United States District Court, D. Minnesota
M. Hollenhorst, for plaintiff.
Eugene Gurzi, pro se.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S
MOTION FOR CLARIFICATION
R. TUNHEIM CHIEF JUDGE UNITED STATES DISTRICT COURT
October 8, 2014, Phillip Eugene Gurzi, pled guilty to
conspiracy to distribute 500 grams or more of methamphetamine
in violation of 21 U.S.C. §§ 841(a)(1) and 846.
(Plea Agreement, Oct. 8, 2017, Docket No. 181; see
Indictment at Count I, Aug. 5, 2014, Docket No. 1.) Before
sentencing, the probation office determined that Gurzi's
offense level should be increased by two levels pursuant to
USSG § 2D1.1(b)(1) because “[i]nvestigative
materials indicate[d] the defendant [was] accountable for
numerous rounds of ammunition seized from his residence and
at least one firearm which contained his DNA.”
(Presentence Investigation Report (“PSI”) ¶
40, Sept. 29, 2015, Docket No. 271.) In the parties'
written positions on sentencing, the government favored the
two-level increase, and Gurzi objected to it.
(Government's Position on Sentencing at 3-4, Nov. 24,
2015, Docket No. 312; Def.'s Position on Sentencing at
4-6, Oct. 13, 2015, Docket No. 294.) At the sentencing,
however, Gurzi withdrew his objection to the two-level
enhancement. (Excerpt of Sentencing Tr. 3:15-5:4, Nov. 27,
2017, Docket No. 358.) The Court applied the two-level
enhancement pursuant to § 2D1.1(b)(1) and sentenced
Gurzi to serve a term of imprisonment of 150 months.
(Sentencing J., Dec. 17, 2015, Docket No. 319.)
sentencing, the Court recommended that Gurzi participate in
the Residential Drug Abuse Program (“RDAP”)
administered by the Bureau of Prisons (“BOP”).
(Def.'s Mot. for Clarification (“Mot.”) at 1,
Sept. 25, 2017, Docket No. 353.) Prisoners that complete RDAP
may receive a possible reduction in their sentence of up to
one year. See 18 U.S.C. § 3621(e)(2)(B). But
when Gurzi enrolled in RDAP on July 18, 2017, his
drug-treatment specialist informed him that he would not be
eligible for the one-year sentence reduction because of the
two-level sentencing enhancement applied pursuant to USSG
§ 2D1.1(b)(1). (Mot. at 1.) On September 25, 2017, Gurzi
filed a Motion for Clarification, asking the Court to
“issue forth an order or recommendation indicating the
gun enhancement was applied solely for sentencing purposes,
and not meant to . . . prohibit Mr. Gurzi from the benefits
associated with participating in RDAP.” (Id.)
The government opposes Gurzi's motion. (Resp. in Opp. to
Def.'s Mot. (“Opp.”), Oct. 13, 2017, Docket
law mandates that all federal prisoners with a
substance-abuse problem be given the opportunity to
participate in an appropriate substance-abuse treatment
program. 18 U.S.C. § 3621(e)(1)(C). The BOP offers RDAP
to prisoners who volunteer for treatment and have a
verifiable substance-abuse disorder. 28 C.F.R. § 550.53.
One incentive for a prisoner to enroll in this intensive
nine-month program is to receive a possible sentence
reduction of up to one year. 18 U.S.C. § 3621(e)(2)(B).
BOP regulations and program statements guide BOP staff in
determining whether a prisoner is eligible for early release
under § 3621(e)(2)(B). See, e.g., BOP Program
Statement 5162.05, Categorization of Offenses; Program
Statement 5331.02, Early Release Procedures Under 18 U.S.C.
U.S.C. § 3621(e)(2)(B) provides that, for a federal
prisoner who successfully completes a treatment program, the
prisoner's sentence “may be reduced by the Bureau
of Prisons” up to one year. In Lopez v. Davis,
the Supreme Court held that the word “may” in
§ 3621(e)(2)(B) grants the BOP discretion to reduce the
prisoner's sentence. 531 U.S. 230, 240-41 (2001). A
federal regulation adopted by BOP categorically excludes from
sentence reduction “[i]nmates who have a current felony
conviction for . . . [a]n offense that involved the carrying,
possession, or use of a firearm.” 28 C.F.R. §
550.55(b)(5)(ii). This regulation is a lawful exercise of the
BOP's discretion. See Lopez, 531 U.S. at 240-41.
has told Gurzi that he will not receive any sentence
reduction for completing RDAP because of the §
2D1.1(b)(1) sentence enhancement that the Court applied as
part of the Court's determination of the applicable
sentencing-guideline range. Gurzi asks the Court to issue an
order or recommendation indicating that the §
2D1.1(b)(1) enhancement was not meant to prohibit him from
receiving a sentence reduction for successfully completing
RDAP. To the extent that the Court's intention is
relevant, the Court applies enhancements to determine the
guideline range. See USSG § 1B1.1. And as the
Court made clear, the Court is of the view that Gurzi should
continue to participate in, should complete, and would very
likely benefit from RDAP.
the decision to grant a sentence reduction for successfully
completing RDAP rests with the BOP, not the Court.
See 18 U.S.C. § 3621(e)(2)(B); Lopez,
531 U.S. at 240-41. It would therefore be inappropriate for
the Court to express its view about whether a particular
prisoner should or should not receive such a sentence
reduction, absent a formal legal challenge to the BOP's
decision following exhaustion of the appropriate
administrative remedies. If Gurzi disagrees with the
BOP's decision to deny him a sentence reduction for
successfully completing RDAP, he should appeal that decision
utilizing the appropriate BOP procedures. And, as the
government admits, once Gurzi has exhausted his
administrative remedies, he is free to appeal the BOP's
final decision to this Court. (See Opp. at 5.)
on the foregoing, and all the files, records, and proceedings
herein, IT IS HEREBY ORDERED that
Defendant's Pro Se Motion for Clarification Regarding