CLD-444 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 13-3404

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UNITED STATES OF AMERICA

v.

SERGE ERIC BAYARD,

Appellant

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Crim. No. 12-cr-00604-001)

District Judge: Stewart Dalzell

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Submitted for Possible Summary Action 

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

October 3, 2013

Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges

(Opinion file: October 17, 2013)

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OPINION

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PER CURIAM

Appellant Serge Eric Bayard appeals from an order of the District Court denying 

his motion for early termination of his supervised release. For the reasons that follow, we 

will summarily affirm.
2

Bayard was convicted in the United States District Court for the District of New 

Hampshire of unauthorized use of an access device, in violation of 18 U.S.C. § 

1029(a)(2), and aggravated identity theft, in violation of 18 U.S.C. § 1028A, following a 

jury trial, see D.C. Crim. No. 09-cr-00096. He was sentenced to a term of imprisonment 

of 36 months, to be followed by 3 years of supervised release, and he was ordered to pay 

restitution to Bank of America in the amount of $5,011.00. The Court of Appeals for the 

First Circuit affirmed the judgment of conviction, see United States v. Bayard, 642 F.3d 

59 (1st Cir. 2011). Bayard collaterally attacked his conviction and sentence in a motion 

to vacate sentence, 28 U.S.C. § 2255, which was denied, see United States v. Bayard, 

2012 WL 395165 (D.N.H. February 7, 2012). He also challenged the execution of his 

sentence in a federal habeas corpus petition, 28 U.S.C. § 2241, filed in the District of 

New Hampshire.

Bayard began to serve his term of supervised release on March 16, 2012; the term 

is expected to end on March 15, 2015. In October, 2012, jurisdiction over his term of 

supervised release was transferred to the Eastern District of Pennsylvania. On March 21, 

2013, Bayard filed a petition for writ of habeas corpus, 28 U.S.C. § 2241, in the Eastern 

District, naming the U.S. Probation Office as the respondent and seeking credit against 

his federal sentence for time served (207 days) on a state trespass conviction that 

preceded his federal convictions, see Bayard v. U.S. Probation Office, D.C. Civ. No. 13-

cv-01486. The Bureau of Prisons declined to give him this credit. The District Court 

denied the petition, and Bayard has appealed to this Court in a separate appeal, see C.A. 

No. 13-3909. 
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Meanwhile, on July 15, 2013, Bayard filed a motion for early termination of his 

supervised release, 18 U.S.C. § 3583(e)(1), claiming that, having served 16 months of his 

supervised release, he was now eligible for early termination. Bayard argued that he was 

a good candidate for early termination because his offenses were non-violent, he had 

adjusted to the community, and he was not a danger to the public. Bayard also urged the 

District Court to consider that he had “over-served” 207 days in prison, citing our 

decision in United States v. Jackson, 523 F.3d 234, 239 (3d Cir. 2008) (subsequent 

reduction in defendant’s Guidelines sentencing range might merit credit against 

defendant’s term of supervised release for excess term of imprisonment to which 

defendant was subjected). The District Court denied the motion on the basis that Bayard 

still owed $4,000 in restitution and thus the interest of justice would not be served by 

early termination of his supervised release.

Bayard appeals. Under Third Circuit LAR 27.4 and I.O.P. 10.6, we may 

summarily dispose of an appeal when it clearly appears that no substantial question is 

presented by it. The parties were advised that we might act summarily to dispose of this 

appeal and invited to submit argument in writing.

We will summarily affirm. We review a District Court’s decision under section 

3583(e) not to grant early termination of a term of supervised release for an abuse of 

discretion. See United States v. Smith, 445 F.3d 713, 716 (3d Cir. 2006). Section 

3583(e)(1) provides that, after the defendant has completed one year of supervised 

release, the district court may terminate the term of supervised release if “such action is 

warranted by the conduct of the defendant released and the interest of justice.” 18 U.S.C. 
4

§ 3582(e)(1). Section 3583(e) requires a District Court to consider certain factors in 18 

U.S.C. § 3553(a) before it can terminate a term of supervised release and discharge the 

defendant. See United States v. Lowe, 632 F.3d 996, 998 (7th Cir. 2011). The decision 

whether to modify a term of supervised release is a discretionary one. See Burkey v. 

Marberry, 556 F.3d 142, 149 (3d Cir. 2009). 

The District Court determined that it would not be in the interest of justice to 

terminate Bayard’s supervised release now because he still owes $4,000 in restitution. 

Plainly, this was not an abuse of discretion, and Bayard did not argue otherwise. The 

need to provide restitution to the victims of an offense is a factor the District Court 

should consider in addressing a motion for early termination of supervised release, 18 

U.S.C. § 3553(a)(7). Moreover, the District Court, having presided over Bayard’s case 

against the Probation Office, was fully aware of Bayard’s self-serving argument 

regarding how the Bureau of Prisons calculated his sentence, and its apparent lack of 

merit. We are thus satisfied that the District Court considered the appropriate sentencing 

factors in denying the motion for early termination of supervised release in the interest of 

justice.

For the foregoing reasons, we will summarily affirm the order of the District Court 

denying appellant’s motion for early termination of supervised release.