United States District Court, D. Maine
ORDER DENYING THE DEFENDANT'S MOTION FOR
EMERGENCY RELEASE ON BAIL
A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE
April 24, 2017, Ms. Swan filed a pro se motion for emergency
release on bail in order to attend a family member's
funeral. The Court denies Ms. Swan's motion because it
does not have the authority to grant the requested relief.
13, 2014, the Court sentenced Carole Swan to 87 months
imprisonment on each of Counts 1 through 3 of the Superseding
Indictment, 36 months on each of Counts 4 through 8 of the
Superseding Indictment, and 60 months on each of Counts 9 and
11 of the Superseding Indictment, all to be served
concurrently. Min. Entry (ECF No. 355); J.
(ECF No. 358). On April 24, 2017, Ms. Swan filed a pro se
motion for emergency release on bail in order to attend her
brother's funeral. Req. for Emergency Release on Bail
Based on the Time Sensitive Issue (ECF No. 446)
(Def.'s Mot.). The Government objected the same
day. Gov't's Resp. in Opp'n to Mot. for
Bail (ECF No. 447) (Gov't's Opp'n).
THE PARTIES' POSITIONS
Carole Swan's Motion
April 20, 2017, Carole Swan filed a pro se motion for
reduction of sentence pursuant to 18 U.S.C. § 3582, as
well as a pro se motion for release on bail pending the
appeal. Pro Se Mot. for Bond Pending Appeal (ECF No.
444); Pro Se Mot. to Reduce Sentence (ECF No. 445).
days later, Ms. Swan filed another pro se motion requesting
that the Court grant an emergency release on bail pursuant to
Rules of Appellate Procedure 9(b) and 27, as well as 18
U.S.C. § 3143(b), so that she may attend her
brother's funeral pending the disposition of her other
two motions before the Court. Def.'s Mot. at 1.
She requests a “5 day release on bail beginning on
Wednesday morning April 26, 2017 or the Tuesday afternoon
April 25, 2017 to continue for five days returning on Monday
May 1, 2017.” Id.
The Government's Opposition
Government objects to Ms. Swan's motion arguing that the
Court lacks jurisdiction to grant the requested relief.
Gov't's Opp'n at 1. It argues that none
of the authority cited by Ms. Swan confers on the Court the
authority to grant her request for bail to attend her
brother's funeral. Id. It explains that 18
U.S.C. § 3622 authorizes furloughs in certain
circumstances, such as to attend a funeral of a relative, but
that the plain language of the statute gives the Bureau of
Prisons (BOP) the exclusive authority to grant these
furloughs. Id. at 2. The Government then lays out
the proper procedures for requesting furlough through the
BOP. Id. at 2-3.
Court's authority to grant temporary release from prison
is extremely narrow. For example, while a defendant is
awaiting the imposition of sentence, the Court has the
authority to grant a temporary release for exceptional
circumstances. 18 U.S.C. § 3145(c); United States v.
Kenney, No. CR-07-66-B-W, 2009 U.S. Dist. LEXIS, at *1
(D. Me. Dec. 30, 2009). However, because Ms. Swan has already
been sentenced, this statute does not apply.
sentence is imposed, as is the case for Ms. Swan, the law
strictly constrains a sentencing court's authority to
reduce a sentence and the grounds upon which it may do so. 18
U.S.C. § 3582(c); United States v. Berg, No.
1:12-cr-00160-JAW-03, 2016 U.S. Dist. LEXIS 11094, at *7-11
(D. Me. Jan. 28, 2016); United States v. Larsen, No.
1:05-cr-00062-JAW, 2013 U.S. Dist. LEXIS 15849, at *4-6 (D.
Me. Feb. 6, 2013); United States v. Leland, 584
F.Supp.2d 237, 239 (D. Me. 2008); United States v.
Tyler, 417 F.Supp.2d 80, 82-85 (D. Me. 2006). The
general rule is that a court “may not modify a term of
imprisonment once it has been imposed.” 18 U.S.C.
§ 3582(c). The exceptions are very narrowly-drawn. A
first exception is where the Director of the BOP moves to
reduce a term of imprisonment for “extraordinary and
compelling reasons.” Id. §
3582(c)(1)(A)(i). A second is if the defendant is at least
seventy years old, has served at least thirty years in
prison, and the Director of the BOP has determined that he is
no longer a danger to the safety of any other person or the
community. Id. § 3582(c)(1)(A)(ii). A third is
where there has been a clerical error in the judgment and the
motion is made within fourteen days after sentencing.
Id. § 3582(c)(1)(B); Fed. R. Crim. P. 35(a). A
fourth is where the Government has filed a Rule 35 motion
within one year of sentencing to reduce a defendant's
sentence for substantial assistance in investigation or
prosecuting another person. 18 U.S.C. § 3582(c)(1)(B);
Fed. R. Crim. P. 35(b). A fifth is where a defendant has been
sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission. 18 U.S.C. § 3582(c)(2). A sixth is where a
defendant has filed a notice of appeal to the applicable
court of appeals and the appeals court has modified the
sentence. Id. § 3582(b). A seventh is where a
defendant in federal custody has filed a petition under 18
U.S.C. § 2255, claiming “the right to be released
upon the ground that the sentence was imposed in violation of
the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.” An
eighth is where a federal defendant is challenging the
execution of his sentence, such as the administration of
parole, computation of a sentence by prison officials, prison
disciplinary actions, prison transfers, type of detention and
prison conditions. 28 U.S.C. § 2241; Jiminian v.
Nash, 245 F.3d 144, 146 (2d Cir. 2001). None of the
exceptions applies to Ms. Swan's case. Accordingly, the
Court does not have the authority to grant Ms. Swan's
request for temporary release on bail.
authority to allow prisoner furloughs rests with the BOP
under 18 U.S.C. § 3622. This ...