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United States v. Wright

United States District Court, D. Kansas

July 17, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
SHANNON J. WRIGHT, Defendant.

          MEMORANDUM AND ORDER

          DANIEL D. CRABTREE, UNITED STATES DISTRICT JUDGE

         This 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).

         Mr. 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. Wright's motion.

         I. Facts

         On July 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.

         In May 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.

         The 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.

         On 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, [1] and the USPO filed a petition to revoke Mr. Wright's supervised release.

         Mr. 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.

         The 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 testified.

         II. Discussion

         A. 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.

         Criminal 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.”

         But, a 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. 32.1(b) ...


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