United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN DISTRICT JUDGE.
Trivon Carter pleaded guilty to conspiracy to distribute
heroin, and on April 20, 2017, I sentenced him to 75
months' imprisonment. I recommended that the Bureau of
Prisons (“BOP”) place defendant at a facility
close to Milwaukee and permit his participation in the
Residential Drug Abuse Program (“RDAP”). He took
no direct appeal but later filed a motion under 28 U.S.C.
§ 2255, which I denied on October 6, 2017.
November 14, 2017, defendant filed a motion for a judicial
recommendation to the BOP that he be allowed to serve the
last 9 to 12 months of his sentence in a halfway
house.(R. 4 at 1.) Defendant indicates that he is
not seeking to modify the sentence or correct a clerical
error in the judgment under Federal Rules of Criminal
Procedure 35 and 36. Rather, he asks the court to review his
conduct and programming in making a post-sentencing
recommendation for RRC (“residential reentry
center”) placement. (R. 4 at 3.) He states that he has
done his best to follow the rules of the institution, details
the programming he has completed, and indicates that he has a
reentry plan to follow once he is at the halfway house. (R. 4
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. 6 at
3.) The government responded in opposition to the request (R.
8), and defendant filed a reply (R. 10). 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.”).
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
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. The government further
indicates that McHugh, while not directly on point,
suggests there is no free floating authority to issue
judicial recommendations absent a pending case or
controversy. (R. 8 at 3.) Even if the court has authority to
issue a non-binding recommendation, the government contends
that I should decline to issue one. Congress has entrusted
such decisions to the BOP, which is best suited to consider
the prisoner's adjustment, his current treatment needs,
the available resources, and the other relevant
considerations. (R. 8 at 3-4.) The BOP is also better
positioned to determine which of the prisoners under its
control are most deserving of such placement. By contrast,
this court can only act on a case-by-case basis, based on
dated information, and has little insight to offer. (R. 8 at
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. 9 & 10 at 1.)
He further argues that the court should make a recommendation