducing programs. The full list can be found on the BOP website, and I've included the table of contents of that document, listing all of those programs, as Exhibit 1.
See First Ste Act Approved Programs Guide; (July 2022) USDOJ - BOP. Available at https://www.bop.gov/inmates/fsa/docs/fsaprogramguide2201 .pdf.
While I was released in 2020, those time-credits were fully implemented by the BOP in January of this year, meaning I was eligible for, but could not take advantage of them. The complete list of programs I finished during my time in the BOP is available in my probationary file. I, however, do not have a complete set of those completion certificates. I do know that many of those programs now earn time-credits I did not receive, making me eligible for the considerations of this policy as well.
Policy Considerations - Judicial Conference Policy
One further policy affects decisions on early termination, and that policy comes from the Judicial Conference - Committee on Criminal Law. Now titled "Post-Release Supervision", this was formerly known as "Monograph 109: Supervision of Federal Offenders" but was re-titled it's July 2018 revision (Transmittal 08-040, July 2, 2018).
This new policy recommends two sets of factors depending on how long the defendant has been on supervised release when requesting early termination. Those two sets are for defendants before and after the service of 18 months on supervised release.
"For a defendant who requests early termination after serving 18 or more months of supervised release, "there is a presumption in favor of recommending early termination" for persons who meet the following criteria:
(1) The person does not meet the criteria of a career drug offender or career criminal (as described in 28 U.S.C. § 994(h)) or has not committed a sex offense or engaged in terrorism;
(2) The person presents no identified risk of harm to the public or victim;
(3) The person is free from any court-reported violations over a 12-month period;
(4) The person demonstrates the ability to lawfully self-manage beyond the period of supervision;
(5) The person is in substantial compliance with all conditions of supervision; and,
(6) The person engaged in appropriate prosocial activities and receives sufficient prosocial support to remain lawful well beyond the period of supervision." Monograph 109 "Post-Conviction Supervision" §360.20(c).
This change to the recommendation criteria of the pre-2018 Judicial Conference Policy on "Post-Conviction Supervision" is significant. It moves:
"from coercing a person to act lawfully to monitoring and fostering a persons ability to self-manage lawful behavior and desire to act lawfully. In light of these changes and to advance the policy underlying them, this Court will rely upon §360.20 [post-2018 revision] of the Judicial Conference's policy regarding postconviction supervision for guidance as to whether early termination is wan-anted." United States v. Shaw, 445 F.Supp.3d 1160, 1164 (D. Colo 2020)
As is easily shown here, I am not a career offender, a sex offender, and I pose no very little risk to the community of future criminal re-offense. I have served over one year of supervised release and committed no new crimes.
I have a fantastic, supportive, and encouraging prosocial support network of family and friends. I have steady income from my various driving jobs and have proven to this Court that I can be very resourceful in my ability to find and maintain work in many different areas.
I have committed no violations of supervision in the entire term of supervised release served thus far, not just the last 12 months, and I have a completed all requirements of my judgment order. For certain, I have proven to the Court that I can live and maintain a lawful life, fully self-managed, long passed the period of supervision.
Preventing Sentence Disparities
I've already shown how my current term of supervised release followed a prison sentence that was longer than it should have been, based solely on the timing of my incarceration. A disparity exists there between my case and defendants sentenced today. Another consideration for sentencing disparities are other cases which are similar to my own, where the defendant was granted early termination of supervised release. For example, in United States v. McFadden, No. 2:06-CR-693 (E.D.N.Y., December 5, 2016), Defendant McFadden was convicted of cocaine distribution and was released by judge Spatt after service of 1 year and 3 months of supervised release.
See also United States v. Pequero, No. 1:08-CR-823 (S.D.N.Y March 26, 2021) where judge Broderick released Defendant Pequero after he had served three years of his five-year term of supervised release. Hon. Broderick considered successful reintegration into the community as well as a spotless record on supervision to be "exceptional conduct," under the Lussier standard.
Defendant Michael Rose petitioned for early termination in a cocaine importation case. United States v. Rose, No. 1:17-CR-12, (E.D.N.Y. May 17, 2019). There, Defendant Rose had served just over three years of supervised release when he was released from further supervision by Hon Ann M. Donnelly More cases exist beyond these which illustrate my point on disparity, but discussing each of them would be repetitive. For further inquiry, see United States v. Soma, No. 1:10-CR-001-LEK (N.D.N.Y.Nov. 6, 2017) United States v. Pollard, No. 2:05-CR-16 (E.D.N.Y. Oct. 30, 2017), United States v. Minaya,Y\o. l:15-CR-549 (S.DN.Y. May. 24, 2021), United States v. Santiago ,No. 1:ll-CR-569-2 (S.D.N.Y. May. 19, 2021).
Considering these cases, granting early termination here would not create a harmful sentencing disparity.
§3553(a)(7) does not apply because I was not given a fine or restitution to pay.
V. Conclusion
For the reasons stated herein, the interests of justice are served by granting early termination in my case. For the reasons stated herein, my conduct warrants early termination in this case.
Because the interests of justice and my conduct both support a granting of this motion, I pray this Court agree and discharge me from further supervision.
VI. Compliance And COVID-19 Pro Se Filing Procedures
This pleading is not written in letter-motion format, as I am the defendant in this case. As such, I am not a practicing attorney in the Southern District of New York and I do not have access to the EM/ECF system for filing. However, this document conforms toL.R.Crim.P. 49.
Insofar as COVID-19 adjusted procedures allow, this motion is filed in "paper copy" pursuant to the "Notice to Pro Se Litigants" filed by this Court on July 7, 2020 via e-mail to TemporaryJProSe Filing(a),nysd.uscourts.gov, Additionally, I declare that signed for, and agree to, receive e-mail notifications under that same notice with the accompanying Consent Form, That Consent Form was, likewise, filed with the temporary pro se e-mail address above.
As ECF participants, opposing counsel has consented to service by electronic means.
(Exhibit 1 Omitted)