Opinion
2:12-cr-00322-JAM
10-12-2021
UNITED STATES OF AMERICA, Plaintiff, v. ALEKSANDR LASTOVSKIY, Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR PLACEMENT IN HOME CONFINEMENT PURSUANT TO THE CARES ACT
JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE.
On September 7, 2021, the Court denied Defendant's motion for compassionate release. See Order, ECF No. 349. On September 14, 2021, Defendant filed a motion for an order placing him in home confinement pursuant to Section 12003(b)(2) of the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act. See Mot., ECF No. 351. Specifically, Defendant argues that he should be released to home detention due to the threat of COVID-19 particularly the Delta variant and his high blood pressure which places him at risk. Id. at 3-5. The Government opposed his motion, arguing inter alia this Court has no statutory authority to order an inmate to home confinement. See Opp'n at 6-7, ECF No. 357. Defendant replied. See Reply, ECF No. 358. For the reasons set forth below, the Court DENIES Defendant's motion.
The hearing set for September 30, 2021 is thus vacated.
Under the CARES Act, BOP may “lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement” if the Attorney General finds that emergency conditions will materially affect the functioning of BOP. Pub. L. No. 116-136, § 12003(b)(2), 134 Stat. 281, 516 (to be codified at 18 U.S.C. § 3621). Section 12003 of the Act extended the authority of the Attorney General to allow transfer of any inmate to home confinement during the national COVID-19 emergency. Id.
The Government contends the Court lacks authority to grant the relief Defendant requests because the authority to transfer an inmate to home confinement is delegated exclusively to BOP and any BOP decision regarding home confinement is not subject to judicial review. Opp'n at 6 (citing to United States v. Ashby, 3:15-CR-154, 2020 WL 2494677, at *2 (M.D. Pa. May 14, 2020); United States v. Cruz, 1:95-CR-204, 2020 WL 1904476, at *4 (M.D. Pa. Apr. 17, 2020)(“[c]ourts… do not have power to grant relief under Section 12003 of the CARES Act”); United States v. Mabe, 2020 U.S. Dist. LEXIS 66269, at *1 (E.D. Tenn. Apr. 15, 2020); United States v. Mansaray, No. 13-236, 2020 WL 3077184, at *3 (E.D. Pa. June 10, 2020)(“The Congress did not provide the Courts with the authority to review the BOP Director's decision whether to release inmates into home confinement at an earlier time under the CARES Act”); United States v. White, No. 2:07-cr-150, 2020 WL 1906845, at *2 (E.D. Va. Apr. 17, 2020)(“[Section 12003] does not authorize the court to place a defendant in home confinement”); United States v. Skaff, No. 2:17-cr-00125, 2020 WL 1666469, at *2 (S.D. W.Va. Apr. 3, 2020)).
By contrast, Defendant provided no caselaw in his motion supporting his position that the Court does have such authority. See Mot. Nor did Defendant respond to the cases brought forward by the Government in opposition. See Reply. Instead, Defendant cites to only one case in his reply: Torres v. Milusnic, 472 F.Supp.3d 713 (C.D. Cal 2020). Reply at 3-4. However, Torres does not support Defendant's request for relief. See generally F.Supp.3d 713. Torres involved a prisoner class action challenging the BOP and Lompoc Warden's COVID-19 response on Eighth Amendment grounds; it did not involve an individual's petition for placement in home confinement. Id. at 718. As relevant here, the question before the Torres Court was whether plaintiff-prisoners demonstrated a likelihood of success on their “Eighth Amendment claim based on [defendants'] failure to take reasonable measures to reduce risk of serious harm to inmates by failing to make meaningful use of [their] home confinement authority as expanded by the CARES Act.” Id. at 738. The Torres Court did not address the issue of whether courts have authority to order that an inmate be placed in home confinement.
Lacking authority to order Defendant's placement in home confinement and not finding good cause to do so even if it did, the Court DENIES Defendant's motion.
For the same reasons the Court denied Defendant's motion for compassionate release just a week before he filed the present motion, see Order at 3, this motion fails on the merits.
IT IS SO ORDERED.