UNITED STATES of America, Appellee, v. Seth MURDOCK, Defendant-Appellant.
Docket No. 13-3236.
United States Court of Appeals, Second Circuit.
Decided: Nov. 8, 2013.
Motions Submitted: Oct. 22, 2013.
Seth Murdock, Bruceton Mills, WV, Defendant-Appellant pro se.
Tristram J. Coffin, United States Attorney for the District of Vermont, Burlington, VT (Gregory L. Waples, Assistant United States Attorney, Burlington, VT, of counsel), for Appellee.
Before: KATZMANN, Chief Judge, KEARSE and WESLEY, Circuit Judges.
Defendant Seth Murdock, who is scheduled to be released from federal prison on November 15, 2013, and thus to commence serving his term of supervised release on that date, see
I. BACKGROUND
The facts essential to this appeal—many of which are described in unobjected-to passages of the presentence report (“PSR“) prepared in connection with Murdock‘s current conviction or in the government‘s response to questions posed by this Court in an order dated October 3, 2013, with respect to the present appeal—appear to be undisputed. In 2012, Murdock was convicted, following his plea of guilty, of interstate transportation of stolen vehicles, in violation of
Prior to this prosecution, Murdock‘s only connection with Vermont was his acquisition in Vermont of the vehicles that were the subject of his conviction. Murdock, 55 years of age at the time of this conviction, was born and raised in the Detroit area, in the Eastern District of Michigan, where he lived until the early 1980s. He returned to that area in the early 2000s and remained there until his arrest in this case. Murdock has three siblings and two half-siblings living in Detroit, and he is a co-owner of a family business—a funeral home—in Detroit. In sentencing Murdock, Judge Sessions stated that, consistent with a request by Murdock, the court would “recommend that once he has completed his period of imprisonment, that he be returned to the Detroit, Michigan area.” (Sentencing Transcript, October 29, 2012, at 57.) The judgment of conviction included that recommendation.
Murdock is scheduled to be released from prison on November 15, 2013, and to begin his term of supervised release on that date. In the spring of 2013, the Bureau of Prisons (or “BOP“) prepared to transfer Murdock to the Eastern District of Michigan for service of his supervised release. Murdock submitted to his BOP case manager a supervised-release plan
In April 2013, after Murdock was informed of that rejection and was advised that he would therefore be required to serve his supervised-release term in Vermont, he moved in the district court for a modification of the conditions of his supervised release to require that, upon his release from prison, his supervised release be served in the Eastern District of Michigan. (See Defendant‘s Pro-Se Motion To Transfer Jurisdiction of Supervised Release (hereinafter “Murdock‘s § 3583(c)(2) Motion“: Although Murdock‘s motion cited
In the meantime, officials of the United States Probation Office in the District of Vermont (“Vermont Probation“) twice contacted Michigan Probation on Murdock‘s behalf to ask Michigan Probation to reconsider its refusal. In response to the first request for reconsideration, the Michigan Probation officials “indicated that they would in fact accept Mr. Murdock‘s case for supervision provided he agreed to a modification of conditions to include six months in a Residential Reentry Center (RRC).” (Vermont Probation Memorandum at 1.)
Murdock was informed that Michigan Probation would agree to accept him for supervised release on the condition that he agree to spend six months in an RRC, also known as a “halfway house” (Tetu Decl. ¶ 4). Murdock refused to agree to that condition, explaining that he viewed it as an extension of his period of incarceration.
Vermont Probation made another attempt to get Michigan Probation to reconsider Murdock‘s release plan and explained that the Michigan Probation officials had interviewed the wrong Murdock sister. Vermont Probation provided the correct contact information and asked that Michigan Probation contact the correct sister to confirm that Murdock‘s original release plan contained an acceptable proposed residence. Michigan Probation then visited the home of the correct Murdock sister and responded that
[t]he residence provides adequate housing, however, after careful consideration, relocation will only be granted if the offender signs a waiver to modify his conditions to include up to six months placement at a Residential Reentry Center due to his history of noncompliance in this district. If he is not willing to sign the waiver, relocation is denied ....
When asked to expand on the reasons why they believe Mr. Murdock would benefit from an RRC placement, E/MI [i.e., Michigan Probation] responded as follows:
Mr. Murdock is considered to be a high risk offender based on his previous supervision progress in our district and his prior record. He previously violated supervised release in this district by leaving our district on numerous occasions without approval and committing new fradulent [sic] crimes, among other violations. He also fled just before he was to appear before Chief Judge Gerald Rosen on a Revocation Hearing and a warrant had to be issued for his arrest. By placing him in RRC, we are hoping to decrease the risk he poses while implementing a controlling strategy. The RRC will provide a structured environment, allow him to find legitimate employment, and will control his activities again, to hopefully reduce the risk of recidivism. Placement would also restrict the offender from traveling outside our district and committing new crimes.
(Vermont Probation Memorandum at 2 (emphasis ours).)
In light of Murdock‘s refusal to accept the condition demanded by Michigan Probation, the government opposed Murdock‘s motion for the transfer of his supervised release to the Eastern District of Michigan, stating that “[t]ransfer[s] of jurisdiction proceedings are well established and require the receiving court‘s concurrence. It would be hard to imagine the court in [the Eastern District of Michigan] accepting jurisdiction [of] this case if [Murdock] is not being actively supervised in that district.” (Id.) The government noted, however, that Murdock‘s “ultimate goal[,] which is to return to his native Detroit where he has family support, community ties and employment opportunities,” and which “would appear to be a much better option than returning to this district where he would be essentially homeless,” is a goal that Murdock would be “able to achieve” simply “by agreeing to” the condition that he spend up to six months in a halfway house. (Id. at 3.)
In an order dated August 22, 2013 (“August Order“), the district court denied Murdock‘s motion, stating as follows: “The Eastern District of Michigan has refused to accept supervision of Mr. Murdock, and this Court has no authority to reverse that decision.”
Murdock filed a timely notice of appeal. He also filed a motion to expedite the appeal, which this Court granted; and, noting that he had filed his brief on this appeal, he moved for an injunction requiring the BOP, pending the resolution of this appeal, to release him on November 15 to the Eastern District of Michigan, and not to the District of Vermont. This Court thereafter, noting that the government had not filed a response to the motion for an injunction pending appeal, instructed the government to file an answer to Murdock‘s motion and to address several issues relating to this appeal, including “whether the district court has authority to modify the terms and conditions of Appellant‘s supervised release to require that his supervision take place in the Eastern District of Michigan.” Order dated October 3, 2013.
II. DISCUSSION
On this appeal, Murdock argues that the district court misapprehended the relief he requested, as he did “not ask[] the district court to reverse a decision by the Probation Department.” (Defendant‘s Amendment to His Pro-Se Brief for Emergency Hearing for the Appeal in the Subject Case at 2.) Murdock argues that the Eastern District of Michigan‘s refusal to accept the transfer of supervised release is irrelevant because “the District Court of Vermont has broad and untethered authority to modify the conditions of Murdock‘s probation, requiring supervision in the Eastern District of Michigan” (id.), and that that authority “supercedes provisions and other non-judicially imposed or requested probation conditions” (id. at 2-3). For the reasons that follow, we reject the contention that the district court has unlimited discretion to transfer jurisdiction of his supervised release to another district; but we vacate the district court‘s August Order and remand to the court for expedited proceedings in order to determine, in the proper exercise of its discretion, and after hearing further from Murdock, whether to modify the supervised-release conditions to effect a transfer.
A. Modification of Conditions of Supervised Release
Several statutory provisions appear to have relevance to Murdock‘s request to serve his supervised-release term in the Eastern District of Michigan, rather than in Vermont where he was convicted. These provisions are not easily reconciled.
The general provisions governing the authority of the district court to require a convicted defendant to serve a term of supervised release and to comply with certain conditions during that term are set out in
[t]he court may order, as a further condition of supervised release, to the extent that such condition—
- is reasonably related to the factors set forth in section
3553(a)(1) ,(a)(2)(B) ,(a)(2)(C) , and(a)(2)(D) ;- involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section
3553(a)(2)(B) ,(a)(2)(C) , and(a)(2)(D) ; and- is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to
28 U.S.C. 994(a) ;any condition set forth as a discretionary condition of probation in section
3563(b) and any other condition it considers to be appropriate ....
The sentence imposed on Murdock did not specify where he should reside after his release from prison but merely recommended that he be returned to the Eastern District of Michigan. Such a recommendation is not binding on the Bureau of Prisons. See generally
[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) —. . . . .
(2) ... modify ... or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the terms and conditions of postrelease supervision ....
Murdock contends that
The government, however, contends that the district court‘s postsentencing authority to transfer Murdock to the Eastern District of Michigan for service of his supervised-release term is restricted by a different provision, which provides in pertinent part as follows:
A court, after imposing a sentence, may transfer jurisdiction over a ... person on supervised release to the district court for any other district to which the person is required to proceed as a condition of his ... release, or is permitted to proceed, with the concurrence of such court.
This restrictive view of the district court‘s power to transfer a person‘s supervised release to another district also finds some support in the provisions prescribing the process of release from prison and the jurisdiction of probation officers. Section
[a] prisoner whose sentence includes a term of supervised release after imprisonment shall be released by the Bureau of Prisons to the supervision of a probation officer who shall, during the term imposed, supervise the person released to the degree warranted by the conditions specified by the sentencing court.
[s]ection 3605 ... provides that the transfer of a ... person on supervised release to another district may be made either as a condition of ... supervised release or with the permission of the court ....
S.Rep. 98-225, at 132 (emphases added), reprinted in 1984 U.S.C.C.A.N. at 3315.
In the circumstances of the present case, we conclude that it is unnecessary to resolve the matter of whether the district court has the authority to transfer Murdock‘s supervised release to the Eastern District of Michigan without that district‘s consent. A modification of supervised-release conditions is permitted only “after considering the factors set forth in section
Although Murdock has characterized the Michigan Probation officials’ position as “capricious” (e.g., Murdock‘s
The reasonableness of the Michigan Probation officials’ concerns is thus clear from the record of Murdock‘s criminal history, and that history must be taken into account by the district court in considering whether, or to what extent, to grant his motion for modification of the conditions of his supervised release. Thus, we conclude that even if the consent of the Eastern District of Michigan is not a statutory prerequisite to the granting of Murdock‘s motion, and if the halfway-house condition is deemed merely a request, the condition requested is plainly reasonable. We doubt that the district court could, while giving adequate consideration to the above
B. Proceedings in the District Court
In denying Murdock‘s motion, the district court stated only that “[t]he Eastern District of Michigan has refused to accept supervision of Mr. Murdock,” and that the court thus lacked “authority to reverse that decision.” August Order. That explanation does not indicate whether it was clear to the district court that the Eastern District of Michigan‘s refusal was conditional. Further, the papers submitted to the district court in opposition to Murdock‘s motion do not make clear whether Murdock was afforded an opportunity to accept the Eastern District of Michigan‘s proposed condition after its response to the Vermont Probation officials’ second request for reconsideration. Reviewing the district court‘s ruling as to its lack of authority de novo, see, e.g., United States v. Vargas, 564 F.3d 618, 621 (2d Cir.2009), we cannot conclude that that ruling was correct.
We therefore remand to the district court for further proceedings to allow the court to consider the Eastern District of Michigan‘s condition that Murdock agree to begin his supervised-release term in Michigan by spending up to six months in a halfway house and to determine whether Murdock will accept that condition.
In connection with those proceedings, it may be that a hearing will be required. The Federal Rules of Criminal Procedure governing modifications of the conditions of supervised release provide as follows:
(1) In General. Before modifying the conditions of probation or supervised release, the court must hold a hearing, at which the person has the right to counsel and an opportunity to make a statement and present any information in mitigation.
(2) Exceptions. A hearing is not required if:
(A) the person waives the hearing;
(B) the relief sought is favorable to the person and does not extend the term of probation or of supervised release; and
(C) an attorney for the government has received notice of the relief sought, has had a reasonable opportunity to object, and has not done so.
It is also possible that no evidentiary hearing will be required. First, there is no suggestion that the three-year term of Murdock‘s supervised release is to be extended; and to the extent that Murdock would be transferred to the Eastern District of Michigan, that relief, which he requests, would be favorable to him. However, to the extent that Murdock would be required—if he agrees—to spend up to six months of his supervised-release term in Michigan in a halfway house, that condition would appear to enlarge the supervised-release conditions, and he would be entitled to a hearing unless he waives the hearing.
Second, the government plainly has had notice of Murdock‘s modification request; it has interceded on his behalf with the probation officials in the Eastern District of Michigan; and it has made clear that it has no objection to the transfer of Murdock to the Eastern District of Michigan on the condition desired by that district. Indeed, although urging affirmance of the August Order in light of Murdock‘s prior refusal to agree to the halfway-house condition, the government has taken the position that
because Murdock has family ties in the Detroit area, the Eastern District of Michigan is a more suitable district to supervise him than Vermont .... Murdock himself has created the situation in which he faces release to Vermont, and has the power to avoid that circumstance by consenting to RRC placement in Michigan.
(Tetu Decl. ¶ 9.)
CONCLUSION
We have considered all of the government‘s arguments in support of summary affirmance and have found them to be without merit. The motion for summary affirmance is denied.
We have considered all of Murdock‘s arguments in support of his contention that the court has authority to grant his transfer motion, and we have found them to be without merit except to the extent indicated above. We vacate the August Order of the district court and remand for further proceedings in accordance with this opinion, which should be expedited in light of Murdock‘s scheduled release from prison on November 15, 2013. Murdock‘s motion for an injunction pending appeal is denied as moot.
The mandate shall issue forthwith.