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United States v. Baker

United States District Court, D. Kansas

May 30, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSHUA GEORGE BAKER (01), Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         This matter comes before the court on defendant Joshua George Baker's pro se[1] “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.

         I. Background

         On June 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 2.

         On 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.

         Baker 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.

         II. “Motion for a Post Sentencing Judicial Recommendation to the Federal Bureau of Prisons” (Doc. 28)

         In his 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.

         The 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.”).

         First, 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.

         Mr. 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.

         Mr. 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 sought here.[2]

         And 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 conclusory assertion.

         The 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. ...


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