NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v.

AARON SANDUSKY

,

Defendant

- Appellant. No. 22

- 50194

D.C. No.

2 :1 2

- cr

- 00548

- PA

MEMORANDUM *

Appeal from the United States District Court

for the Central District of California Percy Anderson

, District Judge, Presiding

Submitted April 18

, 20 23 **
Pasadena, California

Before: WARDLAW and KOH

, Circuit Judges, and ROSENTHAL, * * * District Judge.

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Lee H. Rosenthal, United States District Judge for the

So uthern District of Texas, sitting by designation. 

# FILED

APR 21 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2

Aaron Sandusky appeals the district court’s denial of his motion for early

termination of supervised release

. We have jurisdiction under 28 U.S.C. § 1291.

We vacate and remand to allow the district court to re consider Sandusky’s motion

under the correct legal standard

.

We review a denial of a motion for early termination of supervised release for

abuse of discretion. United States v. Ponce , 22 F.4th 1045, 1046 (9th Cir. 2022)

(citing United States v. Emmett , 749 F.3d 817, 819 (9th Cir. 2014)). “ ‘ Application

of the wrong legal standard constitutes an abuse of discretion

. ’ ” Id. ( quoting

United States v. Ruiz , 257 F.3d 1030, 1033 (9th Cir. 2001 ) (en banc)).

Sandusky argues that the district court abused its discretion when it denied his

motion on the ground that he failed to demonstrate “exceptionally good behavior”

while on supervised release, contrary to our precedent

. We agree. In Ponce

, we

clarified that requiring a defendant to demonstrate “exceptional behavior” as a

condition of early termination of supervised release “is incorrect as a matter of

law.” Id. at 1047. The proper legal standard is set forth in 18 U.S.C. § 3583(e)(1),

which “provides that , after considering a subset of the sentencing factors set forth

in 18 U.S.C. § 3553(a), a court may terminate a term of supervised release if it is

satisfied that such action is warranted by the conduct of the defendant released and

the inte rest of justice.” Id. (internal quotation marks and citation omitted).

The district court stated the legal standard as follows:3

Early discharge is appropriate to “account for new or unforeseen circumstances” not contemplated at the initial imposition of supervised release

. See [ United States v. ] Lussier , 104 F.3d [ 32, 36 (2d Cir. 1997) ]. Changed circumstances that justify early termination include a defendant’s exceptionally good behavior that makes the previously imposed term of supervised release “either too harsh or inappropriately tailored to serve” general punishment goals. Id.

The district court then found that Sandusky “ has failed to present facts and

circumstances that demonstrate ‘ exceptionally good behavior. ’ ”

The district court ’s misplaced reliance on Lussier follows our erroneous

statement in United States v. Smith , 219 F. App’x 666 (9th Cir. 2007), which

declared , citing Lussier , that “early termination [ is ] reserved for rare cases of

‘exceptionally good behavior.’” Id. at 668 (quoting Lussier , 104 F.3d at 36) . The

Ponce court expressly noted the error in Smith

, recognizing that Lussier “[did] not

require new or changed circumstances relating to the defenda nt in order to modify

conditions of release, but simply recognize[d] that changed circumstances may in

some instances justify a modification.” Ponce , 22 F.4th at 1047 ( quoting United

States v. Parisi , 821 F.3d 343, 347 (2d Cir. 2016)).

The government asks us to infer from fragments of the district court’s o rder

that the district court properly considered the motion for early termination. We

decline to draw these inferences. The district court previously denied a

codefendant’s motion for early termination of supervised releas e using the same

incorrect standard . The denial of the codefendant’s motion in identical terms4

supports Sandusky’s position that the district court erroneously believed that

Sandusky’s failure to demonstrate “exceptionally good behavior” was sufficient to

deny his motion.

In its order, the district court stated that early termination is only

“ ‘ occasionally ’ justified

. ” This standard is contrary to the Sentencing

Commission’s policy statement “ encourag[ ing ]” early terminatio n “ in appropriate

cases. ” U.S.S.G. § 5D1.2 cmt. 5

. Whether a term of supervision is “appropriate”

for early termination does not turn on how often early termination is granted. The

district court’s emphasis on the unusual or exceptional nature of early termination

suggests that the court did not evaluate relevant policy statements of the

Sentencing Commission, as required by 18 U.S.C. §§ 3583(e) and 3553(a)(5) , and

is further evidence that the court applied an in correct legal standard.

Accordingly, w e vacate and remand to allow the district court to reconsider

the motion for early termination consistent with this decision

.

VACATED and REMANDED.