            Case: 17-15068   Date Filed: 11/05/2018   Page: 1 of 9


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-15068
                         Non-Argument Calendar
                       ________________________

                    D.C. Docket No. 1:17-cv-23440-UU



HECTOR ORLANSKY,

                                                           Petitioner-Appellant,

                                    versus

FCI MIAMI WARDEN,
U.S. BUREAU OF PRISONS,

                                                       Respondents-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (November 5, 2018)

Before TJOFLAT, JILL PRYOR and HULL, Circuit Judges.

PER CURIAM:
               Case: 17-15068     Date Filed: 11/05/2018    Page: 2 of 9


      Hector Orlansky, a federal prisoner proceeding pro se, appeals from the

district court’s dismissal of his action, which the district court construed as a

28 U.S.C. § 2241 petition, seeking relief from the decision of the Bureau of Prisons

(“BOP”) denying his request for compassionate release. He argues that the district

court erred in construing his complaint as a § 2241 petition because he also sought

a declaration pursuant to 28 U.S.C. § 2201 that he was eligible to be considered for

compassionate release due to his age and physical health. Because the district

court correctly concluded that Orlansky was not entitled to habeas relief and lacked

jurisdiction to grant the declaratory relief that Orlansky sought, the court did not

err in dismissing his petition. We thus affirm the district court.

                                           I.

      After Orlansky was convicted of various federal offenses, including

conspiracy to commit bank and wire fraud and conspiracy to commit money

laundering, he was sentenced to 240 months’ imprisonment. While serving his

sentence, Orlansky asked the BOP to grant him compassionate release because he

was 71 years old and suffering from a variety of medical problems. At the time

Orlansky made his request, he had served 122 months of his sentence. Orlansky

claimed that he was eligible for compassionate release pursuant to a policy

statement from the Sentencing Commission that an inmate was eligible for

compassionate release if he was at least 65 years old; experienced a serious


                                           2
              Case: 17-15068     Date Filed: 11/05/2018    Page: 3 of 9


deterioration in physical or mental health because of aging; and had served at least

10 years or 75 percent of his term of imprisonment, whichever was less. See

U.S.S.G. § 1B1.13 cmt. n.1(B). The BOP denied Orlansky’s request, explaining

that he did not meet the BOP’s requirements for compassionate release because he

had not served the greater of 10 years of his sentence or 75 percent of the term of

imprisonment. See BOP Program Statement 5050.49(4)(c).

      Orlansky then filed this action in federal court. In the first count of his

complaint, Orlansky sought a declaration that he was eligible for compassionate

release. In the second count, he sought habeas relief under 28 U.S.C. § 2241,

claiming that the BOP’s determination that he was ineligible for compassionate

release was arbitrary and nonsensical.

      A magistrate judge sua sponte issued a recommendation that Orlansky’s

action be dismissed for lack of jurisdiction. As an initial matter, the magistrate

judge construed his complaint as a petition for a writ of habeas corpus under 28

U.S.C. § 2241 because Orlansky was challenging the execution of his sentence.

The magistrate judge concluded that the court lacked subject matter jurisdiction

because, among other reasons, the court could reduce his sentence only if the BOP

filed a motion seeking such a reduction, and no motion had been filed in the case.

Orlansky objected to the recommendation, asserting that he was not asking the

court to reduce his sentence by granting him compassionate release but only to


                                          3
              Case: 17-15068    Date Filed: 11/05/2018   Page: 4 of 9


declare him eligible for compassionate release. He emphasized that the crux of his

complaint was that the BOP was using the wrong standard to determine whether he

was eligible for compassionate release.

      The district court, after performing a de novo review, adopted the magistrate

judge’s recommendation that the petition be dismissed because the court lacked

subject matter jurisdiction. The court explained that absent a motion from the

Director of the BOP, it could not modify or otherwise order the BOP to grant

Orlansky’s request for compassionate release.

      Orlansky filed a motion for reconsideration again explaining that he was

seeking a declaratory judgment that he was eligible for compassionate release,

rather than an order requiring the BOP to grant him compassionate release. The

district court denied Orlansky’s motion for reconsideration because he failed to

present any change in controlling law or new evidence and thus could not

demonstrate the need to correct any error or manifest injustice. This is Orlansky’s

appeal.

                                          II.

      We review de novo the district court’s determination that habeas relief was

unavailable under § 2241. See Sawyer v. Holder, 326 F.3d 1363, 1364 n.4 (11th

Cir. 2003). We also review de novo the district court’s determination that it lacked




                                          4
              Case: 17-15068     Date Filed: 11/05/2018   Page: 5 of 9


jurisdiction. See Howard v. Warden, 776 F.3d 772, 775 (11th Cir. 2015); Williams

v. Chatman, 510 F.3d 1290, 1293 (11th Cir. 2007).

                                         III.

      In his complaint, Orlansky sought two forms of relief: a reduction in his

sentence pursuant to § 2241 and a declaration that he is eligible for compassionate

release. He claims that he is eligible under the standards for compassionate release

promulgated by the Sentencing Commission. We first explain why Orlansky was

not eligible for habeas relief and then address why the district court lacked

jurisdiction to award him declaratory relief.

      We conclude that the district court properly construed Orlansky’s complaint

as a § 2241 petition. We have stated that federal courts have “an obligation to look

behind the label of a motion filed by a pro se inmate and determine whether the

motion is, in effect, cognizable under a different remedial statutory framework.”

United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990). “[A]side from the

specific parameters set forth by the federal statutory provisions controlling

sentencing, as well as the Federal Rules of Criminal Procedure,” district courts do

not have the authority to modify a sentence. See United States v. Diaz-Clark,

292 F.3d 1310, 1315 (11th Cir. 2002). Challenges to the execution of a sentence,

rather than to its validity, are properly brought under § 2241. Antonelli v. Warden,

U.S.P. Atlanta, 542 F.3d 1348, 1352 (11th Cir. 2008). Because Orlansky’s


                                          5
               Case: 17-15068     Date Filed: 11/05/2018   Page: 6 of 9


complaint presented a challenge to the execution of his sentence, the district court

did not err in treating it as a petition under § 2241.

      The district court also properly concluded that Orlansky was not entitled to

habeas relief under § 2241. Congress has provided that a court may reduce a term

of imprisonment only if the Director of the BOP files a motion requesting the

reduction and the court finds that “extraordinary and compelling reasons warrant”

a reduction. 18 U.S.C. § 3582(c)(1)(A). In the Sentencing Guidelines, the

Sentencing Commission promulgated a policy statement explaining that

“extraordinary and compelling reasons” exist when the defendant is at least 65

years old, is experiencing deteriorating health due to aging, and has served at least

10 years or 75 percent of his term of imprisonment, whichever is less. U.S.S.G.

§ 1B1.13, cmt. n.1(B). But the BOP has indicated in its own policy statement that

an elderly inmate may seek a reduction in his sentence only if he is 65 years of age

or older and has served the greater of 10 years or 75 percent of his sentence. BOP

Statement 5050.49(4)(c). Importantly, the Sentencing Commission has

acknowledged that the criteria set forth in the Guidelines policy statement differ

from the criteria actually used by the BOP and that the Guidelines policy statement

is not binding on the BOP. See U.S.S.G. App. C Amend. 799.

      A court may not compel the BOP to file a motion for compassionate release.

See Fernandez v. United States, 941 F.2d 1488, 1492-93 (11th Cir. 1991)


                                            6
              Case: 17-15068     Date Filed: 11/05/2018   Page: 7 of 9


(declining to review the BOP’s denial of a prisoner’s request for relief pursuant to

18 U.S.C. § 4205(g), which allowed courts to reduce a prisoner’s term of

imprisonment upon a motion by the BOP). We reasoned in Fernandez that, by

giving the BOP “absolute discretion” over whether to move for a reduction in a

prisoner’s sentence, Congress precluded judicial review of the BOP’s inaction. Id.

at 1493. Fernandez thus establishes that the BOP retained absolute discretion to

decide whether to file a motion under § 3582(c)(1)(A) for Orlansky to receive a

sentence reduction. The district court properly concluded that it lacked the

authority to grant Orlansky a reduction in his sentence based on his age, health,

and his time served because the BOP had not filed the required motion on his

behalf.

      In addition, Orlansky’s claim that he was entitled to compassionate release

fails for another reason. He contends that the BOP was required to adopt the

standards for compassionate release set forth by the Sentencing Commission. But

his argument is directly at odds with the Sentencing Guidelines. The Guidelines

merely “encourage[]” the BOP to file a motion for compassionate release when the

standards outlined by the Sentencing Commission are met. U.S.S.G. § 1B1.13

cmt. n.4. And the Sentencing Commission has expressly acknowledged that

§ 1B1.13 “is not legally binding on the [BOP] and does not confer any rights on

the defendant.” U.S.S.G. App. C Amend. 799. Orlansky has failed therefore to


                                          7
                 Case: 17-15068        Date Filed: 11/05/2018        Page: 8 of 9


show that the BOP’s decision not to follow the Sentencing Commission’s non-

binding recommendation entitles him to habeas relief.

       Orlansky argues that, even if the district court lacked the authority to grant

him a sentence reduction, he was entitled to a declaration that he was eligible to

apply for compassionate release. But we conclude that the district court lacked

jurisdiction to provide such declaratory relief.1 The Declaratory Judgment Act

gives courts the power to declare the rights and legal relations of parties “[i]n a

case of actual controversy within its jurisdiction.” 28 U.S.C. § 2201(a). But the

Declaratory Judgment Act does not confer jurisdiction upon the federal courts.

Stuart Weitzman, LLC v. Microcomputer Res., Inc., 542 F.3d 859, 861-62 (11th

Cir. 2008). In determining whether jurisdiction exists in an action brought under

the Declaratory Judgment Act, courts must consider whether “absent the

availability of declaratory relief, the instant case could nonetheless have been

brought in federal court.” Id. at 862.

       The problem for Orlansky is that there is no statute or rule that permits a

court to determine whether he is eligible to apply to the BOP for compassionate

release. As we discussed above, Congress provided that a federal court may

reduce an inmate’s sentence only upon a motion by the Director of the BOP. See
       1
         It appears that the district court failed to address whether Orlansky was entitled to a
declaration that he was eligible for compassionate release. But even if the district court failed to
address this issue, we may address it because we may affirm on any basis supported by the
record, regardless of whether the district court decided the case on that basis. Lucas v. W.W.
Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001).
                                                 8
                 Case: 17-15068       Date Filed: 11/05/2018        Page: 9 of 9


18 U.S.C. § 3582(c)(1)(A). Because no such motion was filed here and the district

court has no power to compel the BOP to file such a motion, the court lacked

jurisdiction under the Declaratory Judgment Act to determine whether Orlansky

was eligible for compassionate release. See Fernandez, 941 F.2d at 1493; Turner

v. U.S. Parole Comm’n, 810 F.2d 612, 618 (7th Cir. 1987) (concluding that a

similar statute gave the BOP “unreviewable discretion”). 2

                                               IV.

       Accordingly, we affirm the district court’s judgment.

       AFFIRMED.




       2
          Orlansky also appeals the district court’s order denying his motion for reconsideration.
We review the denial of a motion for reconsideration for abuse of discretion. Richardson v.
Johnson, 598 F.3d 734, 740 (11th Cir. 2010). A motion for reconsideration may not be used to
re-litigate old matters or present arguments or evidence that could have been presented prior to
the entry of judgment. Id. In his motion for reconsideration, Orlansky continued to assert the
same argument that he was entitled to a declaration that he was eligible for compassionate
release. Thus the motion for reconsideration properly was denied.


                                                 9
