Opinion
No. 1:05-cr-00020
2013-09-25
UNITED STATES OF AMERICA v. JEANETTE SCOTT-BROWN
OPINION AND ORDER
This matter is before the Court on Jeanette Brown's pro se motion docketed July 23, 2013 (doc. 43). In it, she asks the Court to run her supervised release violation sentence concurrent with the sentence imposed in No. 1:06-cr-00098. In the alternative, she asks the Court to recommend "time in a [h]alfway house." We ordered the United States to respond by August 21, 2013 (doc. 44). That time was extended to August 29, 2013 (doc. 46). On September 3, 2013, the United States filed its "Motion to File, Instanter, Response of the United States to Motion of Defendant for Concurrent Prison Terms or For Reduction of Term of Custody" (doc. 47). Ms. Brown thereafter filed a "Reply Memorandum for Response under Changes of Law via Extenuating Circumstances" (doc. 48) in which she asks the Court, based on an administrative policy change approved just three weeks after her original motion was filed, to now consider her for a "compassionate release" under 18 U.S.C. § 3582 (c)(1)(A).
We begin by addressing the content of Ms. Brown's July 23d motion. This is the third time that Ms. Brown has asked this Court to run the sentence imposed for her supervised release violation concurrent with the sentence imposed in No: 1:06-cr-00098. As we have ruled twice before, this Court has no power to give Ms. Brown the relief she seeks.
After the entry of a final judgment, Federal Rule Criminal Procedure 35 allows a district court to alter a sentence under only one of two circumstances. Per subsection (a), a district court may correct an error that resulted from arithmetical, technical or other clear error within 14 days after sentencing. Subsection (b) allows the district court to reduce a sentence upon the government's motion, if, after sentencing, the defendant provided substantial assistance to the government.
Neither section of Rule 35 is applicable here. The 14-day time frame for seeking relief from clear error passed long ago, and the government has not filed a motion asking for her sentence to be reduced because of substantial assistance. Accordingly, this Court DENIES Ms. Brown's motion to run her sentences concurrently.
We likewise have no power to grant Ms. Brown's request to recommend time in a "[h]alfway house" under the "Second Chance Act." Prisoners who have "successfully completed a program of residential substance abuse treatment" may obtain an early release from custody of no more than "one year from the term the prisoner must otherwise serve" under 18 U.S.C. § 3621(e)(2)(A) and (B). But whether a prisoner has "successfully" completed a program, as well as the amount of the reduction of custodial time, if any (up to one year), and his or her appropriate placement all are decisions left to "the judgment of the Director of the Bureau of Prisons." Id. Accordingly, we must also DENY Ms. Brown's motion to recommend placement into a residential aftercare program in lieu of her current condition of confinement. As the government suggests, however, we encourage Ms. Brown to direct her request in this regard to the Director of the Bureau of Prisons.
We turn next to Ms. Brown's request that we consider her for a "compassionate release" under 18 U.S.C. § 3582(c)(1)(A). In support, she cites to a new Program Statement recently approved by Charles E. Samuels, Jr., Director, Federal Bureau of Prisons. Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582(c)(1)(A) and 4205(g), Op. O.G.C. No. 5050.49 (Aug. 12, 2013). Among other policy changes, inmates now are permitted to make reduction in sentence ("RIS") requests based on non-medical circumstances, including the death or incapacitation of the family member caregiver of an inmate's child. Ms. Brown seeks a RIS on the basis that she now needs to care for her granddaughter, Forever Love Scott, as Ms. Brown's aging parents, to whose custody Forever is committed, suffer from serous health conditions that render them incapable of properly raising a five-year old child. Review of the pertinent authorities, however, reveals that her request has been misdirected.
Ms. Brown indicates that her son, Brandon Scott, was murdered by his wife, Shanda Huffman, in April 2010. It is her hope to be awarded permanent custody of Forever, as the child's father is deceased and her mother is imprisoned.
It is true that, under certain circumstances, when "extraordinary and compelling reasons warrant," a sentencing court may reduce a term of imprisonment once imposed. See 18 U.S.C. § 3582(c)(1)(A)(i). But that rare occasion can occur only "upon motion of the Director of the Bureau of Prisons." Id. (emphasis added). Here, Ms. Brown herself has filed such a motion and, therefore, it would be improper for the Court to consider it. We direct Ms. Brown to the Federal Regulations outlining the proper procedure:
571.61 Initiation of request--extraordinary or compelling circumstances.28 C.F.R. § 571.61 (emphasis added). Indeed, the excerpt from the very Program Statement that Ms. Brown attaches to her pleading reads in part as follows:
(a) A request for a motion under 18 U.S.C.[ ]3582 (c)(1)(A) shall be submitted to the Warden. Ordinarily, the request shall be in writing, and submitted by the inmate. An inmate may initiate a request for consideration under 18 U.S.C.[ ] 3582 (c)(1)(A) only when there are particularly extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing. The inmate's request shall at a minimum contain the following information:
(1) The extraordinary or compelling circumstances that the inmate believes warrant consideration.
(2) Proposed release plans, including where the inmate will reside, how the inmate will support himself/herself[] . . . .
5. Requests Based on Non-Medical Circumstances—Death or Incapacitation of the Family Member Caregiver.Thus, it is absolutely clear that if Ms. Brown's goal is to pursue a "compassionate release," she must begin the process with a request to the Warden of the institution to which she is confined. We encourage her to do so. Because the Court is without authority to consider a motion for a RIS under 18 U.S.C. § 3582(c)(1)(A) filed by anyone other than the Director of the Bureau of Prisons, Ms. Brown's motion in that regard, contained within her reply memorandum docketed on September 23, 2013 (doc. 48), is hereby DENIED.
. . . .
a. First Stage of the Warden's Review. The following information should be provided by the inmate to the Warden in writing for RIS requests based on the death or incapacitation of the family member caregiver:
. . . .
The Warden may deny the inmate's request at the institution level of review if the Warden finds that the inmate has not provide adequate information and documentation as set forth above.
b. Second Stage of the Warden's Review. Even if the inmate provides adequate and sufficient information and documentation set forth above regarding the RIS request, further investigation is appropriate. At this stage, the Warden should convene a committee consisting of the inmate's unit manager, correctional counselor, and any other relevant staff (social worker, physician, psychologist, etc.) to investigate the facts and circumstances provided by the inmate and to review supporting letters and documents before the Warden makes a recommendation to approve or deny the RIS request. . .
If the Warden determines that a "compassionate release" is warranted, his recommendation will be reviewed by the BOP's General Counsel, who, if he or she agrees, will seek the opinion of the Medical Director (if the request is medical in nature) or the Assistant Director, Correctional Programs Division (if, as here, the basis is non-medical). Final review, of course, is committed to the discretion of the Director. If the Director of the Bureau of Prisons favors the request, he will contact the United States Attorney in the district in which the inmate was sentenced and ask that a motion be filed in the sentencing court seeking a reduction of the inmate's sentence to "time served." 28 C.F.R. § 571.62(a)(1)-(3).
The Court advises Ms. Brown, however, that if the Director of the Bureau of Prisons ultimately declines to ask for a "compassionate release" on her behalf, his decision is not reviewable by this or any other federal court in light of the "broad grant of discretion" that Section 3582(c)(1)(A)(i) confers upon him. Crowe v. United States, 430 F. App'x 484, 485 (6th Cir. 2011).
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In summary, Ms. Brown's motions to run her sentences concurrently (doc. 43); to recommend time in a "[h]alfway house" (doc. 43); and to grant her a "compassionate release" (doc. 48) all are DENIED.
SO ORDERED.
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S. Arthur Spiegel
United States Senior District Judge