United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
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.
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].
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.
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.
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.
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.
"[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.
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
foregoing reasons, defendant's ...