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United States v. Richey

United States District Court, E.D. Kentucky, Central Division

June 4, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
PEGGY RICHEY, Defendant.

          MEMORANDUM OPINION AND ORDER

          JOSEPH M. HOOD, SENIOR U.S. DISTRICT JUDGE

         This matter is before the Court on the Defendant Peggy Richey's sealed motion. [DE 115]. On May 8, 2019, the Court received the pro se motion from Richey, which contained sensitive personal health information, requesting the Court “recommend” to the Bureau of Prisons (“BOP”) that she be placed in a halfway house or otherwise on home confinement. [DE 115]. The Court then ordered the Clerk to file the motion under seal, and directed Plaintiff, United States of America (“United States”), to file a response to the sealed motion on or before Thursday, May 23, 2019. [Id.]. The United States responded on June 3, 2019. [DE 117]. Having reviewed Richey's Motion [DE 115], the United States' response, and the Court being otherwise sufficiently advised, IT IS ORDERED that Richey's motion be DENIED.

         On March 27, 2017, Richey pleaded guilty to violating 18 U.S.C. § 373, for solicitation to commit a crime of violence. [DE 95]. In particular, Richey admitted to soliciting a cooperating witness to use force against an individual who was to be a witness against the co-defendant, Brian K. Shelton. [DE 95]. This included providing the cooperating witness with an AR-15 rifle and cash. [Id.]. As a result, Richey was sentenced to forty-eight (48) months imprisonment followed by three (3) years of supervised release. [DE 110].

         Richey now moves this Court for a recommendation to the BOP, suggesting that Richey be placed in a halfway house or otherwise in home confinement due to her own health concerns and those of her family. [DE 115]. Richey correctly states that, pursuant to 18 U.S.C. § 3624(c)(1), the BOP has the authority to assign an inmate to a halfway house within the last twelve (12) months of his or her term of imprisonment. [Id.]. Richey claims her release date is October 23, 2020, and therefore the BOP should place her in a halfway house. [Id.]. To reach her objective, Richey has asked this Court to recommend the Director of the BOP do so.

         The language of 18 U.S.C. § 3624(c)(1) provides:

The Director of the Bureau of Prisons 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. Such conditions may include a community correctional facility.

         The plain language of 18 U.S.C. § 3624(c)(1) requires the Director of the BOP, to the extent practicable, to place prisoners meeting certain requirements in community correctional facilities. Id. In deciding such placement, the BOP considers a variety of factors, including “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). This Court sentenced Richey, [DE 115], and therefore is entitled to make a recommendation to the BOP regarding the appropriate type of penal or correctional facility for Richey pursuant to 18 U.S.C. § 3621(b)(4)(B).

         While the BOP must consider “any statement” the sentencing court makes “recommending a type of penal or correctional facility...[, ]” the final decision ultimately lies with the BOP. See 18 U.S.C. § 3621(b)(4)(B); see also, Carter v. United States, No. 17-C-1325, Crim. Action No. 14-CR-150, 2018 WL 2376513, at *2 (E.D. Wisc. May 24, 2018). As a result, any recommendation under 18 U.S.C. § 3621(b)(4)(B) would be merely advisory.

         The United States argues that the Court should make no such recommendation. [DE 117]. In particular, the United States claims, among other things, that the BOP is in the best position to make a decision regarding Richey's placement within the prison system, including whether she should be placed in a halfway house or on home confinement as she requests. [Id. at 4, PageID #365]. In addition, the United States argues that Richey's criminal conduct was violent and rare, and therefore she is not worthy of a recommendation from this Court absent some other fact. [Id.]

         To the extent the United States argues that the BOP is in a better position to make a decision about Richey's placement, this Court agrees. Even though the court has authority to issue a non-binding recommendation, 18 U.S.C. § 3621(b)(4)(B), Congress has specifically entrusted such decisions to the BOP, 18 U.S.C. § 3624(c)(1), which is best suited to consider the prisoner's adjustment, his current treatment needs, the available resources, and the other relevant considerations. See Carter, 2018 WL 2376513 at 3. Moreover, BOP is also better positioned to determine which of the prisoners under its control are most deserving of such placement. Id. Like the Carter court “...this court can only act on a case-by-case basis, based on dated information, and has little insight to offer.” Id. As a result, this Court declines to recommend Richey be placed in a halfway house or home confinement.

         Accordingly, and for the foregoing reasons, IT IS ORDERED that Richey's sealed motion [DE 115] ...


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