The opinion of the court was delivered by: Chief Magistrate Judge Michael R. Merz
This case is before the Court on Defendant's pro se Motion to Enforce 18 U.S.C. § 4083 and Place Defendant on Home Confinement (Doc. No. 12).
On August 29, 2006, the Court decided an informal request for the same relief, made by way of Defendant's August 14, 2006, letter to his attorney, Cheryll Bennett (See Doc. Nos. 10 & 11). This Decision deals only with new matters raised in the formal motion.
As noted in the prior Decision, Defendant is incarcerated in a federal correctional institution, not a federal penitentiary and 18 U.S.C. §4083 therefore does not apply to his case. Additionally, this Court has no discretion to designate a place of confinement for a federal prisoner; aside from whatever relief a prisoner might be entitled to if §4083 were violated, the designation of place of confinement is committed solely to the Bureau of Prisons, which is a part of the executive branch, not the judiciary.
When Defendant was sentenced on March 30, 2006, he was granted voluntary surrender (See Judgment, Doc. No. 6). Thereafter, on Motion on May 22, 2006, he was given a court-ordered delay of execution of sentence until August 1, 2006 (Doc. No. 8). He is correct that when he called the Court to ask for a further delay, he was told that if he did not report by 10:30 a.m. on August 2, 2006, the Court would issue a warrant for his arrest. He is also correct when he states in his Affidavit that he never consented to commitment to the Bureau of Prisons. However, his consent was not necessary.
A close reading of the Motion suggests Defendant may be claiming that his attorney failed to render proper assistance. While such a question may be raised by a motion to vacate sentence under 28 U.S.C. § 2255, the Court declines to treat the current Motion as being made under § 2255. A criminal defendant is limited to one such motion and the Supreme Court has therefore warned trial courts not to construe other post-judgment motions as made under § 2255 unless the defendant specifically requests it.
A federal court cannot recharacterize a pro se litigant's motion as a first § 2255 motion unless it first informs the litigant of its intent to recharacterize, warns the litigant that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on "second or successive" motions, and provides the litigant an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has. If these warnings are not given, the motion cannot be considered to have become a § 2255 motion for purposes of applying to later motions the law's "second or successive" restrictions.
Defendant argues that his sentence is excessive, given proper consideration of the factors listed in 18 U.S.C. §3553. He raises no objection to the Court's calculation, made on the record at the time of sentencing, that the range of incarceration applicable to this offense under the Sentencing Guidelines was six to twelve months; the Court, having considered the Guidelines as advisory in this post-Booker case, imposed the minimum sentence recommended by the Guidelines.
As Defendant notes, he consented to proceed to sentencing without preparation of a new Presentence Investigation Report. The Court has now examined the Presentence Investigation Report prepared in Case No. 3:99-cr-05 which was prepared on April 21, 1999. At that time the Probation Officer recommended an incarceration sentence of thirty-three months "at the high end of the guideline range" because The defendant has a severe criminal history with felony convictions dating back to 1972. . . . Although the defendant has not performed well on any type of supervision, a supervised release term of 3 years to follow imprisonment in this case is recommended as it will serve for purposes of monitoring the defendant's re-integration back into the community. . . . (PSI at 24). Of course, the prediction of the probation officer proved prescient as Defendant was once revoked from supervised release, was still serving on supervised release at the time of the instant offense, and was indicted for theft in the Clark County Common Pleas Court on December 20, 2004. Given this history, it is very unlikely that any of the facts referred to in the Motion, even assuming they had been proved at a sentencing hearing, would likely have persuaded the undersigned to depart downward from the Sentencing Guideline range. To have ignored Defendant's extensive criminal history, including recent history, and departed downward would have been to fail to properly weigh the factors set forth in §3553.
Michael R. Merz Chief United States Magistrate Judge
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