                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          FEB 17 2000
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.
                                                        No. 99-1359
                                                  (D.C. No. 95-CR-361-Z)
 LAWRENCE BURZYNSKI, also
                                                         (D. Colo.)
 known as Larry Burns, also known as
 Barry J. Wilson,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.


      Defendant-Appellant Lawrence Burzynski (“Burzynski”) appeals from a

district court order denying his petition for a writ of mandamus filed pursuant to




      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
28 U.S.C. § 1361. 1 Our jurisdiction arises under 28 U.S.C. § 1291, and we

AFFIRM.

                                 BACKGROUND

      Burzynski entered into a plea agreement with the United States in

September 1998 in which he agreed to plead guilty to Counts 9 and 19 of the

indictment, wire fraud and mail fraud respectively, in exchange for the dismissal

of the remaining nineteen counts. The Plea Agreement contains no reference to

the facility at which Burzynski would serve his sentence. However, during the

district court hearing on September 2, 1998, at which Burzynski tendered his

guilty pleas, Burzynski’s counsel discussed with the trial judge his understanding,

based on a telephone conversation with a Bureau of Prisons official, that

Burzynski might be eligible for placement by the Bureau of Prisons in a federal

prison camp. Burzynski’s counsel requested that the district court recommend to

the Bureau of Prisons that Burzynski be placed in such a camp. The government

indicated that it would not object to such a recommendation, and the court stated

that it would make such a recommendation. At Burzynski’s sentencing hearing,

his counsel again requested that the district court recommend to the Bureau of

Prisons that Burzynski be placed in a federal prison camp. The government


      1
        Section 1361 provides: “The district courts shall have original jurisdiction
of any action in the nature of mandamus to compel an officer or employee of the
United States or any agency thereof to perform a duty owed to the plaintiff.”

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reiterated that it would not object to the recommendation. At both the hearing at

which Burzynski entered his guilty pleas and at the sentencing hearing, the

district court emphasized that it could only recommend and could not guarantee

placement in a federal prison camp. The court ultimately made the

recommendation, however the Bureau of Prisons did not place Burzynski in a

federal prison camp as requested. On July 20, 1999, Burzynski filed a petition in

the United States District Court for the District of Colorado for a writ of

mandamus to enforce his plea agreement with the government, which he argued

was breached, by requiring the Bureau of Prisons to designate the Federal Prison

Camp at Nellis Air Force Base (“Nellis”) as the place Burzynski will serve the

remainder of his sentence. The district court denied this petition the same day,

finding that Burzynski was not promised placement at Nellis but instead was

promised that the court would only make a recommendation. The court found that

this promise was fulfilled and therefore Burzynski’s petition was without merit.

                                   DISCUSSION

      Construing Burzynski’s pro se pleadings liberally, see Haines v. Kerner,

404 U.S. 519, 520-21 (1972), Burzynski appears to make two arguments on

appeal. Burzynski first argues that the government violated his plea agreement

when it did not ensure that the Bureau of Prisons placed him in the federal prison

camp. Whether government conduct has violated a plea agreement is a question


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of law we review de novo. See United States v. Hawley, 93 F.3d 682, 690 (10th

Cir. 1996). “Our analysis focuses on the nature and extent of the promises made

by the government, but is sensitive to the defendant’s reasonable understanding

thereof.” United States v. Furman, 112 F.3d 435, 439 (10th Cir. 1997). In this

case, the plea agreement itself did not contain a promise that Burzynski would be

placed in a federal prison camp. However, there was discussion during

Burzynski’s plea hearing and at his sentencing hearing that the court would

recommend a federal prison camp and the government would not object. Even

assuming, without deciding, that these statements are part of the plea agreement,

it is clear that there was no promise made by either the government or the court to

ensure that Burzynski was imprisoned at a federal prison camp. Based on our

review of the record, it clear that the district court informed Burzynski that it only

had the power to recommend a federal prison camp and that the Bureau of Prisons

does not always follow these recommendations. Moreover, the government

simply agreed not to object to the recommendation. The court made the

recommendation and there is no allegation that the government ever objected to

the recommendation, therefore, we find no breach of the plea agreement.

      Burzynski’s second argument is that the district court abused its discretion

when it denied his petition for a writ of mandamus. “[W]e review a district

court’s denial of a mandamus for an abuse of . . . discretion . . .;however, we


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consider de novo whether the legal prerequisites for such relief are present.”

Marquez-Ramos v. Reno, 69 F.3d 477, 479 (10th Cir. 1995) (internal citations

omitted). Before mandamus can be issued, “there must be a clear right to the

relief sought, a plainly defined and peremptory duty on the part of respondent to

do the action in question, and no other adequate remedy available. . . . Petitioner

must also show that his right to the writ is ‘clear and indisputable.’” Johnson v.

Rogers, 917 F.2d 1283, 1285 (10th Cir. 1990) (internal citations omitted).

      In this case, Burzynski has failed to show that he has a clear right to relief.

As noted earlier, the court and the government made no promise that Burzynski

would be placed in a federal prison camp. The only promises made concerned the

court’s promise to recommend a prison camp and the government’s promise not to

object. Burzynski stated during the hearings before the court that he understood

the court could only recommend a prison camp and that the Bureau of Prisons

might disregard the recommendation. The court made the recommendation and

the government did not object, thus the agreement was properly enforced and

Burzynski does not have a right to any relief.

      Moreover, mandamus is only appropriate if the respondent owes a clear

nondiscretionary duty. See Marquez-Ramos, 69 F.3d at 479. In this case, the

Bureau of Prisons was the agency that made the final determination of where

Burzynski would be housed. Congress has given the Bureau of Prisons broad


                                         -5-
discretion in the designation of the correctional facility at which a federal

prisoner will serve his term of imprisonment. 18 U.S.C. § 1321 provides that a

sentenced defendant “shall be committed to the custody of the Bureau of Prisons”

who “may designate any available penal or correctional facility . . . that the

Bureau determines to be appropriate and suitable.” This language clearly gives

the Bureau of Prisons discretion as to where a prisoner will be housed. See

United States v. Williams, 65 F.3d 301, 307 (2d Cir. 1995). Thus, because the

Bureau of Prisons exercised its discretion under the statute, Burzynski is unable

to show a “plainly defined and peremptory duty” to place him in a federal prison

camp.

We therefore find that the prerequisites for the issuance of a writ of mandamus

have not been satisfied.

        For the reasons stated above, we AFFIRM the district court’s denial of the

petition for a writ of mandamus and find that the government has not breached the

plea agreement.

        The mandate shall issue forthwith.

                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge



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