United States v. Serge Bayard ( 2013 )

CLD-444 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-3404
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UNITED STATES OF AMERICA
v.
SERGE ERIC BAYARD,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 12-cr-00604-001)
District Judge: Stewart Dalzell
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Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 3, 2013
Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges
(Opinion file: October 17, 2013)
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OPINION
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PER CURIAM
Appellant Serge Eric Bayard appeals from an order of the District Court denying
his motion for early termination of his supervised release. For the reasons that follow, we
will summarily affirm.
Bayard was convicted in the United States District Court for the District of New
Hampshire of unauthorized use of an access device, in violation of 18 U.S.C. §
1029(a)(2), and aggravated identity theft, in violation of 18 U.S.C. § 1028A, following a
jury trial, see D.C. Crim. No. 09-cr-00096. He was sentenced to a term of imprisonment
of 36 months, to be followed by 3 years of supervised release, and he was ordered to pay
restitution to Bank of America in the amount of $5,011.00. The Court of Appeals for the
First Circuit affirmed the judgment of conviction, see United States v. Bayard, 642 F.3d
59 (1st Cir. 2011). Bayard collaterally attacked his conviction and sentence in a motion
to vacate sentence, 28 U.S.C. § 2255, which was denied, see United States v. Bayard,
2012 WL 395165 (D.N.H. February 7, 2012). He also challenged the execution of his
sentence in a federal habeas corpus petition, 28 U.S.C. § 2241, filed in the District of
New Hampshire.
Bayard began to serve his term of supervised release on March 16, 2012; the term
is expected to end on March 15, 2015. In October, 2012, jurisdiction over his term of
supervised release was transferred to the Eastern District of Pennsylvania. On March 21,
2013, Bayard filed a petition for writ of habeas corpus, 28 U.S.C. § 2241, in the Eastern
District, naming the U.S. Probation Office as the respondent and seeking credit against
his federal sentence for time served (207 days) on a state trespass conviction that
preceded his federal convictions, see Bayard v. U.S. Probation Office, D.C. Civ. No. 13-
cv-01486. The Bureau of Prisons declined to give him this credit. The District Court
denied the petition, and Bayard has appealed to this Court in a separate appeal, see C.A.
No. 13-3909.
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Meanwhile, on July 15, 2013, Bayard filed a motion for early termination of his
supervised release, 18 U.S.C. § 3583(e)(1), claiming that, having served 16 months of his
supervised release, he was now eligible for early termination. Bayard argued that he was
a good candidate for early termination because his offenses were non-violent, he had
adjusted to the community, and he was not a danger to the public. Bayard also urged the
District Court to consider that he had “over-served” 207 days in prison, citing our
decision in United States v. Jackson, 523 F.3d 234, 239 (3d Cir. 2008) (subsequent
reduction in defendant’s Guidelines sentencing range might merit credit against
defendant’s term of supervised release for excess term of imprisonment to which
defendant was subjected). The District Court denied the motion on the basis that Bayard
still owed $4,000 in restitution and thus the interest of justice would not be served by
early termination of his supervised release.
Bayard appeals. Under Third Circuit LAR 27.4 and I.O.P. 10.6, we may
summarily dispose of an appeal when it clearly appears that no substantial question is
presented by it. The parties were advised that we might act summarily to dispose of this
appeal and invited to submit argument in writing.
We will summarily affirm. We review a District Court’s decision under section
3583(e) not to grant early termination of a term of supervised release for an abuse of
discretion. See United States v. Smith, 445 F.3d 713, 716 (3d Cir. 2006). Section
3583(e)(1) provides that, after the defendant has completed one year of supervised
release, the district court may terminate the term of supervised release if “such action is
warranted by the conduct of the defendant released and the interest of justice.” 18 U.S.C.
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§ 3582(e)(1). Section 3583(e) requires a District Court to consider certain factors in 18
U.S.C. § 3553(a) before it can terminate a term of supervised release and discharge the
defendant. See United States v. Lowe, 632 F.3d 996, 998 (7th Cir. 2011). The decision
whether to modify a term of supervised release is a discretionary one. See Burkey v.
Marberry, 556 F.3d 142, 149 (3d Cir. 2009).
The District Court determined that it would not be in the interest of justice to
terminate Bayard’s supervised release now because he still owes $4,000 in restitution.
Plainly, this was not an abuse of discretion, and Bayard did not argue otherwise. The
need to provide restitution to the victims of an offense is a factor the District Court
should consider in addressing a motion for early termination of supervised release, 18
U.S.C. § 3553(a)(7). Moreover, the District Court, having presided over Bayard’s case
against the Probation Office, was fully aware of Bayard’s self-serving argument
regarding how the Bureau of Prisons calculated his sentence, and its apparent lack of
merit. We are thus satisfied that the District Court considered the appropriate sentencing
factors in denying the motion for early termination of supervised release in the interest of
justice.
For the foregoing reasons, we will summarily affirm the order of the District Court
denying appellant’s motion for early termination of supervised release.
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