Metropolitan News-Enterprise


Thursday, October 9, 2003


Page 3


Discretion to Deny Defendant’s Request for Maximum Sentence Upheld


By a MetNews Staff Writer


A district court judge did not abuse his discretion when he declined a defendant’s request, joined by prosecutors and probation officials, for the maximum sentence on firearms charges, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Judge Ancer L. Haggerty of the District of Oregon acted properly in denying Clarence Hurt III’s motion to amend his sentence of a year in prison and two years of supervised release to two years imprisonment, the court said. Hurt was charged with being a felon in possession of an unregistered sawed-off shotgun.

Though both the U.S. Attorney’s Office and the U.S. Probation Office recommended granting the motion, Haggerty ruled a term of supervised probation would be in Hurt’s—and the public’s—best interest.

Judge Ronald M. Gould, writing for the court, noted that Hurt had previously “almost totally failed to participate properly” in his supervised release, which included conditions requiring him to take psychotropic medications, participate in mental health treatment, and avoid associating with minor females without his probation officer’s permission.

Gould declared:

“Hurt reasons that his past failure to adhere to the conditions of supervised release is evidence that he is not suitable for continued supervision. He argues that the district court erred in reimposing a two year term of supervised release following his incarceration, because supervised release will not contribute significantly to his rehabilitation or to public safety. We disagree.”

Supervised released in intended to “provide rehabilitation to defendants, which helps them make a desirable transition back into the community,” Gould noted, adding:

“A violation of the conditions of supervised release does not obviate the need for further supervision, but rather confirms the judgment that supervision was necessary.”

While it was appropriate for Haggerty to “be interested in the views of the United States Attorney and the Probation Office, particularly where they accord with those of a defendant who is to be sentenced,” Gould said, it was Haggerty’s job to determine what sentence was appropriate.

“The district court here did not abuse its discretion in imposing two years of supervised release, rather than one additional year of incarceration,” Gould said. “It also did not err in declining to defer to the parties’ joint sentencing recommendation.”

Judge Susan P. Graber and Senior Judge Ruggero J. Aldisert of the Third U.S. Circuit Court of Appeals, sitting by designation, concurred.

Hurt’s attorney, Assistant Federal Public Defender Nancy Bergeson, said she endorsed Hurt’s bid for the maximum sentence partly because she believes her client will probably be able to “sabotage” the judge’s ruling.

His unwillingness to cooperate with supervised release conditions will probably result in his incarceration for the maximum term anyway, she said.

She conceded the appellate bid for the maximum sentence was “out of the ordinary—no question about it.” But she said the prospects of any successful interaction between Hurt and his probation officer were poor, and did not seem likely to be improved when his current prison sentence expires.

“I felt like I was representing the interest of the client,” she said, conceding that Hurt has “some mental health issues.”

The case is United States v. Hurt, 02-30297


Copyright 2003, Metropolitan News Company