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United States v. Horton

United States District Court, E.D. North Carolina, Western Division

July 27, 2017

UNITED STATES OF AMERICA
v.
LESIA ROSHAD HORTON

          ORDER

          TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE

         This cause comes before the Court on defendant's motion for a reduced sentence or placement in a halfway house [DE 36]. The government has responded, [DE 40], and the matter is ripe for disposition. For the following reasons, defendant's motion is denied.

         BACKGROUND

         On November 5, 2012, defendant entered a plea of guilty, pursuant to a plea agreement, to possession of a firearm by a felon in violation of 18 U.S.C. § 922(g). [DE 15]. On February 21, 2013, defendant was sentenced to 92 months' imprisonment followed by three (3) years' supervised release. [DE 20].

         On May 22, 2017, defendant filed the instant motion for a sentence reduction under 18 U.S.C. § 3621(c) or, in the alternative, recommendation to a halfway house. [DE 36]. In his motion, defendant alleges his completion of the Residential Drug Abuse Program ("RDAP") constitutes grounds to reduce his sentence or, in the alternative, receive a recommendation of a year in a halfway house. Id.

         DISCUSSION

         As provided for by 18 U.S.C. § 3621, the BOP is charged with the task of designating where a federal inmate will be imprisoned. See 18 U.S.C. § 3621(b). Title 18 U.S.C. § 3621(b) authorizes the BOP to implement drug abuse treatment programs for its prisoners and vests the BOP with discretionary authority to establish criteria for determining eligibility for early release. Additionally, 18 U.S.C. § 3624 provides that a federal inmate may be granted pre-release custody, in which he is permitted to serve a portion of his federal sentence in the community, whether it be in home confinement or placement in a community correctional facility. 18 U.S.C. § 3624(c). The BOP considers all five factors enumerated in § 3621(b), as well as the guidelines under § 3624(c)(1), and makes an individual determination regarding each inmate's placement into an RRC. See Miller v. Whitehead, 527 F.3d 752 (8th Cir. 2008); Wedelstedt v. Wiley, 477 F.3d 1160, 1166-68 (9th Cir. 2007); Levine v. Apker, 455 F.3d 71, 87 (3d Cir. 2006); see also 28 C.F.R. § 570.22 (effective Oct. 21, 2008). The fourth factor under § 3621(b) incorporates any recommendations by the court regarding the "type of penal or correctional facility" to be selected for the defendant.

         Defendant seeks a sentence reduction or, in the alternative, placement in a halfway house. As the remedy sought in defendant's motion is an action by the BOP in relation to the execution of his sentence, this action is only properly brought in a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. See In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997). As defendant is currently incarcerated at FCI Petersburg, the United States District Court for the Eastern District of Virginia has jurisdiction over this matter as defendant's custodian. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-95 (1973) ("The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody"); United States v. Miller, 871 F.2d 488, 490 (4th Cir. 1989) (a claim which attacks the execution of the sentence rather than the sentence itself, under 28 U.S.C. § 2241, must be sought "in the district of confinement rather than in the sentencing court"). Therefore, this Court is without jurisdiction to review defendant's motion.

         Even should the Court have jurisdiction, defendant's challenge to the BOP's decision to deny him early release eligibility because of his completion of RD AP is without merit. Federal regulations provide that inmates who have a "current felony conviction" for an offense that "involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives" or "by its nature or conduct, presents a serious potential risk of physical force against the person or property of another" are ineligible for early release consideration. 28 C.F.R. § 550.55(b)(5)(h) and (iii). Additionally, the Administrative Procedures Act, 5 U.S.C. §§ 701-706 ("APA"), specifically denies courts the authority to review the BOP's decisions under 18 U.S.C. § 3621. See Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011) (holding that 18 U.S.C. § 3625 precludes judicial review of "any determination" by the BOP made pursuant to 18 U.S.C. §§ 3621-3625) (internal quotation omitted). Thus, the BOP's discretionary decision with respect to whether petitioner is eligible for a sentence reduction pursuant to § 3621(e)(2)(B) is not reviewable by this court.

         Additionally, "[a] judgment of conviction that includes [a sentence of imprisonment] constitutes a final judgment and may not be modified by a district court except in limited circumstances." Dillon v. United States, 560 U.S. 817, 824 (2010) (internal quotation marks omitted) (alteration in original); 18 U.S.C. § 3582(c). These limited circumstances include: motion from the Director of the Bureau of Prisons based on "extraordinary and compelling reasons, " defendant's advanced age, a motion by the government pursuant to Federal Rule of Criminal Procedure 35, or upon motion from the BOP director or Court pursuant to a lowered sentencing range. 18 U.S.C. § 3582(c). Here, even should the Court have jurisdiction to grant the motion, defendant has not put forth any statute or rule or otherwise demonstrated that circumstances exist which would permit a modification of the judgment and sentencing recommendation. Without this, the Court is unable to modify a final judgment. While the Court recognizes defendant's significant accomplishments while incarcerated, the Court is also not responsible for making a determination regarding defendant's early release or halfway house placement, aside from its already incorporated sentencing recommendation, and therefore the motion must fail.

         Finally, movant has not included any information indicating that he has pursued his claim in the BOP's administrative remedy system before seeking judicial relief See McKart v. United States, 395 U.S. 185, 193 (1969) ("The doctrine provides 'that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.'") (quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 (1938)). Accordingly, even should the Court have jurisdiction and even should this be the type of matter reviewable by the Court, the matter would not be properly before the Court at this time.

         CONCLUSION

         For the foregoing reasons, defendant's ...


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