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United States v. Sullivan

United States District Court, D. Oregon, Portland Division

August 31, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CYRUS ANDREW SULLIVAN, Defendant.

          ORDER

          JENNIFER G. ZIPP UNITED STATES DISTRICT JUDGE.

         Defendant Cyrus Sullivan is the subject of two separate petitions alleging that he violated conditions of his first term of supervised release. The Court disposed of the first petition by revoking the term of supervision, before addressing the second petition, which had been filed the same day as the disposition hearing on the first petition. In revoking the term, the Court sentenced Defendant to a six month term of imprisonment followed by an additional 24 months' supervision. The question now arises whether the second petition, which remains pending, is actionable in light of this revocation. Based on United States v. Wing, 682 F.3d 861 (9th Cir. 2012), the Court concludes that it is not, and will dismiss the pending petition.

         BACKGROUND

         Defendant Cyrus Sullivan was convicted of making threatening communication in violation of 18 U.S.C. § 875(c) and sentenced to 24 months' imprisonment followed by three years of supervised release. (Doc. 54.) The term of supervision began on May 9, 2016. (See Doc. 140.)

         On January 24, 2017, a petition to revoke the supervision was filed, alleging that Sullivan had violated his conditions of supervision by failing to comply with computer monitoring. (Docs. 130, 131)

         On February 24, 2017, an amended petition was filed alleging that Sullivan had violated his conditions of supervision by contacting the victim; failing to follow instructions of the probation officer with regard to computer monitoring and use of the internet; and failing to work regularly at a lawful occupation. (Docs. 140, 141)

         At a June 7, 2017 evidentiary hearing, the Court found that Sullivan had violated the computer monitoring and work conditions, but not the condition prohibiting contact with the victim. (Docs. 171, 173, 178 at 122-24.) Disposition was set for July 7, 2017. (Docs. 171, 172.)

         On June 28, 2017, while detained on these petitions, Sullivan was involved in a physical altercation with Multnomah County correctional officers. The altercation became the basis for the filing on July 6, 2017, of an amended petition to revoke the term of supervision, which was later replaced with a new petition for revocation of supervised release. (Docs. 174, 175, 177.) The Court signed the petition on July 7, 2017. (Doc. 179.)[1]

         The disposition hearing on the January and February 2017 petitions was also held on July 7, 2017, and a follow up hearing was held on July 11, 2017. At the hearings, the Court revoked Sullivan's existing terms of supervised release in each case, and sentenced him to concurrent terms of six months' imprisonment, followed by 24 months' supervised release. (Docs. 181, 184, 190, 201.)

         The July 7, 2017 petition to revoke remains pending.[2] In assessing the viability of the pending petition, the Court directed the parties to file simultaneous briefs addressing Wing, 682 F.3d 861 (9th Cir. 2012) (Doc. 233), which they have done. (Docs. 234, 235.)

         DISCUSSION

         United States v. Wing, 682 F.3d 861 (9th Cir. 2012), is controlling precedent. In that case, the Ninth Circuit held that a subsequently imposed term of supervised release is a separate and distinct term with its own conditions, and its own beginning and end. Although the facts in Wing differ from those presented in this case, the Wing court's reasoning dictates dismissal of the pending petition.

         In Wing, the Montana district court revoked Wing's first term of supervised release, finding she had provided her probation officer with a falsified document; failed to obtain approval of her probation officer before making certain payments; incurred new debt without approval; and failed to submit timely monthly reports. Upon revocation the district court sentenced Wing to 3 months of imprisonment, followed by 33 months of supervised release. While Wing was serving the 3 month term of imprisonment, she was indicted for crimes allegedly committed in the state of Washington during her first term of supervision. The day before Wing's second term of supervision was to begin, Wing's Montana probation officer filed a (second) petition to revoke defendant's supervision on the basis of the new criminal charges.

         Wing was convicted of the Washington charges and subsequently admitted to the violations alleged in the second petition. Based on her admission, the Montana district court revoked Wing's second term of supervised release and sentenced Wing to 33 months' imprisonment, consecutive to Wing's Washington sentence. Wing appealed, arguing that ...


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