United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN DISTRICT JUDGE.
December 1, 1995, Judge Curran sentenced defendant John Ross
to a total of 322 months in prison on robbery and firearm
charges. On November 13, 2017, defendant filed a motion for a
judicial recommendation to the Bureau of Prisons that he
receive the maximum amount of community confinement time
under 18 U.S.C. § 3624(c). 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 12
months of community confinement. He states that he has
maintained good conduct in recent years, 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.
167 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
responded in opposition to the request, and I permitted
defendant to reply. 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 acknowledged 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 indicated 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. 170 at 4.) In any event, 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. 170 at 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. 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. (R. 170 at 5-6.)
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. 171 at 1.) He
further argues that the court should make a recommendation
here, noting the length of time he has been imprisoned and
the benefits of pre-release time to his rehabilitation. (R.
171 at 3.)
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