United States v. Depew ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 17 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-1181
(D.C. No. 91-CR-9-B)
JAY L. DEPEW, (D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is
ordered submitted without oral argument.
Jay L. Depew, appearing pro se, appeals the district court’s denial of his
motion seeking early termination of his supervised release. We affirm.
Depew was charged in Colorado federal court on January 11, 1991, with
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
willfully making and subscribing a partnership return of income for the tax year
1985, in violation of 26 U.S.C. § 7206(1). On January 22, 1991, he filed a
written consent pursuant to Fed. R. Crim. P. 20 to transfer the case for purposes
of plea and sentence to South Dakota federal court where another criminal case
was pending against him. Depew was sentenced in South Dakota on August 5,
1991, to one year of imprisonment with no accompanying term of supervised
release for the Colorado charge, and to a concurrent term of 58 months’
imprisonment with three years’ supervised release for the South Dakota charges.
Depew served his term of imprisonment and began his supervised release on
October 18, 1995. Since he wanted to reside in Colorado, the Colorado probation
department agreed to supervise him during his supervised release.
On February 24, 1997, Depew filed motions in Colorado federal court
seeking early termination of his supervised release and tranfer of venue to
Colorado federal court. The Colorado district court denied the motions for lack
of jurisdiction and subsequently denied Depew’s motion for reconsideration.
We have carefully reviewed the record on appeal and conclude the district
court properly denied Depew’s motions. Although 18 U.S.C. § 3583(e) allows a
defendant to seek early termination of supervised release, any such motion must
be directed to the sentencing court that imposed the term of supervised release.
See United States v. Akinyemi, 108 F.3d 777, 779 (7th Cir. 1997) (“A sentencing
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court also has the authority under some circumstances to modify or terminate a
term of supervised release.”); United States v. Lussier, 104 F.3d 32, 34 (2d Cir.
1997); United States v. Spinelle, 41 F.3d 1056, 1057 (6th Cir. 1994) (noting
sentencing court oversees defendant’s post-confinement monitoring). Because
Depew’s term of supervised release was imposed by the South Dakota federal
court, any motion to modify that supervised release (as well as any motion to
change venue) must be directed to that court.
The judgment of the district court is AFFIRMED. The government’s
motion to supplement the record is DENIED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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