United States District Court, W.D. Washington, Tacoma
ORDER DENYING DEFENDANT'S MOTION TO MODIFY
BENJAMIN H. SETTLE United States District Judge
matter comes before the Court on Defendant Alexander
Hong's (“Hong”) motion to modify sentence.
Dkt. 4. The Court has considered the pleadings filed in
support of and in opposition to the motion, the
recommendation of United States Probation Officer, and the
remainder of the file and hereby denies the motion for the
reasons stated herein.
FACTUAL & PROCEDURAL BACKGROUND
October 25, 2017, Hong pled guilty to one count of Conspiracy
to Distribute a Controlled Substance in violation of 21
U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(C), and
21 U.S.C. § 846 pursuant to an indictment filed in the
District of Nevada. Dkt. 2.
November 27, 2018, the Honorable Richard F. Boulware
sentenced Hong to a four-year period of probation. Dkt. 2-3.
As a condition of probation, Judge Boulware ordered Hong to
serve 32-weeks of intermittent confinement in custody, with
the specific requirement to serve “three consecutive
weeks” each month beginning in January 2018.
Id. When imposing intermittent confinement on Hong,
Judge Boulware considered (1) Hong's need to operate a
local family restaurant which supports Hong, his significant
other and child, and his mother and (2) the fact of
Hong's father's recent passing. See Dkt. 4,
Declaration of Bradley G. Barshis, ¶ 4.
transferred his probation to this District in May 2019. Dkt.
1. On June 3, 2019, United States Probation Officer Todd
Skipworth (“Officer Skipworth”) petitioned the
undersigned to strike the condition requiring three
consecutive weeks of incarceration each month. Dkt.
3. Officer Skipworth explained that Hong operates a family
restaurant and is also a real estate agent and that the basis
of the request was to better accommodate Hong's sources
of income. Id. The undersigned approved the
modification. Id. As modified, Hong's condition
of intermittent confinement now reads as follows: “You
must serve a total of 32 weeks of intermitted confinement in
custody. . . . You shall serve three consecutive weeks each
month, or as directed by the probation
officer . . .” Id.
9, 2019, Hong filed a motion to modify the probation sentence
by converting the remainder of his confinement time to home
detention. Dkt. 4. Regarding the basis of the request, Hong
writes in an unsworn letter that he experienced hardship
running the restaurant while he was incarcerated during
December and January. Dkt 4 at 5 (“During those two
months my business has also endured an L&I claim/audit,
theft from employees, equipment failure and major decrease in
Skipworth filed a response with the Court opposing the
request because Hong received a sentence considerably less
than the original guideline imprisonment range of 37 to 46
months. On July 12, 2019, the United States of America
(“the Government”) responded. Dkt. 7. The
Government also opposes the request. Id.
asks the Court to modify his probation sentence by converting
the remainder of his confinement to home detention. Dkt. 4.
District judges may “modify . . . the conditions of a
sentence of probation at any time pursuant to . . . the
provisions applicable to the initial setting of the
conditions of probation.” 18 U.S.C. § 3563(c). The
Court considers the sentencing factors set forth in 18 U.S.C.
§ 3553(a) when setting the initial conditions of
probation. 18 U.S.C. § 3562(a).
3553(a) requires sentencing courts to impose a sentence that
is “sufficient, but not greater than necessary”
while considering factors like the seriousness of the
offense, the history and characteristics of the defendant,
and the need for the sentence to promote respect for the law,
provide just punishment, afford adequate deterrence, and
avoid unwarranted sentence disparities. 18 U.S.C. §
careful review of the motion, the Court concludes that a
probation sentence of 32 weeks of intermittent confinement is
sufficient but not greater than necessary to accomplish the
goals of the sentencing statute as set forth in §
3553(a). First, the Court notes that Hong relies heavily on
hardships he experienced running the restaurant while the
“three consecutive weeks” condition was still
imposed. Dkt. 4 at 5. Moreover, while Hong continues to
emphasize his father's death in connection to the
difficulty he faces running the restaurant, perhaps
understandably, Judge Boulware already considered the impact
of the loss of Hong's father on his ability to run the
restaurant when he imposed the below-guideline sentence of
probation. While Hong does state that he has fallen behind on
tasks such as payroll and scheduling, see id., the
Court finds the modification approved by the undersigned on
June 3 sufficient to negate the hardship serving three
consecutive weeks of incarceration may have on performing
those types of management tasks. For example, Officer
Skipworth indicates that after the Court approved the
modification, Officer Skipworth changed Hong's surrender
and release dates at Hong's request. This action
benefitted Hong, but he does not mention it or his newfound
flexibility in the motion, which, when considered in
connection to the lack of current hardship alleged, merits
denial of the request. Therefore, the Court concludes that
Hong fails to allege hardship sufficient to justify
converting the remainder of his incarceration to home
detention, and the motion is denied.
it is hereby ORDERED that Hong's motion