BOP’s placement of defendant in home confinement did not commence his term of supervised release; defendant had not completed his federal term of imprisonment, even though he was “not technically ‘imprisoned’ in one sense of the word” during home confinement
How later courts described this case
- BOP’s placement of defendant in home confinement did not commence his term of supervised release; defendant had not completed his federal term of imprisonment, even though he was “not technically ‘imprisoned’ in one sense of the word” during home confinement
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
WALIS PARRA REYES, )
)
Petitioner, )
)
v. ) CIVIL ACTION
) NO. 20-10793-JGD
RADM SPAULDING FEDERAL MEDICAL )
CENTER DEVENS, MA )
)
Respondent. )
)
MEMORANDUM AND ORDER
July 23, 2020
DEIN, U.S.M.J.
On April 23, 2019, pro se petitioner Walis Parra Reyes, who is incarcerated at FMC
Devens, filed a petition for a writ of habeas corpus [ECF #1] (“Petition”) under 28 U.S.C. § 2241
and an emergency motion in support thereof [ECF #3] (“Motion”) in which he asks that “his
sentenced be modified to Home Confinement or reduced” in light of the dangers posed by the
COVID-19 pandemic. Mot. ¶ 1. He also seeks release on bail pending the adjudication of this
action. See id. ¶ 3. The Respondent has moved to dismiss [ECF # 11]. For the reasons set forth
below, the Court will grant the motion to dismiss and dismiss this action without prejudice.
I. Background
On April 15, 2014, Parra Reyes was convicted in the United States District Court for the
Southern District of Georgia after pleading guilty to charges of unlawful dealings concerning
controlled substances, firearms, contraband cigarettes, and stolen motor vehicles. He was
sentenced to 190 months of incarceration. See United States v. Parra-Reyes, Crim. No. 13-
00121-LGW (S.D. Ga.). In the present action, Parra Reyes represents that, as of April 21, 2020,
“he has a scheduled release date some time in early 2027 and he has served 50% of his statutory
sentence and 42% of his gross sentence.” Mot. ¶ 14.
Parra Reyes seeks habeas relief because living conditions at FMC Devens are allegedly
conducive to the spread of the COVID-19 virus. He also represents that, due to his ethnicity and
history of high blood pressure, he is at particularly vulnerable to suffering serious injury or even
death were he to contract the virus. See Mot. ¶ 2. Throughout his documents, Parra Reyes
reiterates his request to have his sentenced reduced or be able to serve the remainder of his
sentence under home confinement. See Pet. at 8, Mot. ¶¶ 1, 3, 34-35. Parra Reyes also argues
that he is eligible for compassionate release, see Mot. ¶¶ 32-33, and he submitted a copy of his
Inmate Request for Compassionate Release Consideration dated April 20, 2020, see id. Ex. 1. In
a supplemental memorandum filed by Parra Reyes on May 26, 2020 [ECF #10], he characterizes
his request for relief as a “motion for compassionate release,” but he also asks that the Court
order the BOP to exercise its authority, granted to it by the enactment of the CARE’s Act[], and
transfer him to Home Confinement. Id. at 1-2, 7.
The Respondent has moved to dismiss [ECF #11], arguing that (1) the petitioner’s
allegations of concerning conditions of confinement cannot be addressed through a habeas
petition; (2) the Bureau of Prisons (“BOP”) has not been deliberately indifferent to the health and
safety in light of the risks posed by COVID-19; (3) the Prisoner Litigation Reform Act of 1995
precludes an individual judge from ordering the release of a prisoner based on conditions of
confinement; and (4) under the BOP’s current guidelines, the petitioner has not served enough of
his sentence to be eligible for transfer to home confinement.
II. Discussion
Parra-Reyes seeks overlapping or alternative forms of relief—home confinement, a
reduction in his sentence, and compassionate release. This Court is without jurisdiction to
provide any of them.
A. Home Confinement as Part of Term of Imprisonment
In the context of a criminal sentence, the term “home confinement” has two different
meanings: a designation by the BOP of where a prisoner will serve part of his term of
imprisonment; or, a condition of supervised release ordered by the sentencing judge.
A criminal sentence usually has two components—a term of imprisonment and a period
of supervised release. See 18 U.S.C. §§ 3581-83. The defendant is committed to the custody of
the BOP for the term of imprisonment imposed by the sentencing court. See 18 U.S.C.
§ 3621(a). During this time, the BOP decides where the defendant serves his sentence. While
the sentencing court may make recommendations concerning the type of prison appropriate for
the defendant, 18 U.S.C. § 3582(a), Congress has mandated that BOP designates the penal or
correctional facility at which the defendant will be placed in light of statutory criteria. See 18
U.S.C. §§ 3582(a), 3621(b). The BOP also has authority to temporarily release a federal prisoner
on furlough, transfer a federal prisoner to the authority of a requesting state, or place a prisoner
in a community correctional facility for up to twelve months prior to the prisoner’s scheduled
release date. See 18 U.S.C. §§ 3622, 3623, 3624(c)(1). The BOP’s designation decisions made
under 18 U.S.C. §§ 3621-3624 are not subject to review under the Administrative Procedure Act.
See 18 U.S.C. § 3625.
In addition, Congress has authorized the BOP to allow prisoners to serve part of their
term of imprisonment in home confinement. See 18 U.S.C. § 3624(c)(2). During this time, the
prisoner is still considered to be in the legal custody of the BOP. See, e.g., United States v. Earl,
729 F.3d 1064, 1068 (9th Cir. 2013) (BOP’s placement of defendant in home confinement did
not commence his term of supervised release; defendant had not completed his federal term of
imprisonment, even though he was “not technically ‘imprisoned’ in one sense of the word”
during home confinement). Prior to the COVID-19 pandemic, the relevant statutory authority
allowed the BOP to “place a prisoner in home confinement for the shorter of 10 percent of the
term of imprisonment of that prisoner or 6 months.” 18 U.S.C. § 3624(c)(2). The BOP was
required, “to the extent practicable, place prisoners with lower risk levels and lower needs on
home confinement for the maximum amount of time permitted under this paragraph.” Id.1
In response to the COVID-19 pandemic, the Coronavirus Aid, Relief, and Economic
Security Act (“CARES Act”) was signed into law on March 27, 2020. The CARES Act
provides, inter alia, that “if the Attorney General finds that emergency conditions will materially
affect the functioning of the [BOP], the Director of the Bureau may lengthen the maximum
amount of time for which the Director is authorized to place a prisoner in home confinement
under [18 U.S.C. § 3624(c)(2)], as the Director determines appropriate.” Pub. L. No. 116-136,
516 § 12003(b)(2), 134 Stat. 281 (2020). On April 3, 2020, the Attorney General made that
finding and directed the head of the BOP to “immediately review all inmates who have COVID-
19 risk factors . . . [in] facilities where you determine that COVID-19 is materially affecting
operations.” Resp. Mem. Supp. Mot. Dismiss, Ex. 4, at 2 [ECF #12-4] (“Memorandum for
1 Congress has also mandated that the Attorney General “conduct a pilot program to determine
the effectiveness of removing eligible elderly offenders and eligible terminally ill offenders from
Bureau of Prisons facilities and placing such offenders on home detention until the expiration of
the prison term to which the offender was sentenced.” 34 U.S.C. § 60541(g)(1)(A). To qualify
as an “eligible elderly offender,” the offender must be “not less than 60 years of age.” Id. at §
60541(g)(5)(A). As Parra Reyes represents that he is thirty-eight years old, he is not eligible for
participation in this pilot program. See Mot. ¶ 2.
Director of Bureau of Prisons” from the Office of the Attorney General, dated 4/3/2020). The
Attorney General specified that the review “should include all at-risk inmates—not only those
who were previously eligible for transfer.” Id.
According to the Respondent, “in order to prioritize its limited resources, BOP has
generally prioritized for home confinement those inmates who have served a certain portion of
their sentences, or who have only a relatively short amount of time remaining in those
sentences.” Resp.’s Mem. Supp. Dismiss at 7. “While these priority factors are subject to
deviation in BOP’s discretion in certain circumstances, and are subject to revision as the
situation progresses, BOP is at this time prioritizing for consideration those inmates who either
(1) have served 50% or more of their sentence, or (2) have 18 months or less remaining in their
sentences and have served 25% or more of their sentences.” Id.2 The Respondent takes the
position that, because Parra Reyes “has served 42% of his gross sentence,” he is ineligible for
2 The Court notes that, on May 13, 2020, the Respondent testified during the hearing of a
separate case that “an exception to these eligibility requirements can be made only if the Bureau
of Prisons headquarters in Washington, D.C., orders a warden to evaluate for home confinement
an inmate who has not served a sufficient percentage of his sentence.” United States v. Pena,
Crim. No. 16-10236-MLW, 2020 WL 2798259, at *6 (D. Mass. May 29, 2020) (expressing
intent to allow motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) and require
home confinement for a portion of the supervised release). The sentencing judge observed that
“such a request for an evaluation was evidently made by Bureau of Prisons headquarters
concerning Paul Manafort, a 71-year-old inmate who had served only 23 months of a 77-month
sentence, and who was released to home confinement [on May 13, 2020].” Id.; see also
Woodard v. United States, Crim. No. 12-00105, 2020 WL 3528413, at *3 & n.1 (E.D. Va. June
26, 2020) (stating that “[t]he BOP’s stated justification for denying Petitioner’s request for home
confinement is not being applied evenly, as several high-profile defendants have been released to
home confinement prior to serving more than 50% of their sentences or have been released
without delay upon satisfying BOP’s supposed criteria” and referring to the transfers of Paul
Manafort and Michael Cohen to home confinement).
placement in home confinement3 “based on the factors considered by the BOP pursuant to the
current directives and guidelines.” Id. at 8.4
The decision to place a prisoner in home confinement pursuant to 18 U.S.C. § 3624(c)(2)
is at the sole district of the BOP, and the Court lacks jurisdiction to allow Parra Reyes to serve
the rest of his sentence of imprisonment in home confinement. Federal district courts across the
country have reached the same conclusion during the COVID-19 pandemic. See, e.g., United
States v. Chavez, Crim. No. 16-00439, 2020 WL 4001877 at *2 (D.N.M. July 15, 2020); United
States v. Trent, Crim. No. 17-20839, 2020 WL 4001913, at *5 (E.D. Mich. July 15, 2020);
United States v. Sherrick, Crim. No. 02-20100, 2020 WL 3978174, at *4 (W.D. La. July 14,
2020); United States v. McCloskey, Crim. No. 18-00260, 2020 WL 3078332, at *2 (S.D. Ga.
June 9, 2020); Ambriz v. United States, C.A. No. 20-00568, 2020 WL 3066861, at *2 (N.D. Tex.
June 5, 2020); United States v. Konny, Crim. No. 19-00283, 2020 WL 2836783, at *2 (S.D.N.Y.
May 30, 2020); United States v. Read-Forbes, Crim. No. 12-20099, 2020 WL 1888856, at *5
(D. Kan. Apr. 16, 2020).
3 The Respondent states that Parra Reyes is “ineligible for compassionate release to home
confinement.” Id. As set forth, infra, “compassionate release” is a form of a reduction in
sentence which is only available from the sentencing court, although the BOP may move the
sentencing court to grant this relief. See 18 U.S.C. § 3582(c)(1)(A). The Respondent errs in
characterizing its placement of a prisoner in home confinement as a form of “compassionate
release.” While the mistake is harmless in this context, it illustrates the difficulty federal
prisoners face in correctly labeling the relief they seek and understanding how to request it.
4 On its website, the BOP represents that, “[w]hile all inmates are being reviewed for suitability,
any inmate who believes they are eligible may request to be referred to Home Confinement and
provide a release plan to their Case Manager.” Update on COVID-19 and Home Confinement,
https://www.bop.gov/resources/news/20200405_covid19_home_confinement.jsp (last visited
July 16, 2020).
B. Reduction in Sentence and Home Confinement as a Condition of Supervised
Release
There is a different mechanism by which Parra Reyes may seek relief. Under 18 U.S.C.
§ 3582(c)(1)(A), a sentencing court may “modify a term of imprisonment” upon motion of the
director of the BOP or of a defendant. If the sentencing court finds that the situation warrants a
revised sentence, it “may reduce the term of imprisonment (and may impose a term of probation
or supervised release with or without conditions that does not exceed the unserved portion of the
original term of imprisonment).” 18 U.S.C. § 3582(c)(1)(A). While relief under this section is
often referred to as “compassionate release,” the sentencing court may reduce a sentence for any
“extraordinary and compelling reasons.” 18 U.S.C. § 3582(c)(1)(A)(i). The sentencing court
may provide immediate release by reducing the sentence of imprisonment to time served. The
sentencing court may also extend the period of supervised release and include a condition of
home confinement.
Some federal prisoners have been successful in obtaining relief under this statute during
the COVID-19 pandemic. See, e.g., United States v. Edwards, Crim. No. 15-00339, 2020 WL
4003050, at *2 (N.D. Ohio July 15, 2020) (ordering release, increasing term of supervised
release by amount of unserved prison time, and ordering home confinement for that portion of
supervised release); United States v. Fletcher, Crim. No. 05-00179, 2020 WL 3972142, at *4 (D.
Md. July 15, 2020) (ordering release after 14-day quarantine and two years of home confinement
as a term of his supervised release); United States v. Browne, Crim. No. 14-10369, 2020 WL
3618689, at *6 (D. Mass. July 2, 2020) (reducing sentence to time served and requiring that six
months of supervised release be spent in home confinement); United States v. Rachal, Crim. No.
16-10043, 2020 WL 3545473, at *3 (D. Mass. June 30, 2020) (ordering release from BOP
custody and a period of supervised release equivalent to the unserved portion of his sentence,
with six months of that time to be spent in home confinement); United States v. Sanchez, Crim.
No. 18-00140, 2020 WL 1933815, at *7 (D. Conn. Apr. 22, 2020) (reducing sentence to time
served, increasing period of supervised release, and requiring home detention for first 13 months
of that release); United States v. Burrill, Crim. No. 17-00491, 2020 WL 1846788, at *3 (N.D.
Cal. Apr. 10, 2020) (reducing sentence to time served and ordering the remaining portion of
defendant's original term of imprisonment be “served as supervised release with the special
condition that [defendant] shall be subject to home confinement”).
Because only the sentencing court may provide relief under 18 U.S.C. § 3582(c)(1)(A),
the Court cannot consider whether Parra Reyes is eligible for a reduction of sentence. The Court
notes that, on June 18, 2020, Parra Reyes filed a motion for a reduction in sentence with the
sentencing court. See United States v. Parra-Reyes, Crim. No. 13-00121-LGW [ECF # 467]
(S.D. Ga.). This motion is still pending.
III. Conclusion
Accordingly, for the reasons set forth above, the motion to dismiss [ECF # 11] is
GRANTED solely on the grounds that the Court lacks jurisdiction to compel the BOP to place
Parra-Reyes in home confinement or to adjudicate a motion under 18 U.S.C. § 3582(c)(1)(A).
This action is DISMISSED without prejudice.
SO ORDERED.
/s/ Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge