United States v. Jason Sheppard

17 F.4th 449

• Court: Court of Appeals for the Third Circuit
• Decided: November 3, 2021
• Docket: 20-3088
• Status: Published

Opinion

PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 20-3088

___________

UNITED STATES OF AMERICA

v.

JASON SHEPPARD, Appellant

_________________________________

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 _________________________________

Submitted May 11, 2021

Before: McKEE, RESTREPO, and FUENTES, Circuit Judges.

(Opinion Filed: November 3, 2021) 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

OPINION OF THE COURT ___________

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 supervi- sion, Sheppard learned that his girlfriend and his assigned pro- bation officer were engaged in an alleged “personal relation- ship.” Sheppard moved for early termination of his term of supervised release under 18 U.S.C. § 3583(e)(1) in September 2020. The District Court, without holding an evidentiary hear- ing, denied Sheppard’s motion. For the reasons set forth be- low, we will affirm.

2 I.

A.

In October 2013, a grand jury indicted Jason Sheppard on seven counts of mail fraud in violation of 18 U.S.C. § 1341. Sheppard pleaded guilty to one count, and judgment was en- tered against him in December 2016. The District Court dis- missed the remaining six counts. Sheppard received a sentence of 30-months imprisonment, with three years of supervised re- lease, and was ordered to pay a special assessment in addition to $ 11,749.06 in restitution.1 On August 26, 2019, he was re- leased to serve his term of supervised release. Sheppard claims that he has “complied with the conditions of supervised release and has become a productive member of the public” since his release from custody. J.A. 10. For example, he secured em- ployment and is “in the process of developing his business ven- tures to start a new life.” J.A. 10.

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

1 While Sheppard has since paid the special assessment, see J.A. 50, it is unclear from the record whether Sheppard has paid his restitution in full. Compare J.A. 12 (“Defendant . . . has been working toward making restitution.”) with Appellant’s Br. 5 (“Sheppard has paid restitution in full.”) (citing J.A. 50).

3 of the probation officer’s romantic life. For example, Shep- pard’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 para- mour, 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;

2 As relevant here, the “peanuts” emoji can be used to indicate “crazy.” See Peanuts, Emojipedia.org, https://emojipe- dia.org/peanuts/ (last visited October 26, 2021); see also J.A. 29 (Sheppard’s girlfriend responding to the probation officer’s use of the “peanuts” emoji with a text message reading, “Yes. And you love the crazy lol”) (emphasis added).

4 • 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 tele- phone, see, e.g., J.A. 20 (“Call me when you get a mi- nute.”); 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 pro- file.”); 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”).

3 Sheppard asserts that his probation officer and then girlfriend indeed spoke telephonically. According to Sheppard, these tel- ephone calls were “substantial, with some lasting over an hour long.” J.A. 10 (citing J.A. 45).

5 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 the secret re- lationship would have on [his] rehabilitation.” J.A. 10.4 How- ever, the probation officer purportedly suggested in at least one text message exchange that his job required him to have a “tol- erance for bullshit.” J.A. 41 (Girlfriend: “Everyone hates her but you? . . . . That says a lot about your tolerance for bullshit my friend[.]” Probation Officer: “Look what I do[]”).

B.

On September 25, 2020, Sheppard filed a motion for early termination of supervised release pursuant to 18 U.S.C. § 3583(e). Sheppard argued that his probation officer’s “per- sonal relationship” with his girlfriend – which “caused the break up of what [Sheppard] perceived to be a lifelong com- mitment” with his girlfriend – was negatively impacting his re- habilitation, thereby undermining any utility in continued su- pervision. J.A. 10-11. Sheppard also claimed that:

The probation officer was never concerned with [his] rehabilita- tion and appears to use his posi- tion for his own personal

4 It is unclear from the record the extent to which the commu- nications between Sheppard’s probation officer and then girl- friend occurred on a government phone, issued to the probation officer by the United States Probation Office for official busi- ness. See J.A. 11, 47.

6 interests. Such conduct is a gross violation of code of conduct for probation and pretrial services of- ficers found in Guide to Judiciary Policy, Vol. 2A, Ch. 3, § F(2)(c) – F(3), which prohibits a probation officer from performing any offi- cial duties in which he or she has a conflict or a personal bias or prejudice concerning a party. The probation officer embedded him- self in a situation where he exer- cised authority over [his] rehabil- itation and used that authority to develop a personal relationship with the former girlfriend. [His] rehabilitation was threatened ra- ther than facilitated by the proba- tion officer, and he has lost his trust in the United States Proba- tion Office to assist in his rehabil- itation.

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] super- vised release by alienating [him] from a key relationship in his rehabilitation efforts.” J.A. 13.

7 In support of Sheppard’s motion, his counsel submitted a declaration that included three exhibits: 1) images of the al- leged text messages between Sheppard’s girlfriend and his pro- bation 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 [Shep- pard’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 reas- signed 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-pre- sented” – denied Sheppard’s motion. J.A. 6. While recogniz- ing that “[t]he purpose of supervised release is to assist [Shep- pard] in transitioning to community life,” the District Court concluded that Sheppard “offer[ed] no persuasive explanation for why the purported misconduct of his former probation of- ficer makes him less amenable to, or needful of, such assis- tance.” J.A. 5. Rather, the District Court found that Shep- pard’s argument as to the effect of the probation officer’s mis- conduct on his rehabilitation “undermine[d]” his motion. See

8 J.A. 5 (“In fact, defense counsel’s only non-metaphysical ar- gument actually undermines the request for early termination. Compare Doc. 289 in 13-278 at 1 (indicating that Defendant’s therapist would testify ‘as to how Defendant’s rehabilitation has been burdened by his [former] probation officer’s con- duct’) with Judgment in 13-278 (Doc. 239) at pg. 5 (recogniz- ing Defendant’s need for mental health monitoring and treat- ment, having imposed it as a condition of supervised re- lease).”). Sheppard timely appeals.

II.

The District Court exercised jurisdiction under 18 U.S.C. § 3231. We have jurisdiction to review the District Court’s denial of Sheppard’s motion for early termination of supervised release pursuant to 28 U.S.C. § 1291.

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)). Underly- ing 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-

9 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 con- duct and emphasize that the District Court should not have con- sidered the possible effects of the probation officer’s miscon- duct on Sheppard’s rehabilitation in its denial of Sheppard’s motion.

“[T]he primary purpose of supervised release is to facil- itate the integration of offenders back into the community ra- ther 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 super- vised release to assist individuals in their transition to commu- nity 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 incar- ceration.”); 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

10 in prison for punishment or other purposes but still needs su- pervision and training programs after release”); cf. United States v. Carter, 730 F.3d 187, 196 n.3 (3d Cir. 2013) (McKee, J., concurring) (“The reason that courts need to be concerned with an offender’s successful reentry into society is clear; it is beyond dispute that the vast majority of all offenders sentenced to prison will one day be released back into the community.”).

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 re- lease. See 18 U.S.C. § 3583(e). As relevant, § 3583(e) pro- vides that:

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 dis- charge the defendant released at any time after the expiration of one year of supervised release, pursu- ant to the provisions of the Federal Rules of Criminal Procedure relat- ing to the modification of proba- tion, if it is satisfied that such ac- tion is warranted by the conduct of the defendant released and the in- terest of justice[.]

11 (emphasis added). The cited § 3553(a) factors include the fol- lowing:

(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 es- tablished for the defendant’s crimes; (4) pertinent policy state- ments issued by the United States Sentencing Commission; (5) the need to avoid unwarranted sen- tence disparities among defendants with similar records who have been found guilty of similar con- duct; and (6) the need to provide restitution to any victims of the of- fense.

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.

12 Rather, when denying a defendant’s motion for early termina- tion of supervised release, as relevant here, “a statement that [it] has considered the statutory factors is sufficient.” Id. (cit- ing United States v. Gammarano, 321 F.3d 311, 315-16 (2d Cir. 2003)). Additionally, Congress’s inclusion of the “expan- sive phrases ‘conduct of the defendant’ and ‘interest of justice’ [in § 3583(e)] make clear that a district court enjoys discretion to consider a wide range of circumstances when determining whether to grant early termination.” Id. at 52 (citing United States v. Emmett, 749 F.3d 817, 819 (9th Cir. 2014)).

1.

As an initial matter, we address Sheppard’s argument that the District Court abused its discretion in failing to cite to the relevant § 3553(a) factors in its order. Sheppard urges us to hold that the District Court’s failure to include “any state- ment that it considered the 18 U.S.C. § 3553(a) factors as re- quired by Melvin” amounts to an abuse of discretion. Appel- lant’s Br. 10 (citing Melvin, 978 F.3d at 51-52). In making this argument, Sheppard seemingly reads Melvin to require a dis- trict court to include, by name – “§ 3553(a)” – in its order for it to have considered the § 3553(a) factors. See id. at 8, 10. This is a misreading of Melvin.

In Melvin, the Court held that it is “sufficient” for a dis- trict court to include a statement that it considered the § 3553(a) factors in its analysis – nowhere in Melvin do we

13 indicate that such a statement is, as Sheppard contends, “nec- essary,” or that such statement must mention § 3553(a) by name. Compare Melvin, 978 F.3d at 52-53 (“District courts are not required to make specific findings of fact with respect to each of these factors; rather, ‘a statement that [the district court] has considered the statutory factors is sufficient.’” (em- phasis added) (citing Gammarano, 321 F.3d at 315-16 (noting that a district court need not expressly reference “§ 3553(a)” to acknowledge its consideration of the statutory factors))) with Reply Br. 5 (“[A] statement that the court considered the stat- utory factors is sufficient and necessary to satisfy that require- ment regardless of whether the court ultimately grants or de- nies the motion.” (emphasis added)). This is not to say that a district court can deny a motion for early termination of super- vised release without any indication in its order that it applied the proper legal standard. It is simply that we leave it to the district court to determine how it wants to convey that it con- sidered the relevant § 3553(a) factors in making its determina- tion. Melvin provides one option: for the district court to in- clude a statement that it has considered the relevant § 3553(a) factors. 978 F.3d at 53. But a district court has other options: it may make specific findings of fact for each factor (although, per Melvin, it is not necessary to do so), expressly indicate that it considered the relevant factors under “§ 3553(a),” or other- wise make clear in some form that it applied the proper legal standard.5 See, e.g., Gammarano, 321 F.3d at 316 (holding that

5 The Government argues that, in denying a motion for early termination of supervised release, a district court need not

14 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 defend- ant’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 § 3583(e) and included arguments as to how the District Court should analyze the relevant § 3553(a) factors, this statement alone is “sufficient” under Melvin to indicate that it “consid- ered the statutory factors.” Melvin, 978 F.3d at 53; J.A. 11-14. To be sure, good practice likely dictates that a district court cite the relevant statute by name in its order. But such an express citation is not necessary, if the district court otherwise demon- strates that it applied the proper legal standard.

consider the relevant factors under § 3553(a) and instead may exercise its discretion in considering whether “such action is warranted by the conduct of the defendant released and the in- terest of justice.” Appellee’s Br. 11-12 (citing § 3583(e)(1)). According to the Government, § 3583(e) “requires the court to consider the § 3553(a) factors only before terminating release, not before denying termination.” Id. Given the straightforward application of Melvin to this case – along with the District Court’s indication that it relied on the relevant § 3553(a) fac- tors in reaching its decision – we need not address the Govern- ment’s argument here.

15 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. Shep- pard’s argument centers on the detrimental effect of his proba- tion officer’s alleged “egregious conduct” on his rehabilita- tion.6 Id. at 13. He suggests that, in the “interest of justice,” the District Court should cut short his term of supervised re- lease because the probation officer’s alleged misconduct has caused him to “distrust” the probation office, hindered his abil- ity to “transition into the community,” threatened his confi- dence in the court system, and otherwise left him “without a remedy to right the wrong committed by the probation officer or to deter future bad conduct from the probation office.” Ap- pellant’s Br. 8, 11-13.

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

6 To the extent that Sheppard suggests that the District Court abused its discretion in failing to consider how other circum- stances, not related to the probation officer’s conduct, would “impair” his rehabilitation, see, e.g., Appellant’s Br. 8, 13; J.A. 12, we agree with the Government that those arguments are “undeveloped and unconvincing,” Appellee’s Br. 14 n.4.

16 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 van- tage point” to evaluate the extent to which the probation of- ficer’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 proba- tion 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; Mel- vin, 978 F.3d at 52. The District Court did not abuse its discre- tion in denying Sheppard’s motion for early termination of su- pervised release.

However, in reaching this holding, we highlight the unique – and concerning – circumstances of this case, and rec- ognize 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 rela- tionship” that his probation officer formed with his then girl- friend is indeed, as Sheppard claims, “egregious” and “extraor- dinarily offensive.” Appellant’s Br. 12. Reviewing the alleged text messages exchanged between Sheppard’s probation of- ficer and his then girlfriend, these communications were inti- mate in nature; they conveyed personal information about the

17 probation officer’s romantic life, his former paramour’s feel- ings toward him, and his marital and extra-marital relation- ships. As Sheppard notes, these alleged communications did not involve him, “his rehabilitation, or the detrimental effect the secret relationship would have on [his] rehabilitation.” Ap- pellant’s Br. 5-6.

A probation officer’s communications of such a “per- sonal” 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

7 Additionally, we note that the probation officer’s alleged suggestion to Sheppard’s girlfriend that his job requires a “tol- erance for bullshit” is likewise entirely inappropriate and

18 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] rehabilita- tion has been burdened by his [former] probation officer’s con- duct” – “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 responsi- ble not only for his own conduct, but also must shoulder any and all negative repercussions from the misconduct of his pro- bation officer. This inference is improper.

It cannot be clearer: when evaluating a motion for early termination, a district court, particularly in the absence of hold- ing an evidentiary hearing, may not impute a probation of- ficer’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 § 3583(e)’s mechanism for early termination of super- vised release out of a defendant’s toolkit, and it would leave

unprofessional. J.A. 41. It not only conveys a disregard for the welfare of Sheppard, but it also undermines the integrity of the United States Probation Office’s administration of super- vised release.

19 the strength of a defendant’s § 3583(e) motion dependent upon the behavior and conduct of the assigned probation officer. While we do not reach Sheppard’s arguments that his early ter- mination of supervised release is essential to “right the wrong committed by the probation officer” and “deter future bad con- duct from the probation office,” Appellant’s Br. 8, we recog- nize that imputing a probation officer’s misconduct to a de- fendant places the defendant in a vulnerable position – not just in terms of seeking relief for the probation officer’s miscon- duct, but also as to the defendant’s welfare and ability to inte- grate into the community.

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 un- derlying 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 pro- bation 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 Shep- pard’s rehabilitation.

IV.

For these reasons, we will affirm the order of the Dis- trict Court denying Sheppard’s motion for early termination of supervised release.