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United States v. Shimabukuro

United States District Court, D. Hawaii

July 17, 2017





         Does time spent in intermittent confinement in prison as a condition of a defendant's supervised release need to be subtracted from the prison time available by statute on a later revocation of supervised release in the same case? In an oral ruling, this court determined that intermittent confinement in prison does not count against the prison sentence that may be imposed on a later revocation. This court went on to sentence the defendant to the maximum time permitted by statute after prior revocation prison periods (but not intermittent confinement) had been taken into account. This written order is consistent with the court's oral ruling.


         Defendant Wallace Shimabukuro pled guilty in 2004 to a drug conspiracy count. This court sentenced him in 2005 to 121 months in custody and 5 years of supervised release. In 2006, the court granted the Government's motion for a reduction in sentence under Rule 35(b) of the Federal Rules of Criminal Procedure and reduced his sentence to 78 months in custody and 5 years of supervised release. No appeal was filed.

         Shimabukuro began his first term of supervised release on February 2, 2009. Supervised release was revoked in 2013. Among other violations, Shimabukuro had lied in seeking permission to travel out of the District of Hawaii, allegedly in connection with his work for his wife's business. Given his representations, the Probation Officer and the Assistant United States Attorney had agreed that the court should authorize the travel, and the court had indeed authorized travel on multiple occasions. Shimabukuro was actually traveling to gamble, something Hawaii law did not permit him to do within the District of Hawaii. This court imposed a sentence of 18 months in custody and 42 months of supervised release. That custody period was in excess of the advisory sentencing guideline range. On Shimabukuro's appeal of the above-guideline sentence, the Ninth Circuit affirmed.

         Shimabukuro's second supervised release term following his 18-month revocation prison sentence began on December 12, 2014. His second supervised release term was revoked on July 21, 2015, following proceedings in which he was represented by the First Assistant Federal Public Defender. See ECF No. 668. Shimabukuro's violations included unauthorized travel. Notably, he was found to be in possession of a significant amount of jewelry that was inconsistent with his earnings as a cab driver with his mother's company. The court expressed concern that Shimabukuro's continuing lack of candor was subverting attempts by the Probation Office to supervise him. The court once again revoked supervised release and imposed a sentence of time served and 41 months of supervised release.

         As a condition of his new term of supervised release, the court required Shimabukuro to serve 150 days of intermittent confinement at the Federal Detention Center in Honolulu. The 150 days were broken up into 50 consecutive weekends beginning on Friday evenings and ending on Sunday afternoons. The court's intent was to curtail the time Shimabukuro had to engage in unauthorized activities, while giving the Probation Office an opportunity to supervise Shimabukuro based on what was really going on in his life, not on misrepresentations. The total period of intermittent confinement was considerably less than the court would otherwise have sentenced Shimabukuro to had it imposed an uninterrupted period in custody. The maximum uninterrupted custody period that could have been imposed was 18 months, because, under 18 U.S.C. § 3583(e)(3), the aggregate of revocation custody periods could not exceed 36 months, and Shimabukuro had been sentenced to 18 months on his prior revocation. In fact, Shimabukuro at the time was not objecting to being “maxed out” with a second 18-month sentence and no further supervised release. Intermittent confinement as a condition of supervised release allowed the court to fashion a sentence that gave Shimabukuro considerable freedom and allowed him to maintain his relationship with, among others, his daughter.

         This court was cognizant that, under the versions of applicable statutes in effect at the time of the second revocation, intermittent confinement could be imposed only as a modification of earlier supervised release conditions, not if the court actually revoked supervised release. This statutory restriction took effect on October 13, 2008, as part of the Judicial Administrative and Technical Amendments Act of 2008. See 18 U.S.C. § 3583(d) (stating that intermittent confinement, as set forth in 18 U.S.C. § 3563(b)(10), may be imposed as condition of supervised release only in accordance with 18 U.S.C. § 3583(e)(2), which governs modification, not revocation, of supervised release).

         This court nevertheless concluded that intermittent confinement could be imposed as a supervised release condition during the first year of the second revocation sentence because Shimabukuro had committed his underlying drug offense before October 13, 2008. Before the 2008 amendment, intermittent confinement could be imposed even on a revocation. See 18 U.S.C. § 3583(d) (2000 and 2006) (“The court may order, as a further condition of supervision . . . any condition set forth as a discretionary condition of probation in § 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it considers to be appropriate.”). The availability of intermittent confinement was beneficial to Shimabukuro, and a statutory amendment making that favorable option unavailable might have run afoul of the prohibition on the ex post facto imposition of a penalty. See United States v. Paskow, 11 F.3d 873 (9th Cir. 1993)(stating that Ex Post Facto Clause violated “when an amendment to the supervised release statute disadvantages a defendant who committed the underlying offense before the amendment became effective--even if, as here, the defendant committed the act that led to revocation of his supervised release after the amendment was adopted”). While the ex post facto issue was not expressly raised during proceedings on the second revocation, 150 days of intermittent confinement was obviously considerably less than periods of straight prison time being discussed.

         The court also required Shimabukuro to obtain employment and to perform community service until he obtained full-time employment. The court imposed the following restriction on employment:

The defendant shall not work for any business owned (in whole or in part) or managed by any family member. He may not have a family connection or close personal friendship with the hiring party, his supervisor, or the owner of the business he works for or with. Employment shall be obtained through an arm's-length transaction, not based on a close pre-existing personal connection. Any job must be approved in advance by the Probation Office.

         In restricting the kind of job Shimabukuro could obtain, the court was concerned that his mother appeared to have assisted him in lying to the Probation Office. The court wanted to prevent Shimabukuro from getting others close to him to perform the same function.

         Shimabukuro did not appeal his second revocation sentence and completed his 50 ...

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