13-3236 USA v. Murdock

UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2

- - - - - - 3 August Term, 2013 4 (Motions Submitted: October 22, 2013 Decided: November 8, 2013) 5 Docket No. 13-3236 6

_________________________________________________________ 7 UNITED STATES OF AMERICA, 8 Appellee , 9 10 - v. - 11 SETH MURDOCK, 12 Defendant-Appellant

. 13

_________________________________________________________ 14 Before: KATZMANN, Chief Judge , KEARSE and WESLEY, Circuit Judges

. 15 Motion by defendant for an injunction pending appeal from an order of the United 16 States District Court for the District of Vermont, William K. Sessions, III, Judge , denying his motion 17 for a modification of the conditions of his supervis ed release to require the United States Bureau of 18 Prisons, upon his release from prison, to transfer him to the Eastern District of Michigan for 19 supervised release, as recommended by the court in sentencing. Motion by the United States for 20 summary affirmance of the district court's order. 21 Motion for summary affirmance denied. Order denying supervised-release transfer 22 vacated; matter remanded for further proceedings; motion for injunction pending appeal denied as 23

moot. 24SETH MURDOCK, Bruceton Mills, West Virginia, Defendant1 Appellant pro se

. 2 TRISTRAM J. COFFIN, United States Attorney for the 3 District of Vermont, Burlington, Vermont (Gregory L. Waples, 4 Assistant United States Attorney, Burlington, Vermont, of 5 counsel), for Appellee

. 6 KEARSE, Circuit Judge : 7 Defendant Seth Murdock, who is scheduled to be released from federal prison on 8 November 15, 2013, and thus to commence serving his term of supervised release on that date, see 9 18 U.S.C. § 3624(e), appeals pro sefrom an order of the United States District Court for the District 10 of Vermont, William K. Sessions, III, Judge , denying his motion for a modification of the conditions 11 of his supervised release to require that supervised release be served in the Eastern District of 12 Michigan, rather than in the District of Vermont, where he was convicted and sentenced. The district 13 court denied Murdock's motion, stating that it lacked authority to order such a transfer over the 14 objection of the Eastern District of Michigan. On appeal, Murdock argues principally that the district 15 court misapprehended its authority to modify the c onditions of his supervised release, and that his 16 motion should have been granted in order to carryout the recommendation made by the district court 17 in Murdock's sentencing; he has moved in this Court for an injunction pe nding appeal, requiring his 18 release to the Eastern District of Michigan rather th an to the District of Vermont. For the reasons that 19 follow, we conclude that the district court has authority to entertain Murdock's motion for 20 modification of his supervised-release conditions under 18 U.S.C. § 3583(e)(2) and to grant that 21 motion with the qualification specified by the East ern District of Michigan in its conditional 22 agreement to accept Murdock for supervision. Accordingly, we vacate the order of the district court 23

2and remand for expedited proceedings on Murdock' s modification motion in accordance with Fed. R. 1 Crim. P. 32.1(c). The motion for an injunction pending appeal is denied as moot. 2

I. BACKGROUND 3

The facts essential to this appeal--many of which are described in unobjected-to 4 passages of the presentence report ("PSR") preparedin connection with Murdock's current conviction 5 or in the government's response to questions posedby this Court in an order dated October 3, 2013, 6 with respect to the present appeal--appear tobe undisputed. In 2012, Murdock was convicted, 7 following his plea of guilty, of interstate transportation of stolen vehicles, in violation of 18 U.S.C. 8 § 2312. He was sentenced, in pertin ent part, to 30 months' imprisonment, to be followed by a three9 year term of supervised release. 10 Prior to this prosecution, Murdock's only c onnection with Vermont was his acquisition 11 in Vermont of the vehicles that were the subject of his conviction. Murdoc k, 55 years of age at the 12 time of this conviction, was born and raised in the De troit area, in the Eastern District of Michigan, 13 where he lived until the early 1980s. He returned to that area in the early 2000s and remained there 14 until his arrest in this case. Murdock has three siblings and two half-siblings living in Detroit, and 15 he is a co-owner of a family business--a funeral home--in Detroit. In sentencing Murdock, Judge 16 Sessions stated that, consistent with a request by Murdock, the court would "recommend that once 17 he has completed his period of imprisonment, that he be returned to the Detroit, Michigan area." 18 (Sentencing Transcript, October 29, 2012, at 57.) The judgment of conviction included that 19 recommendation. 20

3Murdock is scheduled to be released fr om prison on November 15, 2013, and to begin 1 his term of supervised release on that date. Inthe spring of 2013, the Bureau of Prisons (or "BOP") 2 prepared to transfer Murdock to th e Eastern District of Michigan for service of his supervised release. 3 Murdock submitted to his BOP case manager a s upervised-release plan that included his proposed 4 residence with one of his sisters. The case mana ger sent Murdock's proposed release plan to the 5 United States Probation Office in the Eastern District of Michigan ("Michigan Probation"). In 6 reviewing the plan, however, the Michigan Pr obation officials "interviewed the wrong family 7 member," one "who indicated that she was not willing to have Mr. Murdock reside with her," and they 8 were thus unable to confirm Murdock's proposed residence. (Memorandum from Vermont Deputy 9 Chief Probation Officer Ronald P. Tetu to Di strict Judge Sessions dated June 21, 2013 ("Vermont 10 Probation Memorandum"), at 1; see also undated sworn Declaration of Vermont Deputy Chief 11 Probation Officer Ronald P. Tetu ("Tetu Decl.") submitted to this Court, confirming the truth and 12 accuracy of the statements made in the Vermont Probation Memorandum.) Michigan Probation also 13 expressed concern that Murdock had previously beenon supervised release in the Eastern District of 14 Michigan and twice had had that status revoked for violations of the conditions imposed. (See 15 Government Memorandum in Opposition to Motion for Preliminary Injunction [Pending Appeal] and 16 [in Support of] Motion for Summary Affirmance on the Merits ("Government Mem.") at 5-6.) 17 Michigan Probation rejected Murdock's plan to serve his supervised release in the Eastern District of 18 Michigan. 19 In April 2013, after Murdock was informed of that rejection and was advised that he 20 would therefore be required to serve his supervised -release term in Vermont, he moved in the district 21 court for a modification of the conditions of his s upervised release to require that, upon his release 22

4from prison, his supervised release be served in the Eastern District of Michigan. (See Defendant's 1 Pro-Se Motion To Transfer Jurisdiction of Superv ised Release (hereinafter "Murdock's § 3583(e)(2) 2 Motion": Although Murdock's motion cited 18 U.S.C. § "35 6 3( c )(2)" (emphases added), we construe 3 it as having been made under § 3583(e)(2), which deals with modifications of supervised release, and 4 not under § 3563(c), which deals with modifications of probation and has no subsections).) 5 Murdock's § 3583(e)(2) motion was not decided until August 2013. 6 In the meantime, officers of the United St ates Probation Office in the District of 7 Vermont ("Vermont Probation") twice contacted Michigan Probation on Murdock's behalf to ask 8 Michigan Probation to reconsider its refusal. In response to the first request for reconsideration, the 9 Michigan Probation officials "indicated that theywould in fact accept Mr. Murdock's case for 10 supervision provided he agreed to a modification of conditions to incl ude six months in a Residential 11 Reentry Center (RRC)." (Vermont Probation Memorandum at 1.) 12 Murdock was informed that Michigan Probation would agree to accept him for 13 supervised release on the condition that he agree to spend six months in an RRC, also known as a 14 "halfway house" (Tetu Decl. ¶ 4). Murdock refuse d to agree to that condition, explaining that he 15 viewed it as an extension of his period of incarceration. 16 Vermont Probation made another attempt to get Michigan Probation to reconsider 17 Murdock's release plan and explained that the Mi chigan Probation officers had interviewed the wrong 18 Murdock sister. Vermont Probation provided the correct contact info rmation and asked that Michigan 19 Probation contact the correct sister to confirm th at Murdock's original release plan contained an 20 acceptable proposed residence. Michigan Probation then visited the home of the correct Murdock 21 sister and responded that 22

5[t]he residence provides adequate housing, however, after careful 1 consideration, relocation will only be granted if the offender signs a 2 waiver to modify his conditions to include up to six months placement 3 at a Residential Reentry Center dueto his history of noncompliance in 4 this district . If he is not willing to sign the waiver, relocation is 5 denied... 6 When asked to expand on the reasons why they believe Mr. Murdock would 7 benefit from an RRC placement, E/MI [i.e. , Michigan Probation] responded 8 as follows: 9 Mr. Murdock is considered to be a high risk offender based on his 10 previous supervision progress in our district and his prior record. He 11 previously violated supervised release in this district by leaving our 12 district on numerous occasions w ithout approval and committing new 13 fradulent (sic) crimes, among other viol ations. He also fled just before 14 he was to appear before Chief Judge Gerald Rosen on a Revocation 15 Hearing and a warrant had to be issu ed for his arrest. By placing him 16 in RRC, we are hoping to decrease the risk he poses while 17 implementing a controlling strategy. The RRC will provide a 18 structured environment, allow him to find legitimate employment, and 19 will control his activities again, to hopefully reduce the risk of 20 recidivism. Placement would also re strict the offender from traveling 21 outside our district and committing new crimes. 22 (Vermont Probation Memorandum at 2 (emphasis ours).) 23 In light of Murdock's refusal to accept the condition demanded by Michigan Probation, 24 the government opposed Murdock's motion for the transfer of his supervised release to the Eastern 25 District of Michigan, stating that "[t]ransfer[s] of jurisdiction proceedings are well established and 26 require the receiving court's concurrence. It woul d be hard to imagine the court in [the Eastern 27 District of Michigan] accepting jurisdiction [of] this case if [Murdock] is not being actively 28 supervised in that district." (Id .) The government noted, however , that Murdock's "ultimate goal[,] 29 which is to return to his native Detroit where he has family support, community ties and employment 30 opportunities," and which "would appear to be a muchbetter option than returning to this district 31 where he would be essentially homeless," is a goal that Murdock would be "able to achieve" simply 32

6"by agreeing to" the condition that he spend up to six months in a halfway house. (Id . at 3.) 1 In an order dated August 22, 2013 ("August Order"), the district court denied 2 Murdock's motion, stating as follows: "The Eastern District of Michigan has refused to accept 3 supervision of Mr. Murdock, and this Court has no authority to reverse that decision." 4 Murdock filed a timely notice of appeal. He also filed a motion to expedite the appeal, 5 which this Court granted; and, noting that he ha d filed his brief on this appeal, he moved for an 6 injunction requiring the BOP, pending the resolution of this appeal, to release him on November 15 7 to the Eastern District of Michigan, and not to the District of Vermont. This Court thereafter, noting 8 that the government had not filed a response to th e motion for an injunction pending appeal, instructed 9 the government to file an answer to Murdock's motion and to address several issues relating to this 10 appeal, including "whether the district court has authority to modify the terms and conditions of 11 Appellant's supervised release to require that hi s supervision take place in the Eastern District of 12 Michigan." Order dated October 3, 2013. The government responded and addressed the specified 13 issues in a memorandum that "constitutes its opposition to the issuance of an injunction and its merits 14 brief urging affirmance of the district court's order de nying transfer of Murdock's supervised release." 15 (Government Mem. at 3 (emphasis added).) 16

II. DISCUSSION 17

On this appeal, Murdock argues that the district court misapprehended the relief he 18 requested, as he did "not ask[] th e district court to reverse a de cision by the Probation Department." 19 (Defendant's Amendment to His Pro-Se Brief for Emergency Hearing for the Appeal in the Subject 20

7Case at 2.) Murdock argues that the Eastern Distri ct of Michigan's refusal to accept the transfer of 1 supervised release is irrelevant because "the District Court of Vermont has broad and untethered 2 authority to modify the conditions of Murdock's probation, requiring supervision in the Eastern 3 District of Michigan" (id .), and that that authority "supercedes provisions and other non-judicially 4 imposed or requested probation conditions" (id . at 2-3). For the reasons that follow, we reject the 5 contention that the district court has unlimited discretion to transfer jurisdiction of his supervised 6 release to another district; but we vacate the distri ct court's August Order and remand to the court for 7 expedited proceedings in order to determine, in th e proper exercise of its discretion, and after hearing 8 further from Murdock, whether to modify the supervised-release conditions to effect a transfer. 9

A. Modification of Conditions of Supervised Release 10 Several statutory provisions appear to have relevance to Murdock's request to serve 11 his supervised-release term in the Eastern District of Michigan, rather than in Vermont where he was 12 convicted. These provisions are not easily reconciled. 13 The general provisions governing the authority of the district court to require a 14 convicted defendant to serve a term of supervis ed release and to comply with certain conditions 15 during that term are set out in 18 U.S.C. § 3583. Subsection (c) provide s that "if a term of supervised 16 release is to be included" in the sentence, "[t]he court, . . . in determining . . . the conditions of 17 supervised release, shall consider the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), 18 (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)." 18 U.S. C. § 3583(c). Subsection (d), in addition to setting 19 out a number of supervised-release conditions that the sentencing court is required to impose--none 20 of which are at issue here--provides, in pertinent part, that 21

8[t]he court mayorder, as a further condition of supervised release, to the extent 1 that such condition-- 2 (1) is reasonably related to the factors set forth in section 3 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D); 4 (2) involves no greater deprivation of liberty than is reasonably 5 necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), 6 and (a)(2)(D); and 7 (3) is consistent with any pertinent policy statements issued by 8 the Sentencing Commission pursuant to 28 U.S.C. 994(a); 9 any condition set forth as a discretionary condition of probation in section 10 3563(b) and any other condition it considers to be appropriate

. . . . 11 18 U.S.C. § 3583(d) (emphases added). One of th e discretionary conditions of probation in § 3563(b) 12 is that "[t]he court may provide . . . that the defendant . . . reside in a specific place or area . . . ." 13 18 U.S.C. § 3563(b)(13). 14 The sentence imposed on Murdock did not specify where he should reside after his 15 release from prison but merely recommended that he bereturned to the Eastern District of Michigan. 16 Such a recommendation is not binding on th e Bureau of Prisons. See generally18 U.S.C. § 3624(d) 17 (BOP is to provide a person, upon his release from prison, with "transportation to the place of the 18 prisoner's conviction, to the prisoner's bona fide resi dence within the United States, or to such other 19 place within the United States as may be authorized by the [BOP] Director " (emphasis added)); 20 Report of the Senate Committee on the Judiciary, 98-225, at 148 (1983) ("S.Rep. 98-225"), reprinted 21
in1984 U.S.C.C.A.N. 3182, 3331 ("[i]n making th[e § 3624( d)] determination [as to destination], the 22 Director will necessarily have to take cognizance of the terms and conditions of supervised release 23 if such a term is imposed pursuant to section 3583 " (emphasis added)). However, subsection (e) of 24 3583 provides in part that 25

9[t]he court may , after considering the factors set forth in section 3553(a)(1), 1 (a)(2)(B), (a)(2)(C), (a)(2)(D), (a )(4), (a)(5), (a)(6), and (a)(7)-- 2

. . . . 3 (2) . . . modify . . . or enlarge the conditions of supervised 4 release , at any time prior to the expirati on or termination of the term of 5 supervised release , pursuant to the provisions of the Federal Rules of 6 Criminal Procedure relating to the modification of probation and the 7 provisions applicable to the initial setting of the terms and conditions 8 of post-release supervision . . . . 9 18 U.S.C. § 3583(e)(2) (emphases added). 10 Murdock contends that § 3583(e)(2) gave th e district court unfettered discretion to 11 modify his supervised-release conditions to provide that he should serve that term in the Eastern 12 District of Michigan. While it is clear from the above provisions that the court's discretion to modify 13 supervised-release conditions is not unfettered but must instead be exercised in light of the factors 14 described in eight specified subsections of § 3553(a), neither § 3583(d) (dealing with the initial 15 supervised-release conditions) nor § 3583(e)(2) (dealing with modification of those conditions "at any 16 time prior to the" end of the supervised-release term) contains any indication that if one of the 17 supervised-release conditions is that the releasee is toreside in a district other than the district in 18 which he is convicted, the consent of the other district is required. Cf. United States v. Johnson , 529 19 U.S. 53, 60 (2000) (discussing remedies for an individual who, because of the reversal of some of his 20 convictions, had served more prison time than authorized for his valid conviction, and stating that the 21 trial court "may modify an individual's conditions of supervised release" "as it sees fit"). 22 The government, however, contends that the district court's postsentencing authority 23 to transfer Murdock to the Eastern District of Mi chigan for service of his supervised-release term is 24 restricted by a different provision, which provides in pertinent part as follows: 25

10A court, after imposing a sentence, may transfer jurisdiction over a . . . 1 person on supervised release to the district court for any other district to which 2 the person is required to proceed as a condition of his . . . release, or is 3 permitted to proceed, with the concurrence of such court

. 4 18 U.S.C. § 3605 (emphasis added). On its face, this provision appears not to permit the court, after 5 imposing sentence, to transfer supervised release toanother district without the consent of the other 6 district, and the section ha s been so construed. See , e.g. , United States v. Votta , 212 Fed. App'x 142, 7 142 (3d Cir. 2007) (affirming the distri ct court's denial of Votta's "mo tion to transfer jurisdiction over 8 his supervised release" to a different district "[ b]ecause the statute requires the concurrence of the 9 transferee court[;] . . . because the transferee court here indicated that it did not concur, the District 10 Court lacked the authority to grant Votta's motion"). 11 This restrictive view of the district court's power to transfer a person's supervised 12 release to another district also finds some support in the provisions prescribing the process of release 13 from prison and the jurisdiction of probation o fficers. Section 3624(e), governing the release of 14 prisoners, provides that 15 [a] prisoner whose sentence includes a term of supervised release after 16 imprisonment shall be released by the Bureau of Prisons to the supervision of 17 a probation officer who shall, during the term imposed, supervise the person 18 releasedto the degree warranted by the c onditions specified by the sentencing 19 court. 20 18 U.S.C. § 3624(e) (emphasis added). Federal probation officers, however, are appointed by "[a] 21 district court of the United States . . . to serve. . . within the jurisdictionand under the direction of 22 the court making the appointment ." 18 U.S.C. § 3602(a) (emphases a dded). It is difficult, therefore, 23 to conclude that the sentencing court, wishing to have a supervised-release term served in another 24 district, has either the authority to have its own probation officers conduct that supervision in the other 25 district or the authority to direct a probation offi cer appointed by the court of the other district to 26

11conduct the supervision. On the other hand, the Se nate Report describing the provision that became 1 section "3605, relating to transfer of jurisdiction over a . . . person on supervised release from one 2 court to another," stated that 3 [s]ection 3605 . . . provides that the transfer of a . . . person on supervised 4 release to another district may be made either as a condition of . . . supervised 5 release orwith the permission of the court . . . ." 6 S.Rep. 98-225, at 132 (emphases added), reprinted in1984 U.S.C.C.A.N. at 3315. 7 In the circumstances of the present case, weconclude that it is unnecessary to resolve 8 the matter of whether the district court has the authority to transfer Murdock's supervised release to 9 the Eastern District of Michigan w ithout that district's consent. A modification of supervised-release 10 conditions is permitted only "after considering the factors set forth in section 3553(a)(1), (a)(2)(B), 11 (a)(2)(C) , (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7). " 18 U.S.C. § 3583(e)(2) (emphasis added). Of 12 these § 3553 factors, the most relevant in the pres ent case are those in subsection (a)(1), concerning, 13 inter alia , "the history and characteristic s of the defendant"; subsection (a)(2)(B), concerning the need 14 for the sentence imposed "to afford adequate deterrence to criminal conduct"; and subsection 15 (a)(2)(C), concerning the need for the sentence "to protect the public from further crimes of the 16 defendant." All of these are f actors underlying the condition that the Eastern District of Michigan 17 seeks to have imposed prior to accepting responsibilityfor supervising Murdock. As set out in Part 18 I above, the Michigan Probation officials consider Murdock to be a high-risk offender based on his 19 conduct during his service of a prior supervised-rel ease term in the Eastern District of Michigan. 20 During that term, the officials noted, Murdock had violated the conditions of supervised release by, 21 inter alia , leaving the district numerous times without permission and by absconding just prior to a 22 revocation hearing. By imposing the condition that Murdock agree to begin his supervised-release 23

12period in Michigan by spending up to six months ina halfway house, the Michigan Probation officials 1 stated that they hoped to reduce the risk of his recidivism and to protect the public. 2 Although Murdock has characterized the Michigan Probation officials' position as 3 "capricious" (e.g. , Murdock's § 3583(e)(2) Motion at 3), their concerns are plainly justified, as 4 revealed by the record in the present case. The PSR prepared fo r Murdock's sentencing described in 5 detail the supervised-release viol ations cited by the Michigan Probation officials. The PSR also 6 described the offense of which Murdock was convicted in Michigan in 2002--possession of false 7 papers to defraud the United States--and detailed morethan a half-dozen other offenses, most of them 8 involving fraud or larceny, of which Murdock had been convicted in 1987-1999. The record indicates 9 that Murdock made no objection to the PSR's description of his past offenses. 10 The reasonableness of the Michigan Probation o fficials' concerns is thus clear from the 11 record of Murdock's criminal history, and that hist ory must be taken into acc ount by the district court 12 in considering whether, or to what extent, to grant his motion for modification of the conditions of 13 his supervised release. Thus, we conclude that evenif the consent of the Eastern District of Michigan 14 is not a statutory prerequisite to the granting of Murdock's motion, and if the halfway-house condition 15 is deemed merely a request, the condition requested is plainly reasonable. We doubt that the district 16 court could, while giving adequate consideration to the above § 3553(a) factors, grant Murdock's 17 motion without imposing the condition sought by the Eastern District of Michigan. 18

B. Proceedings in the District Court 19 In denying Murdock's motion, the district court stated only that "[t]he Eastern District 20 of Michigan has refused to accept supervision of Mr. Murdock," and that the court thus lacked 21

13"authority to reverse that decision." August Order. That explanation does not indicate whether it was 1 clear to the district court that the Eastern District of Michigan's refusal was conditional. Further, the 2 papers submitted to the district court in oppositi on to Murdock's motion do not make clear whether 3 Murdock was afforded an opportunity to accept the Ea stern District of Michigan's proposed condition 4 after its response to the Vermont Probation official s' second request for reconsideration. Reviewing 5 the district court's ruling as to its lack of authority de novo , see , e.g. , United States v. Vargas , 564 6 F.3d 618, 621 (2d Cir. 2009), we cannot conclude that that ruling was correct. 7 We therefore remand to the district court fo r further proceedings to allow the court to 8 consider the Eastern District of Michigan's condition that Murdock agree to begin his supervised9 release term in Michigan by spending up to six months in a halfway house and to determine whether 10 Murdock will accept that condition. 11 In connection with those proceedings, it may be that a hearing will be required. The 12 Federal Rules of Criminal Procedure governing modifi cations of the conditions of supervised release 13 provide as follows: 14 (1) In General. Before modifying the conditions of probation or 15 supervised release, the court must hol d a hearing, at which the person has the 16 right to counsel and an opportunity to make a statement and present any 17 information in mitigation. 18 (2) Exceptions. A hearing is not required if: 19 (A) the person waives the hearing; or 20 (B) the relief sought is favorable to the person and does not 21 extend the term of probation or of supervised release; and 22 (C) an attorney for the government has received notice of the 23 relief sought, has had a reasonable opportunity to object, and has not 24 done so. 25 Fed. R. Crim. P. 32.1(c). 26 14It is also possible that no evidentiary hearing will be required. First, there is no 1 suggestion that the three-year term of Murdock's s upervised release is to be extended; and to the 2 extent that Murdock would be transferred to the Ea stern District of Michigan, that relief, which he 3 requests, would be favorable to him. However, tothe extent that Murdoc k would be required--if he 4 agrees--to spend up to six months of his supervised -release term in Michigan in a halfway house, that 5 condition would appear to enlarge the supervised-release conditions, and he would be entitled to a 6 hearing unless he waives the hearing. 7 Second, the government plainly has had noti ce of Murdock's modification request; it 8 has interceded on his behalf with the probation offici als in the Eastern District of Michigan; and it has 9 made clear that it has no objection to the transfer of Murdock to the Eastern District of Michigan on 10 the condition desired by that district. Indeed, although urging affirmance of the August Order in light 11 of Murdock's prior refusal to agree to the halfway-house condition, the government has taken the 12 position that 13 because Murdock has family ties in the Detroit area, the Eastern District of 14 Michigan is a more suitable district to supervise him than Vermont. . . . 15 Murdock himself has created the situation in which he faces release to 16 Vermont, and has the power to avoid that circumstance by consenting to RRC 17 placement in Michigan. 18 (Tetu Decl. ¶ 9.) 19

CONCLUSION 20

We have considered all of the government's arguments in support of summary 21 affirmance and have found them to be without merit. The motion for summary affirmance is denied. 22 We have considered all of Murdock's arguments in support of his contention that the 23 15court has authority to grant his transfer motion, and we have found them to be without merit except 1 to the extent indicated above. Wevacate the August Order of the dist rict court and remand for further 2 proceedings in accordance with this opinion, whic h should be expedited in light of Murdock's 3 scheduled release from prison on November 15, 2013. Murdock's motion for an injunction pending 4 appeal is denied as moot. 5 The mandate shall issue forthwith. 6

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