United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
matter comes before the court on defendant Joshua George
Baker's pro se “Motion for a Post Sentencing
Judicial Recommendation to the Federal Bureau of
Prisons” (Doc. 28). For reasons described below, the
court denies Mr. Baker's motion.
7, 2016, Mr. Baker entered a plea agreement under Rule
11(c)(1)(C), pleading guilty to a firearm possession crime,
18 U.S.C. § 922(g). His binding plea agreement included
a jointly recommended sentence: a prison sentence lasting no
longer than 57 months; three years of supervised release; no
fine; and the mandated special assessment of $100. Doc. 22 at
September 12, 2016, the court accepted Mr. Baker's plea
agreement and sentenced him-consistent with the Plea
Agreement-to 57 months in prison, among the other
above-referenced components. Doc. 25 & 26. At Mr.
Baker's request, the court recommended that Mr.
participate in the Residential Drug Abuse Program
(“RDAP”) and that the Bureau of Prisons designate
him to its facility in Oxford, Wisconsin. Doc. 26 at 2.
“Motion for a Post Sentencing Judicial Recommendation
to the Federal Bureau of Prisons” (Doc. 28)
motion, Mr. Baker asks the court to amend its sentence to
include a “Post-sentencing recommendation in an order
to the B.O.P. that he receive 9 to 12 months of halfway house
placement in accordance with the Second Chance Act.”
Doc. 28 at 1. He requests this amendment, he says, because he
“needs the halfway house amount requested to find a
job, transportation, housing, etc.” Id.
court construes this filing as a motion to amend the
judgment, or, alternatively, for a supplemental
recommendation by the court made outside the judgment.
See United States v. Grant, No. 5:14-CR-296-FL-1,
2017 WL 2799851, at *1 (E.D. N.C. June 28, 2017) (construing
defendant's motion for recommendation about length of
placement in residential re-entry center or home confinement
as a motion to amend the judgment, or for a supplemental
recommendation outside the judgment); see also United
States v. Galindo, No. 2:13-CR-73-FTM-38CM, 2017 WL
3499254, at *2 (M.D. Fla. Aug. 16, 2017) (construing
defendant's motion for order recommending RRC placement
as a motion requesting a supplemental recommendation and
noting that “[t]o the extent that [defendant] seeks the
Court to amend the judgment, it has no basis to do so under
the circumstances presented.”).
the court has no authority or basis to amend the judgment.
Except in limited situations, a federal statute prohibits the
court from modifying a term of imprisonment once the court
has imposed it. 18 U.S.C. § 3582(c). The exceptions are
limited to a motion made by the BOP, lowering of the relevant
guideline range by the United States Sentencing Commission,
and other circumstances explicitly described by Fed. R. Crim.
P. 35. Id.; see also Grant, 2017 WL
2799851, at *1. None of these exceptions apply here.
Baker's motion asserts that 18 U.S.C. § 3621
authorizes the court to make a recommendation in
circumstances like his. Doc. 28 at 1. Yet he never identifies
the words in this statute purportedly conferring this
authority on the court. Indeed, he never even identifies the
subsection of § 3621. The court has reviewed § 3621
carefully and simply disagrees with Mr. Baker's
construction of it.
Baker also asserts that “numerous cases have granted
such recommendations, ” Doc. 28 at 1, and then cites
four cases. The court has reviewed three of the four cases
that Mr. Baker cites. And, indeed, the judges in those three
cases decided to make a recommendation similar to the one
finally, Mr. Baker asserts that “the following behavior
and accomplishments while incarcerated indicate significant
positive change . . . and that he is deserving of the amount
of halfway house” requested by his motion. While the
court sincerely hopes Mr. Baker has made the progress he
reports, his motion provides nothing more to support this
court has concluded that it should deny Mr. Baker's
motion. The court simply lacks the requisite information to
make the recommendation it seeks. The court has had no
interaction with him since the sentencing hearing, a hearing
conducted nearly two years ago. To say it bluntly, the court
simply lacks information to evaluate Mr. Baker's
performance or his rehabilitative needs. In contrast, the BOP
fully apprehends Mr. ...