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United States v. Phothisat

United States District Court, S.D. Alabama, Southern Division

January 8, 2019

SISAVANG PHOTHISAT, BOP Reg. #14060-003, Defendant.



         This action is before the Court on the “Motion for Declatory [sic] Relief pursuant to 28 USC 2201 & 2202 and Statutory Eligibility for a IHP Under 8 USC 1228(a)(3)(A) or in the Alternet [sic] Formation of a Remedy under 2202 a Sentence Reduction Akin to Smith v. USA, 27 F.3d.649 (DC 1994)” (Doc. 85) filed pro se by Defendant Sisavang Phothisat (“the Defendant”). The assigned District Judge has referred the motion to the undersigned Magistrate Judge for appropriate action under 28 U.S.C. § 636(a)-(b), Federal Rule of Criminal Procedure 59, and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR 72(b); (11/28/2018 electronic reference). See S.D. Ala. GenLR 72(b); (11/28/2018 electronic referral). Upon consideration, the undersigned will recommend to the Court that the subject motion (Doc. 85) be DENIED.

         I. Analysis

         a. Request for a Downward Departure

         The Defendant argues that, because he is allegedly ineligible for transfer to a community correctional facility under 18 U.S.C. § 3624(c) due to his status as a deportable alien,[1] he should be granted a downward departure in his sentence of imprisonment under the reasoning of United States v. Smith, 27 F.3d 649 (D.C. Cir.1994), and similar cases.

         “Under 18 U.S.C. § 3553(b), a district court may depart from the applicable [sentencing] guideline range if ‘the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.' ” United States v. Hoffer, 129 F.3d 1196, 1200 (11th Cir. 1997). The panel majority in Smith held that, under § 3553(b), “a sentencing court may depart below the range indicated by the Sentencing Guidelines where the defendant, solely because he is a deportable alien, faces the prospect of objectively more severe prison conditions than he would otherwise.” 27 F.3d at 650. However, here the Court sentenced the Defendant to a term of imprisonment on May 18, 2015, with an amended written judgment reflecting this sentence having been entered June 11, 2015. (See Doc. 71). After a sentence of imprisonment is imposed,

[t]he authority of a district court to modify an imprisonment sentence is narrowly limited by statute…Specifically, § 3582(c) provides that a court may not modify an imprisonment sentence except in these three circumstances: (1) where the Bureau of Prisons has filed a motion and either extraordinary and compelling reasons warrant a reduction or the defendant is at least 70 years old and meets certain other requirements, see 18 U.S.C. § 3582(c)(1)(A); (2) where another statute or Federal Rule of Criminal Procedure 35 expressly permits a sentence modification, see Id. § 3582(c)(1)(B); or (3) where a defendant has been sentenced to a term of imprisonment based on a sentencing range that was subsequently lowered by the Commission and certain other requirements are met, see Id. § 3582(c)(2).

United States v. Phillips, 597 F.3d 1190, 1194-95 (11th Cir. 2010). None of these three circumstances are implicated by the present motion. See United States v. Beltran-Rengifo, No. 614CR29ORL37DAB2, 2016 WL 8200518, at *2 n.2 (M.D. Fla. Aug. 3, 2016) (Dalton, J.) (“The Court also considered the case law submitted by Defendant in support of his Immigration Departure Request-United States v. Razo-Nunez, No. 13-3039, 2014 WL 1979877 (D.C. Cir. 2014) and United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994). These decisions involve the failure to consider a requested immigration departure at the time of sentencing and are therefore inapplicable here where Defendant seeks modification of a previously-imposed sentence.”).

         Regardless, the Defendant's claim that he is due a downward departure under the reasoning of Smith and like cases is without merit. Contrary to the holding of the D.C. Circuit Court of Appeals in Smith, which is not binding on this Court, the Eleventh Circuit Court of Appeals, whose published decisions are binding on this Court, has held “that a sentencing court may not depart downward for the purpose of taking a crime out of the definition of an aggravated felony in order to shield the defendant from the immigration consequences Congress has decided should follow from commission of such crimes…” United States v. Maung, 320 F.3d 1305, 1309 (11th Cir. 2003). See also Reascos-Renia v. United States, No. 17-12778-J, 2017 WL 6513752, at *2 (11th Cir. Oct. 4, 2017) (Rosenbaum, J., single-judge order denying a Certificate of Appealability) (“…Smith is not binding precedent in this Circuit…Moreover, this Court has held that a defendant's alien status does not justify a downward departure at sentencing. See United States v. Maung, 320 F.3d 1305, 1308-10 (11th Cir. 2003) (citing to United States v. Veloza, 83 F.3d 380, 382 (11th Cir. 1996)), overruled on other grounds by United States v. De Varon, 175 F.3d 930 (11th Cir. 1999) (en banc) (holding that the fact a defendant's alien status rendered him ineligible to serve any part of his sentence in a halfway house did not justify a downward departure.).”), cert. denied, 138 S.Ct. 528 (2017).

         Accordingly, the Defendant's request for a downward departure under the D.C. Circuit's reasoning in Smith is due to be DENIED.

         b. Request for Declaratory Relief

         Title 8 U.S.C. § 1228 directs the Attorney General to “provide for the availability of special removal proceedings at certain Federal, State, and local correctional facilities for aliens convicted of [certain] criminal offense[s, ]” and that “[s]uch proceedings shall be conducted…in a manner which eliminates the need for additional detention at any processing center of the [Immigration and Naturalization] Service and in a manner which assures expeditious removal following the end of the alien's incarceration for the underlying sentence.” 8 U.S.C. § 1228(a)(1). Section 1228 further directs the Attorney General to “provide for the initiation and, to the extent possible, the completion of removal proceedings, and any administrative appeals thereof, in the case of any alien convicted of an aggravated felony before the alien's release from incarceration for the underlying aggravated felony.” 8 U.S.C. § 1228(a)(3)(A).

         As alternative relief to a downward departure, the Defendant requests that the Court “declare[] the defendants [sic] statutory rights under title []8 USC 1228”[2]and fashion other appropriate remedies under the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, to ensure that the Defendant receives an expedited “Institutional Hearing Program” hearing[3] prior to the expiration of his sentence of imprisonment so as to avoid further detention while awaiting removal proceedings - such as by “ordering the BOP to transfer the defendant to Immigration Detention on his ‘Home Eligibility Date' ” of October 5, 2021;[4] or by “order[ing] the BOP to conduct the defendants [sic] IHP at Rivers or transfer him to a BOP LOW Prison that does IHP.” (Doc. 85 at 13).

         The Defendant, however, is due no such relief. First, a “declaratory judgment may only be issued in the case of an ‘actual controversy.' 28 U.S.C.A. s 2201. That is, under the facts alleged, there must be a substantial controversy of sufficient immediacy and reality between parties having adverse legal interests.” Wolfer v. Thaler, 525 F.2d 977, 979 (5th Cir. 1976).[5] Without more, the Defendant's mere speculation that the conditions at his current place of incarceration will prevent a removal determination prior to his Home Eligibility Date, ...

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