United States v. Raymond ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
UNITED STATES OF AMERICA, )
)
v. ) Criminal Action No. 09-183 (RMC)
)
PAUL NICHOLAS RAYMOND, )
)
Defendant. )
__________________________________ )
MEMORANDUM OPINION
Paul Nicholas Raymond was charged in an Information filed on July 29, 2009,
with one count of traveling to engage in illicit sexual conduct and one count of possessing child
pornography. Mr. Raymond pleaded guilty to both counts on August 14, 2009. On December
22, 2009, he was sentenced on each count to concurrent five-year prison terms and ten years of
supervised release. Mr. Raymond’s supervised release began on September 20, 2013 and will
expire in September 2023.
Having successfully completed his prison term and more than five years of
supervision, Mr. Raymond asks the Court to terminate his supervision early under 18 U.S.C.
§ 3583(e)(1). After carefully considering his motion, the government’s opposition, and the full
record, the Court will grant Mr. Raymond’s motion and terminate his supervision effective
September 20, 2019.
I. BACKGROUND
Paul Raymond is now 57 years old and a dual citizen of the United States and the
United Kingdom. He has lived in the metropolitan area of the District of Columbia since his
release from prison in 2013, visiting his elderly parents in England only when specifically
1
approved by the Court. His parents have since passed and Mr. Raymond would like to have the
option to re-locate to England, which is very difficult as long as he is on supervised release.
Mr. Raymond states that he completed the 18-month residential sex offender
treatment program at FCI Devens in Massachusetts while incarcerated. He “became a mentor for
others in the program and facilitated re-entry guidance sessions.” Mot. for Early Termination of
Supervised Release [Dkt. 36] at 2. After his release, Mr. Raymond completed all therapy
sessions as directed.
It is not controverted that, since his release, Mr. Raymond has passed every
polygraph test, passed every drug test, completed all therapy required of him, never missed a
meeting with his probation officer, and maintained computer monitoring, at his own expense,
without any violations. When visiting England, Mr. Raymond has complied with every
condition, and has additionally registered as a sex offender with British authorities, which was
not required.
Mr. Raymond has maintained a stable residence and has worked several odd jobs
while searching for something more permanent. As of briefing, he was enrolled in a paralegal
program at Georgetown.
II. LEGAL STANDARD
When considering a request for early termination of supervised release, the Court
must first consider: (1) the nature and circumstances of the offense and the defendant’s history
and characteristics; (2) deterrence of criminal conduct; (3) protection of the public from further
crimes of the defendant; (4) the need to provide the defendant with education or vocational
training, medical care, or other correctional treatment; (5) the applicable sentencing guideline
range for the offense and pertinent policy statements issued by the U.S. Sentencing Commission;
(6) the need to avoid unwarranted sentencing disparities; and (7) the need to provide restitution
2
to any victims of the offense. See 18 U.S.C. § 3583(e); see also United States v. Harris, 258 F.
Supp. 3d 137, 144 (D.D.C. 2017). These factors are only a subset of the § 3553(a) factors
considered at sentencing because “Congress intended supervised release to assist individuals in
their transition to community life.” United States v. Johnson, 529 U.S. 53, 59 (2000). That is to
say, “[s]upervised release fulfills rehabilitative ends, distinct from those served by
incarceration.” Id.; see also Harris, 258 F. Supp. 3d at 144-45 (discussing legislative history).
“The relevant factors under § 3553(a) are, consequently, evaluated mindful of the Supreme
Court’s clear articulation of the purpose of supervised release and the district court’s discretion
to limit terms of supervised release to those who need it.” Harris, 258 F. Supp. 3d at 145.
After considering these factors, the Court may “terminate a term of supervised
release and discharge the defendant at any time . . . after the expiration of one year of supervised
release . . . if it is satisfied that such action is warranted by the conduct of the defendant released
and the interest of justice.” 18 U.S.C. § 3583(e)(1).
III. ANALYSIS
A. Section 3553 Factors
Nature and Circumstances of the Offense. In 2009, Mr. Raymond made plans to
engage in sexual conduct with the 4-year-old relation of a man he met online. That man was an
undercover officer. After Mr. Raymond’s arrest, officers found 2 videos and approximately 50
images of child pornography on his computer. Clearly this is a serious crime and Mr. Raymond
was incarcerated accordingly.
At this juncture, however, “the question before this Court is not whether the
defendant should be punished further, but rather whether his . . . supervision . . . should remain in
place in order to ensure that his life continues to stay moving in the right direction.” Harris, 258
3
F. Supp. 3d at 146 (emphasis omitted). This question is best considered along with the next two
factors, although the Court remains mindful of Mr. Raymond’s crime.
Deterrence and Protecting the Public. As referenced above, in addition to his
incarceration, Mr. Raymond completed an 18-month residential sex offender treatment program
and mentored others in that program. He has completed all of his therapy sessions since his
release. He has complied with and satisfied every element of his supervised release, including
polygraph testing, drug testing, and electronic monitoring. He registered as a sex offender not
only in this area, as required, but also when visiting in England, which was not required. Mr.
Raymond has also enrolled himself in programs to help him re-integrate more fully into society,
such as a paralegal course offered through the District of Columbia’s Office on Returning
Citizens Affairs.
“The defendant’s maintenance of an unblemished record of compliance with his
conditions of release for over [five] years is, perhaps, the best indicator of his ability to continue
as a law-abiding member of his community.” Id. at 146-47. It appears from the record that Mr.
Raymond has been an active participant in his own treatment and the treatment of others and has
completed therapy; Mr. Raymond has demonstrated a commitment to personal change so that the
risk of recidivism and to the public are reduced.
Training or Correctional Treatment. Mr. Raymond completed treatment during
his incarceration and therapy after his release. The government does not argue that additional
training or treatment is scheduled or necessary. Nor does it argue that circumstances make it
particularly likely that Mr. Raymond specifically will reoffend. This factor does not support the
need for continuing supervision.
4
Sentencing Guidelines and Policy Statements. Under the Sentencing Guidelines,
the term of Mr. Raymond’s supervised release was to be no less than the statutory minimum for
his crime: in this case, five years. He completed those five years in September 2018.
The Guidelines also include two relevant policy statements. On the one hand,
when setting the initial term of supervised release, the Sentencing Commission’s policy
statement is that, for sex offenses, “the statutory maximum term of supervised release is
recommended.” U.S. Sentencing Guidelines § 5D1.2, p.s. For Mr. Raymond, the statutory
maximum term of supervised release was life. On the other, the Commission’s commentary to
the same section—which is treated as a policy statement—notes that “[t]he court has authority to
terminate or extend a term of supervised release” and “is encouraged to exercise this authority in
appropriate cases.” Id. at comment. (n.5). Indeed, the commentary provides as an example of a
candidate for early termination a defendant who “while on supervised release, successfully
completes a treatment program, thereby reducing the risk to the public from further crimes of the
defendant.” Id.
This Court previously determined that lifetime supervision of Mr. Raymond was
unnecessary. Further, the Commission’s first policy statement applied at Mr. Raymond’s
sentencing but it is no longer clear that it should continue to apply to these circumstances. And
while the government argues that Mr. Raymond received a below-guidelines sentence of
incarceration, the Court notes again that supervised release and incarceration are not substitutes
for one another. See U.S. Sentencing Guidelines Ch. 7, Pt. A(2)(b), intro. comment. (“Unlike
parole, a term of supervised release does not replace a portion of the sentence of
imprisonment.”); cf. Johnson, 529 U.S. at 58-59 (“Though interrelated, the terms are not
interchangeable.”).
5
Rather, Mr. Raymond’s excellent performance under supervision is consistent
with the Sentencing Commission’s policy statement and its example of early termination
supports the early termination of supervision in this case.
Sentencing Disparities. Mr. Raymond received a sentence of incarceration and a
term of supervised release comparable to others in this district at the time, even if his sentence
was below the range provided by the Guidelines. That said, the Supreme Court has opined that
defendants “may, of course, vary in the degree of help needed for successful reintegration” and
“Congress aimed . . . to use the district courts’ discretionary judgment to allocate supervision to
those releasees who needed it most.” Johnson v. United States, 529 U.S. 694, 709 (2000). At
this point, keeping Mr. Raymond on supervised release simply because other offenders may
remain on supervised release would “undermine the case specific inquiry required in evaluating a
motion for early termination of supervised release.” Harris, 258 F. Supp. 3d at 145.
Restitution. No restitution was required in this case and so this factor adds
nothing to the Court’s considerations.
B. Post-Incarceration Conduct and the “Interest of Justice”
The crux of the government’s argument is that Mr. Raymond must exhibit
“exceptionally good behavior”—not merely compliance with the terms of his supervised
release—to justify early termination of supervised release. Gov’t’s Opp’n to Def.’s Request for
Early Termination of Supervised Release (Opp’n) [Dkt. 38] at 3; cf. United States v. Etheridge,
999 F. Supp. 2d 192, 196 (D.D.C. 2013) (citing United States v. Lussier, 104 F.3d 32, 33 (2nd
Cir. 1997)). Thus, while the government “commends the defendant for his successes during his
period of supervision,” it argues that “there is nothing unusual or extraordinary in the fact that
the defendant has remained law-abiding or completed his court-mandated counseling.” Opp’n at
3-4.
6
While some courts have stressed that early release is a “rare” phenomenon that
mere compliance with the terms of supervision does not satisfy, see Etheridge, 999 F. Supp. 2d
at 196-97 (discussing cases), other courts have found that the words of the statute are not so
stringent; “exceptional” behavior is a requirement nowhere to be found. See Harris, 258 F.
Supp. 3d at 149-50. And while it might be that the Judiciary should expect former felons to
follow directions, obey the law, and re-design their lives, it is all too obvious that such post-
incarceration success is not achieved by many who make the attempt. Thus, Mr. Raymond’s
100% compliance with each term of his supervised release for over five years is, actually, fairly
extraordinary. Although that may not satisfy the standard set by the government, the Court finds
he has satisfied the standard set by the statute and that “continuing the defendant’s probation
would have no real value as far as law enforcement or any other community interest is
concerned.” Etheridge, 999 F. Supp. 2d at 199.
Notwithstanding, the government argues that Mr. Raymond initially received a
sentence of incarceration well below his Guidelines range so that the original term of supervised
release is particularly important to ensuring the safety of the community. The government also
emphasizes that child exploitation and child pornography are very serious offenses which require
polygraph tests and monitoring of offenders’ electronic devices during supervision to protect the
community. These arguments are valid. But Mr. Raymond has acquitted himself admirably
during the last five years showing that he can “conduct himself in a law-abiding, productive
manner,” even in the face of intense and intrusive supervision. Harris, 258 F. Supp. 3d at 150.
Mr. Raymond has gone through therapy, passed every polygraph, and satisfied electronic
monitoring; the Probation Office has not objected to early termination of his supervision. His
behavior supports early termination of his supervised release.
7
For the same reasons, early termination is also in the “interest of justice.” On this
point, the Court notes that, having successfully completed five years of supervised release, Mr.
Raymond has already satisfied the minimum period of supervision recommended by the
Guidelines for his crimes. Accordingly, the Court will reduce Mr. Raymond’s term of
supervision from 120 months to 72 months.
IV. CONCLUSION
Having considered the necessary factors as applied to this case, the Court is
persuaded that the termination of supervision is “warranted by the conduct of the defendant” and
is in “the interest of justice.” 18 U.S.C. §3583(3)(1). Accordingly, the Court will order Mr.
Raymond’s supervision to end effective September 20, 2019.
Date: April 25, 2019
ROSEMARY M. COLLYER
United States District Judge
8