Lallave v. Martinez

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

VIRGINIA LALLAVE,

Petitioner MEMORANDUM & ORDER

22-CV-791 (NGG) (RLM)

-against-

F, MARTINEZ JR., MICHAEL CARVAJAL, and

PATRICK MCFARLAND,

Respondents.

VIRGINIA LALLAVE,

Petitioner, 22-CV-4136 (NGG)

-against-

MICHAEL CARVAJAL, and PATRICK

MCFARLAND,

Respondents.

NICHOLAS G. GARAUFIS, United States District Judge.

Pending before the court are Petitioner Virginia Lallave’s motion

for reconsideration of this court’s previous decision on her First

Step Act (“FSA”) credits and a newly filed Petition for a Writ of

Habeas Corpus, which raises the same issue of her entitlement to

FSA credits. For the reasons explained below, Petitioner’s motion

for reconsideration is DENIED, and her new Petition is GRANTED

as to her First Step Act claim but DENIED as to her Accardi claim.

I. BACKGROUND

The court assumes farniliarity with the factual and procedural

background of this case, which is set forth in greater detail in the

court’s prior opinion, and includes information only to the extent

it is relevant to the resolution of this motion. See Lallave vy. Mar-

tinez, No. 22-CV-791 (NGG) (RLM), 2022 WL 2338896 (E.D.N.Y.

June 29, 2022}.

1 .

On July 3, 2019, Petitioner pleaded guilty to (1) participating in

a conspiracy to distribute substances containing a detectable

amount of fentanyl and (2} participating in a conspiracy to dis-

tribute and possess with intent to distribute substances

containing a detectable amount of cocaine, in violation of 21

U.S.C. 88 841(b)(1)(C) and 846. (See Plea Tr., United States v.

Lallave (“Lallave I’), No. 19-CR-15 (AJN) (Dkt. 26) at 10:1-14;

Judgment, Lallave I (Dkt. 37).)+ Petitioner was sentenced to 42

months’ imprisonment and three years of supervised release. (See

Sentencing Tr., Lallave I (Dkt. 41) at 27:17-20.)

On July 2, 2020, pursuant to the expanded authority of the Bu-

reau of Prisons (“BOP”) under the Coronavirus Aid, Relief, and

Economic Security Act (“CARES Act”), Petitioner was released

from FCI Danbury and placed in the custody of the Bronx Com-

munity Reentry Center (the “Reentry Center”). (First Pet. (Dkt.

1) 9 12, 14.) While on home confinement, Petitioner has been

the primary caretaker for her three children; a crucial caretaker

for her father, who has renal failure and is on dialysis; employed

in construction and maintenance; and has completed multiple

courses. (Second Pet., Lallave v. Martinez (“Lallave HI’), 22-CV-

4136 (NGG) (Dkt. 1) 17-18.) The Reentry Center has super-

vised Petitioner and regularly tested her for controlied substance

use. (First Pet. (4 19-20.)

In late January 2022, Petitioner’s urine sample was positive for

marijuana in violation of the BOP’s Inmate Discipline Program.

(See Incident Report (Dkt. 15-2).) After limited investigation and

process, it was determined that Petitioner had violated the home

confinement program, and the BOP imposed a sanction of a loss

1 All citations to the docket, including but not limited to references to

*Dkt.” and “the First Petition,” are to Lallave v. Martinez (Lallave ID), 22-CV-

791 (NGG) (RLM), unless indicated otherwise with a reference to another

case mame.

of good conduct time. (See DHO Report (Dkt. 15-12).) When Pe-

titioner was given a copy of the paperwork, she was informed

that she would be confined to the Reentry Center for 30 days.

(First Pet. € 31.) However, on February 8, 2022, U.S. Marshals

brought Petitioner to the Metropolitan Detention Center

(“MDC”) in Brooklyn. Ud. { 33.) On February 11, 2022, Peti-

tioner filed her initial petition (the “First Petition”), which

included a request for enlargement. The court granted Peti-

tioner’s request for enlargement because of the irreparable harm

that incarceration would cause to her family and employment,

and she was released from the MDC on February 12, 2022. (See

id. 69-72; Feb. 11, 2022 Order.)

On June 29, 2022, this court issued an order resolving the claims

in the First Petition. Of relevance here, the court declined to con-

sider Petitioner’s argument that the court should order the BOP

to adjudicate her FSA credits. The FSA permits inmates to “earn

10 days of time credits for every 30 days of successful participa-

tion in evidence-based recidivism reduction programming or

productive activities.” 18 U.S.C. § 3632(d)(4). This court found

that there were two procedural hurdles to consideration of Peti-

tioner’s FSA credits. First, Petitioner raised the claim for the first

time in her reply, and second, she had not exhausted her admin-

istrative remedies. See Lallave, 2022 WL, 2338896, at *10-*11.

On July 14, 2022, Petitioner filed a motion for reconsideration of

this court’s decision. (See Mot. for Reconsideration (Dkt. 30).)

She argued that at the time of the First Petition she had enough □

FSA credits to entitle her to immediate release, and that at the

time she filed her motion for reconsideration, she had exhausted

her administrative remedies. (See id.) On the same day, Peti-

tioner filed her second petition (the “Second Petition”), which

raised the same issue of her FSA credits, in order to provide the

court with an alternative mechanism for granting the same relief.

(See Second Pet.) The Second Petition alleges a violation of the

FSA and of the principle set forth in Accardi v. Schaughnessy that .

agencies must comply with their own regulations. See 347 U.S.

260 (1954). Defendants filed a consolidated opposition to both

of Petitioner’s requests, arguing that she failed to exhaust her ad-

ministrative remedies and is ineligible for FSA credits. (See Opp.

(Dkt. 37).)

Il. MOTION FOR RECONSIDERATION

A. Standard of Review

In the Second Circuit, “[t]he threshold for prevailing on a motion

for reconsideration is high.” Nakshin v. Holder, 360 F, App’x 192,

193 (2d Cir. 2010) (summary order).? The party seeking recon-

sideration must establish: (1) that the court overlooked critical

facts or controlling decisions that could have changed its deci-

sion, see Schrader v. CSX Transp., 70 ¥.3d 255, 257 (2d Cir.

1995); (2) an intervening change in controlling law; (3) new ev-

idence; or (4) the need to correct “clear error or prevent manifest

injustice.” See Virgin Atl. Airways v. Nat'l Mediation Bd., 956 F.2d

1245, 1255 (2d. Cir. 1992). A motion for reconsideration is “not

a vehicle for relitigating old issues, presenting the case under

new theories, securing a rehearing on the merits, or otherwise

taking a second bite at the apple.” Analytical Surveys, Inc. v.

Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012). The court

has substantial discretion on a motion for reconsideration, See

Market Am. Ins. Co. v. Linhart, No. 11-CV-5094 (SJF) (GRB),

2012 WL 5879107, at *2 (E.D.N.Y. Nov. 16, 2012).

B. Discussion

Petitioner argues that the court erred in finding that that she

would not be entitled to immediate release and should have

2 When quoting cases, and unless otherwise noted, all citations and quota-

tion marks are omitted, and all alterations are adopted.

waived administrative exhaustion on that basis. (Mot. for Recon-

sideration at 4.) In its decision on the First Petition, this court

noted that administrative exhaustion might be waived if Peti-

tioner was entitled to immediate release. See Lallave, 2022 WL

2338896, at *10. However, following other courts in this Circuit,

this court concluded that Petitioner would not be entitled to im-

mediate release because courts could not compel the BOP to

calculate FSA credits during the phase-in period. See id. Peti-

tioner helpfully directs the court to a regulation, which clarifies

that after the FSA phase-in period, which ended on January 15,

2022, courts can mandate the calculation of credits that accumu-

lated during the phase-in period. See 28 C.F.R. §§ 523.42. Thus,

she contends that she would have been entitled to immediate re-

lease, and this court should have waived administrative

exhaustion. In opposition, Respondents argue that Petitioner

“fails to point to any proper grounds for reconsideration” and

note the high bar for reconsideration. (Opp. at 9.)

This court’s decision did not rest exciusively on the fact that Pe-

titioner was likely not entitled to immediate release. Instead, the

court merely noted that had Petitioner been entitled to release as

of February 2022, “it may be appropriate to consider the FSA

claim at this time.” See Lallave, 2022 WL 2338896, at *10. This

court went on to explain that courts in this Circuit have taken

different approaches to the question of whether exhaustion can

be excused on the basis of irreparable harm where a petitioner

may be entitled to immediate release. Id. (collecting cases). Fur-

ther, in discussing administrative exhaustion in relation to one of

Petitioner’s other claims, this court noted that

[c]ourts have frequently found that even continued deten-

tion does not constitute irreparable harm. See Torres v.

Decker, No. 18-CV-10026 (VEC), 2018 WL 6649609, at *3

(S.D.N.Y. Dec. 19, 2018) (finding that prolonged detention

is not an irreparable injury that excuses exhaustion); Giwah

v. McElroy, No. 97-CV-2524, 1997 WL 782078, at *4

(S.D.N.Y. Dec. 19, 1997) (“If incarceration alone were the

irreparable injury complained of, then the exception would

swallow the rule that the INS administrative remedies must

be exhausted.”). Rather, courts find irreparable harm only in

exceptional circumstances, such as where a defendant is be-

ing held in solitary confinement. See, e.g., United States v.

Basciano, 369 F. Supp. 2d 344, 349 (E.D.N.Y. 2005) (finding

irreparable harm where defendant was being held in solitary

confinement and “faced with the prospect of perpetual de-

tention without access to judicial review under

circumstances that raise a serious and urgent constitutional

question while the BOP fiddles”); Brooks v. Terrell, No. 10-

CV-4009 (AKT), 2010 WL 9462575, at *5 (E.D.N.Y. Oct. 14,

2010) (holding that detention in solitary confinement could

constitute irreparable harm).

Id. at *9, In light of this precedent, the court noted that the fact

that Petitioner was serving her sentence in home confinement,

where she is able to live with her family and work, largely under-

mines the policy choice that has been made in certain instances

to waive exhaustion where immediate release is possible. Id.

In deciding not to waive administrative exhaustion, a substantial

concern for this court was the need to develop the factual record.

See id. at *11. A central reason for the administrative exhaustion

doctrine is for courts to have a factual record upon which to base

their decisions, This court explained that it had “virtually no in-

formation” about Petitioner’s program participation other than

her assertions that “she has participated in relevant programming

both at FCI Danbury and while on home confinement, which in-

cluded GED and typing classes, working in the kitchen, and

training courses.” Id. at *11. At that time, the court had not been

apprised of whether Petitioner had participated in evidence-

based recidivism programs, as set forth in the FSA. See 18 U.S.C.

§§ 3632(d)(4)(C), 3624(g)(1) (A). For the first time, on her mo-

tion for reconsideration, Petitioner argued that she had obtained

credits under the BOP’s “interim procedures.” (Mot. for Recon-

sideration at 4-5.) However, at the time that the motion for

reconsideration was filed, the court’s information about such in-

terim procedures was limited to the information that Petitioner

included in her submission, which was derived from declarations

submitted by one BOP employee in a few out of circuit cases. (See

id.) At the time this court considered the First Petition, it was not

positioned to decide whether Petitioner was entitled to immedi- □

ate release based on the sparse record before it. Furthermore, at

that time, this court was not willing to order the BOP to calculate

Petitioner's time credits because she had not yet exhausted her

administrative remedies.

Though this court may have overlooked the BOP regulation spec-

ifying the timing of the application of FSA credits, this

information would not have changed its decision because (i) the

fact that Petitioner may have been entitled to immediate release

would not have automatically caused the court to waive admin-

istrative exhaustion, and (ii) the court lacked an administrative

record that would have allowed it to conclude that Petitioner was

entitled to immediate release and to make other factual determi-

nations. Petitioner has failed to persuade the court that any of

the factors for reconsideration have been established, particularly

in light of the high bar for reconsideration in this Circuit. Thus,

' Petitioner’s motion for reconsideration is DENIED,

I. SECOND HABAEAS PETITION

A. Standard of Review

A federal prisoner may petition for habeas relief if she is “in cus-

. tody in violation of the Constitution or laws or treaties of the

United States.” 28 U.S.C. § 2241(c}(3). The Second Circuit has

broadly interpreted the remedies available under section 2241

to include the “the computation of a prisoner’s sentence by

prison officials,” Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir.

2001), as well as disciplinary sanctions, such as the loss of good-

time credits, see Carmona v. U.S. Bureau of Prisons, 243 F.3d 629,

632 (2d Cir. 2001). The petitioner “bears the burden of proving

that he is being held contrary to law; and because the habeas

proceeding is civil in nature, the petitioner must satisfy his bur-

den of proof by a preponderance of the evidence.” Skaftouros v.

United States, 667 F.3d 144, 158 (2d Cir. 2011).

B. Exhaustion .

Under 28 U.S.C. § 2241, prisoners must exhaust administrative

remedies with the BOP prior to filing suit in federal court. See

Carmona, 243 F.3d at 634. This requires compliance with the

BOP’s four-step Administrative Remedy Program. See 28 C.F.R. §

542.10(a). However, this program differs slightly for inmates like

Petitioner, who are being supervised by a Reentry Center.

Though typically the first step is informal resolution with prison

staff, see id. § 542.13(a), for Reentry Center supervisees, “[a]n

informal resolution attempt is not required prior to submission ~

to the Regional or Central Office,” id. § 542.13 (b).? Thus, the first

step for a Reentry Center supervisee is to fill out an Administra-

tive Remedy Request form and mail it to the Residential Reentry

Manager. See id. §8 542.14(a), (c). If the request is denied or the

. Warden fails to respond within 20 days, the next step is to appeal

to the BOP Regional Director. Id. §8§ 542.15(a), 542.18. If the

appeal is denied or the Regional Director fails to respond within

30 days, the prisoner may appeal to the BOP General Counsel.

Id. Once the General Counsel denies the claim or fails to respond

within 40 days, the claim is considered administratively ex-

hausted. Id. § 542.18. The regulations allow for the BOP to

3 The statute refers to the Reentry Center as a “CCC,” which was the term

that the BOP was using to refer to these centers at the time of publication.

(See Mot. for Reconsideration at 8 n.6.)

request an extension “once by 20 days at the institution level, 30

days at the regional level, or 20 days at the Central Office level,”

so long as the inmate is notified in writing. Id.

Petitioner asserts that she has exhausted her administrative rem-

edies. The court agrees. On April 12, 2022, she mailed the

appropriate Administrative Remedy Request form to the Re-

gional Reentry Manager. (See Admin. Remedy Request, Lallave

TT (Dkt. 15-1).) Twenty days later, on May 2, 2022, upon receiv-

ing no response, she appealed to the Regional Director. (See Reg.

Dir. App., Lallave I (Dkt. 15-2.) Thirty days later, on June 2,

2022, upon receiving no response, she appealed to the BOP Gen-

eral Counsel in the Central Office. (BOP Gen. Counsel App. (Dkt.

30-1).) After more than 40 days had passed, on July 14, 2022,

she filed the Second Petition.

Respondents argue that Petitioner has not exhausted her admin-

istrative remedies because two of her submissions were rejected

with instructions to refile. Respondents have submitted a decla-

- ration from a BOP paralegal with attached printouts from a BOP

system that maintains records of such administrative claims. (See

Baker-Dykstra Decl. (Dkt. 37-2) 4 7 & Ex. 1.) These. printouts

show that Petitioner’s filings were apparently rejected at the Re-

gional level with instructions to file at the Reentry Center level,

and at the General Counsel level, with instructions to refile at the

Regional level. (Id. 4 7.) Had she corrected these procedural de-

fects, Respondents contend, she would have received a decision

on the merits.’ Instead, they argue that she continued to appeal

and then rushed to file the Second Petition. However, the court

4 Notably, though an inmate is supposed to receive a rejection notice ex-

. plaining the procedural defect and how to cure it, if curable, Petitioner,

despite checking her mail and checking in with the Reentry Center staff,

was never informed of any issues with her filings. See 28 C.F.R. §§

542.14 (a), (c), 542.15¢b), 542.17(b).

has carefully reviewed the regulations and has identified no de-

‘fects in Petitioner’s exhaustion procedure. Consequently, the

court finds that Petitioner has exhausted her administrative rem-

edies, which would ordinarily make this claim ripe for the court’s

review.

Despite the fact that Petitioner had exhausted her administrative

remedies, at the time the Second Petition was filed, the court was

without an administrative record, which would have allowed the

court to determine whether it was appropriate to award Peti-

tioner FSA credits, and if so, the number of credits to award.

However, the court did not want to penalize Petitioner for the

BOP’s failure to notify her of alleged defects in her filings and to

respond to her filings. Thus, on August 26, 2022, this court or-

dered the BOP to “produce a calculation of the credits that

Petitioner has earned to date along with an explanation of why

she has been denied credit for any period of time she has been in

BOP custody.” (See Aug. 26, 2022 Order, Lallave II.) On Septem-

ber 9, 2022, Respondents complied with the court order. (See

Resps.’ Supp. Submission, Lallave I (Dkt. 17).) Respondents

submitted an affidavit from a correctional programs administra-

tor, which explains how the credits have been implemented to

date and states that Petitioner would have earned 375 days of

time credit between December 27, 2019 and January 29, 2022,

which is “more days thaf{n] remain on her sentence.” (Stokes Aff.,

Lallave If (Dkt. 17-3) 4 4-6, 8.) Since Petitioner has exhausted

her administrative remedies, and the court now has a factual rec-

ord, the court will consider the Second Petition.

C. Jurisdiction and Venue

When Petitioner filed the First Petition, she was incarcerated at

the MDC, and so the Eastern District of New York was the district

of confinement. See Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004)

(“[T]he immediate custodian rule applies to... challenges to

present physical custody. By definition, the immediate custodian

10

and the prisoner reside in the same district.”). This court previ-

ously found that venue was appropriate in this district, despite

the fact that Petitioner resides in and is directly supervised by a

facility in the Southern District of New York, based on consider-

ation of the factors set forth in Braden v. 30th Judicial Circuit

Court of Kentucky, 410 U.S. 484, 493-94, (1973) and the fact that

the First Petition had been fully briefed in this district. See Lallave,

2022 WL 2338896, at *3-*4. However, Petitioner is now con-

fined in her home and remains supervised by the same Reentry

Center, both located in the Southern District. Given the change

in circumstances, the court directed the parties to brief the issue

of whether venue is appropriate in the Eastern District for the

Second Petition. At this time, the court also considers whether it □

has jurisdiction to hear this case. □

“The question [of] whether [a court] has jurisdiction over [a] ha-

beas petition breaks down into two related subquestions. First,

who is the proper respondent to that petition? And second, does

[the court] have jurisdiction over him or her?” Padilla, 542 U.S.

at 434. A writ of habeas corpus must “be directed to the person

having custody of the person detained.” 28 U.S.C. § 2243. The

default rule from Padilla is that the proper respondent is “the

warden of the facility where the prisoner is being held.” Id. at

427, Where a Petitioner is on supervised release or parole, “a pe-

titioner may substitute whatever parole board or other governing

body is responsible for setting the conditions of supervised re-

lease and enforcing them if the petitioner violates those

conditions.” Miller v. Sangiacomo, No. 10-CV-169 (RJA), 2010

WL 3749065, at *3 (W.D.N.Y. Sept. 30, 2010) (citing Jones v.

Cunningham, 371 U.S. 236, 243 (1963)). It follows logically that

the proper respondent for an inmate supervised by a Reentry

Center is the New York Residential Reentry Management Office □

(the “Management Office”), which fulfills this supervisory role.

(See Second Pet. { 3.) Respondents agree and have identified

four out of circuit cases in which district courts have found that

11

the relevant Residential Reentry Management Office was the ap-

propriate respondent. (See Resps.’ Supp. Submission at 5.) Thus,

the court finds that Patrick McFarland, as the Residential Reentry

Manager, is the proper respondent in this matter. (See McFarland □

Decl., Lallave HT (Dkt. 20-1) § 1.)

The next question is whether this court has personal jurisdiction

over McFarland. See Padilla, 542 U.S. at 434 n.7; see also id. at

463 (Stevens, J., dissenting) (“It bears emphasis that the question

of the proper forum to determine the legality of . . . incarceration

is not one of federal subject-matter jurisdiction,”), District courts

may grant writs of habeas corpus to federal prisoners “within

their respective jurisdictions.” 28 U.S.C. § 2241(a). The Supreme

Court has interpreted this phrase to mean “nothing more than

that the court issuing the writ have jurisdiction over the [re-

spondent].” Braden, 410 U.S. at 494-95. Respondents argue that

keeping this case in the Eastern District is improper given that

- the Management Office is now located in the Southern District of

New York. (See Resps.’ Supp. Submission at 3.) However, and

importantly, at the time that the Second Petition was filed on July

14, 2022, the Management Office was still located in the Eastern

District of New York. (See McFarland Decl. { 2 (stating that the

Management Office location moved to the Southern District on

August 1, 2022).) Thus, at the time the Second Petition was filed,

it served the proper party in the appropriate district. And notably,

Respondents consented to jurisdiction when they appeared in

this case without disputing the court’s jurisdiction over them. In

the federal court system, we do not permit parties to escape on-

going litigation by simply moving out of the district.

On the question of venue, the court again considers the Braden

factors: (1) “where all of the material events took place”; (2)

where “records and witnesses pertinent to the petitioner’s claim

are likely to be found”; and (3) the relative convenience of the □

forum for the parties. Henderson v. Immigration & Naturalization

12

Serv., 157 F.3d 106, 128 n.25 (2d Cir. 1998) (quoting Braden,

4100S. at 493-94). As Petitioner points out, unlike in Lallave IT,

there are no longer material events that took place in the South-

em District given that the Second Petition does not include

claims related to the positive marijuana test that occurred in the

Southern District. (See Pet.’s Supp, Submission (Dkt. 41) at 3-4.)

Now that the Management Office has moved, the “records and

witnesses” have shifted somewhat to the Southern District, but

as Petitioner notes, “with the advantages of modern technology,

including faxes, scanners, and email, the difficulty of transferring

[records] ought to be minimal.” Farez-Espinoza v. Chertoff, 600

. F, Supp. 2d 488, 496 (S.D.N.Y. 2009). As to the relative conven-

ience of the forum, as the court previously found in Lallave If, the

Eastern District and Southern District courthouses are merely

one subway stop away. See 2022 WL 2338896, at *4. Though the

Management Office has moved to the Southern District, the new

Manhattan location on Varick Street is physically closer to the

Eastern District courthouse than the old location in Sunset Park.

(See McFarland Decl. { 2.) Finally, this court emphasized in its

prior opinion that

the issues in this Petition have been fully briefed in this court,

and as a result, “the pre-disposition in this Circuit to reach

the merits of a dispute in service to judicial economy compel

the assertion of jurisdiction by this Court.” Campbell v.

Ganter, 353 F. Supp. 2d 332, 338 (E.D.N.Y. 2004). Since “the

Southern District would apply the same law to this case, the

interests of judicial economy militate in favor of the resolu-

tion of [the] habeas petition before this court at this time.”

Id.

Lallave, 2022, WL 2338896, at *4. This concern is even more sig-

nificant at this time since the court is familiar with this Petitioner

and has issued a related ruling. Accordingly, the court finds that

13

jurisdiction and venue are appropriate in the Eastern District of

New York.

D. Eligibility for First Step Act Credit

To determine whether Petitioner is eligible for FSA credits, the

court is faced with the proper interpretation of 18 U.S.C. §

3632(d)(4)(D), which provides that:

[a] prisoner is ineligible to receive time credits under this

paragraph if the prisoner is serving a sentence for a convic-

tion under...:

(Iviii) Section 401 of the Controlled Substances Act (21

U.S.C. 841), relating to manufacturing or distributing a con-

trolled substance in the case of a conviction for an offense

described in subparagraph (A), (B), or (C) of subsection

(b) (1) of that section for which death or serious bodily injury

resulted from the use of such substance.

There are two open questions with respect to the interpretation

of this eligibility provision. First, the court must determine

whether an inmate must have been convicted of the “death or

serious bodily injury” penalty enhancement set forth in section

841(b)(1)(C) (the “penalty enhancement”) in order to be ineli-

gible under this provision, or whether the mere fact that “death

or serious bodily injury” occurred in the course of the use of the

substance renders an inmate ineligible. Second, the court must

determine whether it applies to convictions for conspiracy to

commit crimes under section 841(b)(1)(C), even where there is

no conviction for committing the substantive offense.

A conviction under section 841(b}(1)(C)’s penalty enhancement

has a mandatory minimum term of imprisonment of twenty

years. See 21 U.S.C. § 841(b)(1)(C). Since Petitioner was sen-

tenced to a 42-month term of imprisonment, and the sentencing

court did not address exceptions to the mandatory minimum, the.

14

court finds that Petitioner was not convicted of the penalty en-

hancement. However, three individuals who purchased drugs

from Petitioner did overdose and nearly die. (See Sentencing Tr.

at 23:7-11.)

1. BOP Deference

Respondents argue that “[t]he BOP’s decision that Petitioner is

ineligible for FSA credits is reasonable and entitled to deference.”

(Opp. at 5,) The Second Circuit has held that Skidmore deference

is appropriate when considering a BOP decision on eligibility for

good conduct time. See Lopez v. Terrell, 654 F.3d 176, 183 (2d

Gir, 2011); Skidmore v. Swift & Co., 323 U.S. 134 (1944). Under

Skidmore, the court “construe[s| the statute in the first instance,

giving effect to the [agency’s] nonlegislative interpretation to the

extent we find it persuasive.” Estate of Landers v. Leavitt, 545 F.3d

98, 105 (2d Cir, 2008). In response, Petitioner argues that defer-

ence is not appropriate because section 3632(d)(4)(D) (viii) is

not ambiguous. (Reply (Dkt. 38) at 5.)

In Terrell, the Second Circuit was presented with the question of

whether the phrase “term of imprisonment’ in 18 U.S.C. §

3624(b) referred to “the total time served for a federal offense,

both before and after sentencing, regardless of whether the in-

mate’s presentence custody is credited to another sentence,” as

the district court found, or is limited to “the period of incarcera-

tion following the date of sentencing, as well as for any

presentence custody credited to that period,” as the BOP argued.

654 F.3d at 177. Since the panel determined that “both of these

interpretations are facially consistent with the language of the

statute, and because the statute itself offers no clear definition

for ‘term of imprisonment,” the statute was ambiguous. Id. at

181. The court agrees with Respondents that there is ambiguity

in the language of section 3632(d) (4) (D) (viii). On the question

of whether the inmate must have been convicted of the “death

and serious bodily injury” penalty enhancement, there is a lack

15

of clarity. On the question of whether it applies to conspiracy

convictions under 21 U.S.C. § 846, the statute is silent. See Ter-

rell, 654 F.3d at 181, Accordingly, the court finds that this

statutory provision is ambiguous.

However, the court must defer “only to the extent that [the

agency's decision] has the power to persuade.” Id. at 183. “[T]he

weight afforded an agency interpretation depends on the thor-

oughness evident in its consideration, the validity of its

reasoning, its consistency with earlier and later pronouncements,

and all those factors which give it power to persuade, if lacking

power to control.” id. Initially, this court had been informed only

that “Petitioner was made FSA ineligible on January 6, 2020.”

(Baker-Dykstra Decl. { 7 & Ex. 1.) However, in response to the

court’s order on August 26, 2022, the court received further ex-

planation:

A review reveals you are currently serving a 42-month sen-

tence for Conspiracy to Distribute and Possess with Intent to

Distribute Fentanyl, 21 U.S.C. § 846, 21 U.S.C. §

841(b)(1)(C), and Conspiracy to Distribute and Possess with

Intent to Distribute Cocaine, 21 U.S.C. § 846, 21 U.S.C. §

841(b)(1}(C). The Presentence Investigation Report (PSI)

shows your offense level was set at 38 due to the victims suf-

fering serious bodily injuries from using the substance you

provided.

(BOP Decision (Dkt. 17-1).) From this limited response, the court

is able to draw two conclusions. First, the BOP interprets section

3632(d)(4) (D) (viii) to at least apply in situations where the “se-

rious bodily injury or death” enhancement has been applied

under section 2D1.1(a) (2) of the sentencing guidelines. Second,

the BOP interprets section 3632(d)(4) (D) (viii) to apply to con-

‘victions for conspiracy under 21 U.S.C. § 846. However, the BOP

has not proffered any rationale or explanation for its interpreta-

tion of the statute. By contrast, in Terrell, the Second Circuit

16

found that that the BOP’s construction was “persuasive,” and its

“contextual approach aligns with traditional canons of statutory

interpretation.” 654 F.3d at 183. Here, the court has no basis

upon which to conclude that the BOP’s reasoning is persuasive or

that its approach aligns with traditional canons of statutory in-

terpretation because there is no reasoning whatsoever from the

BOP. Accordingly, since the court does not find the agency’s in-

terpretation persuasive, the court gives little to no effect to its

interpretation. See Leavitt, 545 F.3d at 105.

2. Statutory Analysis?

Petitioner argues that this eligibility provision does not apply to

her for two reasons. First, she was not convicted of the “death or

5 In reviewing the eligibility provisions contained in 18 U.S.C. §

3632(d)}(4)(D), the court observed that the exception contained in (xvi)

might be applicable to Petitioner since her indictment included a count

under 21 U.S.C. § 841(b)(1)(B), and the drugs sold contained fentanyl.

The court directed the parties to submit additional briefing on the applica-

bility of this provision. Respondents assert that it similarly disqualifies

Petitioner, and Petitioner asserts that it is inapplicable. The provision pro-

vides that:

A prisoner is ineligible to receive time credits under this paragraph _

if the prisoner is serving a sentence for a conviction under... :

(Lxvi) Subparagraph (vi) or (B)(vi) of section 401 (b) (1) of the

Controlled Substances Act (21 U.S.C. 841(b)(1)) or paragraph

(1}(F) or (2)(F) of section 1010(b) of the Controlled Substances

Import and Export Act (21 U.S.C. 960(b)), relating to manufactur-

ing, distributing, dispensing, or possessing with intent to

manufacture, distribute, or dispense, a mixture or substance con-

taining a detectable amount of N-phenyl-N-[1-(2-phenylethyl)-4

piperidinyl] propanamide, or any analogue thereof.

18 U.S.C. § 3632(d}(4)(D). The BOP has not issued any formal decision

on this provision as to Petitioner, and so there is no agency decision to

defer to. Though the sentencing court focused on the fentanyl present in

the drugs that were sold during Petitioner's plea and sentencing, (see Plea

Tr. at 21:15-23:15; Sentencing Tr. at 23:2-19), based upon its review of

Petitioner’s presentence report and judgment, the court concludes that the

17

serious bodily injury’ penalty enhancement in 21 U.S.C. §

841(b)(1)(C) since she was sentenced below the mandatory -

minimum of twenty years. Second, she was convicted of conspir-

acy under 21 U.S.C. § 846, not of the substantive drug offense

under 21 U.S.C. § 841(b)(1)(C).

The “starting point in statutory interpretation is the statute’s

plain meaning, if it has one.” United States v. Dauray, 215 F.3d

257, 260 (2d Cir. 2000). Here, as noted, the statute is silent as to

whether it applies to section 846 convictions for conspiracy, so

there is no plain meaning for the court to interpret. On the issue

of whether an inmate must be charged with the “death or serious

bodily injury” penalty enhancement in section 841(b)(1)(C), the

statute is also unclear: It could be read to require a conviction

under the penalty enhancement or to require only a conviction

under section 841{b)(1)(C) involving a substance that led to

death or serious bodily injury. Because it would be reasonable to

interpret the provisions in either manner, the court turns to can-

ons of statutory interpretation to resolve the ambiguity. See

Dauray, 215 F.3d at 262.

a. Death or Serious Bodily Injury

The court notes that this appears to be only the second opinion

in which a court has been faced. with the question of how to in-

terpret the “death or serious bodily injury” language in 18 U.S.C.

§ 3632(d) (4) (D) (viii). See Lenze v. Gilley, No. 21-CR-115 (DCR),

2021 WL 5862561 (E.D. Ky. Nov. 5, 2021). The defendant in

substantive count underlying Petitioner’s conspiracy count was 21 U.S.C. §

841(b) (1) (C), not § 841(b) (1) (B) (vi). As Petitioner helpfully pointed out,

she was sentenced to 42 months in custody, whereas section 841 (b) (1) (B}

carries a mandatory minimum of five years. Thus, even though Petitioner

sold substances containing a detectable amount of fentanyl as a part of this

conspiracy, the substantive count underlying the conspiracy charge was

not under section 841(b)(1)(B) (vi), Accordingly, she is not ineligible for

FSA credits under 18 U.S.C. 3632(d)(4) (D) (xvi).

18

Lenze pled guilty to the sole count in his indictment: one count

of violating 21 U.S.C. § 841(b)(1)(C), which resulted in the

death of a person, Id. at *1. The defendant argued “that there is

a ‘defined difference’ between a conviction under 21 U.S.C. 8

841(b)(1}(C) and [a conviction under the enhancement of §

841(b)(1)(C) for] resulting in death or serious bodily harm and

that he pled guilty to a ‘lesser charge.” Id. However, the court

concluded that “the claim that he pled guilty to a ‘lesser charge’

is supported only by Lenze’s own self-serving characterization of

his plea and is, in fact, directly contradicted by the clear language

of the Indictment to which he pled guilty.” Id. Thus, the court

held that Lenze was not eligible for FSA credits. The court seems

. to find that Lenze was in fact convicted of the penalty enhance-

ment, not some “lesser charge” and finds him ineligible on that

ground.® Given that Lenze provides limited guidance and is not

binding upon this court, the court undertakes its own statutory

analysis.

First, the court applies the “well-settled” presumption of mean-

ingful variation. See S.W. Airlines Co. v. Saxon, 142 $. Ct. 1783,

_ 1789 (2022}. When Congress repeats words, phrases, or struc-

tures from one statutory provision to another, we presume that

variations among the instances are meaningful. See Mohamad v.

Palestinian Auth., 566 U.S. 449, 456 (2012) (“We generally seek □

to respect Congress’ decision to use different terms to describe

different categories of people or things.”). Looking holistically at

the list of exclusions contained in section 3632(d)(4)(D), Con-

gress used the phrase “death or serious bodily injury” in two

other sections. See 18 U.S.C. §§ 3632(d)(4)(D) (xlvi), (vii). In

one section, Congress has excluded. prisoners serving sentences

6 Though the court noted that, like Petitioner's sentencing guidelines,

Lenze’s sentencing guidelines were increased by the “death or serious bod-

ily injury’ enhancement under U.S.S.G. § 2D1.1(a)(2), this does not

appear to factor into the court’s ultimate holding. Id. at *2.

19

for convictions under 18 U.S.C. § 2291, “relating to the destruc-

tion of a vessel or maritime facility, but only if the conduct that

led to the conviction involved a substantial risk of death or serious

bodily injury.” Id. § 3632(d)(4)(D)(xlvi) (emphasis added). In

the other, prisoners serving sentences for convictions under 49

U.S.C. § 60123(b), “relating to damaging or destroying a pipeline

facility” are excluded, “but only if the conduct which led to the □

conviction involved a substantial risk-of death or serious bodily

injury.” Id. § 3632(d)(4)(D) vii) (emphasis added). In both of □

those provisions, Congress explicitly chose to specify that ineligi-

bility was premised on the “conduct that led to the conviction.”

In drafting the provision before the court, Congress instead prem-

ised ineligibility on a “conviction for an offense described [21

U.S.C. § 841(b)(1)(C)] for which death or serious bodily injury

resulted from the use of such substance.” Id. §

3632(d)(4)(D) (viii). Since Congress chose to specify in other

sections that the relevant “death or serious bodily injury” merely

needed to be associated with the “conduct that led to the convic-

tion” in order to render an inmate ineligible for FSA credits, but

chose not to make that distinction for section

3632(d)(4)(D) (viii), we must presume that to be an intentional

choice. This suggests that section 3632(d)(4)(D) viii) should

not be broadly interpreted to refer to conduct related to a con-

viction under 21 U.S.C. § 841(b)(1)(C) and should instead be

limited to the conviction itself.

‘When a particular provision can be drawn from another statute,

the court may presumptively interpret them the same way. See .

Mostle v. Bidwell, 130 F. 334, 335 (2d Cir. 1904) (“In doubtful

cases a court should compare all parts of a statute and different

statutes in pari materia to ascertain the intent of the Legisla-

ture.”). “The rule of in pari materia—like any canon of statutory

construction—is a reflection of practical experience in the inter-

pretation of statutes: a legislative body generally uses a particular

20

word with a consistent meaning in a given context. Thus, for ex-

ample, a later act can be regarded as a legislative interpretation

of an earlier act in the sense that it aids in ascertaining the mean-

ing of the words as used in their contemporary setting, and is

therefore entitled to great weight in resolving any ambiguities

and doubts.” Erlenbaugh v. United States, 409 U.S, 239, 243-45

(1972). More recently, the Court clarified a limitation to the in

pari materia canon, which is that only “statutes addressing the

same subject matter generally should be read as if they were one

law.” Wachovia Bank v. Schmidt, 546 U.S. 303, 315-16 (2006)

(finding that “venue and subject-matter jurisdiction are not con-

cepts of the same order”).

Since the FSA eligibility provision directly references the acts pro-

hibited under 21 U.S.C. § 841, they “pertain to the same subject,”

and the court can be certain that “Congress... actled] aware of

[this] previous statute[] on the same subject.” Erienbaugh, 409

U.S, at 243-44. Thus, the court finds that it is appropriate to in-

terpret the two provisions in pari materia. In drafting this

provision of the FSA, Congress intentionally chose to use the

same language that is used to set forth the “death or serious bod-

ily injury” penalty enhancement of 21 U.S.C. § 841(b)(1)(C).

Compare 21 U.S.C. § 841(b)(1)(C) (“.. . if death or serious bodily

injury results from the use of such substance” (emphasis added))

with 18 U.S.C. § 3632(d)(4)(D) (Iviii) (“. . . for which death or

serious bodily injury resulted from the use of such substance.” (em-

phasis added)). This court can, therefore, infer that in using the

precise language that is used for the penalty enhancement of 21

U.S.C. § 841(b)(1)(C)—“death or serious bodily injury resulted

from the use of such substance”’—the FSA is referencing the pen-

alty enhancement, not referring generically to conduct that

resulted in death or serious bodily injury.

Finally, Respondents make much hay of the fact that Petitioner’s

base offense level under the sentencing guidelines was enhanced

21

because she was convicted under 21 U.S.C. § 841(b}(1)(C), “and

the offense of conviction establishes that death or serious bodily

injury resulted from the use of the substance.” U.S.S.G. § -

2D1.1(a)}(2).7 However, the court is not persuaded that Congress

intended to exclude inmates like Petitioner on this basis. Other

provisions in section 3632(d)(4)(D) specifically reference guide-

lines enhancements as triggering ineligibility. For example,

-section 3632(d)(4)(D) (xvii) disqualifies individuals who were

found to be an “organizer, leader, manager, or supervisor” as de-

fined “under the guidelines promulgated by the United States

Sentencing Commission.” 18 U.S.C. §§ 3632(d) (4) (D) (xvii); see

also id. 88 3632(d)(4)}(D) (xv), (xviii). If Congress intended to

refer to the sentencing guidelines here, it would have made that

explicit.

Though courts are instructed to turn to legislative history only

after “the plain language and canons of statutory interpretation

fail to resolve statutory ambiguity,” see Dauray, 215 F.3d at 264,

the court is mindful of the FSA’s legislative history. “Legislative

history is of course not the law, but that does not mean it cannot

aid us in our understanding of a law.” Digital Realty Tr. v. Somers,

138 S. Ct. 767, 782 (2018) (Sotomayor, J., concurring). In gen-

eral, committee reports are treated as a “particularly reliable

source to which we can look to ensure our fidelity to Congress’

intended meaning.” Id. The court notes that the FSA’s legislative

history suggests that, among other things, the congressional in-

tent was to “control correction spending” and “manage the prison

7 Courts employ a “preponderance of the evidence” standard to determine

whether a sentencing guidelines increase is appropriate, as compared to

the “beyond a reasonable doubt” standard required to prove guilt in a crim-

inal proceeding. See United States v. Salazar, 489 F.3d 555, 557-58 (2d Cir.

2007).

22

population.” H.R. Rep. No. 115-699, at 22 (2018). In view of

this goal of reducing the prison population, the court is inclined

to read the eligibility provisions narrowly, consistent with its tex-

tual interpretation, to exclude only the individuals reasonably

included in the text.

This court is persuaded, after applying the traditional canons of

. statutory construction to interpret the ambiguity in the text, that

the eligibility provision is intended to apply specifically to indi-

viduals who were convicted of the penalty enhancement

contained in 21 U.S.C. § 841(b)(1)(C). Petitioner was not. Ac-

cordingly, the court finds that the BOP has violated the First Step

Act by failing to award Petitioner earned time credits,

b. Conspiracy

Because the court -has found that 18 USC §

3632(d)(4) (D) (viii) applies only to the penalty enhancement

contained in 21 U.S.C. § 841(b)(1)(C), and Petitioner was not

convicted of the penalty enhancement, the court need not reach

8 A Report from the Judiciary Committee addressing the need for the

FSA explains that: — -

BOP has a growing prison population that, because of its rising costs,

is becoming a real and immediate threat to public safety. The growing

prison budget is consuming an ever-increasing percentage of the De-

partment of Justice’s budget. According to the Statement of the

Department's Inspector General before Congress on March 14, 2013,

concerning oversight of the Department of Justice: “it is clear that

something must be done... the Department cannot solve this chal-

lenge by spending more money to operate more federal prisons unless

. it is prepared to make drastic cuts to other important areas of the De-

partment’s operations.”

E.R. Rep. No. 115-699, at 23 (2018).

23

the question of whether this FSA eligibility provision applies to

convictions for conspiracy under 21 U.S.C. § 846.7

E. The Accardi Principle

Petitioner contends that Respondents violated the principle set

forth in Accardi v. Schaughnessy, which is that the BOP must fol-

low its own regulations, procedures, and policies. See 347 U.S.

260 (1954). She argues that the BOP failed to follow its regula-

tions when it refused to award her earned FSA credits. However,

Petitioner has not identified any regulations that the BOP has

purportedly failed to follow. Even if she had, Petitioner’s Accardi

claim is now moot, “as the only relief to which she would be en-

titled were she to prevail on that claim’—to compel the BOP

award her credit—-has been ordered as to her First Step Act

claim. See Tompkins v. Pullen, 22-CV-339 (OAW), 2022 WL

3212368, at *15 (D. Ct. Aug. 9, 2022).

9 The court notes that the Tenth Circuit very recently appears to have been

the first court to address the issue of whether a conviction under 21 U.S.C,

§ 846 would render a defendant ineligible for FSA credits under a similar

ESA eligibility provision involving conduct under 21 U.S.C. § 841(b)(4).

See Noe v. True, No. 21-1373, 2022 WL 5080196 (10th Cir, Oct. 5, 2022).

The Tenth Circuit held that a “conspiracy conviction under § 846 does not

equate to [a defendant] serving a sentence for a conviction under §

841(b) (1) (A), pursuant to § 3632(d) (4) (D) Cxvii).” Id. at *10.

. 24

IV. CONCLUSION

For the reasons stated above, Petitioner’s motion for reconsider-

ation is DENIED, and her Second Petition is GRANTED as to her

First Step Act claim and DENIED as to her Accardi claim. The BOP

is directed to award Petitioner the FSA credits that she is entitled

to, which should result in her immediate release to supervised

release, and to apply the remaining credits to reduce her time on

supervised release.

SO ORDERED.

Dated: Brooklyn,New York

October 13, 2022

s/Nicholas G. Garaufis

NICHOLAS G. GARAUFIS

United States District Judge