United States v. Goguen, 1:11–cr–00003–JAW

• Court: United States District Courts. 1st Circuit. United States District Court (Maine)
• Writing for the Court: JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE
• Citation: 218 F.Supp.3d 111
• Parties: UNITED STATES of America v. Robert GOGUEN
• Docket Number: 1:11–cr–00003–JAW
• Decision Date: 02 November 2016

218 F.Supp.3d 111

UNITED STATES of America
v.
Robert GOGUEN

1:11–cr–00003–JAW

United States District Court, D. Maine.

Signed November 2, 2016

218 F.Supp.3d 113

Gail Fisk Malone, Office of the U.S. Attorney District of Maine, Bangor, ME, for United States of America.

ORDER ON MEMORANDUM IN OPPOSITION TO THE GOVERNMENT'S REQUEST TO APPLY THE PENALTY RANGES UNDER 18 U.S.C. § 3583(k)

JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE

On July 14, 2011, a convicted sex offender pleaded guilty to failing to register in the state of Maine in violation of 18 U.S.C. § 2250. The term of supervised release for a violation of § 2250 is "any term of years not less than 5, or life." 18 U.S.C. § 3583(k). In addition, a defendant convicted of violating § 2250 may be subject to a special penalty of "not less than 5 years" of imprisonment if he commits one of a number of sex-related crimes while on supervised release. Id. For this provision to apply, while on supervised release, the defendant must meet a number of conditions: (1) he must be required to register under the Sex Offender Registration and Notification Act (SORNA), (2) he must commit another sex-related crime, and (3) the potential term of imprisonment for the new crime must be longer than one year. Id. If all these conditions are met, the statute requires the court to revoke the defendant's supervised release and to impose a sentence of at least five years' imprisonment on the supervised release violation. Id. The potential term of incarceration is life. Id.

When this Defendant pleaded guilty to violating 18 U.S.C. § 2250, the Court, for reasons that are obscure, did not inform him of the correct term of supervised release or about the special penalty provision for a violation of supervised release. Instead, the Court misinformed the Defendant that he faced a maximum term of supervised release of three years under 18 U.S.C. § 3583(b)(2) and that the maximum term of imprisonment for a violation of a term of supervised release was two years pursuant to 18 U.S.C. § 3583(e)(3). When the Court sentenced the Defendant, it improperly imposed a three-year term of supervised release under § 3583(b)(2).¹

Unfortunately, having served his term of incarceration and while on supervised release, the Probation Office filed a petition for revocation of supervised release alleging that the Defendant committed what amounts to new criminal conduct that would trigger the five-year mandatory and up to life term of incarceration under § 3583(k). On November 13, 2015, the Probation Office filed a petition for revocation on the ground that the Defendant possessed child pornography on his laptop computer.

The Government asserts that § 3583(k) requires the Court to revoke the Defendant's term of supervised release and sentence

218 F.Supp.3d 114

him to at least five years in prison even though the Court incorrectly advised the Defendant that he faced a maximum of two years of imprisonment under §§ 3583(b)(2) and 3583(e)(3). The Defendant opposes the application of § 3583(k)'s penalty provision based on the erroneous information at the Rule 11 hearing.

Given the unique circumstances of this case, the Court will limit the potential term of imprisonment for violation of supervised release to a maximum of two years consistent with what the Court told the Defendant at the Rule 11 hearing.

I. BACKGROUND

A. Initial Violation of 18 U.S.C. § 2250

On July 14, 2011, Robert Goguen pleaded guilty in the District of Maine to one count of failing to register as a sex offender in violation of 18 U.S.C. § 2250. Def.'s Mem. in Opp'n to Gov't's Req. to Apply the Penalty Ranges under 18 U.S.C. § 3583(k) at 2 (ECF No. 163) (Def.'s Mem. ). Mr. Goguen's obligation to register as a sex offender stemmed from a 1996 Connecticut conviction of Sexual Assault in the Second Degree under Connecticut General Statute § 53a–71(a)(3). Def.'s Mem. Attach 1, Order on Def.'s Mot. to Dismiss at 1 (ECF No. 163). Mr. Goguen was released from custody for the 1996 conviction on April 1, 2000. Prosecution Version at 1 (ECF No. 42) (Pros. Version ).

On August 31, 2009, Mr. Goguen applied for and obtained a driver's license from the Maine Bureau of Motor Vehicles. Pros. Version at 2–3. On July 29, 2010, Mr. Goguen met with police officers and informed them that he had lived in Maine for the previous 16 months. Pros. Version at 3. Mr. Goguen failed to register as a sex offender in Maine during that time. Id. Accordingly, on January 12, 2011, a grand jury issued an indictment charging Mr. Goguen with one count of failing to register in violation of § 2250. Indictment (ECF No. 1).

Mr. Goguen pleaded guilty on July 14, 2011. Minute Entry (ECF No. 43). At the time of the plea, the Government's Synopsis indicated that, in addition to imprisonment and a fine, Mr. Goguen faced a term of supervised release of not more than three years under 18 U.S.C. § 3583(b)(2). Synopsis at 1 (ECF No. 2). The Synopsis also indicated that if Mr. Goguen violated his supervised release, he could be imprisoned for not more than two years pursuant to 18 U.S.C. § 3583(e)(3). Id. At Mr. Goguen's Rule 11 hearing, consistent with the Synopsis, the Court informed Mr. Goguen:

Now, by pleading guilty to this crime, you're subject to the following maximum ranges of penalties. You're subject to being placed in jail for a period not to exceed ten years. You're subject to a fine not to exceed $250,000, and it can be both prison and a fine. Following any term of imprisonment, you're subject to a period of supervised release not to exceed three years. If you were to violate a term of supervised release, you could go back to jail for a period not to exceed two years. And, finally, you're subject to a special assessment of $100.00.

Tr. of Proceedings at 8:16–9:2 (ECF No. 11). Mr. Goguen stated that he understood the maximum penalties and still wished to plead guilty. Id. at 9:3, 16:13–16. There was no plea agreement between the Government and Mr. Goguen. Id. 14:4–6.

Following the Rule 11 hearing, the Probation Office filed a Revised Presentence Investigation Report (PSR) that also indicated that Mr. Goguen faced a term of supervised release not to exceed three years under § 3583(b)(2). Def.'s Mem. at 2; Gov't's Resp. to Def.'s Mem. in Opp'n to Gov't's Req. to Apply the Penalty Ranges under 18 U.S.C. § 3583(k) at 1 –2 (ECF

218 F.Supp.3d 115

No. 164) (Gov't's Resp. ). Neither party objected to this part of the PSR. On January 31, 2013, the Court sentenced Mr. Goguen to 37 months of imprisonment, three years of supervised release, and a $100.00 special assessment. Am. J. (ECF No. 90).

B. Mr. Goguen's Supervised Release

Mr. Goguen's term of supervised release commenced on May 11, 2013. Pet. for Warrant or Summons for Offender under Supervision at 1 (ECF No. 96). On September 23, 2013, Mr. Goguen admitted violating the term of his supervised release that required him to participate in sex offender treatment. Id. at 1–2; Minute Entry (ECF No. 112). The Court sentenced Mr. Goguen to five months of imprisonment and 31 months of supervised release. Minute Entry (ECF No. 112).

Mr. Goguen's supervised release recommenced on January 15, 2014. Pet. for Warrant or Summons for Offender under Supervision (ECF No. 114). On November 13, 2015, the Probation Office moved the Court to issue a warrant for Mr. Goguen's arrest, alleging that on November 10, 2015, Mr. Goguen possessed a laptop computer containing child pornography in violation of his supervised release and 18 U.S.C. § 2252A(a)(5). Id. at 1–2. In the motion, the Probation Office indicated that Mr. Goguen faced a term of imprisonment of up to two years for his supervised release violation pursuant to § 3583(e)(3). Id. at 4. The Court authorized the issuance of the arrest warrant, and Mr. Goguen was arrested on November 13, 2015. Minute Entry (ECF No. 148).

C. The Dispute

Following his arrest, the Government realized that the Court imposed an incorrect term of supervised release when it initially sentenced Mr. Goguen for failing to register as a sex offender. The Government pointed out that because Mr. Goguen violated § 2250, the Court should have imposed a term of supervised release between five years and life under 18 U.S.C. § 3583(k), rather than no more than three years under § 3583(b)(2). The distinction carries notable implications. If a defendant violates a term of release imposed under § 3583(b)(2), the maximum term of imprisonment is two years pursuant to § 3583(e)(3). However, if a defendant violates a term of release imposed under § 3583(k) having violated the special conditions set forth in that section, the Court must impose a five-year term of incarceration.

The Government argued that because the Court should have imposed a term of supervised release under § 3583(k), the Court should now impose the penalty associated with § 3583(k), namely, at least five years' imprisonment. On January 21, 2016, Mr. Goguen filed a memorandum in opposition to the Government's request to apply the penalty ranges under § 3583(k). Def.'s Mem. In the memorandum, Mr. Goguen raises a...