UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal Action No. 14-226 (BAH)

SAMUEL I. KAPLAN, Chief Judge Beryl A. Howell

Defendant.

MEMORANDUM AND ORDER

Defendant Samuel I. Kaplan was sentenced in 2010 on his guilty plea to a single count

of possession of child pornography, in violation of

(a)(5)(b) and

2256(8)(A), after a forensic examination of his computer “found more than 10 and less than

20 images of child pornography.” United States v. Kaplan, Mem. and Order at 2, ECF No.

10. The court in the Eastern District of Virginia sentenced defendant to 46 months’

imprisonment, at the highest-end of the applicable guideline sentencing range, and to 180

months (or 15 years) of supervised release, far higher than the mandatory minimum of five

years but less than the discretionary maximum lifetime term of supervised release. Judgment,

Statement of Reasons at 7, ECF No. 1-2. Now, having successfully completed his period of

incarceration and over seven years of his 15-year term of supervised release, defendant—who

is 76 years old and has been diagnosed with “high grade, extensive and highly aggressive,

advanced prostate cancer”—seeks for the second time early termination of supervised release,

pursuant to

(e)(1), based upon his exemplary supervision record and

deteriorating medical condition. Def.’s Mot. for Early Term. of Supervised Release (“Def.’s

1 Mot.”), at 2 & Attach. A (Letter from Dr. Adam R. Metwalli, Chief of Urology Division at

Howard University Hospital (“Medical Letter”)), ECF No. 11.

Although the Probation Office concedes that “this case does meet the criteria for early

termination,” Probation Office Mem. (“Aug. 2021 PO Mem.”), at 2, ECF No. 12, and the

government acknowledges that “[d]efendant has laudably been compliant with his release

conditions,” Gov’t’s Opp’n to Def.’s Second Mot. for Early Term. of Supervised Release

(“Gov’t’s Opp’n”), at 3, ECF No. 13, both the government and Probation Office oppose

defendant’s motion, see Aug. 2021 PO Mem. at 2; Gov’t’s Opp’n at 1.

Early termination of defendant’s supervised release term is warranted. Defendant’s

prostate cancer “had already metastasized at the time of diagnosis” in late 2019 and his

current “condition is terminal and progressing,” thus rendering supervised release particularly

burdensome as his disease worsens and quality of life further deteriorates. See Medical

Letter. Accordingly, and as explained more fully below, defendant’s motion is GRANTED.

I. BACKGROUND

Having already described the facts of this case in detail, see Kaplan, Mem. and Order

at 1-3, only the relevant factual and procedural history is reviewed here. See also Statement

of Facts, United States v. Kaplan, Crim No. 10-cr-186 (E.D. Va.), ECF No. 6.

As noted, on August 27, 2010, defendant was sentenced in the Eastern District of

Virginia to 46 months’ imprisonment and 180 months (fifteen years) of supervised release

after pleading guilty to one count of possession of child pornography in violation of

(a)(5)(b) and 2256(8)(A). Kaplan, Mem. and Order at 1-2. Defendant began serving

his term of supervision on December 26, 2013,

, and thus has now served, without any

infractions, more than half of his supervised release term, which is set to expire on December

2 25, 2028. See id.; see also Gov’t’s Opp’n at 3 (noting that defendant “has laudably been

compliant with his release conditions so far”). 1 Defendant began treatment for prostate

cancer in late 2019. See Medical Letter; see also Def.’s Mot. at 2.

On January 14, 2020, defendant filed his first motion for early termination of

supervised release, which was accompanied by 21 letters of support from community

members. See ECF No. 5. As with the instant motion, both the government and Probation

Office objected to defendant’s first request for early termination. See Kaplan, Mem. and

Order at 1. Nevertheless, the probation memorandum submitted at that time explained that

defendant had “successfully completed sex offender treatment . . . is subject to polygraphs,

daily computer monitoring, and random searches upon reasonable suspicion,” and that there

“have been no indications of inappropriate internet[,] computer access, or activities.”

Probation Office Mem. (“Jan. 2020 PO Mem.”), at 2, ECF No. 7. Defendant’s first motion

for early termination was subsequently denied on February 20, 2020. Kaplan, Mem. and

Order at 7. This Court highlighted several factors in defendant’s favor, including that he had

completed six years of supervision without infraction, “has a stable residence and has plainly,

based on the submission of multiple letters on his behalf, integrated himself as a valuable

member of the community,” but found that he had “served less than half his full term of

supervised release,” which weighed against his motion for early termination.

.

Defendant’s medical condition has deteriorated significantly since early 2020. As part

of the treatment against his metastasizing prostate cancer, defendant “underwent surgical

castration” and “requires oral hormonal medication four times per day.” See Medical Letter.

Defendant’s urologist explains that “[t]he natural history of this disease indicates that

1 Supervision of defendant was transferred to this District in November 2014 and assigned to the undersigned Chief Judge on March 31, 2017. Kaplan, Mem. and Order at 1 n.1.

3 [defendant’s] quality of life will continually decrease as the disease progresses and as the

toxicity of therapy accumulates.”

Given that his “circumstances have changed

dramatically since” early 2020, defendant filed a second motion for termination of his

supervised release term on August 16, 2021. Def.’s Mot. at 2. Defendant argues that because

of the treatment he “has undergone, and will continue to undergo, and the fact that the

condition is terminal and progressing[,] there is no need to keep him on supervised release to

provide either deterrence or protection to the public.”

. The Court agrees.

II. ANALYSIS

Defendant seeks early termination of his fifteen-year term of supervised release under

(e)(1), which authorizes termination of a supervision term “at any time after

the expiration of one year of supervised release” if the seven factors set out in § 3553(a) are

considered and termination “is warranted by the conduct of the defendant [on supervision]

and the interest of justice.”

(e)(1).

Whether granting or denying a motion for early termination of supervised release, a

district court must explain its consideration of the relevant § 3553(a) factors, unless the

reasons for denying or granting the motion “are apparent from the record.” United States v.

Mathis-Gardner,

(D.C. Cir. 2015); see also United States v. Harris,

(D.D.C. 2017) (Howell, C.J.). The relevant factors under § 3553(a)

are therefore addressed first below before determining if early termination of defendant’s

supervision is in the interest of justice.

A. Consideration of Applicable Factors Under

(a)

Under § 3553(a), the Court must consider the following seven factors when evaluating

a request for early termination of supervised release: (1) the nature and circumstances of the

4 offense and defendant’s history and characteristics; (2) deterrence of criminal conduct; (3)

protection of the public from further crimes of the defendant; (4) the need to provide the

defendant with educational or vocational training, medical care, or other correctional

treatment; (5) the applicable sentencing guideline range for the offense and pertinent policy

statements issued by the U.S. Sentencing Commission; (6) the need to avoid unwarranted

sentencing disparities; and (7) the need to provide restitution to any victims of the offense.

See

(e) (authorizing modification of supervised release “after considering the

factors set forth in” § 3553(a)(1), (a)(2)(B)-(D), and (a)(4)-(7)). Importantly, “the need . . . to

reflect the seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense” is not among the § 3553(a) factors to be considered in

determining whether to modify a term of supervision.

(a)(2)(A); see U.S.

Sentencing Comm’n, Federal Offenders Sentenced to Supervised Release (July 2010)

(“Supervised Release Report”) at 9 (“The legislative history indicates that section

3553(a)(2)(A) was not included for consideration under

(c) because the

primary purpose of supervised release is to facilitate the integration of offenders back into the

community rather than punish them.”).

Therefore, in considering these factors, district courts must recognize that supervised

release “serves an entirely different purpose than the sentence imposed under § 3553(a),”

Pepper v. United States,

, 502 n.15 (2011), and “fulfills rehabilitative ends,

distinct from those served by incarceration,” United States v. Johnson (Johnson I),

(2000); see also Johnson v. United States (Johnson II),

(2000)

(specifying that the “congressional policy in providing for a term of supervised release . . . is

to improve the odds of a successful transition from the prison to liberty”). Indeed, the

5 Supreme Court has highlighted the congressional “aim[] . . . to use the district courts’

discretionary judgment to allocate supervision to those release[d] who need[] it most.”

Johnson II, 529 U.S. at 709. “The relevant factors under § 3553(a) are, consequently,

evaluated mindful of the Supreme Court’s clear articulation of the purpose of supervised

release and the district court’s discretion to limit terms of supervised release to those who

need it.” Harris,

(internal quotation marks and alterations omitted).

Here, the sixth and seventh factors—the need to avoid sentencing disparities and the

need to provide restitution, respectively—are of limited relevance to defendant because the

“factor of avoiding unwarranted sentencing disparities . . . would generally undermine the

case specific inquiry required in evaluating a motion for early termination of supervised

release,”

and because defendant has no restitution obligations.

Consideration of the first factor—the nature and circumstances of the offense and

defendant’s history and characteristics—“confirms the seriousness of the defendant’s offense

conduct,” as this Court previously acknowledged while evaluating his first motion for early

termination. Kaplan, Mem. and Order at 5. “Not only did the defendant possess [between ten

and twenty images of] child pornography but he also initiated online communications with

self-identified minors and engaged in sexually explicit email messages, which included the

exchange of nude images.”

Since then, however, defendant’s activities following his

incarceration term reveal defendant’s “exemplary conduct while on supervised release” and

substantial support among members of the community for termination of his supervision.

Def.’s Mot. at 2; see also Kaplan, Mem. and Order at 6 (noting defendant’s “extensive

volunteer work” while on supervised release, “especially through Citizens United for the

Rehabilitation of Errants”). As noted, defendant is now 76 years old, has served more than

6 half of his fifteen-year term of supervised release without incident, and is undergoing

aggressive treatment for metastasizing, terminal prostate cancer. Crediting defendant’s post-

incarceration conduct is especially relevant because “the need . . . to reflect the seriousness of

the offense,”

(a)(2)(A), is simply not a factor to consider when determining

whether early termination of supervision is warranted. See

§ 3583(c). Instead, the general

focus of supervised release is forward looking and centered on defendant’s trajectory after

incarceration. See Johnson I, 529 U.S. at 59 (“Congress intended supervised release to assist

individuals in their transition to community life. Supervised release fulfills rehabilitative

ends, distinct from those served by incarceration.”).

As for factors two and three—the important need to provide adequate deterrence of

criminal conduct and to protect the public from further crimes—the defendant has already

served his 46-month prison sentence and almost eight years under supervision. The severity

of this punishment provides an adequate deterrent to others. Regarding the need to protect the

public from additional criminal conduct by the defendant, the length of time defendant has

spent under supervision, without infraction, is highly probative. 2 Since his release from

prison in 2013, defendant has complied with all terms of supervision and shown an exemplary

ability to reintegrate himself into the local community in and around Washington D.C. See

Def.’s Mot. at 2; Gov’t’s Opp’n at 3; see also Kaplan, Mem. and Order at 5-6. His intensive

supervised release program has included sex offender treatment, polygraph tests, daily

computer monitoring, and random searches upon reasonable suspicion. See Jan. 2020 PO

Mem. at 2. Defendant has also undergone “surgical castration as part of his treatment” for

2 A Sentencing Commission analysis of supervised release recidivism rates found that “[v]iolations of conditions of supervision that result in revocation on average occur early in the supervision process,” noting that, “in 2006, offenders whose supervision was revoked . . . served an average of only 17 months before revocation.” Supervised Release Report at 63.

7 prostate cancer. See Medical Letter. The government agrees that defendant “has laudably

been compliant with his release conditions,” but contends that “the conditions of supervised

release imposed, including monitoring use of electronic devices, are specifically tailored to

detect and prevent commission of this same sort of electronic-based child exploitation

offense.” Gov’t’s Opp’n at 2-3. In light of defendant’s full compliance with his conditions of

release for almost eight years, exemplary lifestyle choices and community service since

incarceration, and deteriorating health, the Court finds that his risk of recidivism is low and

that the need of effective deterrence will not be furthered by requiring defendant to serve his

full fifteen-year term of supervision. Factors two and three thus support early termination of

supervised release.

As to factor four—the need of providing defendant with educational or vocational

training, medical care, or other correctional treatment—defendant does not appear to have

continuing rehabilitative needs. See Aug. 2021 PO Mem. To the contrary, the Probation

Office reported that, by early 2020, defendant had “successfully completed sex offender

treatment.” Jan. 2020 PO Mem. at 2. This factor thus also weighs in favor of early

termination of supervised release.

Finally, as to the fifth factor—the applicable sentencing guidelines range for the

offense and pertinent policy statements issued by the U.S. Sentencing Commission—the

Probation Office maintains that “guidance from the Guide to Judiciary Policy does not

support early termination for sex offense cases.” Aug. 2021 PO Mem. at 2. The Probation

Office nonetheless “recommends the Court [to] consider the factors set forth in

(a); specifically, the nature and circumstances of the offense.”

As the foregoing

analysis illustrates, the Court has done just that and concluded that the § 3553(a) factors favor

8 early termination of supervised release. In fact, as already noted, the Probation Office

concedes that defendant “meet[s] the criteria for early termination.” Id. Accordingly, the §

3553(a) factors, taken together, warrant grant of defendant’s motion.

B. Consideration of Interest of Justice Under

(e)(1)

Besides considering the § 3553(a) factors, the Court must also be “satisfied” that early

termination of supervised release “is warranted by the conduct of the defendant released and

the interest of justice.”

(e)(1). The Court is so satisfied here in light of

defendant’s fully compliant almost eight years on supervision, including completion of sex

offender treatment and being subject “to polygraphs, daily computer monitoring, and random

searches,” which have resulted in “no indication[] of inappropriate internet or computer

access.” Jan. 2020 PO Mem. at 2. Meanwhile, defendant’s medical “condition has,

unfortunately, taken a serious turn for the worse” since he was diagnosed with prostate cancer

in late 2019. Def.’s Mot. at 2. In these circumstances, the Court concludes that early

termination of his supervised release term is in the interest of justice.

III. ORDER

Accordingly, upon consideration of the defendant’s Motion for Termination of

Supervised Release, ECF No. 11, the government’s Opposition to Defendant’s Second

Motion for Early Termination of Supervised Release, ECF No. 13, the related memoranda in

support and opposition, the entire record in this case, and all of the relevant statutory purposes

of supervised release according to

(a), 3583(e)(1), it is hereby

ORDERED that the defendant’s motion is GRANTED; and it is further

ORDERED that the defendant’s term of supervision shall be terminated early,

effective this day.

9 SO ORDERED.

Date: October 4, 2021

__________________________ BERYL A. HOWELL Chief Judge

10