United States District Court, W.D. Washington, Seattle
ORDER DISMISSING FEDERAL HABEAS ACTION
S. LASNIK UNITED STATES DISTRICT JUDGE
matter comes before the Court on petitioner's objections
to the Report and Recommendation of the Honorable Mary Alice
Theiler, United States Magistrate Judge. Dkt. #19. Petitioner
filed this habeas petition under 28 U.S.C. § 2241, Dkt.
#3, seeking a declaration that two Bureau of Prisons (BOP)
program statements are contrary to law and an order directing
BOP to file a compassionate-relief motion on petitioner's
behalf. See 28 U.S.C. § 3582(c)(1)(A)(i).
Having reviewed the parties' filings, the Report and
Recommendation, and the remainder of the record, the Court
finds as follows.
argues BOP exceeded its statutory authority and
Congress's intent in adopting the following language in
Program Statement 5050.49: “the Bureau of Prisons (BOP)
should consider whether the inmate's release would pose a
danger to the safety of any other person or the
community.” Petitioner argues the language is contrary
to both 18 U.S.C. § 3582(c)(1)(A)(i) and U.S. Sentencing
Guidelines § 1B1.13 because those provisions, read in
conjunction, vest the Court with the sole power to determine
petitioner's dangerousness in its consideration of a
motion of to reduce the term of imprisonment. While
petitioner is correct that the Court is directed to consider
dangerousness, he is incorrect that such consideration by the
Court is to the exclusion of initial consideration by the
BOP. The Court cannot consider a motion for compassionate
release until the BOP brings such a motion. See United
States v. Barragan-Mendoza, 174 F.3d 1024, 1028 (9th
Cir. 1999) (explaining that § 3582 provides an
“express rule to the contrary” limiting district
courts' inherent authority in the context of sentence
modification, and that district courts can therefore only
modify sentences pursuant to this statute). It is within
BOP's discretion to establish its own criteria for filing
also argues BOP Program Statement 5050.49 is not consistent
with a policy statement in United States Sentencing
Guidelines Manual. See U.S. Sentencing Comm'n,
Guidelines Manual § 1B1.13 cmt. 4 (Nov. 2016) (USSG).
The Guidelines are not binding legislation or expressions of
congressional intent, but rather policies and practices
promulgated by the U.S. Sentencing Commission, an independent
commission in the judicial branch. See 28 U.S.C.
§§ 991(a), (b). Additionally, by its own language,
the policy statement to which petitioner refers states that
it “shall not be construed to confer upon the defendant
any right not otherwise recognized in law.” USSG §
1B1.13 cmt. 4. That policy statement does not bind BOP, and
its alleged inconsistency with BOP policy is inconsequential.
also raises what is essentially a Johnson claim.
Petitioner challenges the designation of one of
petitioner's convictions (solicitation to commit arson
under 18 U.S.C. § 373) as a crime of violence in BOP
Program Statement 5162.05 § 3(a)(1). Program Statement
5162.05 categorizes offenses for purposes of determining
eligibility for BOP programs such as drug treatment and
compassionate release. In the so-called Johnson
arena, Ninth Circuit precedent suggests that a specific
statutory definition of “crime of violence” can
be unconstitutionally vague. See Dimaya v. Lynch,
803 F.3d 1110, 1120 (9th Cir. 2015), cert. granted,
137 S.Ct. 31 (2016). That specific statutory definition
encompasses 18 U.S.C. § 373. See Prakash v.
Holder, 579 F.3d 1033, 1036-37 (9th Cir. 2009). Under
the Johnson standard, violent crime definitions are
unconstitutionally vague when they leave “grave
uncertainty” as to what qualifies. See Johnson v.
United States, 135 S.Ct. 2551, 2557-58 (2015). Program
Statement 5162.05 makes no mention of the statutory
definition considered in Dimaya, let alone in the
context of categorizing soliciting to commit a violent act.
See generally Bureau of Prisons Program Statement
5162.50. Further, the Program Statement does not provide a
definition of crime of violence, as might be susceptible
under Johnson, but rather an enumerated list of
crimes. Id. Inclusion in an enumerated list is not
unconstitutionally vague as it is readily certain what the
BOP includes as a crime of violence. Whatever vitality this
Johnson issue may have for sentencing judges, it has
no application in the BOP's decision about what it
designates as a crime of violence.
requests that the Court order the BOP to file a motion for
compassionate relief on his behalf under 28 U.S.C. §
3582(c)(1)(A)(i). As the statute grants the BOP broad
discretion, the BOP's decision whether to file a motion
for compassionate release is not judicially reviewable.
See Crowe v. United States, 430 Fed.Appx. 484,
484-85 (6th Cir. 2011); Simmons v. Christensen, 894
F.2d 1041, 1043 (9th Cir. 1990). Courts cannot decide such
matters until the BOP files a motion. See
Barragan-Mendoza, 174 F.3d at 1028. Therefore, it is
beyond the powers of this Court to order the BOP to file a
motion for compassionate release on petitioner's behalf.
foregoing reasons, the Court does hereby find and ORDER:
(1) The Report and Recommendation is approved and adopted;
(2) Respondent's motion to dismiss petitioner's
petition for writ of habeas corpus (Dkt. #12) is GRANTED.
Petitioner's petition (Dkt. #3) and this action are
DISMISSED with prejudice;
(3) Petitioner's motion to seal exhibit five to his
federal habeas petition (Dkt. ...