United States v. Hemphill

• Court: District Court, District of Columbia
• Decided: February 13, 2024
• Docket: Criminal No. 2021-0555
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Case No. 1:21-cr-555-RCL

PAMELA ANNE HEMPHILL,

Defendant.

MEMORANDUM ORDER

For her involvement in the January 6, 2021 attack on the United States Capitol, Defendant

Pamela Hemphill pleaded guilty to a single petty offense. She received a sentence of 60 days’

imprisonment, to be followed by 36 months’ probation. Hemphill has now moved for early

termination of her probation pursuant to 18 U.S.C. § 3564(c). She does so on the basis that her

sentence is illegal under the D.C. Circuit’s decision in United States Little, which held that a court

sentencing a defendant for a single petty offense may impose imprisonment or probation but not

both. See 78 F.4th 453, 454 (D.C. Cir. 2023). However, § 3564(c) invests district courts with

discretion to grant early termination only when, having considered the purposes of sentencing set

forth in § 3553(a), the Court is satisfied that early termination is warranted by both the interest of

justice and the conduct of the defendant.

Here, Hemphill has failed to advance any substantive argument for why the Court should

award early termination, and the Court concludes that she has failed to establish that early

termination is warranted by her conduct or consistent with the § 3553(a) factors. The Court will

therefore DENY her motion.

1 I. BACKGROUND

On January 21, 2022, Hemphill pleaded guilty to one count of Parading, Demonstrating,

or Picketing in a Capitol Building, in violation of 40 U.S.C. § 5104(e)(2)(G). Plea Agr., ECF No.

25; Min. Entry (Jan. 21, 2022). On May 24, 2022 this Court sentenced her to a term of

imprisonment of 60 days, to be followed by a term of probation of 36 months. Amend. Judgment,

ECF No. 42; Min. Entry (May 24, 2022).

In December 2023, Hemphill moved for early termination of probation under 18 U.S.C.

§ 3564(c). See Def. Mot., ECF No. 48.1 Instead of filing an opposition to Hemphill’s motion, the

Government moved to hold her motion in abeyance pending the D.C. Circuit’s decision in United

States v. Caplinger, No. 22-3057 (D.C. Cir. appeal docketed Aug. 19, 2022). See Abeyance Mot.,

ECF No. 49. The Court denied that motion. Order, ECF No. 50. It ordered the government to

serve and file an opposition memorandum to Hemphill’s motion within fourteen days. Id. 4. It

also stated that “Hemphill may serve and file a reply memorandum within seven days after service

of the Government’s opposition.” Id. The government timely filed an opposition. Gov. Opp’n,

ECF No. 50. However, Hemphill did not file a reply.

This motion is now ripe for review.

II. LEGAL STANDARD

Section 3564(c) establishes a framework for deciding motions for early termination of

probation. It provides:

The court, after considering the factors set forth in section 3553(a) to the extent that they are applicable, may, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation, terminate a term of probation previously ordered and discharge the defendant at any time in the case of

1 Although Hemphill’s one-page motion invoked 28 U.S.C. § 2255, the Court has construed it as a motion for early termination of probation under 18 U.S.C. § 3564(c) because the motion is entitled “Motion to Terminate Probation,” it states it “respectfully moves the Court to terminate defendant’s term of three (3) years probation,” and it does not reference any specific requirements for relief under § 2255. See Def. Mot.

2 a misdemeanor . . . if it is satisfied that such action is warranted by the conduct of the defendant and the interest of justice.

18 U.S.C. § 3564(c). Therefore, as in the case of the parallel early termination of

supervised release statute,2 § 3564(c) permits a court to terminate a term of probation early only if

the following three requirements are met: (1) early termination is warranted by “the interest of

justice;” (2) early termination is warranted by “the conduct of the defendant;” and (3) early

termination would be consistent with the applicable § 3553(a) factors. See United States v.

Harrison, No. 98-cr-235-RCL-5, 2021 WL 1820289, at *3 (D.D.C. May 6, 2021) (observing that

18 U.S.C. § 3582(e)(1) “allows courts to terminate a term of supervised release early when two

conditions [concerning the interest of justice and the defendant’s conduct] have been met and when

certain enumerated factors set forth in 18 U.S.C. § 3553(a) support the early termination.” (citing

United States v. Mathis-Gardner, 783 F.3d 1286, 1287 (D.C. Cir. 2015)); see also United States

v. Pregent, 190 F.3d 279, 283 (4th Cir. 1999) (“The conjunction ‘and’ used in the statute . . . clearly

indicates that a district court must conclude that the early termination of supervised release is

warranted both by the individual’s conduct and also by the interest of justice.”) (emphasis added).

2 See 18 U.S.C. § 3583(e)(1) (“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) . . . 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[.]”).

3 III. DISCUSSION

The Court will not award Hemphill early termination of probation under 18 U.S.C.

§ 3564(c). Even assuming that the alleged illegality of a sentence is an appropriate basis for a

motion for early termination,3 Hemphill has not established her entitlement under the statutory

factors. Even if the interest of justice warrants early termination, Hemphill has not shown that

early termination is warranted by her conduct or consistent with the § 3553(a) factors.

A. The Defendant Has Not Shown Her Conduct Warrants Early Termination

Hemphill has not established that her conduct warrants early termination. Indeed, she has

not even attempted to establish changed circumstances or exceptionally good behavior.

As this Court recently explained in United States v. Rader, No. 1:22-cr-57-RCL, 2024 WL

474535 (D.D.C. Feb. 7, 2024), courts have typically held that defendants seeking early termination

under § 3564(c) must demonstrate more than just compliance with the terms of probation. See,

e.g., United States v. Payne, No. 1:17-cr-142, 2020 WL 2813438, at *1 (E.D. Tex. May 29, 2020)

(“Courts have routinely found that ‘mere compliance with the conditions of probation’ does not

warrant early termination of a probation term, as such behavior is required by law.” quoting United

States v. Salazar, 693 F. App’x 565, 566 (9th Cir. 2017)); United States v. Ferrell, 234 F. Supp.

3d 61, 64 (D.D.C. 2017) (finding early termination not warranted by the conduct of the defendant

despite her good behavior and compliance with the terms of probation); United States v. Rusin,

105 F. Supp. 3d 291, 292 (S.D.N.Y. 2015) (“Early termination is not warranted where a defendant

3 In United States v. Lussier, the Second Circuit held that a court may not modify a condition of supervised release under 18 U.S.C. § 3583(e)(2) on the basis that the condition is illegal. See United States v. Lussier, 104 F.3d 32, 34 (2d Cir. 1997). The Lussier Court reached this conclusion because § 3583(e)(2) does not list the legality of a condition as a relevant consideration and because using § 3583(e)(2) to attack the legality of a sentence would be “inconsistent with the scheme of appellate and collateral review established by the Sentencing Reform Act of 1984.” Id. at 35–37. Similar reasoning might support an argument that § 3564(c) may not be used to attack the legality of a sentence. But the Court will not decide this question now, because even if § 3564(c) applies, early termination is clearly not warranted on the facts of this case.

4 did nothing more than that which he was required to do by law.”); United States v. Paterno, No.

99-cr-0037, 2002 WL 1065682, at *3 (D.N.J. Apr. 30, 2002) (“Merely complying with the terms

of his probation and abiding by the law are not in and of themselves sufficient to warrant early

termination of probation; rather, that is simply what is expected of Defendant.”).

Instead, “[e]arly termination is typically granted only upon a showing of new or changed

circumstances not contemplated during sentencing, ‘such as exceptionally good behavior.’”

Payne, No. 2020 WL 2813438, at *1 (quoting United States v. Smith, No. 3:10-cr-53-DPJ-FKB,

2014 WL 68796, at *1 (S.D. Miss. Jan. 8, 2014)); see also United States v. Hilton, No. 13-cr-172-

PJH, 2014 WL 3728176, at *3 (N.D. Cal. July 28, 2014) (concluding that the defendant “has failed

to demonstrate ‘exceptionally good behavior’ or other changed circumstances that would render

the three-year probation term either too harsh or inappropriately tailored to serve general

punishment goals.”) (citing United States v. Miller, 205 F.3d 1098, 1101 (9th Cir. 2000)).

Hemphill has made no effort whatsoever to demonstrate changed circumstances such as

exceptionally good behavior. Her motion does not address the § 3564(c) factors, let alone offer

any substantive argument for why her behavior warrants early termination. See Def. Mot. Even

after the government pointed out in its opposition that Hemphill had not addressed this factor, see

Gov. Opp’n 19, she did avail herself of the opportunity to do so by filing a reply brief. The Court

is aware that Hemphill has made public statements indicating acceptance of responsibility. See

Michael Daly, Jan. 6 Convict Tells the Truth About Trump: He’s a Cult Boss, Daily Beast (June

27, 2023), https://www.thedailybeast.com/jan-6-convict-pamela-hemphill-tells-the-truth-about-

trump-hes-a-cult-boss [https://perma.cc/R2V8-8RNN] (quoting Hemphill as stating: “I’m not a

victim of Jan 6, I pleaded guilty because I was guilty!”]; but see Sentencing Transcript, ECF No.

44, 14:19–21 (“Not to excuse my actions, but my intentions were to record what was going on, not

5 to be a part of it.”). A defendant’s acceptance of responsibility is welcome, but not exceptional.

Therefore, Hemphill has failed to establish that her behavior warrants early termination.

B. The § 3353(a) Factors Weigh Against Early Termination

Terminating Hemphill’s probation early would be inconsistent with the applicable factors

set forth in § 3553(a).

Section 3553(a) directs a court to “impose a sentence sufficient, but not greater than

necessary, to comply with” the purposes of sentencing, including:

(a)(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed— (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; ... 18 U.S.C. § 3553(a).

Terminating Hemphill’s probation early would not necessarily be consistent with the aims

articulated by Congress in § 3553(a). As discussed above, although the Court is aware of

Hemphill’s public statements indicating acceptance of responsibility, many defendants accept

responsibility for their actions. If penitent words alone justified early termination, that would not

“promote respect for the law,” and might instead undermine “adequate deterrence to criminal

conduct.” See § 3553(a)(2)(A)–(B).

The Court also recognizes that, according to Hemphill’s Probation Officer, Hemphill has

complied with her conditions of probation. The Court appreciates her compliance. However,

adhering to the conditions of probation “is not exceptional such that it requires early termination

of probation” because doing so “was ordered by the Court, and compliance is expected.” United

6 States v. Steven, 455 F. Supp. 3d 1092, 1098 (D. Kan. 2020). Finally, Hemphill has not advanced

an argument for why early termination would accord with the § 3553(a) factors. These factors

therefore counsel against early termination.

C. Even If the Interest of Justice Favors Early Termination, That Is Not Enough

Even if the interest of justice supports terminating Hemphill’s probation so that she does

not have to finish serving an illegal sentence, that factor alone cannot justify early termination

under § 3564(c).

Whether the interest of justice supports early termination is no easy question. Hemphill

does not address this factor. But one might argue, as another defendant recently did, that the

interest of justice supports early termination because that would release the defendant from the

kind of split sentence held illegal under Little. See Rader, 2024 WL 474535, at *4. But different

considerations may point in the other direction. The “interest of justice” phrase “does give the

district court latitude to consider a broad range of factors in addition to an individual’s behavior in

considering whether to terminate the supervised release period,” Pregent, 190 F.3d at 283, or in

this case, probation period. The interest of justice might arguably disfavor early termination,

because that would result in the defendant ultimately receiving an amount of punishment less

than what the Court initially found appropriate under the § 3553(a) factors. Had the Court

foreseen the D.C. Circuit’s decision in Little at the time it sentenced Hemphill, it would not have

imposed a sentence of the same format, but it might have imposed a sentence of equivalent or

greater punishment. One might also argue that the interest of justice would not be served by

permitting a defendant to circumvent the established statutory scheme for challenging illegal

sentences through direct appeal, 18 U.S.C. § 3742, or collateral attack, 28 U.S.C. § 2255. Cf.