MOTION BY DARRIN JOHNSTON TO CONTINUE HIS SELF-SURRENDER DATE FROM 1/15/16 to 3/1/2016

JOHN A. MENDEZ, District Judge.

Defendant DARRIN JOHNSTON hereby requests a continuance of his self-surrender date, which is presently set for January 15, 2016, at FCI-Lompoc. He requests a new self-surrender date of March 1, 2016, or any date later than February 1, 2016, as the Court deems appropriate.

Mr. Johnston is not seeking to change or modify his sentence. He is only requesting to continue the date he self-surrenders to commence serving his already-ordered sentence.

Darrin Johnston was sentenced to serve "one year and one day" in prison at his August 18, 2015, sentencing hearing before Judge Mendez.

While walking across an intersection on December 23, 2015, Darrin Johnston was struck by a car. He was sent flying in the air and suffered ligament damage to his right knee, left wrist and left foot. He was treated in an emergency room. He has MRI tests ordered, but not yet scheduled, on his knee and foot. Mr. Johnston's medical insurance expires on February 29, 2016, so all medical testing and surgeries must be done prior to February 29, 2016. If Mr. Johnston must wait until after he serves his BOP sentence to be treated for the already-suffered injuries, Mr. Johnston would run the risk that any future insurance company would deny any claim for the treatment and/or surgeries as a "pre-existing condition."

Mr. Johnston has requested the police report for the car accident, but the officer has not yet completed the report. I have attached to this motion one page from his December 23, 2015, emergency room visit and the request for an MRI test on his injuries. Mr. Johnston is awaiting notice of when the MRI will be scheduled. Mr. Johnston's doctors have told him he has a ligament tear in his foot and a meniscus tear in his knee. Mr. Johnston wants to have surgeries to repair his foot and knee before self-surrendering.

This request is not a delay tactic by or for Mr. Johnston. Getting struck by a car on December 23, 2015, was not foreseeable when the self-surrender date of January 15, 2016, was set at the end of his sentencing hearing. This request for a six-week delay in self-surrendering is made to allow him to have the MRIs and diagnoses to be made, and then the required medical procedures to be performed on him and paid for by his insurance.

The Government objects to this request and will argue that this Court does not have jurisdiction to modify a term of the sentence.

The defense responds that the self-surrender date is not a term of the sentence itself, but it is merely the date on which the service of the term of custody commences. When a convicted defendant can show good cause concerning why his self-surrender date should be delayed, the court has the "inherent power" to change the self-surrender date. (See United States v. Jesse Van den Wildenberg 2008 Westlaw 508697, Eastern District of Wisconsin 2008.) Moreover, if a defendant who has good cause to request a modification of a self-surrender date cannot petition a court, where can he go? Concepts of Due Process of law require that a defendant be able to file a motion with the District Court Judge who issued the sentence.

MICHAEL D. LONG

ORDER

Upon a showing of good cause by either the government or the defense, the Court retains jurisdiction to modify a defendant's voluntary self-surrender date at a Bureau of Prisons facility. (See United States v. Jesse Vandenwildenberg 2008 WL 508697, Eastern District of Wisconsin 2008.)

UPON GOOD CAUSE SHOWN by Mr. Johnston, it is ordered that the Bureau of Prisons surrender date for DARRIN JOHNSTON, presently set for January 15, 2016, at FCI-Lompoc be continued to March 1, 2016, at 12:00 p.m. at FCI-Lompoc.