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United States v. Scott-Brown

United States District Court, Sixth Circuit

September 25, 2013



S. ARTHUR SPIEGEL, Senior District Judge.

This matter is before the Court on Jeanette Brown's pro se motion docketed July 23, 2013 (doc. 43). In it, she asks the Court to run her supervised release violation sentence concurrent with the sentence imposed in No. 1:06-cr-00098. In the alternative, she asks the Court to recommend "time in a [h]alfway house." We ordered the United States to respond by August 21, 2013 (doc. 44). That time was extended to August 29, 2013 (doc. 46). On September 3, 2013, the United States filed its "Motion to File, Instanter, Response of the United States to Motion of Defendant for Concurrent Prison Terms or For Reduction of Term of Custody" (doc. 47). Ms. Brown thereafter filed a "Reply Memorandum for Response under Changes of Law via Extenuating Circumstances" (doc. 48) in which she asks the Court, based on an administrative policy change approved just three weeks after her original motion was filed, to now consider her for a "compassionate release" under 18 U.S.C. § 3582 (c)(1)(A).

We begin by addressing the content of Ms. Brown's July 23d motion. This is the third time that Ms. Brown has asked this Court to run the sentence imposed for her supervised release violation concurrent with the sentence imposed in No: 1:06-cr-00098. As we have ruled twice before, this Court has no power to give Ms. Brown the relief she seeks.

After the entry of a final judgment, Federal Rule Criminal Procedure 35 allows a district court to alter a sentence under only one of two circumstances. Per subsection (a), a district court may correct an error that resulted from arithmetical, technical or other clear error within 14 days after sentencing. Subsection (b) allows the district court to reduce a sentence upon the government's motion, if, after sentencing, the defendant provided substantial assistance to the government.

Neither section of Rule 35 is applicable here. The 14-day time frame for seeking relief from clear error passed long ago, and the government has not filed a motion asking for her sentence to be reduced because of substantial assistance. Accordingly, this Court DENIES Ms. Brown's motion to run her sentences concurrently.

We likewise have no power to grant Ms. Brown's request to recommend time in a "[h]alfway house" under the "Second Chance Act." Prisoners who have "successfully completed a program of residential substance abuse treatment" may obtain an early release from custody of no more than "one year from the term the prisoner must otherwise serve" under 18 U.S.C. § 3621(e)(2)(A) and (B). But whether a prisoner has "successfully" completed a program, as well as the amount of the reduction of custodial time, if any (up to one year), and his or her appropriate placement all are decisions left to "the judgment of the Director of the Bureau of Prisons." Id . Accordingly, we must also DENY Ms. Brown's motion to recommend placement into a residential aftercare program in lieu of her current condition of confinement. As the government suggests, however, we encourage Ms. Brown to direct her request in this regard to the Director of the Bureau of Prisons.

We turn next to Ms. Brown's request that we consider her for a "compassionate release" under 18 U.S.C. § 3582(c)(1)(A). In support, she cites to a new Program Statement recently approved by Charles E. Samuels, Jr., Director, Federal Bureau of Prisons. Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582(c)(1)(A) and 4205(g), Op. O.G.C. No. 5050.49 (Aug. 12, 2013). Among other policy changes, inmates now are permitted to make reduction in sentence ("RIS") requests based on non-medical circumstances, including the death or incapacitation of the family member caregiver of an inmate's child. Ms. Brown seeks a RIS on the basis that she now needs to care for her granddaughter, Forever Love Scott, as Ms. Brown's aging parents, to whose custody Forever is committed, [1] suffer from serous health conditions that render them incapable of properly raising a five-year old child. Review of the pertinent authorities, however, reveals that her request has been misdirected.

It is true that, under certain circumstances, when "extraordinary and compelling reasons warrant, " a sentencing court may reduce a term of imprisonment once imposed. See 18 U.S.C. § 3582(c)(1)(A)(i). But that rare occasion can occur only "upon motion of the Director of the Bureau of Prisons." Id . (emphasis added). Here, Ms. Brown herself has filed such a motion and, therefore, it would be improper for the Court to consider it. We direct Ms. Brown to the Federal Regulations outlining the proper procedure:

571.61 Initiation of request-extraordinary or compelling circumstances.
(a) A request for a motion under 18 U.S.C. [] 3582 (c)(1)(A) shall be submitted to the Warden. Ordinarily, the request shall be in writing, and submitted by the inmate. An inmate may initiate a request for consideration under 18 U.S.C. [] 3582 (c)(1)(A) only when there are particularly extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing. The inmate's request shall at a minimum contain the following information:
(1) The extraordinary or compelling circumstances that the inmate believes warrant consideration.
(2) Proposed release plans, including where the inmate will reside, how the inmate will support himself/herself[]....

28 C.F.R. § 571.61 (emphasis added). Indeed, the excerpt from the very Program Statement that Ms. Brown attaches to her ...

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