United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN DISTRICT JUDGE
September 3, 2015, Judge Randa sentenced defendant Alphonso
Reavis to 48 months in prison on a felon in possession of a
firearm charge. The judgment included recommendations that
defendant participate in the 500 hour drug treatment program
and that he be placed at a facility as close to this district
as possible. (R. 20 at 2.)
November 21, 2017, defendant filed a motion for a judicial
recommendation to the Bureau of Prisons (“BOP”)
that he receive the maximum amount of pre-release halfway
house time under 18 U.S.C. § 3624(c). (R. 22.) In the
motion, defendant indicates that he is not seeking to amend
the sentence or correct the judgment under Federal Rules of
Criminal Procedure 35 and 36. Rather, he asks the court to
consider his conduct and programming in making a
post-sentencing recommendation that he receive 9-12 months of
halfway house placement. He details the programming he has
completed and indicates that he has a re-entry plan to follow
once he is at the halfway house. (R. 22 at 3.)
case was reassigned to me, and I ordered the government to
respond. Specifically, I directed the government to address
whether the court has jurisdiction to make such a
recommendation and whether, assuming it does, the court
should make a recommendation in this case. The government has
filed its response, and defendant a reply. I now deny the
The Director of the Bureau of Prisons shall, to the extent
practicable, ensure that a prisoner serving a term of
imprisonment spends a portion of the final months of that
term (not to exceed 12 months), under conditions that will
afford that prisoner a reasonable opportunity to adjust to
and prepare for the reentry of that prisoner into the
community. Such conditions may include a community
deciding such placement, the BOP considers a variety of
factors, including “any statement by the court that
imposed the sentence . . . recommending a type of penal or
correctional facility as appropriate.” 18 U.S.C. §
3621(b)(4)(B); see also 18 U.S.C. § 3624(c)(6)
(directing the BOP to issue regulations ensuring that
placement in a community correctional facility is conducted
in a manner consistent with § 3621(b)); 28 C.F.R. §
570.22 (“Inmates will be considered for pre-release
community confinement in a manner consistent with 18 U.S.C.
section 3621(b), determined on an individual basis, and of
sufficient duration to provide the greatest likelihood of
successful reintegration into the community, within the
time-frames set forth in this part.”).
routinely make recommendations regarding prison placement and
programming at the time of sentencing. However, it is unclear
whether the district court has similar authority when acting
on a prisoner's post-sentencing motion. Some courts have
issued such recommendations pursuant to § 3621(b)(4)(B)
without specifically addressing this jurisdictional issue.
See, e.g., United States v. Qadri, No. CR
06-00469, 2017 U.S. Dist. LEXIS 38716, at *4 (D. Haw. Mar.
15, 2017); United States v. Baker, No. 3:01cr94-01,
2013 U.S. Dist. LEXIS 11418, at *1, *6 (M.D. Ala. Jan. 29,
2013); see also United States v. Bartels, No.
12-cr-20072, 2016 U.S. Dist. LEXIS 164056, at *3 (E.D. Mich.
Nov. 29, 2016) (making a recommendation under § 3621(b),
but acknowledging the government's view that the court
could not order the BOP to take such action).
courts have acknowledged that they may not, in response to
such a motion, amend or modify the judgment, but have
concluded that they may nevertheless issue a recommendation
separate and apart from the judgment. United States v.
Brattin, No. 2:13-cr-00161, 2016 U.S. Dist. LEXIS
112222, at *5-6 (D. Nev. Aug. 23, 2016); United States v.
Palacios, No. 05CR2203, 2007 U.S. Dist. LEXIS 65644, at
*7 (S.D. Cal. July 14, 2007); see also United States v.
Booker, Criminal No. 13-3 (JRT/FLN), 2018 U.S. Dist.
LEXIS 82485, at *5 (D. Minn. May 16, 2018) (finding that the
court has authority to issue a non-binding recommendation,
but declining to do so in that case); United States v.
Collins, No. 2:15-cr-00176-7-TLN, 2018 U.S. Dist. LEXIS
35699, at *2-4 (E.D. Cal. Mar. 5, 2018) (granting such a
request, without opposition by the government, under
§§ 3621 & 3624); United States v.
Doyle, Criminal Action No. 15-90, 2018 U.S. Dist. LEXIS
18366, at *1-2 (E.D. La. Feb. 5, 2018) (citing §§
3621 & 3624 and granting request); United States v.
Marshall, No. 2:16-CR-00096, 2018 U.S. Dist. LEXIS
10499, at *2-3 (E.D. Tenn. Jan. 23, 2018) (“The court
notes the government's objection, but finds that although
the court cannot order the Bureau of Prisons to transfer
defendant to a halfway house, the court can make a
recommendation for defendant.”); United States v.
Jackson, Criminal No. 16-05-05 (JDB), 2017 U.S. Dist.
LEXIS 201726, at *3-5 (D.D.C. Dec. 7, 2017) (finding that
§ 3621 permitted a non-binding recommendation but
declining to issue one in that case).
some courts have indicated that they lack authority to grant
such relief after sentencing. See United States v.
Green, No. 10-20096-01, 2015 U.S. Dist. LEXIS 80198, at
*2 (D. Kan. June 22, 2015) (“[T]he Court does not have
jurisdiction to amend defendant's sentence at this time
to include a specific recommendation on placement in a
residential re-entry facility.”); United States v.
Landers, No. 6:09-cr-0893-10, 2013 U.S. Dist. LEXIS
144450, at *3 (D.S.C. Oct. 7, 2013) (“The court is
aware of no authority by which it may issue a recommendation
for halfway house placement at this late stage.”);
see also United States v. Sanders, No. CR 13-03696
RB, 2018 U.S. Dist. LEXIS 80162, at *3-4 (D.N.M. May 9, 2018)
(“[N]o comparable BOP regulation authorizes a prisoner
to seek a post-sentencing recommendation as to pre-release
custody when the original judgment is silent as to RRC
placement.”); United States v. Tipton, No.
14-20142, 2018 U.S. Dist. LEXIS 49178, at *2 (E.D. Mich. Mar.
26, 2018) (“T]he Court finds that Defendant has not
shown that the Court has authority to make a judicial
placement recommendation to the FBOP apart from what the
court already ordered and recommended in the
response, the government indicates that the better reasoned
cases have concluded that there is no authority to issue such
a recommendation post-sentencing, and that McHugh
suggests there is no free floating authority to issue
judicial recommendations absent a pending case or
controversy. (R. 24 at 4.) In any event, the government
contends that I should decline to issue a recommendation now,
as the BOP is better positioned to make such determinations.
The BOP is familiar with the offender and his adjustment in
prison, how his situation compares with that of other
inmates, his current treatment needs, the available
resources, and the other relevant considerations. (R. 24 at
4-5.) The court, on the other hand, can act only on a
case-by-case basis, based on dated information, and lacking
the BOP's expertise in such matters. (R. 24 at 5-6.)
Moreover, the original sentencing judge in this case is
deceased, and whatever institutional knowledge the court may
have is limited and dated, and may not be significantly
helpful to the BOP. The government therefore argues the
motion should be denied. (R. 24 at 6.)
reply, defendant contends that the court is authorized to
make a recommendation after sentencing, as the court is not
modifying or correcting the sentence, but merely making a
recommendation. (R. 25 at 1.) He further argues that the
court should make a ...