The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
ORDER DENYING MOTION FOR EARLY TERMINATION OF SUPERVISED RELEASE
Pending before the Court is Defendant's Motion for Early Termination of Supervised Release (Dkt. 130). Having reviewed the Motion, the Government's Response (Dkt. 131), and Defendant's Reply (Dkt. 132), the Court finds that the parties have adequately identified the issues and that a hearing is not necessary. Furthermore, following that review, and having consulted with the supervising Probation Officer, the Court enters the following Order denying the Motion without prejudice to renewal in four months.
Defendant was convicted following a jury trial of one count of violating the Hazardous Materials Transportation Act and two counts of violating the Resource Conservation and Recovery Act arising out of the transportation and storage of sodium metal and various waste products. On October 22, 2007, the Court imposed a sentence of 21 months of incarceration to be followed by three years of supervised release.*fn1
Defendant's conviction was affirmed on appeal. He subsequently filed a motion pursuant to 28 U.S.C. § 2255 which is currently pending. The Court notes that terminating supervised release would not moot the § 2255 Motion. See Chacon v. Wood, 36 F.3d 1459, 1463 (9th Cir. 1994), overruled on other grounds, 28 U.S.C. 2254(c). Defendant has served his term of imprisonment and slightly over half of his term of supervised release which commenced on July 27, 2009. He requests early termination based on (1) the difficulty of caring for his mother in Idaho and her desire to return to Alaska to teach young women the handicrafts she learned in her home country of Sweden; (2) his "deeds of service" in testifying before Congress, appearing on a nationally aired show, and allowing his story to be included in One Nation Under Arrest published by the Heritage Foundation, all on the subject of overcriminalization in the criminal justice system; and (3) the increased opportunity for securing employment in Alaska given that his tools, contacts, and support system are located in that state.*fn2
The Government opposes the motion on the grounds that (1) Defendant has always been self-employed mining or conducting experiments and may return to the behavior that gave rise to the charges underlying his conviction, (2) he has lost his mining lease and may be ineligible for future government leases, and (3) his attempts at rehabilitation consist of speaking to Congress and others about the fact that his actions should not be criminalized.
The Probation Officer is neither for nor against early termination. While noting that Defendant has been compliant in all respects with his conditions of supervised release, the Probation Officer also notes that Defendant has done nothing "above and beyond" which is one of the criteria Probation generally requires before recommending early termination.
The Court has the discretion to terminate a term of supervised release at any time after a defendant has served one year of that term if, after considering certain specified § 3553(a) factors, the Court concludes that early termination is warranted by the defendant's conduct and the interest of justice. 18 U.S.C. § 3583(e)(1). The factors to be considered are:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) deterrence; (3) protection of the public; (4) the need to provide the defendant with educational, vocational training, medical care or other rehabilitation; (5) the sentence and sentencing range established for the category of 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. See 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). United States v. Smith, 219 Fed. Appx. 666, 667 n.3 (9th Cir. 2007).
Stated another way, all of the § 3553(a) factors considered when imposing sentence on the offense of conviction are to be considered in deciding whether to grant early termination of supervised release except for "the need for the sentence imposed . . . to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense" and "the kinds of sentences available." See 18 U.S.C. §§ 3553(a)(2)(A) and 3553(a)(3). Early termination should only be granted in rare cases of "exceptionally good behavior." Smith, 219 Fed. Appx. at 668 (citing United States v. Lussier, 104 F.3d 32, 36 (2d Cir. 1997)).
Section 3583(e) provides the "'district court with retained authority to revoke, discharge, or modify terms and conditions of supervised release . . . in order to account for new or unforeseen circumstances.'" United States v. Miller, 205 F.3d 1098, 1101 (9th Cir. 2000) (quoting United States v. Lussier, 104 F.3d 32, 36 (2d Cir. 1997)). Changed circumstances include "exceptionally good behavior." Lussier, 104 F.3d at 36. A defendant has the burden of demonstrating that early termination of supervised release is warranted. See United States v. Weber, 451 F.3d 552, 559 n.9 (9th Cir. 2006)).
The Court has considered all of the pertinent § 3553(a) factors and makes particular note of the following:
1. Nature and circumstances of the offense and history and characteristics of Defendant -- Defendant shipped 22,000 pounds of sodium metal and hazardous waste without the proper shipping papers, labeling, placarding, and packaging requirements and stored it in above ground storage tanks and 55-gallon drums without a permit from the Environmental Protection Agency. ...