UNITED STATES OF AMERICA v. JASON SHEPPARD, Appellant
No. 20-3088
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
November 3, 2021
PRECEDENTIAL
Submitted May 11, 2021
Before: McKEE, RESTREPO, and FUENTES, Circuit Judges.
On Appeal from the United States District Court for the Western District of Pennsylvania
(D.C. No. 2-13-cr-00278-001)
District Judge: Honorable Cathy Bissoon
Michael J. Khouri
Khouri Law Firm, APC
2222 Martin, Suite 215
Irvine, CA 92612
Counsel for Appellant
Adam N. Hallowell
Laura S. Irwin
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
RESTREPO, Circuit Judge.
In August 2019, Jason Sheppard began serving a three-year term of supervised release in connection with a 2016 guilty plea for mail fraud. During the first year of his supervision, Sheppard learned that his girlfriend and his assigned probation officer were engaged in an alleged “personal relationship.” Sheppard moved for early termination of his term of supervised release under
I.
A.
In October 2013, a grand jury indicted Jason Sheppard on seven counts of mail fraud in violation of
According to Sheppard, in approximately March 2020, he learned that his then girlfriend and his assigned probation officer had developed a “personal relationship.” J.A. 10. This purported “personal relationship” included the exchange of dozens of text messages, largely centering around discussions of the probation officer‘s romantic life. For example, Sheppard‘s probation officer allegedly texted Sheppard‘s girlfriend:
- Questions soliciting the girlfriend‘s perspective on his former paramour‘s behavior, see, e.g., J.A. 20 (“Why is she posting everyday. Never does that“); J.A. 22 (“Last one. How do you love someone a week ago then dump them via text at age 52“); J.A. 29 (“Do you think there is someone else?“); J.A. 29 (“Is she just 🥜“);2 J.A. 34 (“Why hasn‘t she blocked me“); J.A. 35 (“What should I do“);
- His thoughts and feelings concerning his former paramour, see, e.g., J.A. 23 (“I miss her. Being able to call or text.“); J.A. 43 (“It hurts to get dumped over a text“); J.A. 43 (“Half of me is gone“);
- A photograph of his former paramour‘s house, see, e.g., J.A. 31;
- Screenshots of text messages concerning his former paramour‘s perspective on her relationship with the probation officer, see, e.g., J.A. 33, 36;
- The status of his marriage, see, e.g., J.A. 23 (“Trying [to streamline the divorce]. But there is another person involved.“);
- Multiple requests for the girlfriend to talk on the telephone, see, e.g., J.A. 20 (“Call me when you get a minute.“); J.A. 35 (“Can [you] please call me“); J.A. 35 (“Can I call for 5 min“).3
Sheppard‘s girlfriend purportedly responded in kind, engaging Sheppard‘s probation officer in texting conversations during which she offered him advice on how to handle, and cope with, his romantic problems. See, e.g., J.A. 24 (“If you just hang in there and don‘t poke the bear, she will text. She wants you to chase her“); J.A. 27 (“Ok so I Facebook stocked [sic] her profile.“); J.A. 35 (“Call me tomorrow. Please get some rest ok?!“); J.A. 38 (“Does she think if you get divorced that you will turn around and marry her the next day“).
According to Sheppard, “[n]one of the text messages [between his probation officer and his then girlfriend] involved [him], his rehabilitation, or the detrimental effect
B.
On September 25, 2020, Sheppard filed a motion for early termination of supervised release pursuant to
The probation officer was never concerned with [his] rehabilitation and appears to use his position for his own personal interests. Such conduct is a gross violation of code of conduct for probation and pretrial services officers found in Guide to Judiciary Policy, Vol. 2A, Ch. 3, § F(2)(c) – F(3), which prohibits a probation officer from performing any official duties in which he or she has a conflict or a personal bias or prejudice concerning a party. The probation officer embedded himself in a situation where he exercised authority over [his] rehabilitation and used that authority to develop a personal relationship with the former girlfriend. [His] rehabilitation was threatened rather than facilitated by the probation officer, and he has lost his trust in the United States Probation Office to assist in his rehabilitation.
J.A. 12. He also urged that the District Court grant him early termination in “the interest of justice,” due to the fact that the probation officer acted “counter to the purpose of supervised release in rehabilitating [him]” and “jeopardized [his] supervised release by alienating [him] from a key relationship in his rehabilitation efforts.” J.A. 13.
In support of Sheppard‘s motion, his counsel submitted a declaration that included three exhibits: 1) images of the alleged text messages between Sheppard‘s girlfriend and his probation officer; 2) a call log “indicating that [the girlfriend] spoke with [Sheppard‘s] probation officer on the phone for 80 minutes on June 6, 2020“; and 3) an email that Sheppard‘s counsel sent to the probation officer‘s supervisor, in which he requested “copies of all communications (text messages, emails etc[.])” between the probation officer and the girlfriend. J.A. 17-18, 47. Counsel also requested that the District Court grant Sheppard an evidentiary hearing, at which he intended to call as a witness Sheppard‘s therapist to “testify to how [Sheppard‘s] rehabilitation and overall wellbeing has been burdened by the probation officer‘s conduct.” J.A. 18. Additionally, Sheppard‘s counsel noted that Sheppard had since been reassigned to a new probation officer.
Four days later, on September 29, 2020, the District Court – without holding an evidentiary hearing, but “[h]aving reviewed all of the facts, circumstances and arguments-presented” – denied Sheppard‘s motion. J.A. 6. While recognizing that “[t]he purpose of supervised release is to
II.
The District Court exercised jurisdiction under
We review a district court‘s denial of a motion for early termination of supervised release for abuse of discretion. See United States v. Melvin, 978 F.3d 49, 52 (3d Cir. 2020) (citing United States v. Smith, 445 F.3d 713, 716 (3d Cir. 2006)). “An abuse of discretion ‘can occur if [a district court] fails to apply the proper legal standard[.]‘” Id. (quoting United States v. Tomko, 562 F.3d 558, 565 (3d Cir. 2009) (en banc)). Underlying our review for abuse of discretion are the principles that: 1) a district court may have a “better vantage point than we on the Court of Appeals to assess the matter,” Tomko, 562 F.3d at 565 (quoting United States v. Mitchell, 365 F.3d 215, 234 (3d Cir. 2004)), and 2) “courts of appeals apply the abuse-of- discretion standard to fact-bound issues that are ill-suited for appellate rule-making,” id.
III.
We must decide whether the District Court abused its discretion in denying Sheppard‘s motion for early termination of supervised release. Based on the following analysis, we will affirm the District Court‘s ruling. However, in doing so, we recognize the improper nature of the probation officer‘s conduct and emphasize that the District Court should not have considered the possible effects of the probation officer‘s misconduct on Sheppard‘s rehabilitation in its denial of Sheppard‘s motion.
A.
“[T]he primary purpose of supervised release is to facilitate the integration of offenders back into the community rather than to punish them.” United States v. Murray, 692 F.3d 273, 280 (3d Cir. 2012) (quoting United States v. Albertson, 645 F.3d 191, 197 (3d Cir. 2011)); see also United States v. Johnson, 529 U.S. 53, 59 (2000) (“Congress intended supervised release to assist individuals in their transition to community life.“). In doing so, supervised release serves as a means of rehabilitation. Johnson, 529 U.S. at 59 (“Supervised release fulfills rehabilitative ends, distinct from those served by incarceration.“); see also S. Rep. No. 98-225 (1983) (indicating that the “primary goal” of supervised release includes “provid[ing] rehabilitation to a defendant who has spent a fairly short period in prison for punishment or other purposes but still needs supervision and training programs after
Complementary to its statutorily granted authority to sentence a defendant to a term of supervised release, a district court may also cut short a defendant‘s term of supervised release. See
The court may, after considering the factors set forth in [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)[,] 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[.]
(emphasis added). The cited
(1) the nature and circumstances of the offense and the defendant‘s history and characteristics; (2) the need to afford adequate deterrence to criminal conduct, protect the public from further crimes of the defendant, and provide him with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentence and sentencing range established for the defendant‘s crimes; (4) pertinent policy statements issued by the United States Sentencing Commission; (5) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (6) the need to provide restitution to any victims of the offense.
Melvin, 978 F.3d at 52 (quoting United States v. Davies, 746 F. App‘x 86, 88-89 (3d Cir. 2018)). A district court need not make specific findings of fact for each factor. See id. at 52-53.
Rather, when denying a defendant‘s motion for early termination of supervised release, as relevant here, “a statement that [it] has considered the statutory factors is sufficient.” Id. (citing United States v. Gammarano, 321 F.3d 311, 315-16 (2d Cir. 2003)). Additionally, Congress‘s inclusion of the “expansive phrases ‘conduct of the defendant’ and ‘interest of justice’ [in
B.
1.
As an initial matter, we address Sheppard‘s argument that the District Court abused its discretion in failing to cite to the relevant
In Melvin, the Court held that it is “sufficient” for a district court to include a statement that it considered the
a transcript of a district court‘s hearing on a motion for early termination “clear[ly]” indicated that it “properly considered the factors relevant to this case before denying [the defendant‘s] motion“).
Here, the District Court stated that it “reviewed all of the facts, circumstances and arguments-presented” in reaching its decision to deny Sheppard‘s motion. J.A. 6. Given that Sheppard‘s motion addressed the legal standard under
2.
Next, we consider Sheppard‘s primary argument: that the District Court abused its discretion in denying his motion for early termination of supervised release. Sheppard claims that it was an abuse of discretion for the District Court to deny his motion without considering “whether further supervision would impair [his] rehabilitation.” Appellant‘s Br. 11. Sheppard‘s argument centers on the detrimental
At the outset, we recognize that the District Court did not fail to consider the effect of the probation officer‘s alleged misconduct. The District Court focused the majority of its
decision on addressing Sheppard‘s rehabilitation argument. It found that Sheppard “offer[ed] no persuasive explanation for why the purported misconduct of his former probation officer makes him less amenable to, or needful of, such assistance.” J.A. 5. Recognizing that the District Court is at a “better vantage point” to evaluate the extent to which the probation officer‘s alleged misconduct impaired Sheppard‘s rehabilitation, and enjoys considerable discretion in determining whether the “conduct of the defendant” and “interest of justice” warrant early termination, we hold that it was within the District Court‘s discretion to conclude that “the one thing (the probation officer‘s alleged misconduct) has little to do with the other (whether [Sheppard] should continue under the supervision of a different officer).” See J.A. 5; Tomko, 562 F.3d at 565; Melvin, 978 F.3d at 52. The District Court did not abuse its discretion in denying Sheppard‘s motion for early termination of supervised release.
However, in reaching this holding, we highlight the unique – and concerning – circumstances of this case, and recognize a faulty, yet not determinative, premise in the District Court‘s reasoning. If Sheppard‘s allegations concerning the behavior of his probation officer are true, the “personal relationship” that his probation officer formed with his then girlfriend is indeed, as Sheppard claims, “egregious” and “extraordinarily offensive.” Appellant‘s Br. 12. Reviewing the alleged text messages exchanged between Sheppard‘s probation officer and his then girlfriend, these communications were intimate in nature; they conveyed personal information about the probation officer‘s romantic life, his former paramour‘s feelings toward him, and his marital and extra-marital relationships. As Sheppard notes, these alleged communications did not involve him, “his rehabilitation, or the detrimental effect the secret relationship would have on [his] rehabilitation.” Appellant‘s Br. 5-6.
A probation officer‘s communications of such a “personal” nature with an assigned defendant‘s significant other are not only entirely inappropriate and unprofessional, but they also undermine the primary objective of supervised release – i.e., “to facilitate the integration of offenders back into the community rather than to punish them.” Murray, 692 F.3d at 280 (quoting Albertson, 645 F.3d at 197). It also challenges the role of probation officers as trusted government officials who, in performing their duties, are “supposed to have in mind the welfare of the probationer.” Griffin v. Wisconsin, 483 U.S. 868, 876 (1987); see United States v. Lifshitz, 369 F.3d 173, 180 (2d Cir. 2004). In Sheppard‘s case, his probation officer implicated Sheppard‘s personal life in his own – and to such a degree that, according to Sheppard, it caused him to break up with his live-in girlfriend, with whom he considered to be in a “lifelong commitment.” J.A. 11. If this is not the antithesis to assisting Sheppard in transitioning back into the community, and having his “welfare” in mind, we do not know what is.7
The District Court indicated as much in its order, and it acknowledged that the probation officer‘s alleged conduct was “unfortunate.” J.A. 5. Yet it found that Sheppard‘s “only non-metaphysical argument” – i.e., “how [Sheppard‘s] rehabilitation has been burdened by his [former] probation officer‘s conduct” – “actually undermines” his motion for early termination, given his “need for mental health monitoring and treatment, having imposed it as a condition of supervised release.” J.A. 5. We agree with Sheppard that the District Court‘s reasoning suggests that he may “require further mental health treatment, even if [he] does not need it, because of the probation officer‘s offensive conduct.” Reply Br. 7-8. In other words, the District Court‘s order includes an inference that Sheppard is responsible not only for his own conduct, but also must shoulder any and all negative repercussions from the misconduct of his probation officer. This inference is improper.
It cannot be clearer: when evaluating a motion for early termination, a district court, particularly in the absence of holding an evidentiary hearing, may not impute a probation officer‘s alleged improper actions to a defendant serving a term of supervised release, so as to justify continued (or additional) rehabilitative oversight. Any suggestion otherwise essentially writes
To be sure, it was within the District Court‘s discretion to find that the probation officer‘s alleged misconduct “ha[d] little to do with” the merits of Sheppard‘s motion and the underlying circumstances of his case. J.A. 5. And it may be so that Sheppard will require additional rehabilitative oversight, such as further mental health treatment, as a result of the probation officer‘s alleged misconduct. However, the District Court, in denying his motion, should not have considered the possible effects of the probation officer‘s misconduct on Sheppard‘s rehabilitation.
IV.
For these reasons, we will affirm the order of the District Court denying Sheppard‘s