United States District Court, D. Montana, Billings Division
P. Watters United States District Court.
motions are before the Court. The first is Medina's
motion to vacate, set aside, or correct the sentence under 28
U.S.C. § 2255 (Doc. 51). The second is Medina's
motion for a recommendation that he be placed at a
Residential Reentry Center ("RRC") for a year
before he is released (Doc. 53).
reviewing Medina's motions, the Court has refreshed its
memory by consulting the rough transcript of the sentencing
hearing. Pursuant to 28 U.S.C. § 753(f), the United
States will be required to order the transcript for the
Court's file and for Medina.
Residential Reentry Center Recommendation
many defendants who are working to turn their lives away from
addiction and the drug trade, Medina may well benefit from an
extended time in an RRC. But he has a long history of
violating conditions of release. See Presentence
Report ¶¶ 45-46. Possibly Medina's history
means he would benefit more from a lengthy stay in an RRC, or
possibly it means the opposite. The Bureau of Prisons has
more recent information about Medina, knowledge of its own
facilities and availability, and the institutional expertise
to decide the best placement. The Court will defer to the
Bureau and will not make a recommendation one way or the
Motion Under 28 U.S.C. § 2255
motion under 28 U.S.C. § 2255 asks the Court to remove
the two-point enhancement for possession of a firearm under
U.S.S.G. § 2D1.1(b)(1). See Presentence Report
¶ 32. He explains that he does not ask the Court to
follow out the consequences of removing the enhancement by
reducing the advisory guideline range or imposing a lesser
sentence. He simply wants the enhancement omitted so that the
Bureau of Prisons will consider him eligible for a one-year
sentence reduction if he completes the Residential Drug Abuse
Prevention program ("RDAP"). See Mot.
§ 2255 (Doc. 51) at 8; see also 18 U.S.C.
§ 3621(e)(2)(B); 28 C.F.R. § 550.55(b)(5)(ii).
Director of the Bureau of Prisons has the discretion to
decide whether Medina is eligible for early release,
including the discretion to decide that anyone whose offense
involved possession of a firearm should not be eligible.
See Lopez v. Davis, 531 U.S. 230, 241, 243-44
(2001); 18 U.S.C. § 3621(e)(2); 28 C.F.R. §
550.55(b)(5)(ii) (May 26, 2016). Because Congress vested that
discretion with the Director of the BOP, it is not this
Court's role to alter a presentence report to influence
the Director's decision. The fact is that Medina
possessed a firearm, and a stolen one at that. See
Presentence Report ¶¶ 20-21. It is not possible to
state, with integrity, that he did not.
support his motion, Medina cites United States v.
Fraley, No. CR 05-188-KSF, 2007 WL 1876455 (E.D. Ky.
June 27, 2007). There, however, the parties and the Court all
agreed at the original sentencing hearing-mistakenly, as it
turned out-that Fraley would be eligible for early release
when she completed drug treatment. Early release was
specifically discussed and specifically intended. See
Fraley, 2007 WL 1876455 at *3-*4. The subsequent
amendment of the presentence report reflected and carried out
the parties' and the Court's intent at the time of
not the case here. At Medina's sentencing hearing, the
parties and the Court all agreed that Medina needed intensive
drug treatment. The Court recommended he be allowed to
participate in the RDAP program. See Judgment (Doc.
48) at 2. But the purpose of the recommendation was
treatment. The prospect of early release was not a factor.
Moreover, 70 months was the prison term the Court found
"sufficient, but not greater than necessary, " to
meet the objectives of 18 U.S.C. § 3553(a)(2). If early
release had been contemplated, Medina might not have received
a sentence at the bottom end of the advisory guideline range
to begin with.
a § 2255 motion provides federal prisoners with an
opportunity to demonstrate that their sentences or
convictions violate the Constitution or laws, were imposed
without jurisdiction, exceeded the maximum authorized by law,
or are otherwise subject to collateral attack-in other words,
that their sentences or convictions are not lawful.
See 28 U.S.C. § 2255(a). Hickerson v.
Willingham, No. 3:06-cv-777 (CFD), 2006 WL 3422186 (D.
Conn. Nov. 28, 2006), cited in Mot. § 2255 at
8, pointed this out when it said, "To the extent that
Hickerson is arguing that her sentence was improper .
. . this claim must be raised in a section 2255
motion." Id. at *3 (emphasis added). The record
of the case does not support an inference that there was
anything unlawful about the firearm enhancement, the
presentence report, or the Bureau of Prisons' eligibility
criteria for early release. Medina's case is not like
Fraley but is like United States v.
Tenorio, No. 11-cr-375-CMA, 2016 WL 6809179 (D. Colo.
Oct. 6, 2016): "He has failed to demonstrate that he is
entitled to [the requested] relief under 28 U.S.C. §
2255." Id. at*3.
district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant." Rule 11(a), Rules Governing § 2255
Proceedings. A COA should issue as to those claims on which
the petitioner makes "a substantial showing of the
denial of a constitutional right." 28 U.S.C. §
2253(c)(2). Medina's request to alter his presentence
report neither alleges nor supports an inference that he was
deprived of a constitutional right. A COA is not warranted.
IT IS HEREBY ORDERED:
Pursuant to 28 U.S.C. § 753(f), the Court CERTIFIES that
the transcript of the sentencing hearing, held on March 5,
2015, is ...