United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE, UNITED STATES DISTRICT JUDGE
matter comes before the court on defendant Shannon J.
Wright's Motion to Dismiss Petition to Revoke Supervised
Release (Doc. 73). The government has submitted a Response
(Doc. 77). And Mr. Wright has filed a Reply (Doc. 84). Also,
the court conducted an evidentiary hearing on Mr.
Wright's motion. Docs. 82, 88 (Minute Entries).
Wright's motion contends that he did not execute a
knowing, intelligent, and voluntary waiver of his right to a
hearing with assistance of counsel when the United States
Probation Office (“USPO”) sought to modify his
supervised release. Specifically, the USPO recommended Mr.
Wright begin his supervised release term at a residential
reentry center (“RRC”) for up to 120 days, and he
signed a USPO form waiving his right to counsel and hearing
on this modified condition. Notwithstanding the waiver, Mr.
Wright's motion asserts that he had a Sixth Amendment
right to consult with counsel before signing the waiver and a
right to be present when the court modified his sentence. For
the reasons explained below, the court denies Mr.
23, 2012, the court sentenced Mr. Wright to 84 months in
prison, followed by three years of supervised release after
Mr. Wright pleaded guilty to possessing a firearm as a felon.
See 18 U.S.C. § 922(g). Mr. Wright was
scheduled for release from prison in October 2018.
2018, as Mr. Wright's release date neared, the USPO
declined to approve his proposed release plan. Mr. Wright had
planned to live with his mother. But, convicted felons
couldn't live in the building where she lived. So, the
USPO proposed adding a new condition to Mr. Wright's
supervised release. Specifically, the new condition required
Mr. Wright to begin his supervised release term at an RRC for
up to 120 days. This modification, the USPO argued, would
provide Mr. Wright with a stable residence until he could
establish his own residence.
USPO then sent a Probation Form 49 (“Waiver of Hearing
to Modify Conditions of Supervision”) to Cliff
Beckmann, Mr. Wright's case manager at the Bureau of
Prisons institution that incarcerated Mr. Wright. The waiver
would permit the court to impose the new condition without
Mr. Wright receiving assistance of counsel or a hearing. Mr.
Beckmann presented Mr. Wright with the waiver, and Mr. Wright
signed it on May 8, 2018. On May 18, 2018, the court modified
Mr. Wright's release conditions. Doc. 59.
October 5, 2018, Mr. Wright began his supervised release term
at Mirror Inc., an RRC in Topeka, Kansas. A week later, on
October 12, 2018, Mr. Wright left the RRC without permission.
In response, the government indicted Mr. Wright for escape,
the USPO filed a petition to revoke Mr. Wright's
Wright's motion presents two reasons why the court should
dismiss the petition to revoke supervised release. First, Mr.
Wright challenges the waiver's validity. Mr. Wright
contends the waiver is invalid because he didn't read it
and Mr. Beckmann told him to sign the waiver if he wanted to
go to an RRC. Second, Mr. Wright asserts the government
violated his right to counsel under the Sixth Amendment and
Criminal Justice Act because he did not speak with an
attorney before signing the waiver. And, Mr. Wright contends,
the Sixth Amendment also permitted him to be present when the
court added the condition.
court conducted an evidentiary hearing on Mr. Wright's
motion across two days: April 15, 2019 (Doc. 82), and June
13, 2019 (Doc. 88). Both Mr. Wright and Mr. Beckmann
Mr. Wright executed a knowing, intelligent, and voluntary
waiver of his right to a hearing and assistance to counsel
when he signed Probation Form 49.
defendants maintain certain due process rights when their
supervised release is modified or revoked. Specifically, the
Fifth Amendment's due process protections are codified in
Federal Rule of Criminal Procedure 32.1. See United
States v. Boultinghouse, 784 F.3d 1163, 1171 (7th Cir.
2015); United States v. Poindexter, 444 Fed.Appx.
580, 582 (3d Cir. 2011). That is, “[t]he court may
modify . . . the conditions of a sentence of probation . . .
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
conditions of probation.” 18 U.S.C. § 3563(c).
But, Rule 32.1 imposes certain procedural requirements before
the court can modify an offender's conditions of
supervised release. Under Rule 32.1(c)(1), “[b]efore
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.”
defendant may waive his rights to a hearing and assistance of
counsel. Fed. R. Crim. P. 32.1(c)(2)(A) (“A hearing is
not required if the person waives the hearing.”);
United States v. Stocks, 104 F.3d 308, 310 (9th Cir.
1997) (“The rights guaranteed by Fed. R. Crim. P.