Opinion
Case No. CR-2-05-158.
November 16, 2006
ORDER
The Defendant Vickie Leonard filed a pro se Motion for Release to CCC Custody Pursuant to Case Law on October 30, 2006 (Doc. 25) and a pro se Expedited Motion for a Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A) on November 16, 2006 (Doc. 26). The Government has not responded to these Motions.
The Defendant was sentenced on December 16, 2005, to 27 months imprisonment and 2 years supervised release for five counts of wire fraud and ordered to pay restitution in the amount of $692,023.50 to Citigroup.
In Defendant's first Motion (Doc. 25), she is requesting the Court issue an Order based on Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005), to receive early release from her prison sentence and serve the remaining time in CCC custody, such as a halfway house or home confinement.
The Court has reviewed the Woodall case. Considering the case was issued by the 3rd Circuit Court of Appeals, this Court is not bound by its decision. Further, this case does not change the fact that Defendant is under the control of the Bureau of Prisons and it is the Bureau of Prisons who must decide whether the Defendant qualified for transfer to a CCC.
As discussed in Woodall, the Bureau of Prisons "may transfer an inmate to a CCC or like facility prior to the last six months or ten percent of his sentence. In exercising its discretion in this matter, the BOP must consider the factors set forth in § 3621(b). However, that the BOP may assign a prisoner to a CCC does not mean that it must." Woodall, 432 F.3d at 251. Therefore, the Woodall Court held that the appropriate remedy was an order requiring the BOP to consider, in good faith, whether or not Woodall should be transferred to a CCC.
Based on this information, the Court DENIES the Defendant's Motion for Release to CCC. However, in light of Woodall, the Court recommends that the Bureau of Prisons shall consider whether the Defendant should be transferred to a CCC. In making this decision, the Bureau of Prisons is instructed to consider this Court's sentencing recommendation and the other § 3621 factors, as well as any other appropriate factors the Bureau of Prisons routinely considers. All the conditions of release set forth in the Judgment and Commitment shall remain the same.
In Defendant's Second Motion, she requests a reduction in her sentence pursuant to 18 U.S.C. § 3582(c)(1)(A). 18 U.S.C. § 3582(c)(1)(A) provides that once a sentence is imposed, a court may modify a term of imprisonment only (1) upon a motion of the Director of the Bureau of Prisons; or (2) to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Civil Procedure. See 18 U.S.C. § 3582(c)(1). There are three specific circumstances under Rule 35 that allow for such modification of a sentence: (i) on remand from a court of appeal following a successful Section 3742 motion; (ii) after a government motion to reduce sentence for substantial assistance; and (iii) to correct a sentence imposed as a result of arithmetical, technical, or other clear error. FED. R.CRIM. P. 35; see also Williams v. Fed. Bureau Prisons, 2005 U.S. Dist. LEXIS 23241 (N.D. Ohio 2005)
In Defendant's case, there has not been any motion by the Director of the Bureau of Prisons to reduce here sentence, nor has Defendant asserted any claims that fall into any of the categories set forth in Rule 35 of the Federal Rules of Criminal Procedure. Defendant has not had a motion remanded from an appellate court, the Government has not moved to reduce here sentence, nor has there been any clear error in her sentence. Additionally, even if Defendant had made a Rule 35(c) claim, it would have been time-barred since the rule requires action within seven days after the imposition of the sentence. See FED. R.CRIM. P. 35(c). Therefore, Defendant's Expedited Motion for a Reduction of Sentence (Doc. 26) is DENIED.
For the reasons stated above, the Court DENIES Defendant's Motion for Release to CCC Custody (Doc. 25) and Defendant's Expedited Motion for Reduction of Sentence (Doc. 26).
The Clerk shall remove Doc. 25 and Doc. 26 from the Court's pending motions list.
IT IS SO ORDERED.