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United States v. Lagone

United States District Court, E.D. New York

February 15, 2017

United States of America,
v.
David Lagone, Defendant.

          The United States is represented by Robert L. Capers, United States Attorney, by Catherine M. Mirabile, Assistant United States Attorney, Defendant proceeds pro se.

          MEMORANDUM AND ORDER

          JOSEPH F. BIANCO United States District Judge

         On April 5, 2012, defendant David Lagone (“defendant”) pled guilty to one count of conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 371. (ECF No. 67.) The Court sentenced defendant on September 4, 2013 to six months' imprisonment to be followed by three years' supervised release, and ordered him to pay $68, 056 in restitution. (ECF Nos. 124-25.) The Court set a restitution payment schedule of 10 percent of plaintiff's gross monthly income while on supervised release. (ECF No. 125.)

         Defendant began his term of supervised release on July 7, 2014, and that term is scheduled to terminate on July 6, 2017. (ECF No. 161.) To date, defendant has only paid $1, 125 in restitution. (Id.) On June 12, 2015, pursuant to defendant's representation that he was unable to afford the original payment schedule, the Court allowed defendant's restitution schedule to be modified to permit a payment of $50 per month until defendant secures additional income. (ECF No. 149.)

         On August 29, 2016, defendant filed a letter with the Court requesting early termination of his supervised release. (ECF No. 159.) Defendant states that he has had difficulty securing employment, and that he and his wife wish to move to Austin, Texas to be closer to their son and in the hopes of defendant finding a job in Austin's “vibrant economy.” (Id.) Defendant also claims that there is “no guarantee that [he] will be accepted for a transfer of supervision to the [supervised release] department in Texas, ” and that his “best chance of success is to be discharged from [supervised release] early, move to Austin, seek out and, hopefully, obtain a job that will allow [his] wife and [him] to live beyond [their] current level of abject poverty.” (Id.)

         The government filed a letter on December 22, 2016 opposing defendant's request (ECF No. 161), and defendant submitted a response on December 30, 2016 (ECF No. 162). For the reasons that follow, defendant's request for early termination of supervised release is denied.

         I. Discussion

         A. Applicable Law

         Title 18, Section 3583(e) of the United States Code provides that a court may, after considering the factors set forth in 18 U.S.C. § 3553(a), “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 in the interest of justice.” 18 U.S.C. § 3583(e)(1); see, e.g., United States v. Lussier, 104 F.3d 32, 36 (2d Cir. 1997) (requiring court to consider 18 U.S.C. § 3553(a) factors, “such as deterrence, public safety, rehabilitation, proportionality, and consistency, when it decides to modify, reduce, or enlarge the term or conditions of supervised release”). The district court does not have to make specific findings of fact with respect to each of these factors; instead, “a statement that the district court has considered the statutory factors is sufficient.” United States v. Gammarano, 321 F.3d 311, 315-16 (2d Cir. 2003) (quoting United States v. Gelb, 944 F.2d 52, 56-57 (2d Cir. 1991)) (alterations omitted).

         Early termination, however, “is not warranted as a matter of course.” United States v. Fenza, No. CR 03-0921(ADS), 2013 WL 3990914, at *2 (E.D.N.Y. Aug. 2, 2013). “Full compliance with the terms of supervised release is what is expected of a person under the magnifying glass of supervised release and does not warrant early termination.” Id. Instead, as the Second Circuit has explained:

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).

Lussier, 104 F.3d at 36.[1]

         B. Analysis

         Having carefully considered all of the statutory factors under Section 3553(a), the Court concludes that defendant's circumstances fall short of being “so unusual as to merit early termination.” U ...


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