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United States v. Murdock

United States Court of Appeals, Second Circuit

November 8, 2013

UNITED STATES of America, Appellee,
v.
Seth MURDOCK, Defendant-Appellant.

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.

Page 107

KEARSE, Circuit Judge:

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 18 U.S.C. § 3624(e), appeals pro se from an order of the United States District Court for the District of Vermont, William K. Sessions, III, Judge, denying his motion for a modification of the conditions of his supervised release to require that supervised release be served in the Eastern District of Michigan, rather than in the District of Vermont, where he was convicted and sentenced. The district court denied Murdock's motion, stating that it lacked authority to order such a transfer over the objection of the Eastern District of Michigan. On appeal, Murdock argues principally that the district court misapprehended its authority to modify the conditions of his supervised release, and that his motion should have been granted in order to carry out the recommendation made by the district court in Murdock's sentencing; he has moved in this Court for an injunction pending appeal, requiring his release to the Eastern District of Michigan rather than to the District of Vermont. For the reasons that follow, we conclude that the district court has authority to entertain Murdock's motion for modification of his supervised-release conditions under 18 U.S.C. § 3583(e)(2) and to grant that motion with the qualification specified by the Eastern District of Michigan in its conditional agreement to accept Murdock for supervision. Accordingly, we vacate the order of the district court and remand for expedited proceedings on Murdock's modification motion in accordance with Fed.R.Crim.P. 32.1(c). The motion for an injunction pending appeal is denied as moot.

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 18 U.S.C. § 2312. He was sentenced, in pertinent part, to 30 months' imprisonment, to be followed by a three-year term of supervised release.

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

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that included his proposed residence with one of his sisters. The case manager sent Murdock's proposed release plan to the United States Probation Office in the Eastern District of Michigan (" Michigan Probation" ). In reviewing the plan, however, the Michigan Probation officials " interviewed the wrong family member," one " who indicated that she was not willing to have Mr. Murdock reside with her," and they were thus unable to confirm Murdock's proposed residence. (Memorandum from Vermont Deputy Chief Probation Officer Ronald P. Tetu to District Judge Sessions dated June 21, 2013 (" Vermont Probation Memorandum" ), at 1; see also undated sworn Declaration of Vermont Deputy Chief Probation Officer Ronald P. Tetu (" Tetu Decl." ) submitted to this Court, confirming the truth and accuracy of the statements made in the Vermont Probation Memorandum.) Michigan Probation also expressed concern that Murdock had previously been on supervised release in the Eastern District of Michigan and twice had had that status revoked for violations of the conditions imposed. ( See Government Memorandum in Opposition to Motion for Preliminary Injunction [Pending Appeal] and [in Support of] Motion for Summary Affirmance on the Merits (" Government Mem." ) at 5-6.) Michigan Probation rejected Murdock's plan to serve his supervised release in the Eastern District of Michigan.

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(e)(2) Motion" : Although Murdock's motion cited 18 U.S.C. § " 3563( c )(2)" (emphases added), we construe it as having been made under § 3583(e)(2), which deals with modifications of supervised release, and not under § 3563(c), which deals with modifications of probation and has no subsections).) Murdock's § 3583(e)(2) motion was not decided until August 2013.

In the meantime, officers 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 officers 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

Page 109

[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 ...


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