United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
L. FRIEDMAN United States District Judge.
matter before the Court is pro se defendant Devon
Robinson's Motion in Regard to the Johnson Abridged 2255
Filing in Light of Johnson v. U.S. (“Supp. Mot.”)
[Dkt. 33]. In Johnson v. United States, the Supreme
Court held that the residual clause of the Armed Career
Criminal Act is unconstitutionally vague and violates due
process. 135 S.Ct. 2551, 2557 (2016). Mr. Robinson does not
ask this Court to vacate or correct his sentence, but instead
requests that it amend his presentence investigation report
to reflect that he is no longer a career offender after
Johnson v. United States. Supp. Mot. at 1. Upon
consideration of the parties' papers and the relevant
legal authorities, the Court will deny Mr. Robinson's
motion without prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
23, 2012, pursuant to a Rule 11(c)(1)(C) plea agreement, Mr.
Robinson entered a plea of guilty to one count of unlawful
possession with intent to distribute 280 grams or more of
cocaine base, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A)(iii). Plea Agreement (June 25, 2012) at 1, 5 [Dkt.
20]; Minute Entry (July 23, 2012). In the presentence
investigation report (“PSR”) prepared before the
sentencing hearing, the Probation Office noted that Mr.
Robinson had at least two prior felony convictions of either
a crime of violence or a controlled substance offense and
therefore he was a career offender under U.S. Sentencing
Guidelines § 4B1.2. The Probation Office calculated a
guidelines sentencing range of 262 to 327 months, with an
offense level of 34 and a criminal history category VI. Judge
Richard Roberts ultimately sentenced Mr. Robinson to 120
months, the statutory mandatory minimum, which was the
sentence agreed upon as part of Mr. Robinson's plea
agreement. See Judgment (Oct. 17, 2012) at 1-2 [Dkt.
29]; Sentencing Tr. (Oct. 9, 2012) at 9 [Dkt. 34]. This case
was reassigned to the undersigned following Judge
21, 2016, the Office of the Federal Public Defender filed an
abridged motion to vacate, set aside, or correct sentence
under 28 U.S.C. § 2255 in light of Johnson v. United
States, 135 S.Ct. 2551 (2015), which was made
retroactive by Welch v. United States, 136 S.Ct.
1257 (2016). See Abridged Mot. at 1. The Federal
Public Defender subsequently withdrew from the case.
See Minute Order (Aug. 23, 2016). On September 22,
2016, Mr. Robinson filed a pro se supplemental
motion asking this Court to revise his PSR to reflect that he
is not a career offender and that his prior offenses are not
crimes of violence. Supp. Mot. at 1.
28 U.S.C. § 2255, a prisoner may move to vacate, set
aside, or correct a sentence that was imposed “in
violation of the Constitution or laws of the United States,
” “in excess of the maximum authorized by law, or
is otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a). As previously noted, Mr. Robinson asks this
Court to revise his PSR because, he argues, his criminal
history points and the Probation Office's conclusion that
he is a career offender have an impact on his assigned Bureau
of Prisons (“BOP”) custody level. Supp. Mot. at
1. He argues that a change to his PSR would put him in a
lower custody level and allow him to take advantage of
opportunities available only to prisoners in lower custody
levels. Id. Because Mr. Robinson does not seek to
vacate, set aside, or correct his sentence, he cannot pursue
this claim under 28 U.S.C. § 2255.
Court, however, may liberally construe his pro se
motion “to conform to the nature of the relief that he
seeks.” United States v. Brown, 185 F.Supp.3d
79, 84 (D.D.C. 2016); Stern v. Fed. Bureau of
Prisons, 601 F.Supp.2d 303, 306 (D.D.C. 2009). The
government suggests that Mr. Robinson's motion should be
construed as a Section 2241 motion. Opp. at 5-6. Under 28
U.S.C. § 2241, a prisoner may challenge the fact or
duration of his confinement. See Aamer v. Obama, 742
F.3d 1023, 1030 (D.C. Cir. 2014). In this circuit, prisoners
may also challenge the “form of [their]
detention” under Section 2241. Id. at 1032.
Mr. Robinson does not challenge the fact, duration, or
legality of his confinement, but instead ultimately
challenges a condition of his confinement. The Court
therefore construes Mr. Robinson's motion as a Section
2241 motion. Because a Section 2241 motion must be
brought in the jurisdiction where the prisoner is confined -
which, in this case, is the Eastern District of North
Carolina - the Court lacks jurisdiction over this action. 28
U.S.C. § 2241(a); see also Stern v. Fed. Bureau of
Prison, 601 F.Supp.2d at 306.
Court lacks jurisdiction over a Section 2241 motion, it
“has the authority to dismiss the action or transfer it
[to the appropriate district] in the interest of
justice.” Stern v. Fed. Bureau of Prisons, 601
F.Supp.2d at 306; see also 28 U.S.C. § 1631. In
this case, the Court declines to transfer the case to the
Eastern District of North Carolina for two reasons. First,
Mr. Robinson is challenging his BOP custody level based in
part on the criminal history calculated in his PSR. But not
all circuits recognize that a prisoner may bring a Section
2241 motion to challenge the BOP's assigned custody
level. Mr. Robinson therefore may need to bring a different
claim for relief in the appropriate jurisdiction.
See, e.g., Eiland v. Warden Fort Dix
FCI, 634 Fed. App'x 87, 89 (3d Cir. 2015)
(concluding that the proper means for challenging a
prisoner's custody level is a civil rights action against
the warden under Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971),
“after available administrative remedies have been
exhausted”); United States v. Laudermilt, 576
Fed. App'x 177, 183-84 (4th Cir. 2014) (noting the
differences among circuits regarding whether a prisoner may
challenge his custody level or the manner in which his
sentence is executed through a habeas corpus action);
Rodriquez v. Cruz, No. 12-2154, 2013 WL 2416321, at
*4 (D.S.C. June 3, 2013) (determining that a petitioner
cannot challenge his custody level under 28 U.S.C. §
2241 if the change in custody level would not affect the
length of his confinement).
it appears that Mr. Robinson has not exhausted his
administrative remedies as required by the Prison Litigation
Reform Act, 42 U.S.C. § 1997e(a). See Porter v.
Nussle, 534 U.S. 516, 520 (2002). As the government
notes, Mr. Robinson must first raise this issue with the
appropriate contacts at his facility and the BOP before
filing a claim in federal court. 42 U.S.C. § 1997e(a);
see, e.g., Smith v. United States,
277 F.Supp.2d 100, 105 (D.D.C. 2003) (citing Chatman-Bey
v. Thornburgh, 864 F.2d 804, 809 (D.C. Cir. 1988))
(requiring a prisoner to exhaust his administrative remedies
before pursuing a habeas action under 28 U.S.C. § 2241);
cf. Anderson v. Stephens, No. 09-2049, 2011
WL 1671807, at *2 (E.D. N.C. May 3, 2011) (requiring a
petitioner to exhaust his administrative remedies with the
BOP before seeking review of the BOP's determination of
his custody and security designation). The Court therefore
will dismiss Mr. Robinson's motion without prejudice for
him to refile, if he wishes, in the proper U.S. District
the Court notes that because Mr. Robinson was considered a
career offender under U.S. Sentencing Guidelines §
4B1.2, his offense level and his applicable criminal history
category were both automatically increased. See
U.S.S.G. § 4B1.1(b) (“A career offender's
criminal history category in every case under this subsection
shall be Category VI.”); id. §
4B1.1(b)(2) (requiring an increase of Mr. Robinson's
offense level to 34). Although the career offender provision
affected Mr. Robinson's offense level and criminal
history category for purposes of his guidelines sentencing
range, the BOP does not consider whether an individual is a
career offender under the U.S. Sentencing Guidelines when
calculating the prisoner's BOP custody level. Opp. at 7;
see also Opp., Ex. A at 8-9 [Dkt. 37]. Nor does the
BOP consider a defendant's criminal history category or
offense level in calculating his or her BOP custody level.
Opp. at 7; see also Opp., Ex. A at 8-10. As the
government notes, the BOP has its own policy for determining
a prisoner's custody level. See Opp., Ex. A. A
change in Mr. Robinson's criminal history category, as he
suggests, would not necessarily change his BOP custody level.
See Supp. Mot. at 1. In addition, Mr. Robinson's
case manager at the FCI Butner Medium II facility in North
Carolina has informed the government that “the
‘points' used to calculate Mr. Robinson's BOP
custody score are separate and distinct from the points that
appear in a Presentence Investigation Report” and that
the career offender designation “does not carry over
to, or otherwise affect, ” Mr. Robinson's BOP
calculation. Opp. at 3.
it is hereby
that defendant's motion under 28 U.S.C. § 2255 [Dkt.
31] is DENIED WITHOUT PREJUDICE; and it is
ORDERED that defendant's motion in regard to the
Johnson abridged 2255 filing [Dkt. ...