United States v. Paul Whinnery ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 30, 2019*
Decided June 6, 2019
Before
DIANE P. WOOD, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 18-3391
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin.
v.
No. 18-cr-53-wmc
PAUL WHINNERY , 1
Defendant-Appellant. William M. Conley,
Judge.
ORDER
Paul Whinnery was convicted in the Eastern District of Texas of several charges
related to his involvement in a drug conspiracy. After he was released from prison, he
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
1 We have corrected the defendant’s name because his name has changed, and he
has not asked to proceed anonymously or under a pseudonym. Fed. R. App. P. 43(b).
Only “exceptional circumstances” would justify allowing him to proceed anonymously.
See Doe v. Village of Deerfield, 819 F.3d 372, 376–77 (7th Cir. 2016).
No. 18-3391 Page 2
moved to the Western District of Wisconsin, and the district court there took over his
supervision. In the middle of a dispute with his probation officer about the need to
verify his employment history, Whinnery moved to terminate his supervised release.
The district court denied his motion, and we affirm.
While on supervision, Whinnery was required to “work regularly at a lawful
occupation” and to “provide the probation officer with access to any requested financial
information for purposes of monitoring … his efforts to obtain and maintain lawful
employment.” In 2018, Whinnery’s probation officer asked him for documents showing
that he had been engaged in legitimate employment since his release. Whinnery (a
former professor of statistics and software developer) had represented that he was
employed by a software company he founded before his criminal conviction,
Katunigan. In its current iteration, Whinnery reported, Katunigan contracted with a
Cayman Islands-based company to provide “litigation support” (Whinnery had learned
legal skills in prison) and “whatever services they require,” including identifying
business-development opportunities. The company paid Katunigan a monthly “draw,”
and Whinnery said he lived in company housing and drove a company car.
Whinnery told his probation officer that he could not provide “a detailed
description of the case work I am doing because I am not permitted to divulge that to
anyone.” He added that he could provide only limited documents (a W-2 and tax return
for 2016 and bank statements) because of confidentiality concerns. The officer deemed
his explanation and his documents insufficient and expressed concern that Whinnery
was not engaged in legitimate employment. In response, Whinnery told the officer that
he was “reorganizing” his employment; he would continue doing the same work but as
a salaried employee at a law firm in Belleville, Illinois, beginning in March 2018.
Whinnery, through counsel, then moved to terminate his remaining term of
supervised release based on his “truly unique and remarkable” progress. The
government opposed Whinnery’s motion because he had not provided probation with
enough details for it to confirm whether Whinnery had maintained employment before
March 2018 and, if so, whether it was above board.
At the hearing on Whinnery’s motion, his lawyer argued that Whinnery had
complied with his supervision even though he had an honest disagreement over the
financial documents requested by the probation office. The judge explained that he
would not consider ending Whinnery’s supervision until he complied with the
probation office’s reasonable request for information. In response to the concern that the
No. 18-3391 Page 3
motion was “premature,” Whinnery’s attorney noted that Whinnery could have moved
to terminate his supervised release after one year; the judge responded, “I would have
denied it.” The court then explained that he was denying Whinnery’s motion because
he did not have enough information to confirm that Whinnery was eligible for relief—
i.e., that he had been complying with the terms of his supervision:
I’m denying [Whinnery’s motion] because it’s premature. It has nothing to
do with whether or not he was employed during this period or not; it has
to do with his failure to provide reasonably requested information from
the probation officer who’s assigned to supervise him. And I’m not going
to make a decision about early termination … until the probation office
has a better understanding as to what he’s been doing for the last three
years.
Whinnery now appeals. We review the denial of a motion for early termination
of supervised release for an abuse of discretion. See
United States v. Lowe, 632 F.3d 996, 997 (7th Cir. 2011). A court abuses its discretion
when it “commits a serious error of judgment, such as the failure to consider an
essential factor.” Id. at 997–98.
Whinnery argues that the district court erroneously deemed his motion
“premature.” He interprets the district judge’s statement that he would have denied the
same motion at the one-year mark as an arbitrary refusal to consider early-termination
motions until the end date draws closer. A district court may release a defendant from a
term of supervision after one year, see 18 U.S.C. § 3583(e)(1), and we have held that a
district court abuses its discretion by refusing to entertain a motion for early
termination before the last year of supervision. See Lowe, 632 F.3d at 998–99. Here,
however, we do not interpret the district court’s order as Whinnery does. Rather, as the
judge explained, Whinnery filed his motion before he provided the information
required to demonstrate that he had complied with the terms of his supervision.
Indeed, the district court stated at least four times that it would not consider the merits
of the motion “until” Whinnery complied with the probation office’s requests, and
twice that Whinnery could request termination when the dispute over documents was
over. The record therefore does not permit Whinnery’s inference that the judge simply
wanted him to serve more of his term before seeking early termination.
Whinnery also argues that the district court abused its discretion by not
addressing the factors in 18 U.S.C. § 3553(a) before denying his motion. A district court
No. 18-3391 Page 4
should give “some indication” that it considered the factors in § 3553(a) when assessing
a motion for early termination of supervised release. Lowe, 632 F.3d at 998. But that
presupposes that the court considers the motion on the merits. Here, the district court
was clear that it would not even consider early termination until the probation office
had the information needed to verify Whinnery’s compliance with the terms of
supervision. The court said it was unable to make any judgment on the record before it,
and so it had no occasion to consider the § 3553(a) factors. Thus, the court’s reliance on
Whinnery’s failure to demonstrate his compliance with the terms of his “conditional
liberty,” United States v. McIntosh, 630 F.3d 699, 703 (7th Cir. 2011), was not an abuse of
discretion.
AFFIRMED