United States v. Lowe

In the

United States Court of Appeals
For the Seventh Circuit

No. 10-2832

U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.

M IKEL L OWE,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 4:02-cr-40078-JPG-31—J. Phil Gilbert, Judge.

A RGUED D ECEMBER 1, 2010—D ECIDED JANUARY 25, 2011

Before
B AUER and P OSNER, Circuit Judges, and
P ALLMEYER, District Judge.Œ
B AUER, Circuit Judge. Defendant-appellant Mikel Lowe
filed a motion for termination of his remaining term of
supervised release in the United States District Court

Œ
The Honorable Rebecca R. Pallmeyer, United States
District Court for the Northern District of Illinois, sitting by
designation.
2 No. 10-2832

for the Southern District of Illinois. The court denied his
motion without explanation and Lowe now appeals.
Finding that the district court failed to consider proper
statutory factors, we remand.

I. BACKGROUND
On May 20, 2004, defendant-appellant Lowe pleaded
guilty pursuant to a plea agreement to a third super-
ceding indictment, which charged Lowe with one count
of conspiracy to manufacture methamphetamine, pos-
session with intent to distribute methamphetamine,
and the distribution of methamphetamine, in violation
of 21 U.S.C. §§ 841(a)(1) and 846. On August 27, 2004,
Judge J. Phil Gilbert sentenced Lowe to 78 months’ impris-
onment and a four-year term of supervised release. Lowe
began his term of supervised release on June 19, 2008.
After two years of supervised release, Lowe filed a
motion for early termination of supervised release on
July 20, 2010. The probation department and the gov-
ernment both agreed that early termination was appro-
priate and approved the filing of the motion. On July 21,
2010, the district court denied the motion without a
hearing. The court’s order reads in its entirety:
THIS MATTER is before the Court on Defendant’s
Motion For Early Termination of Supervised Release.
The Court, having reviewed the motion and being
fully advised in the premises hereby denies the
Motion For Early Termination at this time. The
Court notes Defendant has completed one-half of his
supervised release and if the Defendant continues
No. 10-2832 3

his complete compliance with all conditions of his
supervised release, the Court would reconsider a
motion for early termination when Defendant has
12 months or less remaining on his supervised release.
Lowe timely filed this appeal.

II. DISCUSSION
We apply an abuse of discretion standard when re-
viewing an order denying a motion to terminate a term
of supervised release. See United States v. Hook, 471 F.3d
766, 771 (7th Cir. 2006). Abuse of discretion occurs
when the district court commits a serious error of judg-
ment, such as the failure to consider an essential factor.
Powell v. A.T. & T. Commc’n, Inc., 938 F.2d 823, 825 (7th Cir.
1991).
Lowe argues that the district court abused its discretion
in considering Lowe’s motion for early termination of
supervised release by failing to consider the proper
statutory factors. 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. 18 U.S.C. § 3583(e)(1) (2010). Section 3583(e) in
general requires a district court to consider certain
factors in § 3553(a) before it can: (1) terminate a term
of supervised release and discharge the defendant;
(2) extend or otherwise modify the conditions of a term
of supervised release; (3) revoke a term of supervised
4 No. 10-2832

release and require the defendant to serve the remaining
time in prison; or (4) order a defendant on house arrest
during nonworking hours. 18 U.S.C. § 3583(e). With
regard to subsection (e)(2) and subsection (e)(3), which
pertain to modifying a term of supervised release and
revoking a term of supervised release, respectively, we
have held that although a court need not make explicit
findings as to each of the factors, the record must
reveal that the court gave consideration to the § 3553(a)
factors. E.g., United States v. Carter, 408 F.3d 852, 854
(7th Cir. 2005) (reviewing a district court’s revocation of
a term of supervised release and noting: “Although
the court need not make factual findings on the record
for each [§ 3553(a)] factor, the record should reveal that
the court gave consideration to those factors.”); United
States v. Hale, 107 F.3d 526, 530 (7th Cir. 1997) (reviewing
a district court’s revocation of a term of supervised
release and stating: “We have . . . been satisfied if the
sentencing court made comments reflecting that the
appropriate factors were considered.”); see United States
v. Nonahal, 338 F.3d 668, 671 (7th Cir. 2003) (reviewing a
district court’s denial of a motion to modify a term of
supervised release and voicing that “we do expect
district courts to provide some explanation for their
decisions [when denying a defendant’s petition]. In
addition to other benefits, a statement of reasons from
the district court facilitates meaningful review.”).
Other circuits have taken the same approach with
regard to early termination of a term of supervised
release in subsection (e)(1). See, e.g., United States v.
Gammarano, 321 F.3d 311, 315-16 (2d Cir. 2003) (“We have
No. 10-2832 5

previously held that district courts must consider the
factors listed in [§ 3553(a)]. . . . ’[A] statement that [the
district court] has considered the statutory factors is
sufficient.’ ” (quoting United States v. Gelb, 944 F.2d 52, 56-
57 (2d Cir. 1991))). Similarly, we believe that the
district court must give some indication that it has con-
sidered the statutory factors in reviewing a motion for
early termination of supervised release. Here, no hearing
was held, and the court denied the motion without men-
tion of the § 3553(a) factors. Stating simply that the
court has “reviewed the motion,” as the district court
did in this case, is not equivalent to considering the
statutory factors. Something more is needed, and we
find the district court abused its discretion in failing to
consider the statutory factors.
Lowe also maintains that the district court’s policy of
refusing to grant a motion for early termination of super-
vised release unless a defendant has twelve months or
less remaining on his term of supervised release is arbi-
trary and an abuse of discretion. At oral argument, the
appellant informed the court that the district court judge
has a general policy of refusing to consider motions for
early termination of supervised release until the final
twelve months of the defendant’s probation. We find
that this unexplained, clearly arbitrary policy certainly
circumvents the intent and purposes of 18 U.S.C.
§ 3583(e)(1). Section 3583(e)(1) clearly provides an in-
dividual with the opportunity to submit a motion
for early termination of supervised release “any time
after the expiration of one year of supervised release.”
Though § 3583(e)(1) gives the court discretion in
6 No. 10-2832

granting a motion for early termination of supervised
release, the district court’s failure to even consider such
motions until twelve months before the probation’s end-
date completely disregards the statute it must follow.

III. CONCLUSION
For these reasons, we remand for further proceedings
consistent with this opinion.

1-25-11