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United States v. Berg

United States District Court, D. Maine

January 28, 2016




The Court concludes it is without authority to amend a sentencing judgment to effect a defendant’s release from incarceration into an early release program.


On August 7, 2015, the Court sentenced Robert Berg to six months incarceration for acting as an accessory after the fact to the manufacturing of 1, 000 or more marijuana plants. J. (ECF No. 573). On December 18, 2015, Mr. Berg moved to amend the Judgment to reduce his sentence of imprisonment by 18 days, or 10%, and requested oral argument on the motion. Def.’s Mot. to Amend J. (ECF No. 601) (Def.’s Mot.); Mot. for Oral Arg. (ECF No. 605). The Government objected on January 5, 2016. Gov’t’s Obj. to Def.’s Mot. to Amend J. (ECF No. 603) (Gov’t’s Opp’n). Mr. Berg replied on January 14, 2016. Def.’s Reply to Gov’t’s Obj. to Def.’s Mot. to Amend J. and Req. for Oral Arg. (ECF No. 604).


A. Robert Berg’s Motion

In his motion, Mr. Berg explains:

[A]lthough federal inmate[s] are normally eligible to serve the final 10% of their sentences in some combination of community or home confinement, pursuant to Bureau of Prison (BOP) re-entry programs, the BOP staff at Fort Devens (Devens) advised [Mr. Berg] that they are not going to process the paperwork because they feel it will not get done by the time he is released.

Def.’s Mot. at 1. Mr. Berg says that when he reported to Devens, the staff told him that his full term release date would be April 10, 2016 and that his home detention eligibility date was March 24, 2016.[1] Id. Citing 18 U.S.C. §§ 3621(b), 3624(c) and BOP policy, Mr. Berg asserts that “low risk offenders are normally eligible to serve the final 10% of their sentences either in home confinement or some combination of community and home confinement.” Id. at 2. Mr. Berg calculates the 10% figure as equaling 18 days, making him eligible for early release on March 24, 2016. Id. However, he says that the staff at Devens clarified that because of timeline concerns for processing paperwork, he would not be considered for early release to home confinement because his term of incarceration was six months or less. Id. Mr. Berg proposes that the “only way at present to provide Mr. Berg the opportunity for release on March 24, 2016 would be for the Court to amend its 6-month sentence to reduce Mr. Berg’s sentence by 10% (18 days).” Id.

B. The Government’s Opposition

The Government objects. Gov’t’s Opp’n at 1-2. The Government contends that the Court is “without authority to grant [Mr. Berg] the relief he seeks.” Id. at 1. The Government observes that Mr. Berg failed to cite “any rule or statute upon which the Court could grant the relief that he seeks . . . .” Id. Quoting United States v. Larsen, No. 1:05-cr-00062-JAW, 2013 U.S. Dist. LEXIS 15849, at *4, 2013 WL 448761, at *2 (D. Me. Feb. 6, 2013), the Government notes that “[a]fter a sentence is imposed, the law strictly constrains a sentencing court’s authority to reduce a sentence and the grounds upon which it may do so.” Def.’s Mot. at 1.

Furthermore, the Government noted that the purposes of the BOP re-entry program include protection of the public and avoiding the risk of recidivating. Id. at 2 n.2. The Government writes that Mr. Berg, “a wealthy businessman, with strong family support, an established residence and business, who poses virtually no risk of recidivism following service of a relatively brief prison term does not appear to be the type of offender that the re-entry program was designed for.” Id.

The Government attached to its response as Exhibit 1 a series of BOP documents. Id. Attach. 1 BOP Docs. (ECF No. 603) (BOP Docs.). One is titled “Residential Re-Entry Center Consideration” dated November 6, 2015. Id. at 4. In this document, after reviewing Mr. Berg’s circumstances, the Unit Manager stated that “[w]e do not recommend RRC [Residential Re-Entry Center] Placement due to insufficient time to process a referral given the short sentence length.” Id.

A second attached document entitled “Inmate Request to Staff” is dated December 10, 2015 and is signed by Mr. Berg. Id. at 2. In the document, Mr. Berg requested “something in writing” as to why he was being denied “the 10% home confinement that is offered to other inmates via 3624C.” Id.

A third document dated December 11, 2015 is a four-paragraph memorandum signed by J. Grondolsky, the Warden, explaining the BOP’s decision. Id. at 1. In that document, Warden Grondolsky listed the factors the BOP reviews in determining whether an inmate is appropriate for RRC release. Id. Warden Grondolsky noted that the BOP takes a “number of factors” into account, including:

the inmate’s need for re-entry services, the resources and ability of the RRC to meet the offender’s needs, the nature and circumstances of the inmate’s offense, the inmate’s history, any statement by the sentencing court regarding a period of community confinement, any potential risks to public safety, and the need for the [BOP] to manage the inmate population in a responsible manner.


Warden Grondolsky wrote that “not all inmates are appropriate for RRC placement and the length of placement must be determined on an individual basis in accordance with the guidance outlined.” Id. Citing the BOP Program Statement 7310.04 of the Community Corrections Center (CCC) Utilization and Transfer Procedure, Warden Grondolsky stated that “inmates serving sentences of six months or less shall not ordinarily participate in CCC programs.” Id. Warden Grondolsky noted that Mr. Berg’s “release plan was recently approved by probation staff” and that he had “employment possibilities and significant resources.” Id. Warden Grondolsky informed Mr. Berg that he agreed with the assessment of his “assigned unit team” and that the BOP must “balance each inmate’s individual needs with the ...

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