United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
a federal prisoner who is confined at FCC Lompoc and proceeds
pro se, brings an “emergency motion” for
miscellaneous relief. ECF No. 456. Petitioner seeks a
judicial recommendation to BOP that he spend the last 18
months of his sentence at a Residential Reentry Center and on
home confinement. Id. The United States has opposed
the motion. ECF No. 459. The matter has been referred to the
undersigned by the district judge. ECF No. 457.
Buenrostro was tried and convicted in 1996 of conspiracy to
manufacture more than 31 kilograms of methamphetamine. ECF
No. 130. Because of his prior convictions for felony drug
offenses, he was sentenced to life imprisonment on January 8,
1997. ECF No. 191. On September 13, 1999, defendant filed a
timely motion under 28 U.S.C. § 2255, which was denied
after extensive proceedings. ECF Nos. 219 (§ 2255
motion), 306 (order filed Oct. 6, 2003, adopting Findings and
Recommendations and denying relief), 318 (judgment of Court
of Appeal, filed Jan. 17, 2006, affirming). His subsequent
efforts to collaterally challenge the conviction and sentence
were rejected. See ECF Nos. 323 (§ 2255 motion
filed Dec. 12, 2007), 341 (order filed Apr. 30, 2008,
dismissing § 2255 motion as second or successive), 353
(opinion of the Court of Appeals, filed Mar. 23, 2011,
affirming); United States v. Buenrostro, 697 F.3d
1137, 1139 (9thCir. 2012) (denying leave to file
second or successive § 2255 motion).
August 3, 2016, President Obama commuted petitioner's
life sentence to 360 months. ECF No. 400. In light of the
commutation, petitioner sought a modification of his sentence
under 18 U.S.C. § 3582(c)(2) and further relief under
§ 2255. Both applications were denied, ECF Nos. 426,
432, and the Ninth Circuit affirmed on July 13, 2018, ECF No.
December 2018, Congress enacted the First Step Act, a package
of federal prison and sentencing reforms. On February 8,
2019, petitioner moved for a judicial recommendation for home
confinement as an elderly offender under the Act. ECF No.
441. That motion was denied on August 14, 2019. ECF No. 455
(adopting Findings and Recommendations at ECF No. 453).
government contends, as it did regarding the earlier motion
under the First Step Act, that this court lacks jurisdiction
to entertain Mr. Buenrostro's request. ECF No. 459 at
2-6. The government argues first that the instant motion may
not be considered in the context of this closed criminal
case, because the court is divested of jurisdiction for all
purposes. The Ninth Circuit has indicated that district
courts retain the statutory authority to make non-binding
recommendations for RRC placement even well after sentencing.
See United States v. Ceballos, 671 F.3d 852, 856 n.2
(9th Cir. 2011) (holding that district court's
recommendation to BOP is non-binding and non-appealable, but
noting that this conclusion “does not deprive district
courts of the authority to make (or not make) non-binding
recommendations to the Bureau of Prisons at any time. .
.”). The government says that this language cannot
“change the clearly-established holdings on the
finality of criminal prosecutions.” ECF No. 459 at 3.
But the finality of defendant's conviction and sentence
are simply not implicated by the motion before the court.
Defendant does not seek any change to his sentence, or
reconsideration of any part of the judgment, so the
court's lack of jurisdiction to consider such relief is
not at issue. None of the authorities cited by the United
States expressly hold that a sentencing court may not
entertain a request for a post-judgment recommendation to BOP
regarding placement. Accordingly, like other judges of this
court,  the undersigned will proceed to the merits
of the matter.
government argues next that petitioner's claim is not
cognizable under 28 U.S.C. § 2255. The government is
correct. Petitioner's motion involves the execution of
his sentence, not the fact of it; such a challenge must be
presented in a petition for writ of habeas corpus under
§ 2241. See Porter v. Adams, 244 F.3d 1006,
1007 (9th Cir. 2001) (discussing distinction between sections
2255 and 2241); see also Rodriguez v. Smith, 541
F.3d 1180, 1182 (9th Cir. 2008) (affirming district
court's grant of habeas relief under section 2241 to
prisoner challenging BOP's refusal to consider prisoner
for transfer to a Residential Reentry Center). A § 2241
petition must be filed in the district of confinement, even
when it substantively implicates the sentence imposed by
another district court. Hernandez v. Campbell, 204
F.3d 861, 865 (9th Cir. 2000) (per curiam). Mr. Buenrostro is
confined at FCC Lompoc, which is in the Central District of
California. Accordingly, to the extent that the instant
motion is properly construed as a § 2241 petition, only
the U.S. District Court for the Central District of
California has jurisdiction. See id.
the instant motion cannot fairly be characterized as a
petition under § 2241. Mr. Buenrostro does not contend
that anything about the execution of his sentence is
unlawful, and he does not challenge a decision by BOP to deny
RRC placement. Cf. Rodriguez, supra.
Rather, Mr. Buenrostro seeks a recommendation from the
sentencing court to the BOP regarding pre-release placement-a
recommendation that he acknowledges would be non-binding.
Accordingly, the undersigned does not recommend construing
the motion as a § 2241 petition and transferring it to
the Central District.
The Requested Recommendation to BOP is Not Warranted
that this court has the authority to make a pre-release
placement recommendation to BOP, it should decline to do so.
Decisions about pre-release placement, and all other aspects
of the execution of a sentence, are delegated to the Attorney
General. See, generally, United States
v. Wilson, 503 U.S. 329, 335 (1992) (“[a]fter a
district court sentences a federal offender, the Attorney
General, though the BOP, has the responsibility for
administering the sentence.”). A judicial
recommendation regarding specific pre-release placement would
be extraordinary. Defendant has provided no compelling reason
why this court should involve itself in BOP's exercise of
its responsibilities in this regard. There is no true
emergency, and there has been no showing of extraordinary
has presented a litany of reasons why he is suitable for
maximum pre-release time in an RRC and on home confinement.
See ECF No. 456 at 4-6. While these may well be good
reasons to consider defendant for his desired transitional
placement, that decision should be BOP's. This court
lacks BOP's expertise and experience regarding
pre-release planning and placement, including the amount of
time to be spent in an RRC and whether to include a period of
home confinement. Accordingly, this court should not involve
itself in the matter.
should also be noted that defendant's previous motion
seeking participation in the elderly offenders pilot program
contained an alternative request for recommendation of RRC
placement. The undersigned expressly recommended denial of
that alternative request, ECF No. 453 at 6, and the Findings
and Recommendations were adopted in full, ECF No. 455.
Accordingly, the instant motion ...