USA v. Hernandez et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
QUINCY WARREN HERNANDEZ,
Defendant.
Case No. 3:12-cr-00056-SLG-1
ORDER REGARDING MOTION REQUESTING JUDICIAL
RECOMMENDATION
Before the Court at Docket 747 is defendant Quincy Warren Hernandez’s
second pro se Motion Requesting Judicial Recommendation. Mr. Hernandez
seeks a recommendation from this Court that the Bureau of Prisons (BOP) place
him in a residential reentry center (RRC) or home detention for the final 12 months
of his sentence pursuant to the Second Chance Act.1 The government filed a
response in opposition at Docket 751. The U.S. Probation Office for the District of
Alaska filed a sealed report at Docket 752.
Mr. Hernandez is serving a 151-month sentence with a release date of
January 24, 2022.2 Mr. Hernandez asserts that placement in an RRC for the
1 Docket 747 at 1.
2 www.bop.gov/inmateloc/ (last accessed Dec. 3, 2020). In 2013, this Court sentenced Mr.
Hernandez to 156 months imprisonment after he pleaded guilty to one count of Drug Trafficking
Conspiracy. Docket 395. In 2015, this Court reduced Mr. Hernandez’s sentence to 151 months
in accordance with the retroactive lowering of the applicable guideline sentencing range.
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maximum allowable period of time would give him “an increased adjustment
period, allowing for more savings and job-training [that] will greatly assist Movant
in achieving a successful and permanent reentry to society.”3 Mr. Hernandez has
included a letter, which notes his current release date and that he has recently
been enrolled in the Residential Drug Abuse Program.4 The Court has reviewed
and considered Mr. Hernandez’s filings and exhibits.5
The government responds that the Court has no authority to make such a
recommendation because it is not correcting an error in a judgment pursuant to
Federal Rules of Criminal Procedure 35 or 36.6 The government also asserts that
“there is no appropriate legal procedure for the Court to make this
recommendation” because such recommendations must be made at sentencing.7
The government is incorrect. The Court is not amending a judgment, so
Rules 35 and 36 do not apply. Moreover, there is no provision of law requiring
such recommendation to be made at sentencing, and district courts routinely
consider requests for such recommendations long after sentencing has occurred.8
Docket 594.
3 Docket 747 at 2–3.
4 Docket 747-1 at 1.
5 Docket 711; Docket 747.
6 Docket 751 at 3–4.
7 Docket 751 at 4.
8 See United States v. Ferguson, Case No. 6:16-cr-00707-JMC-8, 2018 WL 5095149, at *2 (D.
S.C. Oct. 19, 2018) (undertaking a thorough analysis of “whether a district court can make
imprisonment placement recommendations on a Defendant’s post-sentencing motion” and
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Case No. 3:12-cr-00056-SLG-1, United States v. Hernandez
Order Re Motion Requesting Judicial Recommendation
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Because this is the Court that sentenced Mr. Hernandez, it can issue a
recommendation as to the “type of penal or correctional facility as appropriate.”9
The U.S. Probation Office notes that Mr. Hernandez has had no disciplinary
incidents while in BOP custody, that he has maintained employment “to include
tutoring and working in the education department,” that he has completed
numerous educational and vocational courses, that he has completed a drug
education course, and that he entered the Residential Drug Abuse Program in
September 2020.10 The Probation Office does not oppose Mr. Hernandez’s motion
and assesses that “such placement at an RRC will assist with the defendant’s
reentry into the community.”11
Mr. Hernandez’s projected release date is now 13 months away. Any
recommendation by the Court to the BOP is strictly advisory and non-binding.
However, based on the current record, including Mr. Hernandez’s conduct and
accomplishments during his time in custody, this Court finds that placing into an
RRC or halfway house for the maximum period of time allowed would benefit both
him and the community.
concluding that district courts may do so) (emphasis in original).
9 18 U.S.C. § 3621(b)(4)(B).
10 Docket 752 at 2 (under seal).
11 Docket 752 at 2 (under seal).
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Case No. 3:12-cr-00056-SLG-1, United States v. Hernandez
Order Re Motion Requesting Judicial Recommendation
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In light of the foregoing, IT IS ORDERED that the motion at Docket 747 is
GRANTED. This Court recommends that the BOP place Mr. Hernandez in an RRC
or halfway house 12 months prior to the completion of his sentence.
DATED this 3rd day of December, 2020, at Anchorage, Alaska.
/s/ Sharon L Gleason
UNITED STATES DISTRICT JUDGE
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