UNITED STATES v. MARTIN (2017)

Lavoris F. Martin, a federal prisoner, appeals the district court's denial of his motion requesting a judicial recommendation to the Bureau of Prisons (“BOP”) for placement in a residential re-entry center (“RRC”) 12 months prior to the end of his sentence. We dismiss Martin's appeal because the denial of a request for a judicial recommendation is not a final order subject to appellate review. Moreover, the relief requested, if granted, would violate the prohibition on federal courts issuing non-binding advisory opinions.

Martin pleaded guilty to one count of conspiracy to possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 846. He was sentenced to 60 months' imprisonment, followed by a 4–year term of supervised release. Several years later, he filed a pro se motion requesting that the district judge who sentenced him recommended that the BOP place him in an RRC 12 months prior to the end of his sentence. He contended that a prolonged placement at an RRC would help aid his re-integration into society.

Our appellate jurisdiction is limited to reviewing “final decisions” of district courts. 28 U.S.C. § 1291. “Any order, recommendation, or request by a sentencing court that a convicted person serve a term of imprisonment in a community corrections facility shall have no binding effect on the authority of the BOP ․ to determine or change the place of imprisonment of that person.” 18 U.S.C. § 3621(b)(5). Although we have not yet addressed our jurisdiction to review a district court's refusal to issue a non-binding recommendation to the BOP, other circuits have held that such non-binding recommendations are not “final decisions” and, therefore, are not reviewable on appeal. See United States v. Melendez, 279 F.3d 16, 18 (1st Cir. 2002) (recommendation denied) (holding that no jurisdiction existed to review the refusal to recommend that the BOP admit the defendant to a drug-treatment program because such a recommendation is non-binding); United States v. Yousef, 327 F.3d 56, 165 (2d Cir. 2003) (recommendation issued) (holding that such recommendations are neither “final decisions” under 28 U.S.C. § 1291 nor “final sentence[s]” under 18 U.S.C. § 3742); United States v. Serafini, 233 F.3d 758, 777 (3d Cir. 2000) (recommendation issued) (holding that a district court's recommendation that the BOP place a defendant in “community confinement” in a county residential center was not a “final order” subject to review); United States v. De La Pena–Juarez, 214 F.3d 594, 601 (5th Cir. 2000) (recommendation issued) (holding that such a recommendation “is not an order from which [a defendant] may appeal”); United States v. Kerr, 472 F.3d 517, 520 (8th Cir. 2006) (recommendation issued) (holding that a recommendation to the BOP is “not reviewable as it is not a decision of the district court”); United States v. Ceballos, 671 F.3d 852, 855–56 (9th Cir. 2011) (recommendation denied) (holding that a recommendation to the BOP is “not part of the sentence ․ nor ․ a final order from which an appeal lies”).

We are persuaded by the other circuits that have addressed the issue and hold that a district court's denial of a recommendation to the BOP is not a final order subject to appellate review. Accordingly, we dismiss Martin's appeal for lack of jurisdiction.

DISMISSED.

PER CURIAM: