Opinion
Case No. 1:22-cr-20544
2023-07-20
UNITED STATES of America, Plaintiff, v. Phillip Lee VARY, Defendant.
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR EARLY TERMINATION OF SUPERVISED RELEASE
THOMAS L. LUDINGTON, United States District Judge
Phillip Lee Vary seeks early termination of his 10-year term of supervised release—a reduction of more than 2 years. As explained hereafter, the relevant factors weigh against early termination at this time, so his request will be denied without prejudice.
I.
In 2014, Phillip Lee Vary emerged with the distinction of receiving 89 child-pornography files through Skype from May to June 2013. PSR ¶ 5. His dark desires led him to transmit files showing children between the ages of 4 and 12 suffering the cruelest of sexual abuses. See id. ¶¶ 6-7. Federal and state investigators managed to trace these horrific exchanges to Vary in August 2014, leading to a thorough search of his house a month later. Id. ¶¶ 8-9. Vary, unencumbered by arrest at that point, conceded to possession of this repellent material, and made a startling admission of his preference for female tweens. Id. ¶ 9. A hard drive seized from Vary's house contained an additional 11 images and 24 videos, further evidence of his guilty pleasure. Id. ¶ 10.
In November 2015, after pleading guilty to one count of possessing child pornography, 18 U.S.C. § 2252A(a)(5)(B), Vary was sentenced to 366 days' imprisonment, followed by 10 years of supervised release. ECF No. 1-1 at PageID. 2-4; accord United States v. Vary, No. 1:15-CR-00131 (M.D.N.C. Nov. 5, 2015), ECF No. 21.
Vary started supervised release in July 2016, which is scheduled to end on July 21, 2026. ECF No. 2 at PageID.8. As of tomorrow, he has exactly three years remaining. In February 2023, he requested court-appointed counsel to seek early termination of his supervised release, but the request was denied. United States v. Vary, No. 1:22-CR-20544, 2023 WL 2055988 (E.D. Mich. Feb. 16, 2023).
On May 30, 2023, Vary filed a pro se motion to terminate his supervised release under 18 U.S.C. § 3583(e)(1). ECF No. 5. Because the terms of Vary's supervised release will not be modified, his motion will be resolved without a hearing. See FED. R. CRIM. P. 32.1(c) (requiring a hearing, with two exceptions, "[b]efore modifying the conditions" (emphasis added)); FED. R. CRIM. P. 32.1 advisory committee's note to 2005 amendment (explaining that "the right of allocution" extends to modification hearings "to give the defendant the opportunity to make a statement and present any mitigating information" if "the court may decide to modify the terms or conditions of the defendant's probation" (emphasis added)); see also United States v. Coker, No. 3:14-CR-00085, 2020 WL 1877800, at *7 (E.D. Tenn. Apr. 15, 2020) ("[T]he Court generally must hold a hearing before modifying the conditions." (citing FED. R. CRIM. P. 32.1(c)(2)(B)-(C) (emphasis added))).
II.
A sentencing court may terminate a term of supervised release if "after considering the factors set forth in [18 U.S.C. §] 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) . . . it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice . . . ." 18 U.S.C. § 3583(e)(1).
The relevant § 3553(a) factors are:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
. . .
(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;
. . .
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . .
Id. § 3553(a). "Early termination of supervised release is a discretionary decision that is only warranted in cases where the defendant shows changed circumstances—such as exceptionally good behavior." United States v. Atkin, 38 F. App'x 196, 198 (6th Cir. 2002) (unpublished) (citing United States v. Lussier, 104 F.3d 32, 36 (2d Cir. 1997)). In other words, "early termination is not warranted as a matter of course." United States v. McKay, 352 F. Supp. 2d 359, 361 (E.D.N.Y. 2005) (citing Lussier, 104 F.3d at 36).
(5) any pertinent policy statement . . .
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
"[C]onsideration must be given to all the [relevant] § 3553(a) factors, even those that do not favor early termination." United States v. Threet, No. 1:09-CR-20523-5, 653 F.Supp.3d 414, 417 (E.D. Mich. Jan. 31, 2023). The movant must "make a compelling case as to why the . . . § 3553(a) analysis would be different if conducted today." United States v. Sherwood, 986 F.3d 951, 954 (6th Cir. 2021) (presuming that a "district court's initial balancing of the § 3553(a) factors . . . remains an accurate assessment as to whether those factors justify a sentence reduction").
"[F]ull compliance with the terms of supervised release is what is expected of a person under the magnifying glass of supervised release and does not warrant early termination." United States v. Givens, No. CR 5:14-CR-00074, 2022 WL 2820081, at *1 (E.D. Ky. July 19, 2022) (quoting McKay, 352 F. Supp. 2d at 361). "Similarly, 'productive employment, while laudable, does not justify the termination of supervision.' " Id. (quoting United States v. Olivieri, 72 F. Supp. 3d 401, 403 (S.D.N.Y. 2014)). If "unblemished" postrelease conduct warranted termination of supervised release, then " 'the exception would swallow the rule,' i.e., diligent service of the full period of supervised release imposed at sentencing." Id. (quoting United States v. Medina, 17 F. Supp. 2d 245, 247 (S.D.N.Y. 1998)).
III.
Vary's reasons to get off supervised release are that he has (1) never created problems for his probation officers, (2) had no negative law-enforcement interactions, (3) updated his address and sex-offender registry as required, (4) maintained a job, (5) completed therapy treatments, (6) passed every polygraph, and (7) maintained a strong support group. ECF No. 5 at PageID.20. Neither his probation officer nor the Government have chimed in.
The first two factors blend here. The first factor is "the nature and circumstances of the offense and the history and characteristics of the defendant." 18 U.S.C. § 3553(a)(1). The second factor is "the need for the sentence imposed." Id. § 3553(a)(2).
Vary's offense, history, and characteristics affirm the need for the sentence imposed. Although he confessed after being caught, Vary qualified for numerous sentencing enhancements based on his transmission of nearly 2,000 images of "sadistic[,] masochistic conduct[,] or other depictions of violence" involving girls under 12 years of age. PSR ¶¶ 22-25 (citing USG § 2G2.2(b)(2), (4), (6), (7)(D)). He prefers "relationships with minors," id. ¶ 53, "think[s] about sex excessively," id. ¶ 55, and has "a diagnosis of Pedophilic Disorder," id. ¶ 57. It stands to reason then that he should serve the full term of his supervised release to confirm whether he will revert to his old habits. See United States v. Stall, 581 F.3d 276, 288 (6th Cir. 2009) ("The severity and abhorrent nature" of possession of child pornography constitutes "a very serious crime.").
Yet, as Vary puts it, he has "learned from all of this long enough." ECF No. 3 at PageID.15. But see United States v. Johnson, 529 U.S. 53, 59, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000) ("Supervised release fulfills rehabilitative ends, distinct from those served by incarceration."). True, for nearly seven years, he has avoided trouble, maintained employment, and followed the terms of his supervised release. ECF No. 5 at PageID.20. All commendable. But that conduct is expected of everyone released from prison and is not "exceptional." See, e.g., United States v. Merrill, 615 F. Supp. 3d 626, 630 (E.D. Mich. 2022) (emphasis added) (terminating supervised release based in part on the defendant's volunteer work in the community, activity in his church, and regular attendance at therapy). And no third party has suggested that his post release conduct outweighs his criminal conduct. See id. (noting good conduct that was "substantiated by letters from his psychologist, a former colleague, and his former pastor"). "Without those new colors, his nigh [seven]-year stroke of exemplary behavior cannot paint over his canvas of criminal conduct." United States v. Laughton, No. 1:02-CR-20016, 658 F.Supp.3d 540, 545 (E.D. Mich. Feb. 28, 2023).
Balancing Vary's offense, history, and characteristics—especially his seven years of perfect postconviction compliance—the first two factors are neutral. To weigh in favor of release, he must be exceptional. United States v. Atkin, 38 F. App'x 196, 198 (6th Cir. 2002) (unpublished) (citing United States v. Lussier, 104 F.3d 32, 36 (2d Cir. 1997)).
The third factor is "the kinds of sentence and the sentencing range established for [Defendant's offense]." 18 U.S.C. § 3553(a)(4). According to the relevant statutes, Vary's plea agreement resulted in a sentence that was one tenth of the statutory maximum term of imprisonment. Compare PSR ¶ 68 (citing 18 U.S.C. § 2252A(a)(5)(B), (b)), with ECF No. 1-1 at PageID.3. That is quite a deal. Similarly, he was sentenced to serve 10 years of a recommended life term of supervised release. Compare PSR ¶ 71 (citing 18 U.S.C. § 3583(k)), with ECF No. 1-1 at PageID.4. Yet he has completed 70% of the climb, making his likelihood of reaching the summit clearer by the day. So—at this time—this factor slightly favors early termination.
"According to the Policy Statement at USSG § 5D1.2(b), since the instant offense of conviction is a sex offense, the statutory maximum term (life) of supervised release is recommended." PSR at 25.
The fourth factor is "any pertinent policy statement" that is (1) "issued by the Sentencing Commission" and (2) "in effect on the date the defendant is sentenced." 18 U.S.C. § 3553(a)(5). But Vary does not identify any pertinent policy statement, and this Court is unaware of any. Therefore, the fourth factor is neutral.
The fifth factor is "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." Id. § 3553(a)(6). Vary did not address this factor. See generally ECF Nos. 3; 5. Even so, his one-year sentence was less than 20% of the recommendation of the Sentencing Guidelines. See PSR at 25 (recommending 78-97 months' imprisonment). His sentence was so low that it is not even presumptively reasonable. See United States v. Jeter, 721 F.3d 746, 757 (6th Cir. 2013) ("A sentence falling within the Guidelines range is presumptively reasonable; one falling outside the Guidelines range carries no such presumption."). And terminating his supervised release today would cut more than 30% of his remaining sentence. See 18 U.S.C. § 3583(k). So reducing Vary's term of supervised release would create an unwarranted disparity. This factor thus weighs heavily against early termination.
The sixth and final factor is "the need to provide restitution to any victims of the offense." 18 U.S.C. § 3553(a)(7). Despite the Guidelines recommending restitution, PSR ¶¶ 79-80 (citing USSG § 5E1.1), Vary was not directed to pay restitution, ECF No. 1-1 at PageID.6. So the final factor is neutral.
As indicated, the relevant § 3553(a) factors score 1-1-4 against early termination of supervised release. True, Vary has demonstrated a commitment to rehabilitation since his supervised-release term began. But that required conduct cannot serve as a substitute for fulfilling the proscribed term of supervised release. Therefore, early termination of Vary's supervised release is not "warranted by [his] conduct . . . and the interest of justice." 18 U.S.C. § 3583(e)(1). Consequently, his motion will be denied without prejudice.
IV.
Accordingly, it is ORDERED that Defendant's Motion for Early Termination of Supervised Release, ECF No. 5, is DENIED WITHOUT PREJUDICE.