# Lallave v. Carvajal

> District Court, E.D. New York · October 13, 2022

URL: https://www.frixlaw.com/law-library/cases/10308884

## Case

- **Court:** District Court, E.D. New York
- **Decided:** October 13, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10308884

## How later opinions describe it (automated extraction)

- 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”
- finding that “venue and subject-matter jurisdiction are not con- cepts of the same order”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10308884. Public record. Not legal advice.