United States District Court, W.D. Kentucky, Louisville
MEMORANDUM OPINION AND ORDER
B. Russell, Senior Judge.
matter is before the Court upon Defendant Justin
McGimsey's pro se “Motion for Reduction of
Sentence and for Other Relief Pursuant to the First Step Act
of 2018” (DN 58). Fully briefed, this matter is ripe
for adjudication. For the reasons set forth below, the Court
will deny this motion.
August 27, 2012, McGimsey pleaded guilty to possessing and
transporting child pornography in violation of federal law.
On March 4, 2013, the Court sentenced McGimsey to a 96-month
term of imprisonment, to be followed by a 10-year term of
supervised release. McGimsey is currently projected for
release from incarceration on August 13, 2019.
First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194
(“the FSA” or “the Act”) was signed
into law on December 21, 2018. The FSA implements certain
reforms to the criminal justice system. Pursuant to the Act,
McGimsey seeks an order reducing his sentence; directing the
Federal Bureau of Prisons (BOP) to immediately recalculate
his sentencing credits and apply them to his supervised
release and home confinement dates; and directing the BOP to
immediately release him to home confinement. The Court will
address each request in turn, in light of the provisions of
Reduction in Sentence
beginning of his motion, McGimsey generally requests that the
Court reduce his sentence pursuant to the Act. The United
States argues that nothing in the FSA calls for a reduction
in sentences for offenders convicted of child pornography
offenses. The Court agrees. The FSA effectively makes the
provisions of the Fair Sentencing Act of 2010 retroactive to
defendants who were sentenced prior to August 3, 2010. This
means that it allows courts to reduce the sentences of
defendants with crack cocaine convictions as if the Fair
Sentencing Act were in effect at the time a defendant's
offense was committed. See Section 404(a) of the FSA
(Application of Fair Sentencing Act). Because McGimsey does
not have a crack cocaine conviction, the Court does not have
jurisdiction to reduce his sentence under the FSA.
Recalculation of Good-Time Credits
Court next turns to McGimsey's request that the Court
direct the BOP to award him “sentencing credits”
in accordance with the provisions of the FSA. Section
102(b)(1) of the FSA amended 18 U.S.C. § 3624(b) to
change the manner in which such credits are calculated by
increasing the maximum allowable good-conduct time from 47 to
54 days per year. According to McGimsey, this means that he
is entitled to a supervised release start date of June 18,
2019, and that he became eligible for home confinement on
December 18, 2018.
response, the United States argues that this provision of the
FSA is not yet in effect. It specifically points to Section
102(b)(2) of the FSA, which provides that the amendments made
in Section 102(b) of the Act take effect only when the
Attorney General completes the “risk and needs
assessment system” required by Section 101(a) of the
Act. Section 101(a) does not require completion of the system
until 210 days after the Act's enactment. Thus, the
United States argues that Section 102(b)(1) will not take
effect until approximately July 2019.
indeed, several courts have rejected arguments like the one
made by Defendant, which is that he is entitled to the
immediate recalculation of good-time credits since his
release date is imminent, because the relevant provisions of
the FSA have not yet gone into effect. See, e.g.,
United States v. Smith, No. 1:14CR232, 2019 U.S.
Dist. LEXIS 64232, at *3 n.1 (N.D. Ohio Apr. 19, 2019);
Johnson v. Bureau of Prisons, No. 4:19-CV-224-O,
2019 U.S. Dist. LEXIS 62448, at *4 (N.D. Tex. Apr. 11, 2019);
United States v. Powell, No. 5:11-cr-75-JMH-1, 2019
U.S. Dist. LEXIS 60012, at *5-6 (E.D. Ky. Apr. 8, 2019);
Roy v. United States Bureau of Prisons, No.
2:19-CV-59-RMP, 2019 U.S. Dist. LEXIS 56064, at *3-4 (E.D.
Wash. Apr. 1, 2019); Nichols v. Burch, No. CV
19-00076-TUC-RM (BGM), 2019 U.S. Dist. LEXIS 41595, at *3-4
(D. Ariz. Mar. 12, 2019); Sheppard v. Quintana, No.
5:19-084-DCR, 2019 U.S. Dist. LEXIS 37297, at *4-5 (E.D. Ky.
Mar. 8, 2019); Molina v. Underwood, No.
3:19-CV-641-K-BN, 2019 U.S. Dist. LEXIS 61707, at *3-4 (N.D.
Tex. Mar. 19, 2019), report and recommendation
adopted, 2019 U.S. Dist. LEXIS 60712 (N.D. Tex. Apr. 9,
2019); Kornfeld v. Puentes, No. 1:19-CV-00263-JLT
(HC), 2019 U.S. Dist. LEXIS 33298, at *7 (E.D. Cal. Mar. 1,
2019) (findings and recommendation).
even if McGimsey's request for the recalculation of his
sentencing credits was not premature, the Court could not
grant Plaintiff the relief he seeks because federal district
courts do not determine the appropriate credit for time spent
in official detention. United States v. Wilson, 503
U.S. 329, 333 (1992). Instead, this responsibility lies with
the Attorney General who has delegated the authority to the
BOP. See 28 C.F.R. § 0.96 (“The Director
of the Bureau of Prisons is authorized to exercise or perform
the authority, functions, or duties conferred or imposed upon
the Attorney General by any law relating to the commitment,
control, or treatment of persons . . . charged with or
convicted of offenses against the United States . . .
.”); see also Gonzalez v. United
States, 959 F.2d 211, 212 (11th Cir. 1992)
(“Courts have original jurisdiction over imposition of
a sentence. The Bureau of Prisons is, however, responsible
for computing that sentence and applying appropriate good
time credit.”). Once a prisoner has exhausted his
administrative remedies with the BOP, he may then file a
habeas petition pursuant to 28 U.S.C. § 2241. See
Sullivan v. United States, 90 Fed.Appx. 862, 863 (6th
Cir. 2004) (holding that a challenge to the computation of
meritorious good-time credits is properly brought under
§ 2241) (citing Cohen v. United States, 593
F.2d 766, 770-71 (6th Cir. 1979)); see also United States
v. Parrett, No. 01-CR-168-JPS, 2019 U.S. Dist. LEXIS
65113, at *4 (E.D. Wis. Apr. 11, 2019) “[W]hen the
good-time provisions of the [First Step Act] do go into
effect, the proper vehicle for [the prisoner] to use to
request relief (after exhausting administrative remedies)
would be a petition for habeas corpus under . . . §
2241.”); Rizzolo v. Puentes, No.
1:19-CV-00290-SKO (HC), 2019 U.S. Dist. LEXIS 42957, at *4
(E.D. Cal. Mar. 15, 2019) (findings and recommendation)
(reasoning that prisoner properly brought claims under §
2241 based on BOP's purported failure to calculate his
sentence in light of the First Step Act). However, the proper
venue for a § 2241 petition is the judicial district
where the prisoner is confined or his custodian is located.
Braden v. 30th Judicial Circuit Ct., 410 U.S. 484,
495-96 (1973); Roman v. Ashcroft, 340 F.3d 314,
318-20 (6th Cir. 2003); see also Rumsfeld v.
Padilla, 542 U.S. 426, 443 (2004) (holding that, as a
general rule, jurisdiction for a § 2241 petition
“lies in only one district: the district of
Immediate Release ...