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United States v. Lovo

United States District Court, District of Columbia

January 2, 2020

UNITED STATES OF AMERICA,
v.
PABLO LOVO, et al ., Defendants.

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE

         A jury convicted Pablo Lovo, Joel Sorto, and Yonas Eshetu in 2014 of conspiring to interfere with interstate commerce by robbery, 18 U.S.C. § 1951, and Mr. Lovo and Mr. Sorto of using, carrying or possessing a firearm during a crime of violence, 18 U.S.C. § 924(c). The Defendants were sentenced to prison terms of varying lengths followed by three years of supervised release. Following a 2018 Supreme Court decision in another case, the convictions of Messrs. Lovo and Sorto on the gun count were overturned; each Defendant's conviction of conspiracy under 18 U.S.C. § 1951 was sustained. In 2018, all three Defendants were released from the Bureau of Prisons to begin their terms of supervised release. Each man has moved for early termination of supervised release.

         I. FACTS

         Mr. Lovo was sentenced to sixty-four months of incarceration for conspiring to interfere with interstate commerce by robbery, 18 U.S.C. § 1951 (Count One), and sixty months of incarceration for using, carrying or possessing a firearm during a crime of violence, 18 U.S.C. § 924(c) (Count Two), to run consecutively; Mr. Sorto was sentenced to forty months of incarceration on Count One, and sixty months of incarceration on Count Two, to run consecutively; and Mr. Eshetu was sentenced to sixty-four months of incarceration on Count One. Each Defendant was sentenced to thirty-six months of supervised release following incarceration.

         Defendants appealed their convictions on various grounds and, in an opinion dated July 25, 2017, the D.C. Circuit affirmed the district court on all but one claim. United States v. Eshetu, 863 F.3d 946 (D.C. Cir. 2017) (Eshetu I), vacated in part on reh'g, 898 F.3d 36 (D.C. Cir. 2018). The Circuit remanded to the district court to consider whether Defendants suffered ineffective assistance of counsel when trial counsel did not object to the admission of certain recordings or raise an entrapment defense. This Court received a mandate as to Mr. Eshetu on August 3, 2018; following a status hearing, the parties agreed to suspend further proceedings on the ineffective assistance claim until the Court received mandates for Messrs. Lovo and Sorto.

         Following the 2017 Circuit opinion, the Supreme Court held that 18 U.S.C. § 16(b)-the “residual clause” of section 16's crime-of-violence definition-is unconstitutionally vague. Sessions v. Dimaya, 138 S.Ct. 1204, 1210 (2018). Messrs. Lovo and Sorto sought further review of their convictions on Count Two in light of Dimaya and on August 3, 2018, the Circuit vacated their convictions on Count Two. United States v. Eshetu, 898 F.3d 36 (D.C. Cir. 2018) (Eshetu II). Counsel for Messrs. Lovo and Sorto then moved for their clients' immediate release because each had already served his full prison term on Count One. The Court granted these motions: Mr. Sorto was released from the Bureau of Prisons on October 5, 2018, and Mr. Lovo was released on November 19, 2018.[1] Mr. Eshetu was released several months earlier on May 17, 2018.

         Mr. Eshetu's term of supervised release will expire on May 16, 2021; Mr. Sorto's on October 4, 2021; and Mr. Lovo's on November 18, 2021. Each Defendant has moved for early termination of supervised release and Mr. Lovo has moved, in the alternative, to modify his conditions of release. The Government opposes Defendants' motions. The matter is ripe for review.[2]

         II. LEGAL STANDARD

         Pursuant to 18 U.S.C. § 3583(e), a court may “terminate a term of supervised release and discharge the defendant released at any time after the expiration of one year of supervised release . . . if it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice.” 18 U.S.C. § 3583(e)(1). A district court may also “modify, reduce, or enlarge the conditions of supervised release[ ] at any time prior to the expiration or termination of the term of supervised release.” Id. § 3583(e)(2).

         When considering a request for early termination of supervised release, the Court must first consider: (1) the nature and circumstances of the offense and the defendant's history and characteristics; (2) deterrence of criminal conduct; (3) protection of the public from further crimes of the defendant; (4) the need to provide the defendant with education or vocational training, medical care, or other correctional treatment; (5) the applicable sentencing guideline range for the offense and pertinent policy statements issued by the U.S. Sentencing Commission; (6) the need to avoid unwarranted sentencing disparities; and (7) the need to provide restitution to any victims of the offense. See 18 U.S.C. § 3553(a); see also United States v. Harris, 258 F.Supp.3d 137, 144 (D.D.C. 2017).

         The Circuit Court for the District of Columbia Circuit has instructed that the district court must explain its consideration of the requisite factors when denying a motion for early termination, unless “the reasons for denying the motion are apparent from the record.” United States v. Mathis-Gardner, 783 F.3d 1286, 1289 (D.C. Cir. 2015).

         III. ANALYSIS

         Only the first four factors of Section 3553(a) are of particular relevance to the Defendants. The fifth factor-the U.S. Sentencing Commission's Guidelines and policy statements-is of limited relevance because “the Commission has not promulgated any guidelines or policy statements addressing early termination of supervised release, but limited its policy guidance to violations of supervised release.” Harris, 258 F.Supp.3d at 145. The sixth factor, which considers avoiding unwarranted sentencing disparities, has “limited utility” because this factor “would generally undermine the case specific inquiry required in evaluating a motion for early termination of supervised release.” Id. The seventh factor, which considers restitution obligations, does not apply because there were no victims in this case.

         The remaining pertinent factors must be analyzed for each Defendant: (1) the nature and circumstances of the offense; (2) deterrence of criminal conduct; (3) protection of the public; and (4) the need to provide the defendant with training or correctional treatment. It is also pertinent to review whether each man's conduct following release and whether the “interest of justice” warrants an early termination of supervised release. 18 U.S.C. § 3583(e)(1).

         A. Mr. Lovo

         1. Request for Early Termination of Supervision

         Nature and Circumstances of the Offense.

         In 2013, Messrs. Lovo, Sorto, and Eshetu joined a conspiracy with two other co-defendants to rob a narcotics dealer who was, unbeknownst to them, totally fictitious. The plan came to fruition over the course of five meetings with an undercover police officer and culminated in a September 5, 2013 meeting at a Washington, D.C. storage facility, where the police arrested all conspirators. Mr. Lovo attended all five meetings and served as a leader and organizer of the conspiracy. See Eshetu I, 863 F.3d at 949-50.

         As the Government observes, Mr. Lovo's acts were “very detailed in [their] planning” and the coconspirators “were prepared to engage in what could have been very violent criminal acts.” Opp'n at 9. During an August 24, 2013 meeting, Mr. Lovo volunteered to supply guns for ...


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