Opinion
4:18-cr-00027-CDL-MSH-2
04-13-2021
UNITED STATES OF AMERICA, v. MONIQUE BATTLE, Defendant.
REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
Defendant Monique Battle has filed a letter (ECF No. 81) which has been docketed as a motion to reduce sentence. For the hereinbelow reasons, the Court recommends that Defendant's motion be denied.
BACKGROUND
On June 12, 2018, a federal grand jury indicted Defendant for two counts of making false statements on loan and credit applications in violation of 18 U.S.C. § 1014 in connection with 18 U.S.C. § 2 and one count of aggravated identity fraud in violation of 18 U.S.C. § 1028A in connection with 18 U.S.C. § 2. Indictment 1-4, ECF No. 1. After her arrest pursuant to this indictment, Defendant had her initial appearance on September 12, 2018, and she pled not guilty. Text-only Minute Entry, ECF No. 38; 1st Plea Sheet 1, ECF No. 41. On November 26, 2018, Defendant changed her plea and pled guilty to one count of making false statements on loan and credit applications and the sole count of aggravated identity fraud. Plea Agreement 2-6, ECF No. 51; 2d Plea Sheet 1, ECF No. 52. The Government dismissed the second count of making false statements on loan and credit applications. Plea Agreement 6; Judgment 1, ECF No. 71. The Court sentenced Defendant to twelve months imprisonment and three years supervised release for making false statements on loan and credit applications, twenty-four months imprisonment to run consecutively and one year supervised release to run concurrently for aggravated identity fraud, and a $100 mandatory assessment on each count. Judgment 2-9. Defendant did not appeal.
DISCUSSION
The Court received Defendant's letter (ECF No. 81), which the Clerk docketed as a motion to reduce sentence, on February 9, 2021. Defendant “request[s] a sentence modification reduced to time served on the grounds that a clear constitutional violation has occur[r]ed.” Mot. to Reduce Sentence 1, ECF No. 81. She argues the Second Chance Act of 2007, Pub. L. No. 110-199, 122 Stat. 657, “enable[s]” the Director of the Bureau of Prisons (“BOP”) to release her on home confinement “for the shorter of [ten] percent of the term of imprisonment . . . or [six] months.” Id. She requests an order “modify[ing] [her] sentence to time served[.]” Id.
The Second Chance Act provides that “[t]he Attorney General shall conduct a pilot program to determine the effectiveness of removing eligible elderly offenders and eligible terminally ill offenders from [BOP] facilities and placing such offenders on home detention until the expiration of the prison term to which the offender was sentenced.” 34 U.S.C. § 60541(g)(1)(A). Pursuant to this authority, “the Attorney General may release some or all eligible elderly offenders and eligible terminally ill offenders from [BOP] facilities to home detention, upon written request from either the [BOP] or an eligible elderly offender or eligible terminally ill offender.” 34 U.S.C. § 60541(g)(1)(B). 18 U.S.C. § 3624(c)(2) also authorizes the BOP “to place a prisoner in home confinement for the shorter of [ten] percent of the term of imprisonment of that prisoner or [six] months.”
Although the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, authorizes inmates to file a motion for compassionate release under 18 U.S.C. § 3582(c)(1), “[n]o provision of the First Step Act altered the Second Chance Act's language conferring the Attorney General with the discretionary authority to release an eligible elderly offender upon written request by the offender or the BOP.” United States v. Calderon, 801 Fed.Appx. 730, 731 (11th Cir. 2020) (per curiam). Citing this language, the Eleventh Circuit has held that district courts lack jurisdiction “to order the BOP to release a prisoner” under the Second Chance Act because “[t]he Second Chance Act makes no mention of federal courts and does not grant any authority to the federal courts.” Id. at 731-32; see also United States v. Moss, No. CR416-154, 2021 WL 517034, at *2 (S.D. Ga. Feb. 11, 2021); United States v. Vega, No. 3:18-cr-149-J-34JBT, 2020 WL 644932, at *1 (M.D. Fla. Nov. 3, 2020). Moreover, Defendant's claim that the BOP's failure to release her on home confinement amounts to a constitutional violation lacks merit. See Mot. to Reduce Sentence 1 (“[A] clear constitutional violation has occurred.”). The Supreme Court has held that “[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 7 (1979); see also Calderon, 801 Fed.Appx. at 732. The Court lacks jurisdiction to order Defendant's release on home confinement pursuant to the Second Chance Act and 34 U.S.C. § 60541(g)(1). Calderon, 801 Fed.Appx. at 731-32.
The Eleventh Circuit has recently held that where an inmate seeks release on home confinement pursuant to the Second Chance Act, the district court should consider whether the defendant also seeks compassionate release under 18 U.S.C. § 3582(c)(1). United States v. Tallon, -- Fed.Appx. --, 2021 WL 727806, at *3 (11th Cir. Feb. 25, 2021) (per curiam); see also Id. at *3 n.4 (“[I]t . . . concerns us to the extent the district court interpreted [defendant's] motion as only requesting direct home confinement.”). The Court is skeptical that Defendant seeks compassionate release in her present motion. She clearly understands how to seek compassionate release, as she previously filed two motions seeking compassionate release under § 3582(c)(1) less than a year before filing her present motion. See 1st Mot. for Compassionate Release 1-2, ECF No. 76; 2d Mot. for Compassionate Release 1-2, ECF No. 79 (“I am requesting a compassionate release based on the COVID-19 pandemic and life threatening risk that I am facing.”). The Court denied both motions. Order 1, Apr. 30, 2020, ECF No. 78; Order 1, Nov. 24, 2020, ECF No. 80. Defendant does not mention compassionate release in her pending motion. She requests only release to home confinement under the Second Chance Act. Mot. to Reduce Sentence 1.
In an abundance of caution, however, the Court finds that Defendant is not entitled to compassionate release under § 3582(c)(1) to the extent her motion to reduce sentence could be construed as seeking such relief. Within the last year, the Court has denied her two previous motions for compassionate release after considering the factors set forth in § 3553(a). See Order 1, Apr. 30, 2020, ECF No. 78; Order 1, Nov. 24, 2020, ECF No. 80. In her present motion, Defendant fails to allege any new facts showing that she is entitled to compassionate release. Having considered the § 3553(a) factors and the Court's analysis of her two previous motions for compassionate release, the Court finds Defendant is not entitled to compassionate release. The Court RECOMMENDS that her motion to reduce sentence (ECF No. 81) be DENIED.
CONCLUSION
For the foregoing reasons, the Court recommends that Defendant's motion to reduce sentence (ECF No. 81) be denied. Pursuant to 28 U.S.C. § 636(b)(1), Petitioner may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
Petitioner is hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.