United States v. Paul Whinnery ( 2019 )


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  •                         NONPRECEDENTIAL DISPOSITION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
    

Document Info

Docket Number: 18-3391

Judges: Per Curiam

Filed Date: 6/6/2019

Precedential Status: Non-Precedential

Modified Date: 6/7/2019