You're viewing Docket Item 26 from the case USA v. Jones. View the full docket and case details.

Download this document:










Criminal Action No. V-11-21


Pending before the Court is Defendant Joseph D. Jones’ (“Jones”) Motion to

Reconsider Order Denying Motion to Terminate Supervised Release (Dkt. No. 24).

I. Background

Jones was convicted of failing to register as a sex offender on May 10, 2011. He

was sentenced to 6 months imprisonment on August 9, 2011, to be followed by two years

supervised release. He was released from the Bureau of Prisons in September 2011. At

the time he filed his original Motion to Terminate Probation (Dkt. No. 22), he had served

just over one year of his supervised release. At the present time, Jones has served 22

months of his two-year term of supervised release.

II. Legal Standard

The cases regarding early termination of supervised release or probation are

consistent: “A district court may grant an early termination of a remaining term of

supervised release after one year of supervised release has elapsed and after the court

considers certain factors in 18 U.S.C. § 3553(a), if the defendant’s conduct and the

interests of justice so warrant.” United States v. Lowe, 632 F.3d 996, 998 (7th Cir. 2011);


United States v. Gammarano, 321 F.3d 311, 315–16 (2d Cir. 2003); see also United

States v. Lussier, 104 F.3d 32, 36 (2d Cir. 1997).1

Caselaw is also consistent in that early termination is discretionary and is

warranted only in cases where the defendant shows changed circumstances, such as

exceptionally good behavior. United States v. Miller, 205 F.3d 1098, 1101 (9th Cir. 2000)

(citing Lussier, 104 F.3d at 36); United States v. Jeanes, 150 F.3d 483, 484 (5th Cir.

1998) (§ 3583(e)(1) “confers broad discretion.”); United States v. Paterno, 2002 WL

1065682 at *2 (D.N.J., Apr. 30, 2002) (designated unpublished) (collecting cases).

Generally, compliance with the terms of supervised release and with the law alone is not

enough to warrant early termination; such conduct is expected and required. Id. at *2; see

also United States v. Kay, 283 Fed. App’x. 944, 946 (3d Cir. 2008) (designated

unpublished) (affirming district court’s denial of early termination); United States v.

Jimenez, 2012 WL 3854785 at * (S.D.N.Y., Sept. 5, 2012) (“A defendant’s faithful

compliance with the terms of his supervision does not, by itself, entitle him to

modification or termination of his term of supervised release.”).

III. Analysis

Jones’ Motion to Reconsider first complains that the Court’s November 27, 2012

Order incorrectly stated that the guideline range of punishment for Jones’ offense was 8–

14 months and erroneously concluded that Jones’ sentence was less severe than permitted

by the guidelines. (See Dkt. No. 23 at 1.) Jones is correct. At sentencing, the Court

1. Section 3583(e) provides the district court with retained authority to revoke, discharge, or
modify terms and conditions of supervised release following its initial imposition of a supervised release
term in order to account for new or unforeseen circumstances. Occasionally, changed circumstances-for
instance, exceptionally good behavior by the defendant or a downward turn in the defendant's ability to pay
a fine or restitution imposed as conditions of release-will render a previously imposed term or condition of
release either too harsh or inappropriately tailored to serve the general punishment goals of section 3553(a).


adopted the PSR with changes that reduced Jones’ guideline imprisonment range from 8–

14 months to 6–12 months, to be followed by up to 3 years supervised release. (Dkt. No.

19 at. 1.) Jones was sentenced to 6 months imprisonment and 2 years supervised release,

which was not below the guideline range.

Jones next complains that the Court recited that his original Motion to Terminate

Probation was opposed, and because the Government did not respond to that motion,

“counsel can only assume the Government conveyed its opposition through an ex parte

communication with the Court, an action to which Mr. Jones strenuously objects.” (Dkt.

No. 24 ¶ 4.) Counsel appears to have forgotten that the original Motion to Terminate

Probation she filed included a Certificate of Conference in which counsel stated that she

conferred with counsel for the Government, and the Government opposed relief. (Dkt.

No. 21-1.) There was no improper ex parte communication between the Government and

the Court.

Jones also complains that he was not on any type of probation at the time of the

present offense. Jones lodged the same objection to his Presentence Investigation Report

(PSR). The United States Probation Office addressed this objection in its Addendum to

the PSR, and concluded that he was. (Dkt. No. 17.) However, because Jones’ criminal

history was calculated at a Level I, the Court must have sustained Jones’ objection

regarding probation, or his criminal history would have been a Level II.

Jones next claims that the interests of justice merit early termination, given the

nature and circumstances of the offense, Jones’ history and characteristics, the need to

deter criminal conduct, the need to protect the public from further crimes of Jones, and

the need to provide Jones with appropriate supervision. The Court disagrees. Jones had


substantial unscored criminal history reflecting adult convictions dating from 1994

through 2007. Most were crimes for which he served little or no jail time, except for his

conviction for sexual assault in 1998 when as a 21 year old man, he pled guilty to having

sex with a minor. (Dkt. No. 15, ¶ 29.) After that conviction, Jones was required to

register as a sex offender. Jones also claims that his only offense was a failure to register

as a sex offender when he moved to Texas, “an act he was unaware he needed to

perform.” (Dkt. No. 24 ¶ 8.) However, the record shows that in 2007, Jones received and

signed a Notice of Duty to Register form from North Dakota, which stated that “If I

should move to another state, I must register in that other state.” (Dkt. No. 1.)

The Court’s November 27, 2012 order denying Jones’ original Motion to

Terminate Probation recognized that Jones did not state that his supervised release was

impeding his employment. (Dkt. No. 23 at 2.) Jones now states that his employment

options are hampered by his supervision. Jones moved to Victoria, Texas, in 2010

knowing that he was required to register as a sex offender and failed to do so. He worked

as a contract employee for the Soliz Law Firm in Victoria, Texas and lived with the

Werner/Soliz family at the time he was sentenced. (See Dkt. No. 15 at ¶ 55.) Leslie

Werner represents him in this matter. The motion alleges that Jones’ inability to travel

outside the Southern District interferes with his employment by The Werner Law Group

and that he only earns minimum wage at that firm. The motion does not state to what

extent such travel is necessary for Jones’ position. The motion further claims that Jones is

unable to look for and secure other employment due to his supervised release; however,

the terms and conditions of his supervised release do not preclude a change of

employment. The conditions of Jones’ supervised release merely require that he regularly


work at a lawful occupation and notify his probation officer 10 days before any job

change. (Dkt. No. 18 at 3.)

Finally, Jones complains that supervised release impairs his family relationships

with relatives who live in the Western and Northern Districts of Texas and those who live

in North Dakota. When Jones was interviewed by the Probation Department, Jones did

not know how to contact his two sons who live in Indiana with their mother and had no

contact with his daughters or son who live with various other relatives in North Dakota.

(Dkt. No. 15 at ¶¶ 44-48.) Similarly, although Jones told Probation that he spoke to his

father on the telephone every weekend, he did not know his father’s telephone number.

(Id. at 43.)

Having considered Jones’ motion and the applicable law, the Court finds that

Jones has not shown that his circumstances have changed, such that termination of

supervision is warranted.

III. Conclusion

For the aforementioned reasons, Jones’ Motion to Reconsider Order Denying

Motion to Terminate Supervised Release (Dkt. No. 24) is DENIED.

It is so ORDERED.

SIGNED this 4th day of June, 2013.