Nunez v. Bennett

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
MICHAEL NUÑEZ,
Petitioner,
vs.
WARDEN K. BENNETT,
Respondent.
4:21-CV-04174-KES
ORDER ADOPTING REPORT AND
RECOMMENDATION AND GRANTING
BENNETT’S MOTION TO DISMISS
This matter is before the court upon the objections by pro se petitioner,
Michael Nuñez, to the report and recommendation filed December 10, 2021, by
Magistrate Judge Veronica L. Duffy. Dockets 14 & 15. Magistrate Judge Duffy
recommends that respondent, Warden K. Bennett’s, motion to dismiss be
granted and that Nuñez’s habeas petition under 28 U.S.C. § 2241 be dismissed
with prejudice and without an evidentiary hearing. Docket 14 at 12. For the
following reasons, the court overrules Nuñez’s objections, adopts the report
and recommendation, and grants Bennett’s motion to dismiss.
FACTUAL BACKGROUND
The magistrate judge in her report and recommendation provided a full
factual background to which Nuñez did not object. See Docket 15 at 2. It is
adopted in full.
Nuñez is currently serving a 120-month sentence for conspiracy to
possess with intent to distribute 50 grams or more of methamphetamine.
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Docket 1 at 1; Docket 12 ¶ 2. When he was sentenced, a two-level increase was
applied to Nuñez’s base offense level under the United States Sentencing
Guidelines because Nuñez possessed a dangerous weapon in relation to the
offense of conviction. Docket 12 ¶ 17.
The Bureau of Prisons (BOP) offers a Residential Drug Abuse Treatment
Program (RDAP) to inmates who volunteer for treatment and who have a
verifiable substance use disorder. Docket 12 ¶ 4. Inmates convicted of
nonviolent offenses who successfully complete the RDAP program may receive
a reduction in their period of incarceration. 18 U.S.C. § 3621(e)(2)(B). But the
BOP determined that Nuñez was precluded from early release eligibility under
“28 C.F.R. § 550.55(b)(5)(ii)-(iii), 28 C.F.R. § 550.55(b)(6), and sections 4.b and
4.d of PS 5162.05.” Docket 12 ¶ 20.
Nuñez contends that the BOP’s decision to deny him early release is
based on language similar to the residual clause that the Supreme Court has
declared to be unconstitutionally vague. Docket 1 at 2; Docket 15 at 2. The
Magistrate Judge, in her report and recommendation, recommends that the
petition be dismissed because the BOP regulations (subsections (b)(5)(ii) and
(6)) that support its decision are not unconstitutionally vague, and the BOP’s
decision to deny Nuñez early release under those provisions is not
unconstitutional. Docket 14 at 12. Nuñez filed timely objections to the report
and recommendation. Docket 15.
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STANDARD OF REVIEW
Federal Rule of Civil Procedure 72(b)(3) provides that “[t]he district judge
must determine de novo any part of the magistrate judge’s disposition that has
been properly objected to.” Fed. R. Civ. P. 72(b)(3). On review of the magistrate
judge’s report and recommendation, “the court may accept, reject, or modify, in
whole or in part, the findings or recommendations[.]” 28 U.S.C. § 636(b)(1); see
also United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
DISCUSSION
Nuñez contends that BOP violated the Constitution when it denied him
early release due to the fact that he possessed a firearm in connection with a
drug trafficking crime. Docket 15 at 2. But the RDAP statute, 18 U.S.C.
§ 3621(e)(2)(B), states “[t]he period a prisoner convicted of a nonviolent offense
remains in custody after successfully completing a treatment program may be
reduced by the Bureau of Prisons, but such reduction may not be more than
one year from the term the prisoner must otherwise serve.” (emphasis added).
The statutory language is not mandatory. Instead, because the word “may” is
used, the BOP has discretion to grant such early release. Lopez v. Davis, 531
U.S. 230, 241 (2001).
In Lopez, the Supreme Court concluded that the BOP acted lawfully in
exercising its discretion when it promulgated regulations that governed
categories of ineligible inmates who do not qualify for early release after
completing the RDAP program—including inmates who possessed a firearm in
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connection with the commission of a felony. Id. at 244. The regulation at issue
here is the progeny of the regulation that was considered by the Lopez Court.
Nuñez specifically objects to BOP’s use of § 550.55(b)(5)(iii) to disqualify
him from receiving early release. Docket 2 at 3. He claims this provision uses
language similar to the language in the residual clause that the Supreme Court
struck down as unconstitutionally vague in Johnson v. United States, 576 U.S.
591 (2015). Docket 2 at 3-4. While Nuñez raises an interesting issue, the court
does not need to reach this issue because the BOP relied on two other
provisions in the regulation to deny him early release eligibility. See Docket 12-
4 at 1. First, the BOP concluded that he is ineligible under § 550.55(b)(5)(ii)
because he possessed a firearm in connection with a drug trafficking crime.
See id. And second, the BOP found that he is ineligible under § 550.55(b)(6)
because his current conviction was “an attempt, conspiracy, or other offense
which involved an underlying offense[.]” Id. Nuñez does not attack either of
these grounds as being unconstitutionally vague under Johnson. See Docket
15 at 2. Because either of these grounds standing alone is sufficient to
disqualify Nuñez from an early release and neither ground implicates Johnson,
the court concludes that respondent’s decision to deny Nuñez early release
under these provisions is not unconstitutional. Thus, under 18 U.S.C. § 3625,
this court does not have the power to judicially review the BOP’s individualized
decision as to Nuñez.
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Thus, it is ORDERED
1. Nuñez’s objections to the report and recommendation (Docket 15) are
overruled.
2. The report and recommendation (Docket 14) is adopted in full as
supplemented herein.
3. Nuñez’s § 2241 petition (Docket 1) is dismissed with prejudice and
without an evidentiary hearing.
Dated February 24, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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