United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN DISTRICT JUDGE.
30, 2014, Judge Clevert sentenced defendant Buckie Rehwinkel
to 94 months in prison on drug charges. The judgment includes
recommendations that defendant participate in the 500 hour
drug treatment program and that he be designated to a
facility close to his home. (R. 229 at 2.) On November 16,
2017, defendant filed a motion for a judicial recommendation
to the Bureau of Prisons that he receive 9 months of
residential reentry center (“RRC”) placement
pursuant to 18 U.S.C. § 3624(c). (R. 360 at 1.)
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 for RRC placement. (R. 360 at
3.) He states that he has never received an incident report,
details the programming he has completed, and indicates that
RRC placement will give him a leg up before starting his term
of supervised release. (R. 360 at 3-4.)
matter was reassigned to me due to Judge Clevert's
retirement, 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. (R. 361 at 3.) The government
responded in opposition to the request (R. 362), and
defendant filed a reply (R. 365). I now deny the motion.
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.”).
regularly 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 concluded that while they cannot amend or modify
the judgment, 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 concluded that they lack authority to make
recommendations 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 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. 362 at 4.) Even if the court has authority,
the government contends that I should decline to issue a
post-sentencing recommendation, as the BOP is better
positioned to make such determinations. The BOP is familiar
with the offender and his adjustment in prison, his current
treatment needs, the available resources, and the other
relevant considerations. (R. 362 at 4-5.) By contrast, this
court can only act on a case-by-case basis and has little
insight to offer. The original sentencing judge in this case
is retired, and whatever institutional knowledge the court
may have is dated and unlikely to be helpful to the BOP. (R.
362 at 5-6.) Finally, the government indicates that the
court, unlike the BOP, has no special expertise in evaluating
a prisoner's disciplinary record and accomplishments
while incarcerated, as they bear on the question of
placement. (R. 362 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. (R. 365 at 1.) He
further argues that the court should make a recommendation
here, noting the benefits to his rehabilitation. (R. 365 at
issue of the court's authority, I agree with what appears
to be the majority position: while the court may not modify
the original judgment or otherwise order the BOP to grant
pre-release time in response to a defendant's
post-sentencing motion, it may issue a non-binding
recommendation. Because such a recommendation is advisory
only, it does not run afoul of the limitations on modifying
sentences contained in 18 U.S.C. § 3582 and Fed. R.
Crim. P. 35, and because 18 U.S.C. § 3621(b) directs the
BOP to consider any statement by the court that