ORDER ON MOTION REQUESTING A JUDICIAL RECOMMENDATION REGARDING HALFWAY HOUSE PLACEMENT

LAWRENCE J. O'NEILL, Chief District Judge.

The Court has received and reviewed both the defendant's motion as well as Probation's response (attached and incorporated herein).

The Court adopts by reference Probation's response and its well-reasoned analysis. The motion is DENIED.

IT IS SO ORDERED.

UNITED STATES CHIEF DISTRICT JUDGE EASTERN DISTRICT OF CALIFORNIA

Your Honor:

On February 11, 2019, this Court sentenced the defendant Hazel Mae Turner to 24 months in the custody of the Bureau of Prisons (BOP) followed by 12 months of supervised release for Aggravated Identity Theft, 18 U.S.C. § 1028(a)(1) and (c)(5). On July 1, 2019, the defendant filed a Motion Requesting Judicial Recommendation Concerning the Length of Residential Re-Entry Center (Halfway House) Placement. On July 11, 2019, this Court ordered the United States and the United States Probation Office to reply by July 26, 2019. According to the BOP website, the defendant's anticipated release date from BOP custody is December 11, 2020.

The defendant's motion should be denied as to the United States Probation Office for the following reasons. Firstly, the Court already entered a judgment and made the appropriate recommendations at the time of sentencing. There is no halfway house special condition in the defendant's judgment. In the defendant's motion, the defendant does not cite to any legal authority for the Court to make a judicial recommendation to the BOP for early release for 12 months into a RRC post-judgment. Secondly, it appears the defendant's motion for judicial recommendation is not the proper legal mechanism or avenue to seek this kind of relief.1 Thirdly, it appears that the United States Probation Office is not the proper party to recommend the defendant's early release from BOP custody into a Residential Re-Entry Center (RRC) for a specific period under the Second Chance Act since the BOP is the proper legal entity to grant early release into a RRC under the Second Chance Act.

On April 9, 2008, the Second Chance Act was signed into law, authorizing the BOP to consider placing inmates in an RRC for up to the final 12 months of their sentence. 18 U.S.C. § 3624. Tanner v. Deboo, No. CIVS07-1233FCD CHS P, 2009 WL 1026027, at *2 (E.D. Cal. Apr. 15, 2009), report and recommendation adopted, No. CIV S-07-1233FCDCHSP, 2009 WL 1459040 (E.D. Cal. May 26, 2009)

18 U.S.C. § 3624(c) was amended on April 9, 2008, by the Second Chance Act to provide that the BOP shall, to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community. Such conditions may include a community correctional facility. Sacora v. Thomas, 628 F.3d 1059, 1062 (9th Cir. 2010).

The BOP has sole discretion to place an inmate into "any available penal or correctional facility" and to "direct the transfer of an inmate from one penal or correctional facility to another" "at any time." 18 U.S.C. § 3621(b); Rodriguez v. Smith, 541 F.3d 1180, 1185 (9th Cir.2008).

The only limit to that discretion is that the BOP must make an individualized consideration of an inmate for placement in an RRC based on the five-factor criteria from 18 U.S.C. § 3621(b). 18 U.S.C. § 3621(b); 18 U.S.C. § 3624(c).

Inmates are individually considered for pre-release RRC placements (by the BOP) using the following five-factor criteria from 18 U.S.C. § 3621(b):

(1) The resources of the facility contemplated;

(2) The nature and circumstances of the offense;

(3) The history and characteristics of the prisoner;

(4) Any statement by the court that imposed the sentence;

(a) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or

(b) recommending a type of penal or correctional facility as appropriate; and

(5) Any pertinent policy statement issued by the U.S. Sentencing Commission

The defendant has not made a showing that she requested such an early release from the BOP to a residential reentry center, nor has she shown the BOP has assessed her in accordance with the five statutory criteria referenced above for this potential placement. Additionally, the BOP can release a defendant to a residential reentry center for up to 12 months, so the time frame for such a placement appears to be discretionary within the legal authority given to the BOP.2

28 C.F.R. § 570.21(a), provides that: "Inmates may be designated to community confinement as a condition of pre-release custody and programming during the final months of the inmate's term of imprisonment, not to exceed twelve months." These regulations also restate the statutory standard for determining whether and when to grant a pre-release RRC transfer: "Inmates will be considered for pre-release community confinement in a manner consistent with 18 U.S.C. section 3621(b), determined on an individual basis, and of sufficient duration to provide the greatest likelihood of successful reintegration into the community, within the time-frames set forth in this part." 28 C.F.R. § 570.22.

According to the BOP website and consistent with the BOP's policy statements/regulations https://www.bop.gov/about/facilities/residential_reentry_management_centers.jsp, the proper channel to seek a residential reentry referral placement recommendation includes the following:

"Approximately 17-19 months prior to an inmate's release, an RRC referral recommendation is made by the unit team (which, at a minimum, consists of the inmate's unit manager, case manager, and counselor) at a scheduled program review meeting. In making the determination on suitability and length of placement (which could be up to 12 months), each inmate is considered using the five factor criteria from 18 U.S.C. 3621(b):

If the Warden approves the unit team's recommendation, a referral packet is forwarded to an RRM Office — ordinarily this is the nearest office to where the inmate will be releasing. Once the RRM receives the packet, it is reviewed and forwarded to the appropriate RRC contractor. The RRC contractor assesses the inmate's needs and makes the decision to accept the inmate for placement, or deny a placement. Upon acceptance of placement, the RRM works with the RRC contractor to approve and/or modify the unit team's proposed placement date. The inmate is then informed of the final decision by the unit team. Questions regarding an individual inmate's RRC placement should be directed to the inmate's unit team at the institution where the person is confined."

Fourthly, as this Court is aware, the Eastern District of California currently has no halfway houses/RRCs available for supervision purposes. This could pose a problem for the defendant since she seeks to reside in Kern County. The defendant's motion for a judicial recommendation reads that she is homeless but that she resides in Kern County. Probation records reveal that she last resided with her parents at a specific address in Kern County that was advertised for sale. A recent Zillow.com check revealed that specific address was listed for sale on August 15, 2018, but it has not yet sold. She previously indicated that she would like to reside with her family, even if they move out-of-state to Bullhead City, Arizona. Accordingly, if the defendant seeks to reside with her family, then there will be presumably no need for an early release of 12 months to an RRC.

For the Court's edification, contact with BOP officials revealed the defendant's progress in BOP custody as follows: There were no disciplinary records, but the defendant has completed her General Educational Development (GED) certificate and is enrolled in Human Anatomy Wellness, Nutrition Wellness, and Yoga Instructor Course. The defendant owes $100 to the Court, and she agreed to have $25 deducted quarterly through the Inmate Financial Responsibility Program (IFRP) starting in September 2019.

Finally, even if this Court were so inclined to make such a judicial recommendation of a maximum of 12 months into a RRC, transfer to a halfway house in and of itself does not constitute an early release because the defendant remains under the custody of the Attorney General pursuant to 28 C.F.R. § 96(c).

Therefore, based on all the above, the United States Probation Office asks this Honorable Court to deny the Motion Requesting a Judicial Recommendation Concerning the Length of Residential Re-Entry Center Placement (12 Months) as to the United States Probation Office.