United States District Court, D. Minnesota
Gregory G. Brooker, Interim United States Attorney, UNITED
STATES ATTORNEY'S OFFICE, for plaintiff.
Demario Kentrell Booker, No. 16769-041, Federal Correctional
Institution - Oxford, pro se defendant.
MEMORANDUM OPINION AND ORDER
R. TUNHEIM CHIEF JUDGE
Kentrell Booker, currently serving an 84-month term in the
custody of the Bureau of Prisons (“BOP”), moved
the Court to issue a judicial recommendation to the BOP that
he be allowed to serve the last 12 months of his term in a
Residential Reentry Center (“RRC”), better known
as a halfway house. The Court denied his motion on the ground
that it lacks authority to direct the BOP to place a
defendant in an RRC. Booker moved for reconsideration, which
the Court will grant because it does have the authority to
issue the non-binding recommendation Booker seeks. However,
because the record is presently insufficient to demonstrate
that Booker's case warrants such a recommendation, the
Court will decline to issue one at this time.
2013, a jury convicted Demario Kentrell Booker of the crime
of felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). (Jury Verdict, Apr. 24, 2013, Docket No.
93.) The Court held a sentencing hearing on January 21, 2014.
(Minute Entry, Jan. 21, 2014, Docket No. 129.) There,
Booker's counsel argued that his criminal history was
overstated because his only previous prison term lasted about
one year. (Tr. of Sentencing Hr'g (“Tr.”) at
10:20-11:24, Mar. 3, 2014, Docket No. 147.) The United States
responded that the supervised release and shorter sentence
imposed for Booker's previous crimes had not deterred him
from this one. (Id. at 15:22-16:2.) The Court
sentenced Booker to a below-guidelines sentence of 84 months
in BOP custody and 3 years of supervised release. (Minute
Entry.) Noting that this sentence was much more significant
than Booker's previous sentences, the Court found it was
sufficient but not greater than necessary in light of the
severity of the criminal conduct (including danger caused by
Booker's flight from police) and mitigating circumstances
(including Booker's life and medical history and his
significant family support). (Tr. at 18:19-24, 20:17-21:9.)
The Court noted that Booker would have opportunities for
vocational training and mental-health treatment in prison.
(Id. at 21:22-23.) In response to Booker's
request, the Court recommended to the BOP that he serve his
sentence close to Minnesota. (Id. at 23:12-22.) The
Court also granted Booker's request that he be allowed to
self-surrender to the Marshals after sentencing.
(Id. at 25:20-25.)
about four years into his sentence, Booker has moved for the
Court to issue a judicial recommendation to the BOP that he
be allowed to serve the last 12 months of his term in an RRC.
(Mot. for Judicial Recommendation, Nov. 13, 2017, Docket No.
164.) Booker has presented evidence that he successfully
completed a number of programs, including anger management,
drug-abuse treatment, and various vocational trainings and
continuing education courses during his term in prison.
(Id. at 3.) He is certified as a safety production
technician and has a re-entry plan prepared so that he will
be able to begin working as soon as he arrives at a halfway
house. (Id.) And he reports that his detention has
been incident-free. (Reply to Mot. at 3, Dec. 20, 2017,
Docket No. 167.) Booker argues that time in RRC placement
would allow him to better transition from prison to society
at large by giving him time to find employment and housing,
save money, and rebuild relationships with family members and
the community. (Id. at 3-4.)
United States opposes Booker's motion on the grounds that
the Court lacks authority to amend the judgment against him,
that Booker has not provided enough information to
demonstrate that a judicial recommendation to BOP is
warranted, and that it is an “ill-advised” use of
judicial resources for the Court to consider motions like
this one. (Resp. to Mot., Dec. 6, 2017, Docket No. 165.)
Court initially denied Booker's motion on the ground that
it lacks authority to amend the sentence to direct the BOP to
place the defendant in an RRC. (Order at 1, Jan. 16, 2018,
Docket No. 168.) Booker moved for reconsideration, clarifying
that his request is only for the Court to issue a
post-sentencing recommendation, not for a modified or
corrected sentence. (Mot. for Reconsideration, Feb. 13, 2018,
Docket No. 169.)
has broad discretion to designate the place of a
prisoner's imprisonment, but it must do so after
considering “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.” 18 U.S.C. § 3621(b)(4). Pursuant to
Section 251 of the Second Chance Act of 2007, Pub. L. No.
110-199, the BOP is required to ensure, to the extent
practicable, that a prisoner spends a portion of the final
months of his term “under conditions that will afford
that prisoner a reasonable opportunity to adjust to and
prepare for the reentry of that prisoner into the
community.” Id. § 3624(c)(1). Courts may
offer recommendations as to when and where that placement
should occur, though such recommendations do not bind the
BOP. Id. § 3621(b). Because the Court has
authority to issue a non-binding recommendation, the Court
will grant Booker's motion to reconsider.
the cases where sentencing courts have elected to exercise
their discretion to issue a recommendation involve unique
evidence. For example, one court issued a recommendation when
a prisoner had not only completed a variety of programs and
earned his GED but also had two letters of recommendation
from BOP supervisors describing both his technical expertise
and strength of character. United States v. Baker,
No. 3:01-94-01, 2013 WL 355867, at *1-2 (M.D. Ala. Jan. 29,
2013). Another prisoner who earned a recommendation had a
“gate pass” that permitted him to leave the
facility each day to conduct his job duties. United
States v. Brattin, No. 2:13-161, 2016 WL 4467897, at *1
(D. Nev. Aug. 23, 2016). A third had cooperated with
prosecutors in his case. United States v. Bartels,
No. 12-20072, 2016 WL 6956796, at *1 (E.D. Mich. Nov. 29,
2016). A fourth had no prior criminal history and had been
allowed to remain free on bond for 18 months during the
pendency of his appeal. United States v. Qadri, No.
06-00469, 2017 WL 1011663, at *1-2 (D. Haw. Mar. 15, 2017).
Moreover, in each case, it appears that the Government did
not oppose the Court issuing a recommendation.
Court agrees with Booker that placement in a halfway house at
the end of his term would help ease his reentry into society,
and - consistent with the purposes of the Second Chance Act -
reduce his chances of recidivism. And, contrary to the
Government's assertion, the Court certainly does not
believe it is a waste of judicial resources to consider such
petitions. But the evidence Booker has submitted in support
of his motion is insufficient to justify a recommendation
that he serve the last 12 months of his term in an RRC. This
is not to say that Booker will be unable to present evidence
that shows he merits such a recommendation. Indeed, his
participation in BOP programming and continuing education
courses and his work certification are a good start. It is
only to say that he has yet not provided enough -
particularly in light of the fact that his projected release
date is still almost two years away. The United States
suggests, and the Court believes, that additional documentary
evidence - such as proof of a clear disciplinary record and
evaluations or recommendations from Booker's ...