United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM AND ORDER
A. TRAUGER UNITED STATES DISTRICT JUDGE.
defendant, Antonio Witherspoon, pled guilty to conspiring to
distribute, and to possess with intent to distribute, less
than 500 grams of cocaine as part of a plea agreement under
Rule 11(c)(1)(B) of the Federal Rules of Criminal Procedure.
(Doc. No. 362 at 4-5; Doc. No. 363.) On March 8, 2018, this
court sentenced the defendant to a term of 70 months'
imprisonment in the custody of the Bureau of Prisons (BOP),
to be followed by three years of supervised release. (Doc.
before the court is the defendant's Motion Requesting a
Judicial Recommendation Concerning Length of RRC/Halfway
House Placement. (Doc. No. 378.) Specifically, the defendant
requests that the court issue a non-binding recommendation to
the BOP that he be provided with time at a Residential
Reentry Center (“RRC”)/halfway house under the
Second Chance Act of 2008, in addition to the six months of
home confinement the BOP has deemed him eligible for, so that
he will spend a total of “at least 270 days of
RRC/Halfway house placement or home confinement, ”
beginning “in July of this year.” (Id.
at 3.) The Government has not filed a response to
the defendant's motion. For the following reasons, the
motion will be denied.
to 18 U.S.C. § 3621, the BOP “shall designate the
place of the prisoner's imprisonment” based on its
consideration of multiple factors, most of which are specific
to the individual prisoner. 18 U.S.C. § 3621(b). Under
the Second Chance Act, which amended 18 U.S.C. §
3624(c)(1), the BOP Director “shall, to the extent
practicable, ensure that a prisoner serving a term of
imprisonment spends a portion of the final months of that
term (not to exceed 12 months), under conditions that will
afford that prisoner a reasonable opportunity to adjust to
and prepare for the reentry of that prisoner into the
community.” Id. § 3624(c)(1); see
Demis v. Sniezek, 558 F.3d 508, 513-14 (6th Cir.
2009) (stating that Second Chance Act amended § 3624(c)
to authorize BOP to consider alternative placement “for
up to the final 12 months of his or her sentence, rather than
the final six months that were available
pre-amendment”) (citation omitted). “Such
conditions may include a community correctional facility,
” 18 U.S.C. § 3624(c)(1), such as an RRC or
halfway house, or home confinement. However, a prisoner may
only be placed in home confinement “for the shorter of
10 percent of the term of imprisonment of that prisoner or 6
months.” Id. § 3624(c)(2).
to the administrative regulations accompanying the Second
Chance Act, the decision to place an inmate in pre-release
community confinement is discretionary and will be determined
on an individual basis according to the factors in 18 U.S.C.
§ 3621(b).” Lovett v. Hogsten, No.
09-5605, 2009 WL 5851205, at *1 (6th Cir. Dec. 29, 2009)
(internal quotation marks and citation omitted). One of the
factors that the BOP considers under § 3621(b) is
“any statement by the court that imposed the sentence .
. . recommending a type of penal or correctional facility as
appropriate.” 18 U.S.C. § 3621(b)(4)(B).
the defendant contends that allowing him to finish his
sentence by adding at least three months in an RRC to the six
months of home confinement he is scheduled to serve will aid
his reentry into society. The court appreciates the
defendant's apparent compliance with prison rules and
efforts for self-improvement while incarcerated,
does not doubt that his motion is motivated by an earnest
desire to maximize his chances of successful reentry into
society. Nonetheless, he reports that he is requesting the
court's recommendation because, although the BOP
“usually provide[s] at least 6 months of RRC/Halfway
house” time, he has been informed that it will not do
so in his case. (Doc. No. 378 at 3.)
BOP, not the court, is in the best position to evaluate the
appropriate place for the defendant to serve his sentence.
The BOP has evidently deemed it appropriate to limit the
defendant's transitional time to a six-month period of
home confinement, without any additional placement in an RRC
or halfway house. Regardless of the defendant's
eligibility under the Second Chance Act to serve up to twelve
months of his sentence outside of the federal facility where
he currently resides, and his quarrel with the sufficiency of
the shorter time the BOP has decided to allow (Doc. No. 378
at 2), the court will not second-guess the BOP's judgment
with a post hoc recommendation that it increase to 270 the
number of days the defendant serves outside of the prison.
See Lovett, 2009 WL 5851205, at *2 (“[T]he
Second Chance Act does not guarantee a one- year RRC
placement, but only directs the Bureau of Prisons to consider
placing an inmate in a RRC for up to the final
twelve months of his or her sentence.” (citing
Demis, 558 F.3d at 514)); see also United States
v. Statzer, No. 1:08CR024-020, 2016 WL 5940926, at *1
(W.D. Va. Oct. 13, 2016) (“The BOP has sole discretion
in deciding whether to place a prisoner in a halfway house,
and if so, for how long.” (citing Woodall v. Fed.
Bureau of Prisons, 432 F.3d 235, 251 (3d Cir. 2005))).
extent that the defendant seeks to challenge the
determination of the BOP regarding the execution of his
sentence, the proper vehicle is a petition under 28 U.S.C.
§ 2241. Sullivan v. United States, 90 Fed.Appx.
862, 863 (6th Cir. 2004) (citations omitted). The proper
court in which to file a § 2241 petition is “the
court having jurisdiction over the prisoner's custodian,
” Charles v. Chandler, 180 F.3d 753, 756 (6th
Cir. 1999) (citations omitted), and the defendant is
currently incarcerated at the Federal Correctional
Institution in Manchester, Kentucky. (Doc. No. 378 at 1.)
Thus, to the extent that the defendant's motion could be
construed as a challenge to the BOP's determination
regarding the execution of his sentence, it is not in the
proper format or in the proper judicial district.
the defendant's motion (Doc. No. 378) is
 The defendant is set to be released
from confinement on March 19, 2020, and his “home
detention eligibility date” is listed as September 19,
2019 on a printout attached to his motion. (Doc. No. 378 at
 The defendant has attached an exhibit
to his motion reflecting that he has taken several vocational
classes and received his GED (Doc. No. 378 at 7), and he
otherwise reports that he has taken drug and alcohol classes,
held a job and completed additional job training, maintained
“a good rapport with the unit ...