United States District Court, E.D. Wisconsin
ORDER DENYING MOTION REQUESTS FOR JUDICIAL
RECOMMENDATION (DKT. NO. 85)
Pamela Pepper, United States District Judge.
October 8, 2014, Judge Rudolph T. Randa sentenced the
defendant to serve twelve months on Count One (armed bank
robbery) and the mandatory minimum sentence of eighty-four
months on Count Two (using and carrying a firearm during a
crime of violence), to run consecutively to each other, for a
total sentence of ninety-six (96) months in custody. Dkt.
Nos. 51, 52. Judge Randa recommended that the Bureau of
Prisons give the defendant credit for time served, and that
it place him at a facility as close to Milwaukee, Wisconsin
as possible. Dkt. No. 52 at 2.
January 7, 2019-four years and three months after the
sentencing- the court received from the plaintiff a motion
asking the court to recommend to the Bureau of Prisons that
he serve nine to twelve months at the end of his sentence in
a residential reentry center (RRC). Dkt. No. 85. The
defendant cites 18 U.S.C. §3624(c)(1) as the authority
for the court to make this recommendation. Id. at 3.
He also points the court to cases, including United
States v. Bartels, Case No. 12-cr-20072, 2016 WL
6956796 (E.D. Mich. Nov. 29, 2016) and United States v.
Sutherland, Case No. 15-cr-41-JAW-02, 2018 WL 3085169
(D. Maine, June 22, 2018), where district judges have granted
such post-sentencing requests for recommendations.
Id. at 3-4. The defendant explains that after his
sentencing, he first was designated to the Federal
Correctional Institution in Elkton, Ohio; he tried to sign up
for college training there but couldn't get a loan, and
there were no vocational programs at Elkton. Id. at
5. He says that he was then transferred to his current
designation at Milan, Michigan, where in July 2018, he
started participating in the Life Connections Program, a
faith-based residential reentry program. Id. at 5-6.
He also indicates that he has received only one incident
report during his entire sentence, and that was for
oversleeping and being absent from work. Id. at 6.
Finally, the defendant points to his personal circumstances:
He does not have financial resources and has many financial
obligations, he grew up without a home and has lost family
members, he is estranged from his son, he has a young
daughter with serious health problems, he can't get a
good-paying job at Milan, and he is not able to take
advantage of other programming at Milan because his sentence
is too short. Id. at 6-10.
government opposes the plaintiff's motion. Dkt. No. 87.
It points out that the defendant mounted a collateral attack
on his conviction, id. at 1-2; that courts are
divided as to whether a district court has the authority to
make placement recommendations post-sentencing, id.
at 3-4; and that this court does not have information from
the Bureau of Prisons about how the defendant fared at Elkton
and Milan, id. at 5-6.
3621(b)(4)(B) of Title 18 provides that when the BOP is
designating the particular penal or correctional facility in
which to place an inmate, it should consider (among other
factors) “any statement by the court that imposed the
sentence . . . recommending a type of penal or correctional
facility as appropriate.” That is the provision that
allowed Judge Randa to recommend that the BOP place the
defendant in a facility as close as possible to Milwaukee.
That statute does not say anything about recommendations from
the sentencing court regarding placement in a residential
3624(c)(1) instructs the director of the BOP to “ensure
that a prisoner serving a term of imprisonments 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.” Congress
qualified that instruction by adding the words, “to the
sentencing, then, §3621(b)(4)(B) allows a court to make
a recommendation about a particular penal or correctional
facility, and Judge Randa did so. Once the defendant is in
custody, it is up to the BOP to comply with the direction in
§3624(c)(1), “to the extent practicable.”
Neither of the two cases the defendant cites discusses the
question the government raises-the question of whether a
district court has jurisdiction to make any recommendations
to the BOP after sentencing and after the
deadline for appealing has passed. The Federal Rules of
Criminal Procedure provide a process for courts to amend or
correct sentences, but those rules allow such amendments or
corrections only to correct a sentence that “resulted
from arithmetical, technical or other clear error, ”
Fed. R. Crim. P. 35, or to “correct a clerical error in
a judgment, order, or other part of the record, or correct an
error in the record arising from oversight or omission,
” Fed. R. Crim. P. 36. So neither of these rules would
give the court the authority to do as the defendant asks.
court does not need to resolve this legal question today. The
court agrees with the government that, even if it has the
authority and the jurisdiction to make a non-binding
recommendation to the Bureau of Prisons, it would not be
appropriate for this court to do so, for several reasons.
First, the undersigned judge did not sentence the defendant.
Judge Randa sentenced the defendant over four years ago,
before the undersigned judge joined the court. It is not the
defendant's fault that Judge Randa passed away over two
years ago and is not here now to review the defendant's
motion. But this court does not know the case, or the
defendant, the way Judge Randa did. Arguably, the undersigned
judge is not “the court that imposed the
sentence” as that phrase is used in
and more important, compared to the BOP, this court has
little to no information about whether the defendant's
request is appropriate. Judge Randa sentenced the defendant
to an eight-year term in October 2014, and the
defendant's paperwork shows that his projected release
date is April 5, 2021 (six and a half years later), and the
docket shows that the defendant was in custody from April 17,
2014 until his sentencing date-almost six months. So the
court could conclude from the fact that the defendant is
scheduled to be released seven years into an eight-year
sentence that he has earned some good-time credit. But the
documents the defendant submitted don't say whether that
is true. The plaintiff says he has had only one incident
report during his entire incarceration; his Individualized
Reentry Plan (IRP) indicates only that over the six months
prior to December 31, 2018, he had one hearing for being
absent from an assignment (presumably, that's the
incident the defendant described where he overslept and
missed work). Dkt. No. 85-1 at 1. The defendant explains a
lot about the programming he has not taken-he says
there was no programming at FCI Elkton, and that he
hasn't been able to participate in anything other than
the Life Connections Program at Milan because his sentence is
too short. But the court notes that the IRP recommended that
the plaintiff participate in a course of his choice by June
2019, which implies that the Milan staff believes there must
be some program in which the defendant can participate.
Id. at 2. It appears that the defendant has been
working (as of December 2018, as a recreation orderly), but
it appears he does not consider that job one that pays well.
court does not mean to imply that the defendant isn't
telling the truth about the fact that he has conducted
himself well during his time in prison, and the court
commends him for that. The defendant says that he has made
efforts at rehabilitation (programming and education), and
the court takes him at his word and commends him for trying.
The court simply agrees with the government that the BOP has
far more information about how the defendant has done and is
doing, and how he'll do over the next few months, than
this court does. That is why Congress vested the BOP with the
authority to make placement and programming decisions, and
that rationale makes even more sense toward the end of a
sentence than it does at the beginning.
government is also correct that what the defendant has done
isn't the only factor. The court may have a bit of
information about the defendant, but it has no
information about how many other inmates are scheduled for
release at the same time as this defendant, about their
post-release needs, about the availability of RRCs. The
plaintiff says that he is not seeking release in the Eastern
District of Wisconsin, and so the court needn't worry
about the fact that there currently is a shortage of halfway
houses in this district due to several having closed. Dkt.
No. 85 at 7. The court knows even less about the halfway
house/RRC situation in whatever district it is that the
defendant will be released.
defendant has two years and three months, give or take, left
on his sentence. The IRP indicates that the staffing team
will review the defendant's place “under the 2nd
Chance Act” when he is “17 to 19 months from
his” projected release date-in other words, sometime
between September and November of this year. That is
reasonable, and would give the BOP plenty of time to decide
whether the defendant's request is reasonable or do-able.
The court will defer to the BOP's discretion-but it
wishes the defendant well in the months he has remaining.
court DENIES the defendant's Motion
Requests for ...