REQUEST TO EXTEND SURRENDER DATE; ORDER

MORRISON C. ENGLAND, Jr., Chief District Judge.

Mr. Greer respectfully asks the Court to extend to January 21, 2016, the date he is to surrender to serve his sentence. Mr. Greer has numerous health conditions (documented in the presentence report at paragraphs 49 through 55) that require monitoring while he serves his year-and-a-day sentence and may require special accommodation. But despite repeated inquiries to the responsible agencies, Mr. Greer has yet to be designated by the Bureau of Prisons. His current surrender date is Thursday, January 7.

Ordinarily, this routine request would have been made by stipulation and order, as has been done during the more than 22 years this writer has been employed as an Assistant Federal Defender in the Eastern District of California. However, the government says that it will no longer agree to extend surrender dates. It states: "The government is opposed to this request. The government's position is that the surrender date is part of the defendant's sentence and the Court does not have jurisdiction to modify the surrender date unless within the time period of Rule 35." (Defense counsel advised the government that it would ask the Court to extend the surrender date without a hearing and asked the government to state its opposition so that its view could be included.)

When the Court sentenced Mr. Greer on November 12, two months seemed like plenty of time to obtain a designation. But probation did not process its paperwork until December 14, after receiving the written judgment. As of this morning, the Marshals had yet to receive a designation and it is unclear now whether the Bureau of Prisons has received all the information it needs in order to complete a designation. An actual designation is needed in this case because of Mr. Greer's ongoing need for medical care as documented in the PSR. The Marshal will not provide him with more than emergency medical care while he is in their custody. Another client of this writer (Keithen Wyrick, sentenced by this Court on October 1 with a recommendation that he "be incarcerated in a medical facility," 2:08-CR-0416) has been in Marshal custody for nearly three months at a transit facility in Pahrump, Nevada, without seeing a doctor for anything but emergency care.

The government's sharp departure from past practice relies on a misreading of Rule 35, which sets deadlines for "correcting or reducing a sentence." Mr. Greer does not ask the Court to correct, reduce, or modify his sentence in any manner. He only asks to begin serving the custody portion of the sentence two weeks later. Regarding placement recommendations, which like surrender dates are also recorded in the judgment, the Ninth Circuit Court of Appeals and "[e]very other circuit that has confronted this issue has reached a similar conclusion — a recommendation to the Bureau of Prisons is not part of a sentence . . . ." United States v. Ceballos, 671 F.3d 852, 855 (9th Cir. 2011).

Mr. Greer remains subject to the jurisdiction of the Court and will continue to report to Pretrial Services as he has done since his first appearance over two years ago. Defense counsel will assure that Pretrial Services receives a copy of the order extending the date should the Court sign it.

Finally, Judge Ishii has granted two similar requests to extend surrender dates since the government announced last week that it would no longer stipulate to these routine requests. See Requests and Orders, doc. nos. 309-312, in United States v. Lara, 2:13-CR-0213.

Mr. Greer respectfully asks the Court to extend his surrender date to January 21, 2016, at 2:00 p.m. Respectfully Submitted,

ORDER

Defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons before 2:00 p.m. on January 21, 2016, as notified by Pretrial Services.

IT IS SO ORDERED.