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United States of America v. Paula Dudash

March 14, 2012

UNITED STATES OF AMERICA,
v.
PAULA DUDASH, DEFENDANT.



The opinion of the court was delivered by: Judge Nora Barry Fischer

MEMORANDUM OPINION

I. INTRODUCTION

This matter is before the Court on a Motion for Early Termination of Supervised Release filed by counsel on behalf of Defendant Paula Dudash ("Defendant") on January 27, 2012. (Docket No. 115). This Motion is the second such motion for early termination of supervised release filed by Defendant. (See Docket No. 107). In support of early termination, Defendant asserts that she has fully complied with the conditions of supervision, she suffers from serious health conditions, and the United States Probation Office does not oppose the early termination of Defendant's supervised release. (Docket No. 115 at ¶¶ 3-5, ¶ 8; Docket No. 118 at ¶ 1). The Government opposes early termination. (See Docket No. 117). The Probation Office has informed the Court that Defendant's conditions of supervision can accommodate her medical appointments and treatment. Upon consideration of the parties' positions, and for the following reasons, Defendant's Motion is denied, without prejudice.

II. BACKGROUND

On November 4, 2005, Defendant pled guilty to one count of conspiracy to possess with intent to distribute five grams or more of cocaine base, in the form commonly known as crack, in violation of 21 U.S.C. § 846. (Docket No. 35). During the change of plea hearing, the Court accepted Defendant's plea agreement into evidence. (See id. at Exhibit #1).

On January 27, 2006, the Honorable Thomas M. Hardiman*fn1 sentenced Defendant to sixty (60) months of imprisonment and a term of supervised release of five (5) years. (Docket No. 51). Judge Hardiman imposed standard and additional conditions to Defendant's term of supervised release, including, among other terms, that she: not commit another Federal, state or local crime; not possess a firearm, destructive device or other dangerous weapon; not purchase, possess, use, distribute or administer any narcotics or other controlled substances; not leave the judicial district without requesting permission of the Court or Probation Office; maintain lawful employment; provide for her dependents; not associate with persons engaged in criminal activity or convicted felons without permission from the Probation Office; report to the Probation Office as required and permit the Probation Officer to visit her home at any time; refrain from the use of alcohol; participate in a program of testing and, if necessary, treatment for substance abuse to include alcohol; and participate in a mental health treatment program. (Docket No. 51 at 3-4).

While serving her term of imprisonment, Defendant petitioned the Court under 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence. (Docket No. 77). She also moved to reduce her sentence under 18 U.S.C. § 3582(c)(2) based on a 2007 amendment to the Sentencing Guidelines that lowered the base offense levels applicable to cocaine base ("crack") offenses. (Docket No. 92). The Court denied each of these petitions or motions. (Docket Nos. 80, 96).

Defendant was released from the custody of the Bureau of Prisons on December 31, 2009. (Docket No. 115 at ¶ 2). Her five-year term of supervised release is set to expire on December 30, 2014. (Docket No. 117 at ¶ 22). At the present time, Defendant has served approximately two (2) years and two (2) months of her term of supervised release, and, without Court intervention, she will remain on supervision for approximately an additional two (2) years and ten (10) months.

Defendant, through counsel, filed her first Motion for Early Termination of Probation/Supervised Release*fn2 on August 9, 2011. (Docket No. 107). In favor of early termination, Defendant cited her diagnosis with cancer in the fall of 2010 and her need to address attendant health concerns. (Id.). The Government opposed this motion. (Docket No. 108). The Probation Office also opposed the motion and "recommended to the Court that supervision of the Defendant be continued given her background and history." (Docket No. 109 at 3).

In a Memorandum Opinion filed on August 25, 2011, the Court denied Defendant's first motion to terminate her supervised release largely because the Defendant's cancer diagnosis was not a sufficient basis for early termination. (Docket No. 109). Defendant failed to demonstrate that the conditions of her supervised release interfered with her medical treatment or prognosis in any way. (Id. at 5). Moreover, the Court held that Defendant's adherence to the Bureau of Prisons' rules during her incarceration and to the conditions of supervision did not warrant premature termination. (Id. at 4).

On November 22, 2011, Defendant, proceeding pro se, filed a letter that the Court construed as a Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense under 18 U.S.C. § 3582. (Docket No. 110). The Court denied this motion in a Memorandum Opinion filed on January 26, 2012. (Docket No. 114).

Defendant's second Motion for Early Termination of Supervised Release is now before the Court. (Docket No. 115). On February 3, 2012, the Government filed its Response in Opposition to Defendant's Motion for Early Termination of Supervised Release. (Docket No. 117). Defendant's counsel filed a Reply to the Government's Response on February 10, 2012. (Docket No. 118). Shortly thereafter, the Court conferred with the Probation Office regarding the Defendant's medical status, as her ill health is the primary basis of her request for early termination of supervised release. On February 15, 2012, the Court ordered Defendant's counsel to submit medical records or reports in support of Defendant's motion, as neither her Motion nor Reply described her illness beyond "recurring bouts with cancer." (See Docket Nos. 115 at ¶ 4; 118 at ¶ 1; 119). Defendant's counsel filed a motion to seal said records or reports, which this Court granted on February 28, 2012. (Docket Nos. 120-121). Two days later, on March 1, 2012, Defendant's counsel filed Defendant's medical records under seal. (Docket No. 122). The Court has now had an opportunity to study these medical records and to confer with the Probation Office concerning same.

In support of early termination, Defendant asserts three arguments: (1) that she has been on supervision for over two years and has been fully compliant with all applicable conditions during this time period; (2) that she suffers from serious health conditions, including "recurring bouts with cancer;" and (3) that the United States Probation Office does not oppose the early termination of Defendant's supervised release. (Docket No. 115 at ¶¶ 3-5, ¶ 8; Docket No. 118 at ¶ 1). The Government opposes Defendant's motion primarily because Defendant has not demonstrated that her supervised release interferes with her cancer treatments. (Docket No. ...


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