United States v. Henry
| Decision Date | 23 June 2020 |
| Docket Number | Case No. 11CR7032-H |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. THOMAS ALAN HENRY, Defendant. |
| Court | U.S. District Court — Southern District of California |
ORDER GRANTING DEFENDANT'S MOTION FOR EARLY TERMINATION OF SUPERVISED RELEASE
(Doc. No. 25.)
Pending before the Court is Defendant Thomas Alan Henry's ("Defendant,") motion for early termination of supervised release under Title 18 U.S.C. § 3583(e)(1), filed on May 9, 2019. (Doc. No. 25.) On June 5, 2020, the Government filed a response in opposition to the Defendant's motion. (Doc. No. 27.) The Defendant filed his reply on June 19, 2020. (Doc. No. 29.) For the reasons set forth below, the Court grants the Defendant's motion.
On November 7, 2005, the Defendant pleaded guilty to a single count indictment charging him with traveling in interstate commerce with the intent to engage in sexual conduct with a minor in violation of Title U.S.C. § 2423(b) in the Western District of Arkansas. (Doc. No. 2 at 4.) The offense involved the Defendant corresponding with an individual who he believed was a minor but turned out to be an adult female pretending to be a minor and assisting law enforcement. (Doc. No. 27 at 2.) On May 25, 2006, the Honorable Jimm Larry Hendren sentenced the Defendant to a custodial term of 57 months, the low end of the advisory guidelines, followed by a life term of supervised release. (Id.) The Defendant appealed his sentence and the United States Court of Appeals for the Eighth Circuit affirmed the district court's judgment. United States v. Henry, 223 F. App'x 523, 525 (8th Cir. 2007). The Defendant's term of supervised release commenced on August 12, 2010. (Doc. No. 14 at 1.)
On July 14, 2011, pursuant to Title 18 U.S.C. § 36051, the Western District of Arkansas transferred jurisdiction of the supervised releasee to the Southern District of California. (Doc. No. 1.) The Defendant agreed to add several sex offender related conditions to his supervised release term to conform with the standard sex offender conditions utilized in the Southern District of California. (Doc. No. 2 at 15.) The Defendant did not invoke his right to challenge the added conditions and waived his right to a hearing with the assistance of counsel. (Doc. No. 15 at 13-14.) On March 21, 2019, the Defendant filed a motion for early termination of supervised release.2 The Government opposed the Defendant's motion. (Doc. No. 17.) On April 17, 2019, the Court held a hearing to address the Defendant's motion. (Doc. No. 22.) The Court denied the Defendant's motion without prejudice in part because the Defendant was convicted in state court of driving under the influence ("DUI.") (See. Doc. No. 14).However, the Court permitted the Defendant to refile his motion after one year. (Doc. No. 22.)
On May 29, 2020, the Defendant refiled his motion for early termination of supervised release. (Doc. No. 25.) At the age of 72 years old, the Defendant seeks to terminate his lifetime supervised release term so that he may travel outside of San Diego County "unencumbered by supervised release restrictions." (Id.) The Defendant points out that prior to this underlying offense he served his country in the United States Navy. (Id.) He also argues that he ultimately did not commit the offense with a minor (as the offense involved a female adult who was pretending to be a minor and assisting law enforcement) and points out that he accepted responsibility for the offense. (Id.) Finally, the Defendant notes that, despite his DUI offense, he has been otherwise compliant with the terms and conditions of his supervised release. (Id.) The Court ordered the Government to file a response. (Doc. No. 26.) The Government filed its response in opposition on June 5, 2020. (Doc. No. 27.) The Government argues primarily that the underlying offense is a basis to keep the Defendant on supervised release for life and that there is nothing in the Defendant's conditions of supervised release that would prohibit travel or interfere with family visits. (Id.) The Court ordered the Defendant to file a reply. (Doc. No. 28.) On June 19, 2020, the Defendant filed his reply. (Doc. No. 29.) In his reply, the Defendant points to a specific instance where his travel request would not be approved and that, despite the underlying offense, he has been rehabilitated. (Id.) Since the last hearing on April 17, 2019, there have been no reports of noncompliance from the probation officer.
Under Title 18 U.S.C. § 3583(e)(1), a district court is authorized to "terminate a term of supervised release and discharge the defendant released at any time after the expiration of one year of supervised release... if it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice[.]" When reviewing a motion for early termination of supervised release, a district court mustapply the standards set forth in Title 18 U.S.C. § 3583(e). United States v. Emmett, 749 F.3d 817, 819 (9th Cir. 2014) (). In turn, § 3583(e) requires a district court to consider and weigh certain factors set forth in Title 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), in deciding whether to grant or deny a motion to terminate supervised release. Those relevant § 3553(a) factors are: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) to afford adequate deterrence to criminal conduct; (3) to protect the public from further crimes of the defendant; (4) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (5) the sentence and sentencing range established for the category of the defendant; (6) any pertinent policy statement by the Sentencing Commission; (7) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (8) the need to provide restitution to any victims of the offense. Moreover, "the language of § 3583(e) gives district courts broad discretion in determining whether to grant a motion to terminate supervised release." Emmett at 819.
The burden rests with the Defendant to convince the Court that early termination of his supervised release is warranted. Emmett at 824 (); See also United States v. Weber, 451 F.3d 552, 559 n.9 (9th Cir. 2006) ( ) (citations omitted).
The nature and circumstances of the offense in this case is the obvious aggravating factor weighing against early termination of supervised release.Additionally, the Defendant does not have an unblemished supervision record as he sustained a DUI conviction during his term of supervised release. However, the Defendant is a 72 year-old individual who has completed almost 10 years of his supervised release term. Though he was convicted of a misdemeanor DUI during his supervised release term, the Defendant has not committed any offenses similar to the underlying offense in this case. Furthermore, the Defendant has completed the state court requirements for his DUI conviction (Doc. No. 15-2) and has also completed his required sex offender therapy (Doc. No. 25 at 4.) Other than the convictions for the underlying offense and the DUI offense, the Defendant has no prior criminal history. Additionally, the Defendant has prior military service with the United States Navy and received an honorable discharge. (Doc. No. 25 at 1.) As of the date of the order, the Court has not received any reports of noncompliance from the probation officer since 2016. (See Doc. No. 14.) Given that there are no victims in this case, no restitution was imposed by the sentencing judge.
The Defendant cites to the restrictions on his travel as a motivating factor in seeking early termination of supervised release. (Doc. No. 29 at 2.) Specifically, the Defendant points to a specific instance where he requested to "sail to Catalina Island to meet friends" and that "[n]o approval was forthcoming." (Id.) The Ninth Circuit has held that "[u]nder the broad legal standard for granting early termination, it was not an abuse of discretion to consider as one factor among others whether continued supervised release posed an undue hardship." Emmett at 820. The Defendant has cited to a specific instance of hardship caused by the travel restrictions and the Court takes that into consideration in determining whether early termination of supervised release is warranted. Cf. United States v. Smith, No. 2:09-CR-00218-KJD, 2015 WL 3797435, at *1 (D. Nev. June 17, 2015) (Dawson, J.) ().
The Government argues that the Court should deny the Defendant's motion because the sentencing judge in the Western District of Arkansas imposed a lifetime term of supervised release. However, the fact that a lifetime of supervised release was imposed at the time of sentencing does not necessarily disqualify a defendant from early termination of supervised release. See United States v. Mullen, 329 F. App'x 61, 64 (9th Cir. 2009) (unpublished) (...
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