United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
Toby Magnuson filed a motion asking the court to request the
United States Bureau of Prisons (“BOP”)
reconsider its denial of a sentence reduction for having
successfully completed the substance abuse treatment program.
Defendant file a separate motion asking the court to make a
judicial recommendation to BOP for placement of Mr. Magnuson
in a residential reentry program for 12 months. (Dockets 66
& 67). The government opposes both motions. (Docket 70).
For the reasons stated below, defendant's motions are
MOTION FOR SENTENCE REDUCTION
August 15, 2016, Mr. Magnuson was sentenced to 72 months
custody for attempted trafficking in involuntary servitude or
forced labor in violation of 18 U.S.C. §§ 1590(a)
and 1594(a). (Docket 62). At the time of sentencing the court
found Mr. Magnuson was “convicted of a nonviolent
offense.” Id. at p. 2. Based on that finding,
the court recommended to the BOP that defendant's
“history of substance abuse indicates the defendant
would be an excellent candidate for the Bureau of
Prisons' substance abuse treatment program. It is
recommended the defendant be allowed to participate in that
program and, if successful, the term of incarceration be
reduced accordingly.” Id.
government contends the court's finding was not binding
on the BOP as Mr. Magnuson was convicted of § 1590, with
the underlying offense being § 1591. (Docket 70 at p.
2). The government submits defendant “was categorically
denied early release pursuant to valid BOP policy.”
Id. at p. 4. That policy, according to the
government, permits the BOP to deny early release
“based on the pre-conviction conduct.”
Id. (citing Lopez v. Davis, 531 U.S. 230,
the complaint (Docket 1) and the indictment (Docket 21 at p.
1) charged Mr. Magnuson with attempted commercial sex
trafficking of children in violation of 18 U.S.C.
§§ 1591(a)(1) and 1594(a). The BOP categorized a
violation of § 1591 as a crime of violence. See
BOP Categorization of Offenses, P5162.05 at p.
Categorical denial of early release based on pre-conviction
behavior is a “manifestly permissible construction of
the statute and an appropriate exercise of BOP's
discretion.” Lopez, 531 U.S. at 237. BOP is
not bound by the court's recommendation of early release
upon Mr. Magnuson's successful completion of the
substance abuse treatment program. 18 U.S.C. § 3621(b).
motion (Docket 66) is denied.
MOTION FOR RESIDENTIAL PLACEMENT
Magnuson moves the court pursuant to 18 U.S.C. §
3621(b)(4) for a judicial recommendation to BOP for placement
in a residential reentry program for 12 months. (Docket 67).
Mr. Magnuson argues a recommendation of residential placement
is appropriate because of “all the positive
steps” he has taken “toward rehabilitation while
incarcerated.” Id. at p. 3. Mr. Magnuson notes
his good conduct while incarcerated, his expression of
remorse and his desire to be placed near his family where
“[h]e will return to full time employment, being a
member of the Union, employed as a
Journeyman/Millwright.” Id. at p. 4. Mr.
Magnuson “believes himself to be a good candidate for
successful rehabilitation.” Id. at p. 5.
government opposes the motion. (Docket 70 at pp. 9-12). The
government contends “it is unclear what Magnuson's
standing is related to an 18 U.S.C. § 3624(c)(1) review
or request. [He] is not scheduled for release from BOP until
August 22, 2021, and . . . has not provided any proof showing
he has received a final determination regarding RRC
[residential reentry center] referral.” Id. at
p. 10. Further, the government argues Mr. Magnuson has made
“no showing that he exhausted” the administrative
remedies regarding any BOP decision. Id. at p. 12.
reply, Mr. Magnuson argues BOP policies now require
“that inmates be reviewed for pre-release Residential
Reentry Centers (RRC)/Halfway House placements 17-19 months
before their projected release dates.” (Docket 73 at p.
2 (referencing Brown v. Warden Fairton FCI, 617
Fed.Appx. 117, 118 (3d Cir. 2015); Amimazmi v.
Scism, Civil No. 3:11-CV-273, 2011 WL 1743846, at *5
(M.D. PA May 5, 2011)). Mr. Magnuson submits the
“regulations were issued so that placement in a
community correctional facility by the BOP is conducted in a
manner consistent with 18 U.S.C. § 3621(b).”
Id. at p. 3 (referencing 28 CFR § 570.22).
Magnuson's reliance on § 3621 is misplaced.
Subsection (b) specifically states that “[a]ny order,
recommendation, or request by a sentencing court that a
convicted person serve a term of imprisonment in a community
corrections facility shall have no binding effect on
the authority of the Bureau under this section to determine
or change the place of imprisonment of that person.” 18
U.S.C. § 3621(b) (emphasis added).
reliance on § 3624(c)(1) is similarly misplaced. That
section permits BOP to determine a prisoner's RRC
placement in a range of one month up to twelve months and
leaves to the discretion of the Director of the BOP what
period of time “will afford that prisoner a reasonable
opportunity to adjust to and prepare ...