United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
B. Russell, Senior Judge United States District Court
matter is before the Court upon Defendant Adam
Saeed-Watara's pro se “expedited motion
for immigration departure.” [DN 136.] The United States
has responded, [DN 137], and the time for filing a reply has
passed. Defendant's motion is ripe for adjudication, and
for the following reasons, it is DENIED.
a 2010 jury trial, Defendant Saeed-Watara was found guilty of
one count of conspiracy to possess heroin with intent to
distribute. [DN 70.] He was initially sentenced to 121
months' imprisonment, and his conviction was upheld on
direct appeal. [DN 78; DN 94.] This Court similarly denied
Defendant's motion to vacate his sentence under 28 U.S.C.
§ 2255, but did reduce his sentence by one month
pursuant to the retroactive application of an adjustment in
the applicable sentencing guidelines. [DN 107; DN 129.]
now moves this Court to reduce his sentence by up to six
months because as a deportable alien, he is ineligible for
community confinement under 18 U.S.C. § 3624(c). That
statute authorizes the Bureau of Prisons (BOP) to allow a
prisoner to spend the last portion of his sentence in a
community correctional facility or under home confinement. 18
U.S.C § 3624(c). But as Defendant admits and other
courts have recognized, BOP regulations do not ordinarily
allow deportable aliens to be placed in community
confinement. United States v. Soto, 976 F.Supp.
1367, 1368 (D. Ore. 1997); Lartey v. U.S. Dep't of
Justice, 790 F.Supp. 130, 133 (W.D. La. 1992).
Additionally, deportable aliens are not eligible to be housed
in minimum-security prisons. United States v.
Ebolum, 72 F.3d 35, 38 (6th Cir. 1995). Defendant argues
that because he is ineligible for these preferred placements,
this Court should reduce his sentence so that his punishment
is not more severe than it would otherwise be if he was a
United States citizen.
this Court does not possess the necessary jurisdiction to
entertain Defendant's motion. District courts may modify
a defendant's sentence after it has been imposed under
only the limited set of circumstances set out in 18 U.S.C.
§ 3582(c). None of those circumstances apply
here. Furthermore, none of the statutes
referenced by Defendant vest this Court with jurisdiction to
modify his sentence. 8 U.S.C. § 1252 pertains only to
judicial review of orders of removal. But here, Defendant is
seeking a sentence reduction, not a change in his status as a
deportable alien. Similarly, 28 U.S.C. §§ 2201 and
2202 grant the Court jurisdiction to hear declaratory
judgment actions, and do not apply to the case at bar.
cases cited by Defendant in support of his motion are also
readily distinguishable. The D.C. Circuit held in United
States v. Smith, 27 F.3d 649, 650 (D.C. Cir. 1994) that
the sentencing court “may depart below the range
indicated by the Sentencing Guidelines where the defendant,
solely because he is a deportable alien, faces the prospect
of objectively more severe prison conditions than he would
otherwise.” But while Smith authorizes a court
to make such a departure at sentencing, it does not vest the
court with jurisdiction to modify an already-imposed sentence
when the applicable statute does not provide for that type of
adjustment. What's more, Smith falls on the
defendant-friendly side of an unresolved circuit split
regarding whether immigration-related departure is available.
Compare Id. with United States v. Restrepo, 999 F.2d
640, 645-47 (2d Cir. 1993) (deportable alien status not a
proper basis for departing downward). The Sixth Circuit,
however, “ha[s] not taken a position on whether
deportable alien status could be a basis for
departure.” United States v. Mendez, 362 F.
App'x 484, 488 n.4 (6th Cir. 2010). Rather, in this
Circuit, the sentencing court may conclude that
“potential deportation and fewer prison opportunities
should be a reason for downward variance . . . [or] that a
person granted the benefit of entry to the country should be
subject to an upward variance for abusing the privilege,
” based upon the facts of the individual case.
United States v. Petrus, 588 F.3d 347, 356 (6th Cir.
2009). Therefore, even if this Court were empowered to grant
the departure that Defendant seeks, it would be
discretionary, not mandatory.
mandatory, however, is the length of Defendant's
sentence. As the Sixth Circuit has recognized, the jury
convicted Defendant of conspiring to possess with intent to
distribute one kilogram or more of heroin, a crime that
carries with it a ten-year mandatory minimum under 21 U.S.C.
§ 841(b)(1)(A). United States v. Saeed-Watara,
638 F. App'x 483, 484 (6th Cir. 2016). This Court has
already reduced Defendant's sentence to 120 months - the
lowest figure possible under the statute. In other words, no
further downward departure is possible.
to 18 U.S.C. § 3582(c), this Court is without
jurisdiction to entertain Defendant's motion for a
reduction in his sentence. Moreover, even if this Court did
possess the necessary jurisdiction, the adjustment Defendant
seeks is discretionary, and could not be applied in this case
because Defendant is currently serving a 120-month mandatory
minimum sentence. Therefore, for the foregoing reasons, IT IS
Adam Saeed-Watara's motion for downward departure [DN
136] is DENIED.
 Defendant, not the Director of the
Bureau of Prisons, made the instant motion, so 18 U.S.C.
§ 3582(c)(1)(A) does not apply. Section 3582(c)(1)(B)
does not apply because neither another statute nor Federal
Rule of Criminal Procedure 35 permits the type of sentence
modification Defendant seeks. And Defendant is not moving for
a reduction in sentence based upon a ...