United States District Court, D. South Dakota, Southern Division
REPORT AND RECOMMENDATION
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE.
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 &
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.
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.
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).
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.
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
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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),  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.
second step, all of the inmate's prior adult felony and
misdemeanor convictions that occurred within ten years
prior 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), inmates are precluded from early release
eligibility if they have a prior felony or misdemeanor
(i) Homicide (including deaths caused by recklessness, but
not including deaths caused by negligence or justifiable
(ii) Forcible rape;
(iv) Aggravated assault;
(vi) Kidnapping; or
(vii) An offense that by its nature or conduct involves
sexual abuse offenses ...