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United States v. Sullivan

United States District Court, D. Oregon, Portland Division

August 31, 2018




         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.


         Defendant Cyrus Sullivan was convicted of assault of a federal employee in violation of 18 U.S.C. § 111(a), (b) and sentenced to 24 months' imprisonment, followed by three years of supervised release. (Doc. 30.) The term of supervision began on May 9, 2016 (See Doc. 35.)

         On February 24, 2017, a petition to revoke was filed alleging that Sullivan had violated his conditions of supervision by 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. 35, 36.)

         At a June 7, 2017 evidentiary hearing, the Court found that Sullivan had violated the computer monitoring and work conditions. (Docs. 64, 66, 71 at 122-24.) Disposition was set for July 7, 2017. (Docs. 64, 65.)

         On June 28, 2017, while detained on this petition, 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. 67, 68, 70.) The Court signed the petition on July 7, 2017. (Doc.72.)[1]

         The disposition hearing on the February 2017 petition 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 term of supervision, and sentenced him to six months' imprisonment, followed by 24 months' supervised release. (Docs. 73, 76, 81, 92.)

         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. 116), which they have done. (Docs. 117, 118.)


         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 the district court lacked jurisdiction to revoke a term of supervision which had not yet commenced.

         The Ninth Circuit remanded for further consideration of the argument, which had not been presented to the district court. On remand, the Montana court held that it had jurisdiction to revoke Wing's second term of supervised release because the second revocation sentence related back to the original revocation and accounted for the additional violations that were not known to the court at that time of the original revocation. The district court explained that the first term of supervised release “retain[ed] vitality” and “continued to have some effect” ...

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