UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNI'I`ED STATES OF AMERICA,

 

V- Criminal Action No. 10-18-4 (JDB)
RAUL ARTURO FERNANDEZ, F I L E D
Defendant.
MAY 02 2018

 

 

 

Clerk, U.S. Dlstrlct & Bankruptcy
MEMORADUM OPINON & ORDER Courts forthe Dlstrlct of Go|umb|a

Before the Court is [421] Fernandez’s motion for declaratory relief or an immigration
departure under the Declaratory Judgment Act, 28 U.S.C. §§ 2201_02, and Bureau of Prisons
(BOP) Program Statement 5111.04 (2006).l The Court sentenced Fernandez on November 26,
20l2 to 144 months’ imprisonment on one count of conspiracy to distribute cocaine knowing and
intending that it would be unlawfully imported into the United States. § Judgment [ECF No.
299]. On October 24, 2017, Femandez filed a pro_s§ motion challenging the BOP’s failure to
institute the Institutional Hearing Program (IHP) at Rivers CI, the privately-run prison at which he
is currently incarcerated w Expedited Mot. for Decl. Relief (“Def.’s Mot.”) [ECF No. 421] at
3.2 The IHP allows “eligible inmates in Bureau custody” to go through their removal proceedings
while still incarcerated, which “allows ICE to effect deportation immediately upon completion of
an inmate’s sentence.” BOP Program Statement 51 l 1.04, at l. Fernandez asks the Court to issue
an order that requires BOP to do one of three things: (l) implement the IHP at Rivers; (2) transfer

Fernandez to a facility that is covered by the IHP; or (3) reduce his sentence by lO% or up to one

 

' The BOP Program Statement can be found at https://www.bop.gov/policy/progstat/Sl 11_004.pdf.

2 Because Fernandez’s motion does not include a page number on the first page, but rather starts with a
number “l” on the second page, all citations to pages of his motion will correspond to the document itself rather than
to the page numbers listed on the document.

year so that he can be transferred more quickly to the custody of immigration authorities for
removal proceedings ge Def.’s Mot. at 3-5, 12~14.

The government asserts that Fernandez’s motion should really be construed as a habeas
petition, and that it therefore must be brought in the district in which Fernandez is confined _Se_e
Gov’t’s Opp’n [ECF No. 422] at 5~7. But, with the possible exception of his request for an
immigration departure, Fernandez’s “action is properly characterized as a challenge to a condition
. . . of his confinement, and not its fact or duration.” Tavlor v. U.S. Prob. Office, 409 F.3d 426,
430 (D.C. Cir. 2005). Therefore, while habeas is available, it is not the exclusive avenue by which
Fernandez may seek relief. E §

However, to the extent that a declaratory judgment action might be proper, the Court cannot
hear it at this time. The government has raised the affirmative defense of exhaustion, se_e Gov’t’s
Opp’n at 12, and the Court agrees that Femandez must make his first two requests_to implement
the lHP at Rivers or to transfer him to a prison covered by the IHP_to BOP through its
Administrative Remedy Program (ARP) before he can make them to the Court. The Prison
Litigation Reforrn Act (PLRA) states that “[n]o action shall be brought with respect to prison
conditions under . . . any . . . Federal law, by a prisoner confined iri any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C.
§ l997e(a). This requirement “applies to all inmate suits about prison life, whether they involve
general circumstances or particular episodes,” though not to “those challenging the fact or duration
of confinement itself.” Porter v. Nussle, 534 U.S. 516, 527, 532 (2002) (citation omitted).
Whether Rivers is covered by the IHP is certainly a question of prison life within the ambit of the
PLRA. Similarly, the fact that Femandez is confined at Rivers rather than at a prison covered by

the IHP_in other words, his location of confinement_is a prison condition. § Taylor, 409 F.3d

at 430. Thus, it is “mandatory” that Fernandez exhaust all administrative processes before bringing
either of these challenges in court. Woodford v. Ngo, 548 U.S. 81, 85 (2006).

Ferndandez claims that he does not need to exhaust any administrative remedies because
his motion involves “purely legal question[s]” and because “[d]eclaratory [r]elief cannot be
obtained administratively.” Def.’s l\/lot. at 15. However, “mandatory exhaustion regimes” like
the PLRA’s “foreclose[e] judicial discretion”; plenty of prisoner suits involve solely legal
questions, and the Court cannot “add unwritten limits” to the PLRA’s clear rule that suits
challenging prison conditions must be exhausted Ross v. Blake, 136 S. Ct. 1850, 1857 (2016).
BOP’s Administrative Remedy Program “allow[s] an inmate to seek formal review of an issue
relating to any aspect of his/her own confinement.” 28 C.F.R. § 542.10. Fernandez must go
through the grievance process set up by BOP before filing his claim in court. E id §§ 542.13-
15. Nor does it matter that Fernandez cannot receive declaratory relief through the administrative
process. An inmate must exhaust any available administrative process, even if he “want[s] a type
of relief that the administrative process did not provide.” M, 136 S. Ct. at 1857; M BM
v. Churner, 532 U.S. 731, 741 n.6 (2001) (holding that “an inmate must exhaust irrespective ofthe
forms of relief sought and offered through administrative avenues”). Indeed, if Femandez’s
challenge through the ARP succeeds, he would receive a remedy far more useful than a declaration
of his rights: immediate access to the IHP. Fernandez has not claimed, nor has he provided any
facts that would suggest, that he has already gone through the ARP procedure. Therefore,
Femandez’s motion, to the extent it seeks either to require BOP to implement the IHP at Rivers or
to transfer him to a prison covered by the IHP, must be dismissed for failure to exhaust his

administrative remedies

This leaves Fernandez’s request for a reduction in sentence, which Fernandez also styles a
declaratory judgment action. However, the Court has no power to reduce a prisoner’s sentence via
a declaratory judgment, or through any means other than the narrow ones set out in 18 U.S.C.
§ 3582. w Dillon v. United States, 560 U.S. 817, 824 (2010). As Fernandez is M, the Court
may construe his motion instead as a motion for a sentence modification under § 3582. _S_@
Schnitzler v. United States, 761 F.3d 33, 38 (D.C. Cir. 2014) (stating that district courts have an
“obligation to construe a w plaintiffs filings liberally”). But this will get Fernandez no further
than would a declaratoryjudgment claim. Section 3582 permits modification if: (1) the Bureau of
Prisons moves to reduce a defendant’s sentence; (2) Federal Rule of Criminal Procedure 35 or the
provisions of 18 U.S.C. § 3742 allow for correction; (3) the original sentence was outside the
applicable Guidelines range; or (4) the defendant was “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(b)-(c). None of these options apply to Fernandez.3

In particular, § 3742 does not offer him relief because his sentence was not the “result of
an incorrect application of the sentencing guidelines.” 18 U.S.C. § 3742(a)(2). ln United States
v. Smith, the D.C. Circuit held “that a downward departure may be appropriate where the
defendant’s status as a deportable alien is likely to cause a fortuitous increase in the severity of his

sentence.” 27 F.3d at 655. The Court granted Femandez a six-month Smith departure at

 

3 Federal Rule of Criminal Procedure 35 allows a court to correct a “clear error” in the sentence within 14
days of sentencing, or else to reduce a sentence for substantial assistance to the government upon a government
motion, Section 3742, meanwhile, allows a defendant to petition for review of a sentence that is greater than that
specified in the applicable Guidelines range, or that was imposed in violation of law, pursuant to an incorrect
application ofthe Guidelines, or for an offense that is not subject to the Guidelines and that is plainly unreasonable
g 18 U.S.C. § 3742(a). Femandez has not made claims under any ofthese provisions except, perhaps, to argue by
reference to the sentencing departures allowed under United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994), that the
Court incorrectly applied the Guidelines. Nor has the Bureau of Prisons petitioned for a modification. And no
Guideline range applicable to Femandez has subsequently been lowered by the Sentencing Commission. §§c_ Mem.
Op. & Order [ECF No. 426] at 4. Indeed, Fernandez expressly disclaims that the instant motion is orie under
§ 3582(c)(2), which is the subsection that governs subsequently lowered Guidelines ranges. S_e_e Def.’s Mot. at 1.

sentencing _S_e_e Tr. of Sentencing [ECF No. 323] at 32:16-:23. The Court did not err by failing
to provide a second §m_itl'_i-like departure after it had already provided the first. Fernandez instead
asks the Court to reexamine his sentence Q_Q_M so that he can be released to immigration
authorities sooner, §§ Def.’s Mot. at 17_something the Court is not empowered by § 3582 to
do.4

Fernandez’s motion for declaratory relief or an immigration departure is therefore
DENIED.5

SO ORDERED.

/s/

JOHN D. BATES
United States District Judge

Dated: May 2, 2018

 

4 Moreover, according to the government, Fernandez will likely be subject to the Expedited Removal process
under 8 U.S.C. § 1225(b) because he meets the requirements to be deemed an inadmissible alien upon release from
prison. w Gov’t’s Opp’n at 11-12. He therefore can complete all ofthe procedures required for deportation before
his projected release date. I_d at 12. This fact cuts against providing another Smith-like departure, even if one were
available; but it also suggests that Fernandez will receive the relief he seeks under the law as it already exists

5 On l\/Iarch 5, 2018, Femandez filed a motion to hold the instant motion in abeyance to await possible
congressional action on the Sentencing Reform and Corrections Act of2017, S. 1917, 1 15th Cong. (2017), which he
believes would provide him with “exactly what [he] fought for iri [his] motion,” l\/lot. to Hold in Abeyance [ECF No.
425] at 1. However, the Court will not hold this motion in abeyance pending the highly uncertain outcome of
congressional deliberations Should the bill pass into law, and should Fernandez still believe that it would provide
him with a remedy, he may renew his motion for relief at that time.

