United States v. Kay , 283 F. App'x 944 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
6-30-2008
USA v. Kay
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4708
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-4708
_____________
UNITED STATES OF AMERICA
v.
JOHN KAY,
Appellant
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 05-cr-0231-1)
District Judge: Honorable Lawrence F. Stengel
_______________
Submitted Under Third Circuit LAR 34.1(a)
June 5, 2008
Before: FISHER, JORDAN, and VAN ANTWERPEN, Circuit Judges
(Filed June 30, 2008)
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
John Kay (“Kay”) appeals a decision denying his motion for termination of
supervised release. Kay argues that the District Court erred in denying his motion by
improperly requiring proof of extraordinary circumstances warranting early termination.
He also maintains that the District Court erred by considering factors not expressly
provided for in the statute governing modification of supervised release, 18 U.S.C. §
3583(e). For the reasons that follow, we will affirm the District Court’s order.
I. Background
Because we write primarily for the benefit of the parties, we set forth only those
facts pertinent to the issues before us on appeal. Kay “illegal[ly], improper[ly], and
unsafe[ly]” removed thousands of feet of asbestos-covered heating pipes from a factory
that he renovated, even though the Environmental Protection Agency had notified him of
his duty to properly manage and remediate the worksite. (App. at 3a.) Kay’s actions
placed the community and his contractors at risk of asbestos exposure.
On June 9, 2005, after being indicted, Kay pled guilty to seven counts of criminal
violations of the Clean Air Act, 42 U.S.C. § 7413(c). He was sentenced to ten months’
imprisonment and three years’ supervised release. On October 4, 2007, after serving ten
months in prison and one year and two months of his supervised release, he petitioned the
District Court for termination of his supervised release. In his motion, Kay stated that he
had moved to Arizona and wanted to work as a realtor but was unable to qualify for a real
estate license because Arizona law forbids the issuance of such licenses to persons on
supervised release. See A.R.S. § 32-2124.M (stating that the Department of Real Estate
“shall not issue a license to a person who has been convicted of a felony offense and who
is ... under the supervision of a parole or community supervision officer”).
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The District Court denied Kay’s motion for termination of supervised release.
While the District Court recognized that it had the discretion to grant early termination
pursuant to 18 U.S.C. § 3583(e),1 it stated that early termination “is warranted only where
the defendant can show that significantly changed circumstances require refashioning of
his sentence. ... In short, ‘early termination of probation should be ordered only in
extraordinary circumstances.’” (App. at 5a (quoting United States v. Guilliatt, No. Crim.
A. 01-408, 2005 WL 589354, at *1 (E.D. Pa. Jan. 18, 2005)).) The Court then concluded
Kay’s motion should be denied because
[t]he fact that Mr. Kay may not be able to obtain an Arizona real estate
license while on supervised release does not present a change in
circumstances that would warrant a termination of his supervised release,
particularly considering that his status does not bar him from obtaining a
license in Pennsylvania, nor is he denied the opportunity to seek other
employment in Arizona while he completes his sentence.
(App. at 5a-6a.) The Court acknowledged that Kay had complied with the terms of his
supervised release and was apparently making a successful transition back into society;
yet it stated that good behavior on supervised release and a voluntary move to Arizona
1
Section 3583(e)(1) states in pertinent part:
The court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B),
(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6) and (a)(7) -
(1) terminate a term of supervised release and discharge the defendant
released at any time after the expiration of one year of supervised
release, pursuant to the provisions of the Federal Rules of Criminal
Procedure relating to the modification of probation, if it is satisfied that
such action is warranted by the conduct of the defendant released and
the interest of justice[.]
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were not sufficient grounds to alter the sentence because “[Kay] should be required to
face the consequences of his sentence, which appropriately reflected the gravity of his
crimes and the harm his actions inflicted on society.” (App. at 6a.)
Kay timely appealed the District Court’s denial of his motion for termination.
II. Discussion
We review a District Court’s discretionary decision under 18 U.S.C. § 3583(e) not
to grant early termination of a term of supervised release for abuse of discretion. See
United States v. Smith, 445 F.3d 713, 716 (3d Cir. 2006) (stating we review district
court’s decision to modify terms of supervised release for abuse of discretion).
Kay argues that the District Court erred in interpreting 18 U.S.C. § 3583(e)(1) to
require proof of significantly changed or extraordinary circumstances for termination of
supervised release. He notes that the express language of § 3583(e)(1) does not impose
such a requirement, and he maintains that his motion should have been granted because
he has abided by the terms of his release and exhibited good behavior.
It should be stressed, however, that the District Court did not hold as a matter of
law that § 3583(e)(1) requires a showing of significantly changed or extraordinary
circumstances. Instead, the District Court seemed to be articulating a sensible basis for
the exercise of its broad discretion under that statute. Kay had committed criminal
violations of the Clean Air Act, and the District Court could reasonably conclude that his
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supervised release should not be terminated prematurely, absent a noteworthy change in
circumstances.
In using the language “significantly changed or extraordinary circumstances,” the
District Court cited cases relying on the Second Circuit’s decision in United States v.
Lussier, 104 F.3d 32 (2d Cir. 1997), which we cited in Smith, 445 F.3d at 717. The
Lussier Court held that, under § 3583(e), changed, new, or unforseen circumstances, such
as exceptionally good behavior by the defendant, could serve as a basis for a District
Court’s discretionary decision to modify supervised release. Lussier, 104 F.3d at 36.
Although we have not expressly set forth a “significantly changed or extraordinary
circumstances” standard, district courts in our Circuit have used Lussier as support for
following that as a guide to the exercise of discretion. See, e.g., United States v. Guilliatt,
No. Crim. A. 01-408, 2005 WL 589354, at *1 (E.D. Pa. Jan. 18, 2005) (“early termination
of probation should be ordered only in extraordinary circumstances”); United States v.
Williams, No. Crim. A. 02-216, 2006 WL 618849, at *1 (E.D. Pa. 2006) (same); United
States v. Caruso, 241 F. Supp. 2d 466, 468-69. (D. N.J. 2003) (requiring a showing of
“new or exceptional” circumstances warranting termination of probation); United States
v. Paterno, 99-cr-037, 2002 WL 1065682, at *2 (D. N.J. 2002) (same). We need not
determine in this case whether that is a controlling standard, because it is clear on the
present record that the District Court did not abuse its discretion in looking for changed
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circumstances and determining that Kay did not warrant a modified term of supervised
release.
As support for its decision not to grant termination of Kay’s supervised release, the
District Court pointed to the fact that Kay is not prohibited from being a realtor in
Pennsylvania, and that the only reason he is prohibited from the line of work he wishes to
pursue is that he voluntarily moved to Arizona. Moreover, although Kay cannot work as
a realtor in Arizona while serving the remainder of his supervised release, in less than
thirteen months, when his supervised release is completed, he will be able to apply for a
real estate license there. In the meantime, the terms of his supervised release do allow
him to find other work. Despite his remaining under a sentence for his serious crimes, he
enjoys a significant degree of freedom, and there was no abuse of discretion in declining
to make him totally free.
Similarly, Kay’s argument that the District Court erred in considering the factors
set forth in 18 U.S.C. § 3553(a)(2)(A) is without merit. As discussed above, 18 U.S.C. §
3583(e) states that “[t]he court may, after considering the factors set forth in section
3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6) and (a)(7) ... terminate a
term of supervised release.” Absent from this list of factors that courts may consider is §
3553(a)(2)(A), which states that courts should consider “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.” 18 U.S.C. § 3553(a)(2)(A) (emphasis added).
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Kay maintains that, after finding that his good behavior and voluntary move to Arizona
did not justify termination of his supervised release, the District Court erred by stating
that he “should be required to face the consequences of his sentence, which appropriately
reflected the gravity of his crimes and the harm his actions inflicted on society.” (App. at
6a.) According to Kay, although this statement was made after the District Court had
already denied his motion, it shows that the Court improperly considered § 3553(a)(2)(A)
in rendering a decision.
While it is not clear that the District Court considered the seriousness of Kay’s
crimes in deciding to deny his motion, it was not clear error if it did. See Pineda v. Ford
Motor Co., 520 F.3d 237 (3d Cir. 2008) (defining abuse of discretion standard as
reviewing for a clear error of judgment). As explained above, the District Court gave an
independently reasonable basis for its decision to deny Kay’s motion to terminate.
Furthermore, as the United States Courts of Appeals for the Second and Sixth Circuits
have already held, the consideration of whether the sentence reflects the seriousness of an
offender’s crime is not limited to § 3553(a)(2)(A), but is expressed redundantly in the
other factors courts are required to consider under § 3583(e).2 See Lewis, 498 F.3d at 400
(holding it was not error for the trial court to consider § 3553(a)(2)(A) factors even
2
For example, the District Court could have easily considered the seriousness of Kay’s
crimes under § 3553(a)(1), which directs the district court to consider the nature and
circumstances of the offense. See United States v. Lewis, 498 F.3d 393, 400 (6th Cir.
2007) (“courts are already authorized to consider the seriousness of the offense under §
3553(a)(1)”).
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though not enumerated in § 3583(e) because § 3583(e) does not state that the court can
only consider enumerated factors, and the considerations in § 3553(a)(2)(A) are
“essentially redundant with matters courts are already permitted to take into consideration
when imposing sentences for violation of supervised release”); United States v. Williams,
443 F.3d 35, 47-48 (2d Cir. 2006) (same); see also United States v. Bungar, 478 F.3d
540, 544 n.2, 545 (3d Cir. 2007) (acknowledging Second Circuit’s holding in Williams,
and adding that, although the record reflected that in evaluating modification of
defendant’s supervised release, the district court considered “the need for the sentence
imposed ‘to reflect the seriousness of the offense,’” it “properly applied § 3583 and gave
meaningful consideration to the factors set forth under § 3553(a)”).
III. Conclusion
Accordingly, we will affirm the District Court’s denial of Kay’s motion for
termination of supervised release.
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