Opinion
Case No. 3:06-cr-038.
August 29, 2006
DECISION AND ORDER
This case is before the Court on Defendant's request, made by way of his August 14, 2006, letter to his attorney, Cheryll Bennett, that he be given six months' home confinement in lieu of the six months' term he is presently serving at the Federal Correctional Institution at Ashland, Kentucky.
Defendant grounds his request in 18 U.S.C. § 4083 which provides that a person convicted of an offense against the United States "punishable by imprisonment for one year or less shall not be served in a penitentiary without the consent of the defendant." Defendant also relies on United States v. Pandilidis, 524 F. 2d 644 (6th Cir. 1975).
Defendant interprets the relevant statute and case law as prohibiting his confinement in any federal facility. He is correct that his offense of conviction for theft under 18 U.S.C. § 641 is a class A misdemeanor which carries a maximum term of imprisonment of one year. However that does not prevent his commitment to the United States Bureau of Prisons or his assignment for the term of incarceration at his present location, FCI Ashland. 18 U.S.C. § 4083 only prohibits non-consensual incarceration of misdemeanants in federal penitentiaries, not in all facilities operated by the Bureau of Prisons. Federal law distinguishes between correctional and penal institutions. 18 U.S.C. §§ 4001(b)(1), 4042(a)(1). The Ashland facility is not a penitentiary, but rather a correctional institution and Defendant's placement there by the Bureau of Prisons is within the Bureau's authority.
"First, in [sic] pursuant to 19 U.S.C. § 4083 and the law of this Circuit, I could not be placed in the BOP for any offense that does not exceed one year, which includes my case."
Once a defendant has been committed to the custody of the Attorney General, his or her placement is within the discretion of the Bureau of Prisons. Defendant's request for home confinement in lieu of imprisonment is accordingly denied.