UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
August 13, 2007
UNITED STATES OF AMERICA, PLAINTIFF,
PATRICIA PALACIOS, DEFENDANT.
The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
(Doc. No. 79)
ORDER GRANTING MOTION TO RECONSIDER; MODIFICATION OF RECOMMENDATION
On July 14, 2007, the Court recommended that Patricia Palacios ("defendant") be placed in a Residential Re-entry Center ("RRC") (previously known and referred to as a "Community Corrections Center") and directed the Bureau of Prisons to consider the Court's recommendation. (Doc. Nos. 76-78.)
On July 24, 2007, the United States of America moved for reconsideration of the Court's language ordering that BOP consider the Court's recommendation pursuant to 18 U.S.C. § 3621(b)(4)(B). The Bureau of Prisons ("BOP") currently has a regulation limiting community confinement to the last ten percent of the prison sentence being served, not to exceed six months.*fn1 28 C.F.R. § 570.21(a). Per the cases cited in the Court's previous Order, other circuits have invalidated this regulation. (Doc. No. 76, at 2-3.) However, for the time being, the regulation remains the law of the Ninth Circuit. The Court's prior Order did not invalidate the BOP regulation, and, indeed, the Court lacked jurisdiction to do so, as defendant is incarcerated in the Central District of California. See Hernandez v. Campbell, 204 F.3d 861, 864-65 (9th Cir. 2000) (requiring a prisoner to bring a challenge to location of sentence's execution as a § 2241 habeas petition in the custodial court).
Where the Court recommends a particular correctional facility, the BOP must consider the recommendation, but is not legally required to adopt it. 18 U.S.C. § 3621(b). Nonetheless, to ensure that its orders are consistent with the law of higher courts, the Court GRANTS the United States's motion for consideration and MODIFIES its prior recommendation. The Court hereby RECOMMENDS the Bureau of Prisons place Palacios in a Residential Re-entry Center for the maximum amount of time allowed by the law of the Supreme Court and the Ninth Circuit.
IT IS SO ORDERED.