Opinion
CRIMINAL NO. 16-0248-WS
07-17-2020
UNITED STATES OF AMERICA v. RICHARD PHAM, Defendant.
ORDER
The defendant has filed a handwritten document of unclear import. (Doc. 63). The defendant says he has without success asked his trial counsel to bring a motion for compassionate release on his behalf, (id. at 1), but he neither describes his filing as such a motion nor expressly seeks such relief. On the contrary, he states that he is "sending you a pro-se from me to you this week." (Id. at 3). The Court therefore construes the filing as a notice that the defendant intends to file a motion for compassionate release in the near future. So construed, the defendant's filing is noted.
The defendant states that he has been notified of his placement in a half-way house effective October 7, 2020. (Doc. 63 at 2). Without argument or explanation, he asks, "Can you help me with 3 month extra half way house or home confinement?" (Id.). Home confinement is governed by statute, specifically, 18 U.S.C. § 3624(c)(2). Section 3624(c) commits to the Bureau of Prisons ("BOP") the decision where an inmate should spend the final months of his sentence. The CARES Act enlarges the amount of time a prisoner may spend in home confinement, but it does not alter the provision making BOP the body to make such determinations. The defendant's recourse is thus to seek relief internally. Assuming without deciding that the Court has authority to issue a recommendation regarding pre-release custody under 18 U.S.C. § 3624(c) other than at the time of sentencing, and assuming without deciding that the Court has authority to issue such a recommendation without the defendant first exhausting administrative remedies, the Court declines to issue such a recommendation, as the defendant has presented nothing persuading the Court to wade into a decision committed by Congress to BOP and as to which BOP has information and expertise far exceeding that of the Court. The defendant's deemed motion for assistance in obtaining more extended pre-release custody is denied.
This is consistent with the Bureau of Prisons' identification of the defendant's release date, as reflected on the inmate locator page of its website, as March 5, 2021.
Home detention is also possible pursuant to 34 U.S.C. § 60541(g), but only for inmates that are terminally ill or at least 60 years old. The defendant is neither.
Section 3624(c)(2) limits home confinement to the final ten percent of a defendant's sentence, or to six months, whichever is less. Section 12003(b) of the CARES Act provides that, upon an appropriate finding by the Attorney General, "the Director of the Bureau [of Prisons] may lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of 3624(c)(2) ..., as the Director determines appropriate." The Attorney General has made the required finding.
E.g., United States v. Saxon, 2020 WL 2617131 at *1 (S.D. Ga. 2020); United States v. Alvarez, 2020 WL 2572519 at *2-3 (S.D. Fla. 2020); United States v. Dison, 2020 WL 2564677 at *5 (S.D. Ala. 2020); United States v. Phillips, 2020 WL 2219855 at *6 (M.D. Fla. 2020); United States v. Daniels, 2020 WL 1938973 at *1-2 (N.D. Ala. 2020).
See, e.g., United States v. Holcomb, 2018 WL 1896542 at *2 (D.N.M. 2018); United States v. Ross, 2018 WL 2376510 at *2 (E.D. Wis. 2018) (citing cases).
See, e.g., Cade v. United States, 2019 WL 669570 at *1 (S.D. Miss. 2019).
See, e.g., United States v. Witherspoon, 2019 WL 2514714 at *2 (M.D. Tenn. 2019) ("The BOP, not the court, is in the best position to evaluate the appropriate place for the defendant to serve" the final months of his sentence); accord United States v. Noguni, 2019 WL 1748505 at *2 (D. Nev. 2019); United States v. Brooks, 2019 WL 118593 at *1 (W.D. Ky. 2019) (citing cases). --------
DONE and ORDERED this 17th day of July, 2020.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE