United States District Court, D. Minnesota
Gregory G. Brooker, Acting United States Attorney, and Karen
B. Schommer, Assistant United States Attorney, for plaintiff.
Ateia al Hussainawee, pro se defendant.
AMENDED MEMORANDUM OPINION AND ORDER DENYING MOTION
FOR REDUCTION OF SENTENCE
R. TUNHEIM CHIEF JUDGE
Ateia Al Hussainawee has filed this pro se 28 U.S.C. §
2255 action, moving for a reduction in his sentence on the
grounds that certain Bureau of Prison (“BOP”)
policies amount to unlawful discrimination on the basis of
national origin. (Mot. for Reduction of Sentence, Oct. 16,
2017, Docket No. 1176.) Specifically, he alleges that BOP's
policy that deportable aliens are ineligible for the
Residential Drug Abuse Program, the Second Chance Act,
preferential placement, and certain pre-release programs
constitutes discrimination. (Id. at 1-2.) Al
Hussainawee cites 18 U.S.C. § 3553, which sets forth the
factors that a court must consider in imposing a sentence,
and the United States Sentencing Guidelines, which state that
national origin is not a relevant factor for sentencing. U.S.
Sentencing Guidelines Manual (“Guidelines”)
§ 5H1.10 (U.S. Sentencing Comm'n 2016). The Court
will deny Al Hussainawee's motion because it is untimely
and because it focuses on BOP policy rather than on his
2016, the Court sentenced Al Hussainawee to a 36-month term
of imprisonment for Conspiracy, to be served consecutively to
a 36-month term of imprisonment for Possession of
Methamphetamine. (Judgment, June 23, 2016, Docket No. 820;
Judgment, June 24, 2016, Criminal No. 15-3, Docket No. 38.)
In sentencing Al Hussainawee, the Court fully considered all
of the relevant statutory sentencing factors under 18 U.S.C.
§ 3553. (See Statement of Reasons at 3, June
23, 2016, Docket No. 821.) Specifically, the Court considered
a variety of aggravating factors related to the crimes at
issue and mitigating factors relating to Al Hussainawee's
personal history and granted a significant downward
departure. (Id. at 3-4.) The Court concluded that
the sentence was sufficient, but not more than necessary, to
punish him for his criminal conduct. (Id. at 4.) Al
Hussainawee did not appeal; as such, his convictions became
final on July 7 and July 8, 2016. See Fed. R. App.
P. 4(b)(1)(A)(i); Clay v. United States, 537 U.S.
522, 527 (2003).
federal prisoner may challenge the constitutionality of their
sentence by filing a 28 U.S.C. § 2255 motion for
post-conviction relief. To be timely, however, the motion
must be filed within one year of the date on which the
judgment of conviction becomes final. See 28 U.S.C.
§ 2255(f)(1)-(4) (excepting cases with
government-created impediments, newly-recognized rights, or
newly-discovered facts). Al Hussainawee's two convictions
became final on July 7 and 8, 2016, and he does not allege
any impediments, newly-recognized rights, or newly-discovered
facts. As such, he had until July 8, 2017, to file a §
2255 petition. Because Al Hussainawee's motion was not
filed until October 16, 2017, it is time-barred and must be
it were timely, Al Hussainawee's motion fails to state a
claim with regard to the constitutionality of his sentence.
Al Hussainawee alleges that the Court did not factor into his
sentence any additional restraint on his liberty that may be
imposed because he is a deportable alien. The Court
understands him to mean that he should have enjoyed a
downward departure due to alienage - even though the Court
already granted him a significant downward departure for
other reasons. Although a court may not consider race and
national origin in sentencing, it may - but is not required
to - consider alienage as a basis for a downward departure.
United States v. Lopez-Salas, 266 F.3d 842, 847
(8th Cir. 2001); cf. Guidelines §
5H1.10. However, a court only has the authority to
grant a downward departure on that basis if there are
“additional facts concerning the defendant's
individual circumstances to make the particular case atypical
or unusual.” United States v. Rodriguez, 29 F.
App'x 406, 407 (8th Cir. 2002) (quoting
Lopez-Salas, 266 F.3d at 848). Because Al
Hussainawee alleged no such circumstances, the Court lacked
authority to grant a downward departure on such grounds.
real thrust of Al Hussainawee's challenge to his
sentence, however, is the constitutionality of the BOP's
policies barring deportable aliens from certain programs and
placement opportunities. Al Hussainawee argues that this
denial of access amounts to a de facto sentence increase
because participation could possibly lead to early release.
That argument must fail. See Hernandez v. Lindeman,
No. 00-1165, 2002 WL 31163074, at *3 (D. Minn. Sept. 24,
2002). It would be permissible for the Court to liberally
construe Al Hussainawee's motion as a 28 U.S.C. §
2241 petition raising a due process or equal protection
challenge. See Castro v. United States, 540 U.S.
375, 381 (2003). Based solely on the limited facts alleged in
the motion, however, the Court is skeptical that such a
challenge could succeed. Recharacterizing the motion would
therefore fail to advance the goals underlying liberal
construction of pro se filings. See Id. at 381-83.
As such, the Court will decline to do so, and will deny Al
Hussainawee's Motion for Reduction of Sentence because it
is an untimely § 2255 motion and it fails to state a
claim as to the constitutionality of his sentence.
on the foregoing, and all the files, records, and proceedings
herein, IT IS HEREBY ORDERED that
Defendant's Motion for Reduction of Sentence [Docket No.
1176] is DENIED. Pursuant to the Federal
Rule of Civil Procedure 36, the Memorandum Opinion and Order
[Docket No. 1205] had a clerical error and the date the
document was signed was incorrect.
JUDGMENT BE ...