CLD-444                                                         NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ____________

                                      No. 13-3404
                                     ____________

                           UNITED STATES OF AMERICA

                                            v.

                               SERGE ERIC BAYARD,
                                                 Appellant
                         __________________________________

                    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
                      __________________________________

                        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)
                                     ____________

                                       OPINION
                                     ____________


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.
       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.

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§ 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.




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