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Donald v. Hudgins

United States District Court, D. South Dakota, Southern Division

August 13, 2018

EDWARD DONALD, Petitioner,
v.
WARDEN HUDGINS, F.P.C. YANKTON; Respondent.

          REPORT AND RECOMMENDATION

          VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         This matter is before the court on the pro se petition of Edward Donald, a federal inmate at the Federal Prison Camp at Yankton, South Dakota. See Docket Nos. 1 & 2.[1] Mr. Donald alleges the federal Bureau of Prisons (“BOP”) has failed to correctly calculate his sentence because it has improperly aggregated the sentences contained in the judgments of conviction for the revocation of his supervised release for his 1999 federal criminal case (the Illinois conviction) and his 2010 federal criminal case (the Missouri conviction). Id.

         Mr. Donald argues that because the BOP has aggregated these two sentences, he has been improperly denied eligibility for the possibility of early release through the Residential Drug Abuse Treatment Program (RDAP) provided for through 18 U.S.C. § 3621(e). Docket 2, p. 3, ¶ 13.

         Respondent now moves to dismiss Mr. Donald's petition, or in the alternative, for summary judgment, arguing Mr. Donald's two sentences were properly aggregated and that it has properly calculated Mr. Donald's sentence. See Docket No. 12. In support of his motion to dismiss, the respondent has submitted information and documentation in the form of three declarations addressing Mr. Donald's claims, each with attached exhibits. See declaration of Deborah Colston (Docket 15); declaration of Dr. Erick Henning (Docket 18); declaration of Irena Merk (Docket 19).

         This matter was referred to this magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and the October 16, 2014, standing order of the Honorable Karen E. Schreier, United States District Judge.

         FACTS

         Mr. Donald is currently incarcerated at the Federal Prison Camp in Yankton, South Dakota. He is serving a 144-month aggregated term of imprisonment related to two judgments of conviction.

         In 1999, Mr. Donald was indicted in the United States District Court for the Southern District of Illinois on charges of distribution and possession with intent to distribute cocaine base. See 3:99CR30193-001 (S.D. Ill). On March 24, 2000, Mr. Donald was sentenced to 100 months' imprisonment and 4 years of supervised release on this conviction. On January 5, 2007, Mr. Donald was released from imprisonment via good time conduct and began to serve his 4-year term of supervised release for this conviction. Colston affidavit, Docket 15, ¶ 5; Docket 15-3.

         On April 22, 2010, Mr. Donald was arrested in Missouri for conspiracy to possess with intent to distribute in excess of five kilograms of cocaine and marijuana. He was held in federal custody until he was sentenced on the Missouri federal indictment (4:10-CR49-CDP (E.D. Mo.). Mr. Donald was sentenced in the Missouri case on December 22, 2010. For the Missouri case, Mr. Donald was sentenced to 144 months' imprisonment and 5 years of supervised release. Colston affidavit, Docket 15, ¶ 6-7; Docket 15-3 & 4.

         Also as a result of his arrest and subsequent Missouri drug conviction, on January 11, 2011, Mr. Donald's supervised release from his Illinois conviction was formally revoked via a judgment of conviction for revocation of supervised release in 3:99CR30193-001 (S.D. Ill.). Colston affidavit, Docket 15, ¶ 9; Docket 15-5. On this revocation, Mr. Donald was ordered to serve 24 months' imprisonment, to be served concurrently with the 144 months' imprisonment he was by then already serving for his Missouri conviction. Id.

         In this pending case, the respondent has submitted the affidavit of Deborah Colston, who is employed by the BOP as a Management Analyst at the Designation and Sentence Computation Center (DSCC) located in Grand Prairie, Texas. See Docket 15. Ms. Colston explains that Mr. Donald's 144-month sentence from the Missouri case and his 24-month sentence from the Illinois supervised release revocation have been aggregated pursuant to 18 U.S.C. § 3584(c) and Program Statement 5880.28, and that as a result, the 24-month sentence has been completely “absorbed” into the 144-month sentence. Id. at ¶ 16.

         Ms. Colston has also explained that, as to his aggregated sentences, Mr. Donald has received credit for the time he spent in federal custody after his arrest on federal drug charges on April 22, 2010, until the date he began to serve his sentence on the Missouri conviction. Id. at ¶ 19. Ms. Colston has also explained that, including good time credit, Mr. Donald's current projected release date is October 4, 2020. Id. at ¶ 20.

         Dr. Eric Henning has also submitted a declaration in this matter. Docket 18. Dr. Henning is a Drug Abuse Program Coordinator at the Federal Prison Camp in Yankton, South Dakota, where Mr. Donald is incarcerated. Id., ¶1. Dr. Henning explains there are two separate and distinct eligibility considerations when an inmate applies for RDAP. Docket 18, ¶ 6. First, the inmate must be eligible to participate in RDAP, which requires the inmate to have a verifiable substance abuse disorder; sign an agreement acknowledging program responsibility; and be able to complete all three phases of RDAP. Second, if the inmate is eligible to participate in RDAP, the Designation and Sentence Computation Center (DSCC) staff will determine whether the inmate is eligible to receive early release for successful completion of RDAP under 18 USC § 3621(e)(2)(B). Henning affidavit, Docket 18, ¶ 7. Inmates who do not qualify for early release may nonetheless still participate in the program if they are eligible to do so. Id. In other words, denial of early release eligibility does not deny the inmate access to RDAP. Id. Dr. Henning explains that Mr. Donald did participate for a time in the RDAP program that Dr. Henning oversaw. Docket 18, ¶ 8. On March 20, 2017, however, Mr. Donald voluntarily withdrew from the RDAP program. He declined an invitation to re-join the group on June 7, 2017, and January 9, 2018, when invited to do so by Dr. Henning. Id. at ¶ 10.

         Ms. Irena Merk is a paralegal specialist at the Designation and Sentence Computation Center (DSCC) in Grand Prairie, Texas. Merk affidavit, Docket 19, § 1. Ms. Merk provided information in her affidavit regarding how Mr. Donald's potential eligibility for early release pursuant to RDAP was determined.

         Ms. Merk clarifies she does not address Mr. Donald's eligibility to participate in RDAP, but rather she solely addresses Mr. Donald's potential eligibility for early release for successful completion of RDAP pursuant to 18 USC § 3621(e)(2)(B). Docket 19, ¶ 3.

         Ms. Merk explains that as required by 18 U.S.C. § 3584(c), Mr. Donald's sentences for the violation of the conditions of his supervised release in 3:99CR30193-001 (S.D. Ill.) and his new sentence for 4:10-CR49-CDP (E.D. Mo.) were aggregated and treated by the BOP as a single aggregate term of imprisonment. Merk affidavit, Docket 19, ¶ 8. Both sentences, therefore, are considered by the BOP to be “current offenses.” Id. (emphasis added). Therefore, Mr. Donald is currently serving an aggregate 144-month term of imprisonment for his current convictions. Id.; Docket 19-2.

         For inmates who successfully complete RDAP, the institution's Drug Abuse Program Coordinator (DAPC) conducts a preliminary review to determine if there are any reasons the inmate is ineligible for early release under § 3621(e)(2)(B). If not, the DAPC requests an offense review from the DSCC Legal Department. Merk affidavit, Docket 19, ¶ 12.

         The DSCC completes an offense review in accordance with applicable federal regulations and Program Statement 5162.05 Categorization of Offenses. See 28 C.F.R. § 550.55(b)(4)-(6); see also Program Statement 5162.05, Categorization of Offenses (Docket 19-8). To conduct this review, the DSCC Legal Department determines whether the inmate is precluded from receiving early release after reviewing the inmate's DSCC-maintained electronic sentence computation file, which includes the Judgment and Commitment Order, Statement of Reasons, Pre-Sentence Investigation Report, and any other relevant sentencing documentation. Docket 19, ¶ 14. The final decision regarding early release eligibility under 18 U.S.C. § 3621(e) is then transmitted back to the requesting DAPC. Id.

         More specifically, in evaluating whether an inmate is eligible for early release under 18 U.S.C. § 3621(e), the DSCC Legal Department engages in a two-step analysis. The first step of the analysis involves determining whether any of the inmate's current offenses of conviction preclude early release. The second step involves evaluating whether any prior offenses preclude early release. Docket 19, ¶ 15.

         For the first step, if a current offense (1) satisfies the criteria in 28 C.F.R. § 550.55(b)(5) and/or 28 C.F.R. § 550.55(b)(6), [2] and (2) is listed in one of the sections of Program Statement 5162.05, then that current offense precludes early release eligibility. Under § 550.55(b)(5), inmates are precluded from early release eligibility if they have a current felony conviction for:

(i) An offense that has as an element, the actual, attempted, or threatened use of physical force against the person or property of another;
(ii) An offense that involved the carrying, possession, or use of a firearm or other dangerous weapon or explosives (including any explosive material or explosive device);
(iii) An offense that, by its nature or conduct, presents a serious potential risk of physical force against the person or property of another; or
(iv) An offense that, by its nature or conduct, involves sexual abuse offenses committed upon minors.

Docket 19, ¶ 16.

         For the second step, all of the inmate's prior adult felony and misdemeanor convictions that occurred within ten years prior[3] to the date of sentencing for the inmate's current federal offense of conviction are reviewed in order to determine whether any conviction constitutes one of the enumerated offenses listed in 28 C.F.R. § 550.55(b)(4), and/or whether a conviction falls under 28 C.F.R. § 550.55(b)(6) for constituting “an attempt, conspiracy, or solicitation to commit” any offense listed in 28 C.F.R. § 550.55(b)(4).

         Under § 550.55(b)(4), inmates are precluded from early release eligibility if they have a prior felony or misdemeanor conviction for:

(i) Homicide (including deaths caused by recklessness, but not including deaths caused by negligence or justifiable homicide;
(ii) Forcible rape;
(iii) Robbery;
(iv) Aggravated assault;
(v) Arson;
(vi) Kidnapping; or
(vii) An offense that by its nature or conduct involves sexual abuse offenses ...

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