USA v. Dennis Emmett

Filing

FILED OPINION (DOROTHY W. NELSON, RICHARD A. PAEZ and JACQUELINE H. NGUYEN) VACATED; REMANDED. Judge: DWN Authoring, Judge: JHN Dissenting. FILED AND ENTERED JUDGMENT. [9061443]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DENNIS WILLIAM EMMETT, AKA
Dennis Emmett,
Defendant-Appellant.

No. 13-50387
D.C. No.
2:07-cr-00134DDP-3

OPINION

Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
February 11, 2014—Pasadena, California
Filed April 17, 2014
Before: Dorothy W. Nelson, Richard A. Paez,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Nelson;
Dissent by Judge Nguyen

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SUMMARY*

Criminal Law
The panel vacated the district court’s order denying an
offender’s motion for early termination of supervised release
and remanded for further proceedings.
The panel held that the district court did not abuse its
discretion by considering as one factor among others whether
continued supervised release posed an undue hardship, and
that the district court’s duty to explain its sentencing
decisions extends to requests for early termination of
supervised release.
The panel held that the district court did not adequately
explain its reasons for rejecting the offender’s arguments in
favor of early release, where the motion was denied without
a hearing or any response from the government or probation
office, and the only explanation in the record is the district
court’s order stating that the offender did not demonstrate
undue hardship caused by supervised release. The panel
wrote that this statement is not a sufficient explanation, where
the offender did not argue that he faced undue hardship, and
the panel cannot discern why the district court believed that
the absence of due process was an adequate basis for rejecting
the nonfrivolous arguments the offender did present. The
panel wrote that the absence of undue hardship does not
explain why the relevant 18 U.S.C. § 3553(a) factors do not
weigh in the offender’s favor.
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Dissenting, Judge Nguyen wrote that the majority opinion
gives short shrift to the “wide latitude” accorded to district
courts in sentencing matters, and needlessly extends this
court’s case law in a manner that elevates form over
substance.

COUNSEL
James H. Locklin (argued), Assistant Federal Public
Defender, Federal Public Defender’s Office, Los Angeles,
California, for Defendant-Appellant.
Mark Remy Yohalem (argued) and Robert Edward Dugdale,
Assistant United States Attorneys, Office of the United States
Attorney, Los Angeles, California, for Plaintiff-Appellee.

OPINION
D.W. NELSON, Senior Circuit Judge:
Dennis Emmett (Emmett) appeals the district court’s
denial of his motion for early termination of supervised
release. We conclude that the district court did not
adequately explain its reasons for rejecting Emmett’s
arguments in favor of early termination, and therefore vacate
the district court’s order and remand for further proceedings.
I. Background
Emmett pled guilty to one count of mail fraud on
December 12, 2008, and was subsequently sentenced to fiftyone months of imprisonment and a three-year term of

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supervised release. This conviction arose out of Emmett’s
participation in a scheme to trick victims into investing in
fraudulent companies that claimed to purchase lottery tickets
and distribute the proceeds to investors. Tens of thousands of
people fell victim to this scheme, resulting in total losses
between $14 million and $20 million.
Two years after Emmett was released from custody, he
filed a motion for early termination of supervised release
pursuant to 18 U.S.C. § 3583(e). Emmett argued that
continuing his term of probation was a waste of resources
because his offense was non-violent; he never violated his
terms of supervised release; and the probation office was not
providing him with training, medical care, or other
correctional treatment.
The district court denied Emmett’s motion five days after
it was filed, and did so without holding a hearing or receiving
a response from the government or the probation office. The
order denying the motion reads, in full:
Defendant Dennis Emmett’s Ex Parte
Application For Early Termination of
Supervised Release (DOCKET NUMBER
227) filed on August 1, 2013 is hereby
DENIED. Defendant has not provided any
reason demonstrating that continuing
supervised release imposes any undue
hardship on defendant.
Emmett appeals the denial of his motion.

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II. Standard of Review
Our decisions “have repeatedly held that a district court
enjoys significant discretion in crafting terms of supervised
release for criminal defendants.” United States v. Weber,
451 F.3d 552, 557 (9th Cir. 2006). Consistent with a district
court’s broad discretion in imposing terms of supervised
release, the language of § 3583(e) gives district courts broad
discretion in determining whether to grant a motion to
terminate supervised release. 18 U.S.C. § 3583(e)(1); United
States v. Hook, 471 F.3d 766, 771 (7th Cir. 2006). We
therefore review the district court’s decision for abuse of
discretion. See United States v. Townsend, 98 F.3d 510, 512
(9th Cir. 1996); United States v. Lowe, 632 F.3d 996, 997 (7th
Cir. 2011).
III. Discussion
Emmett claims that the district court abused its discretion
by applying an incorrect legal standard, and by failing to
provide a sufficient explanation for its decision. We consider
each argument in turn.
A
It is an abuse of discretion to apply the wrong legal
standard. United States v. Ruiz, 257 F.3d 1030, 1033 (9th
Cir. 2001). Here, Emmett claims that the district court
applied the wrong legal standard by refusing to grant early
termination unless Emmett proved undue hardship caused by
his supervised release.
The correct legal standard for deciding a motion to
terminate supervised release is set forth in 18

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U.S.C. § 3583(e). The statute provides that, after considering
a subset of the sentencing factors set forth in
18 U.S.C. § 3553(a), a court may terminate a term of
supervised release “if it is satisfied that such action is
warranted by the conduct of the defendant released and the
interest of justice.” Id. § 3583(e)(1). The expansive phrases
“conduct of the defendant” and “interest of justice” make
clear that a district court enjoys discretion to consider a wide
range of circumstances when determining whether to grant
early termination. See United States v. Pregent, 190 F.3d
279, 283 (4th Cir. 1999).
The text of § 3583(e) does not support a legal standard
that categorically requires a petitioner to demonstrate undue
hardship. District courts are directed to exercise discretion in
light of a broad range of factors, and therefore a blanket rule
denying early termination whenever a defendant fails to prove
undue hardship would “completely disregard[] the statute.”
See Lowe, 632 F.3d at 998–99 (concluding that a “general
policy of refusing to consider motions for early termination
of supervised release until the final twelve months of the
defendant’s probation” is not permissible under § 3583(e)).
Thus, if the district court had applied an inflexible rule
requiring Emmett to prove undue hardship stemming from
supervised release, that would have been an abuse of
discretion.
Here, however, we cannot conclude that the district court
abused its discretion by imposing an undue hardship
requirement. The district court’s order did not state that a
showing of undue hardship is a prerequisite to early
termination. In fact, the district court’s order did not
articulate any discernable legal standard, nor did it cite any
authority. Where a district court issues a discretionary

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decision without setting forth the legal standard it applied, we
will not presume that its decision rested on a misapprehension
of the law. See United States v. Garcia-Garcia, 927 F.2d
489, 491 (9th Cir. 1991).
Instead, the district court’s finding that Emmett failed to
demonstrate undue hardship is best interpreted as one reason
why early termination is not in the “interest of justice.”
18 U.S.C. § 3583(e). Under the broad legal standard for
granting early termination, it was not an abuse of discretion
to consider as one factor among others whether continued
supervised release posed an undue hardship.
Thus, we conclude that the district court did not abuse its
discretion by applying an incorrect legal standard.
B
We next consider whether the district court had a duty to
explain its reasons for rejecting Emmett’s request for early
termination of supervised release, and if so, whether it
provided a sufficient explanation.
It is a general principle of federal sentencing law that
district courts have a duty to explain their sentencing
decisions. United States v. Carty, 520 F.3d 984, 992–93 (9th
Cir. 2008) (en banc); United States v. Trujillo, 713 F.3d 1003,
1009 (9th Cir. 2013). This duty exists for two distinct
prudential reasons. First, explanations allow circuit courts to
conduct meaningful appellate review of sentencing decisions.
Gall v. United States, 552 U.S. 38, 50 (2007). Second,
explanations “promote the perception of fair sentencing,” id.,
creating trust in sentencing decisions by reassuring the public
of the judiciary’s commitment to reasoned decisionmaking,

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Rita v. United States, 551 U.S. 338, 356 (2007). The duty to
offer a reasoned explanation applies to the initial sentence
imposed by the district court, and also extends to rulings on
requests for a sentencing reduction. Carty, 520 F.3d at 992;
Trujillo, 713 F.3d at 1009.
A district court’s duty to explain its sentencing decisions
must also extend to requests for early termination of
supervised release.1 First, the relevant statutory text is best
interpreted to create a duty to explain. Section 3583(e)
requires a district court to “consider[]” particular § 3553(a)
sentencing factors, and explaining whether these factors
weigh in favor of early termination is part and parcel of
considering the factors. We reached this same conclusion
when we interpreted almost identical language in
18 U.S.C. § 3582(c)(2). Trujillo, 713 F.3d at 1009 (“The
district court’s duty to consider the § 3553(a) factors
necessarily entails a duty to provide a sufficient explanation
of the sentencing decision to permit meaningful appellate
review.”).
Our interpretation of § 3583(e) finds further support in the
prudential concerns underlying the duty to explain sentencing
decisions. Given that a grant or denial of early termination
can be appealed, explanations are useful to ensure that the
appellate process provides meaningful review. Moreover,
1

Other circuits have reached conflicting results on this issue. Compare
United States v. Mosby, 719 F.3d 925, 931 (8th Cir. 2013) (requiring no
explanation), with United States v. Lowe, 632 F.3d 996, 998 (7th Cir.
2011) (holding that “although a court need not make explicit findings as
to each of the factors, the record must reveal that the court gave
consideration to the § 3553(a) factors”), and United States v. Gammarano,
321 F.3d 311, 315–16 (2d Cir. 2003) (requiring a statement that the court
has considered the statutory factors but not findings of fact).

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because “a term of supervised release is part of a defendant’s
sentence,” Weber, 451 F.3d at 559, explanations are
important to preserve public trust in sentencing decisions.
Because the interests protected by the duty to explain are
fully implicated when a district court hears a motion to
terminate supervised release, we readily conclude that a
district court’s duty to “consider” particular sentencing
factors before granting or denying early termination implies
that it also has a duty to explain its decision.
In light of our conclusion that the duty to explain extends
to requests for early termination of supervised release, we
must consider whether the record below contains a sufficient
explanation for rejecting Emmett’s motion.
“What
constitutes a sufficient explanation will necessarily vary
depending on the complexity of the particular case[.]” Carty,
520 F.3d at 992. In each case, however, an explanation must
be sufficiently detailed to permit “meaningful” appellate
review, and it must state the court’s reasons for rejecting
“nonfrivolous” arguments. Id.; see also Trujillo, 713 F.3d at
1009 (recognizing that although “there is no mechanical
requirement that a sentencing court discuss every factor . . .
it may be clear from the court’s experience and consideration
of the record that the factors were properly taken into
account,” the sentencing court has an obligation to provide
some explanation for why it has rejected specific
nonfrivolous arguments). The required explanation is “most
helpful” when it “come[s] from the bench, but adequate
explanation in some cases may also be inferred from . . . the
record as a whole.” Carty, 520 F.3d at 992.
Emmett’s motion was denied without a hearing or any
response from the government or probation office, and the
only explanation in the record is the district court’s order

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stating that Emmett did not demonstrate undue hardship
caused by supervised release.2 This statement, standing
alone, is not a sufficient explanation. Emmett did not argue
that he faced undue hardship, and without further explanation,
we cannot discern why the district court believed that the
absence of undue hardship was an adequate basis for rejecting
the nonfrivolous arguments that Emmett did present.3
Moreover, the absence of undue hardship does not explain
why the relevant § 3553(a) factors do not weigh in Emmett’s
favor. Thus, the single explanation in the record does not
provide a reason for rejecting Emmett’s arguments or explain
why his request should be denied under the applicable legal
standard. We therefore vacate the district court’s order and
remand for further proceedings. Trujillo, 713 F.3d at
1011–12.
On remand, the district court need not give an elaborate
explanation of its reasons for accepting or rejecting Emmett’s
arguments, and it “need not tick off each of the [relevant]
§ 3553(a) factors to show that it has considered them.”
Carty, 520 F.3d at 992; see also Trujillo, 713 F.3d at 1010
(district courts must provide an “explanation, not merely

2

The dissent claims that we “fault” the district court for not holding a
hearing or receiving a response from the government or probation office.
Dissent Op. at 17–18. This is incorrect, and we do not suggest that a
hearing or response was needed in this case.
3

The dissent concludes that no further explanation was needed because
Emmett’s arguments “cannot possibly merit relief.” Dissent Op. at 16.
The government conceded at oral argument, however, that Emmett’s
briefing—which cited all the applicable § 3553(a) factors, directly tethered
its arguments to the statutory language of three of those factors, and put
forward new facts not known at the time of the initial
sentencing—provided a non-frivolous basis for granting relief.

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consideration.”). The record as a whole must, however,
contain an explanation that would permit meaningful
appellate review and justify the court’s conclusion in light of
the parties’ nonfrivolous arguments and the legal standard.
Carty, 520 F.3d at 992.
IV. Conclusion
The district court’s order is VACATED, and we
REMAND for further proceedings consistent with this
opinion.

NGUYEN, Circuit Judge, dissenting:
Dennis Emmett filed a bare-bones ex parte application
which merely reargued, in little more than a page, matters
already previously considered by the district court. As the
majority correctly concludes, the district court applied the
proper legal standard to deny Emmett’s application. Yet, the
majority nevertheless vacates the ruling on the ground that
the district court failed to explain adequately its reasoning.
Because the majority opinion gives short shrift to the “wide
latitude” accorded to district courts in sentencing matters, and
needlessly extends our case law in a manner that elevates
form over substance, I respectfully dissent.
I
A
“In fashioning conditions of supervised release, a district
court ‘has at its disposal all of the evidence, its own

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impressions of a defendant, and wide latitude.’” United
States v. Weber, 451 F.3d 552, 557 (9th Cir. 2006) (quoting
United States v. Williams, 356 F.3d 1045, 1052 (9th Cir.
2004)). And “[i]n light of this ‘wide latitude,’ we give
considerable deference to a district court’s determination of
the appropriate supervised release conditions, reviewing those
conditions deferentially, for abuse of discretion.” Id. This
significant degree of discretion also applies, of course, when
the court is asked to modify or terminate supervised release.
United States v. Bainbridge, — F.3d —, No. 13-30017, 2014
WL 878832, at *3 (9th Cir. Mar. 6, 2014).
Naturally, though, the court’s discretion is not unbounded.
Weber, 451 F.3d at 557. Under 18 U.S.C. § 3583(e), the
district court must “consider[]” the factors set forth at
18 U.S.C. § 3553(a), and explain its decision. United States
v. Carty, 520 F.3d 984, 992–93 (9th Cir. 2008) (en banc)
(district court must explain initial sentencing determination).
“However, we have held that there is no mechanical
requirement that a sentencing court discuss every factor; even
where a judge never mentions ‘§ 3553(a),’ it may be clear
from the court’s experience and consideration of the record
that the factors were properly taken into account.” United
States v. Trujillo, 713 F.3d 1003, 1009 (9th Cir. 2013) (citing
Carty, 520 F.3d at 995–96). While the court should generally
address “nonfrivolous” arguments raised by a defendant, the
majority opinion fails to acknowledge that such arguments
must also be “specific,” and “tethered to a relevant § 3553(a)
factor in support of a requested sentence[.]” Carty, 520 F.3d
at 992–93.

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B
Now consider the facts of this case. The Presentence
Report prepared by the probation office, and reviewed by the
court prior to sentencing, extensively detailed the offense
conduct, the relevant sentencing factors, Emmett’s criminal
history, and his personal and family history, including
Emmett’s health, educational, and employment background,
and his financial condition. Thus, for example, the district
court was informed that, over a period of four years, Emmett
and his cohorts bilked tens of thousands of victims (mostly
the elderly) out of their money, at least between $14 million
to $20 million; that he faced a Guidelines sentencing range of
121 to 151 months; that he had a prior drunk driving offense;
that he had training and experience in computer programming
and consulting, but almost no assets; and, on and on. The
sentencing briefing of the parties—over 30 pages of argument
alone—further discussed every relevant facet of Emmett’s
life and anticipated sentence. The court ultimately sentenced
Emmett to a substantially below-Guidelines sentence of 51
months, followed by a term of three years of supervised
release, consistent with U.S.S.G. § 5D1.2(a)(2), and the mail
fraud violation to which Emmett pled, 18 U.S.C. § 1341. No
one contends that the court did so lightly, or that the court
failed to consider carefully the extensive record before it prior
to sentencing. It is against this backdrop that we must
consider the court’s disposition of Emmett’s subsequent
application for relief.
Ultimately, “[w]hat constitutes a sufficient explanation
[by the district court of its sentencing decision] will
necessarily vary depending on the complexity of the
particular case[.]” Carty, 520 F.3d at 992. Emmett’s
application for early termination of supervised release is not

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complex. In fact, there is nothing to it. When Emmett was
originally sentenced, he did not object to the court’s
imposition of a three-year term of supervised release. Now,
he has filed an application that, in little more than a page,
mostly reiterates arguments already made at the time of
sentencing, before the same district judge who originally
sentenced him.1 He presents virtually no information that
was not already known to, and considered by, the court at the
initial sentencing.
What does Emmett’s 450-word filing actually say? First,
he argues that further supervision is unnecessary because he
has not reoffended and has complied with the terms of his
sentence. That contention, which is not tethered to a
§ 3553(a) factor, is plainly meritless and does not require a
response. On the day Emmett was sentenced, he was fully
expected, and indeed legally required, to comply with the
terms of his supervised release.2 Next, Emmett generally

1

Ironically, by contrast, Emmett’s Opening Brief before this court spans
16 pages.
2

A defendant’s “exceptionally good behavior” may render a previouslyimposed sentence inappropriate or too harsh, but as the district courts of
our circuit have repeatedly recognized, mere compliance is to be expected.
United States v. Miller, 205 F.3d 1098, 1101 (9th Cir. 2000) (quoting
United States v. Lussier, 104 F.3d 32, 36 (2d Cir. 1997)); United States v.
Bauer, No. 5:09-cr-00980, 2012 WL 1259251, at *2 (N.D. Cal. Apr. 13,
2012) (it is “apparent that the reasons cited by Defendant—compliance
with release conditions, resumption of employment and engagement of
family life—are expected milestones rather than a change of
circumstances rendering continued supervision no longer appropriate”);
United States v. Grossi, No. CR-04-40127, 2011 WL 704364, at *2 (N.D.
Cal. Feb. 18, 2011) (“Mere compliance with the terms of supervised
release is what is expected, and without more, is insufficient to justify
early termination.”).

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reminds the court of “the nature of the offense, and the
history and circumstances of the defendant”—the crime was
nonviolent, he is now several years older, et cetera—all facts
that were considered, and entirely foreseeable, by the court at
the time of sentencing. Again, these observations are not
supported by citation to any § 3553(a) factor, and do not
warrant “explanation” from the court. Next, Emmett also
notes that he is not receiving counseling or other care in
connection with his supervision. That is not a revelation,
either. Because Emmett refused to discuss substance abuse
with the probation office on the advice of counsel, the court
did not recommend that he receive counseling. The only new
piece of information Emmett presents is the fact of his recent
unemployment. And the only § 3553(a) factor Emmett
specifically invokes is subsection (a)(2)(D), which pertains to
the provision of training and counseling programs.3
It is defendant’s burden to establish that he is entitled to
the rarely-granted remedy of early termination of supervised
release. Weber, 451 F.3d at 559 n.9 (citing United States v.
Weintraub, 371 F. Supp. 2d 164 (D. Conn. 2005)). This is
usually accomplished by alerting the district court to
“unforeseen” or “changed circumstances” that implicate its
initial sentencing decision and analysis. United States v.
Miller, 205 F.3d 1098, 1101 (9th Cir. 2000) (quoting United
States v. Lussier, 104 F.3d 32, 36 (2d Cir. 1997)). See also
Fed. R. Crim. P. 32.1(b) Advisory Committee Note

3

At argument, the government declined to characterize Emmett’s
arguments as outright “frivolous,” but contrary to the majority opinion’s
suggestion, Maj. Op. at 10 n.3, the government did not concede that
Emmett adequately invoked all of the § 3553(a) factors, or more generally,
that Carty required the district court to respond to any such non-frivolous
arguments.

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(§ 3583(e) recognizes that the “sentencing court must be able
to respond to changes in the [defendant’s] circumstances as
well as new ideas and methods of rehabilitation”). To be
sure, changed circumstances are not necessarily required to
warrant early termination—but that is so merely to preserve
district courts’ discretion, not to relieve defendants of their
burden. See Bainbridge, 2014 WL 878832, at *5. Mere
reargument of matters already considered by the court, and
without citation to the relevant § 3553(a) factors, certainly
borders on frivolous within the meaning of Carty, 520 F.3d
at 992, and in any case, cannot possibly merit relief.
Here, the district court quite reasonably exercised its
considerable discretion to deny Emmett’s application
summarily, commenting only that continued supervision
would not entail any “undue hardship”—an apparent
reference to the only arguable “changed circumstance,”
namely Emmett’s unemployment, and his argument, citing
§ 3553(a)(2)(D), that the probation office is not providing
him any vocational training. If the court’s order is terse, that
simply reflects the scanty basis for Emmett’s request. So
what more does the majority want the district court to
address? It does not say specifically, but the troubling
implication of its opinion is that even when a district court
receives a cursory application that merely reiterates known
facts, without any identified connection to the relevant legal
factors, it nonetheless must take the time to explain again
why its prior sentencing decision still holds.
II
To reach its conclusion, the majority relies heavily on
United States v. Trujillo, 713 F.3d 1003, 1009 (9th Cir. 2013),
but the comparison is completely inapt. In Trujillo, the

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defendant offered “fairly extensive arguments and evidence”
in support of his request to modify his sentence pursuant to
retroactive revisions to the Sentencing Guidelines. Id.
Trujillo’s arguments had never been raised previously to the
district court, and concerned important changes in the law
that might render his custodial sentence excessive and
unjustly disparate. We found error because “[t]he district
court did not address any of [these arguments], even to
dismiss them in shorthand.” Id. at 1010. This “total
omission,” we reasoned, did not permit meaningful appellate
review. Id. (citing Rita v. United States, 551 U.S. 338, 356
(2007)).
By contrast, nothing prevents appellate review here. The
record is brief and undisputed. Under the majority view, if
the district court had said, “I considered these facts already,”
would that have led to a different result? Presumably so, but
isn’t that already quite obvious from the record? The
majority opinion ignores the flimsiness of Emmett’s request,
which leads it to an unreasonable conclusion.
Two additional points: First, the majority faults the
district court for failing to hold a hearing, while ignoring that
Emmett never requested one. Instead of a formal motion,
Emmett chose to file an ex parte application with the apparent
expectation that the court would handle it in chambers.
Generally, no hearing is required if the court refuses to
modify defendant’s sentence. Fed. R. Crim. P. 32.1(c)
(subject to exceptions, court must hold a hearing “[b]efore
modifying the conditions of probation or supervised release”
(emphasis added)); see also United States v. Nonahal,
338 F.3d 668, 671 (7th Cir. 2003) (“the rule does not compel
the court to hold a hearing before refusing a request for
modification”). Nor is a hearing required if the defendant

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waives his request for one. See Fed. R. Crim. P.
32.1(c)(2)(A). Plainly, none was required here.
Second, the majority criticizes the district court’s decision
to rule without a response from probation or the government.
But the court knew full well from Emmett’s ex parte
application that probation and the government opposed early
termination. See C.D. Cal. L. R. 7-19.1 (requiring statement
of opposing counsel’s position to be included ex parte
applications). And not even appellant contends that it was
necessary or important for court to solicit the latter parties’
views before adjudicating the motion. Given the near total
lack of anything new, I cannot find fault with the district
court’s view that a more formal objection from the
government was unnecessary.
III
In short, the majority’s impractical, overly formalistic
approach not only fails to give the usual “considerable
deference to a district court’s determination of the appropriate
supervised release conditions,” Williams, 356 F.3d at 1052,
it also needlessly burdens our already overloaded district
courts. I must dissent.

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