United States v. Lavoris F. Martin

Case: 16-17353 Date Filed: 08/18/2017 Page: 1 of 4

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-17353 Non-Argument Calendar ________________________

D.C. Docket No. 1:13-cr-20522-MGC-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LAVORIS F. MARTIN,

Defendant-Appellant.

________________________

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

(August 18, 2017)

Before WILSON, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:  Case: 16-17353 Date Filed: 08/18/2017 Page: 2 of 4

We vacate our prior opinion, United States v. Martin, No. 16–17353, 2017

WL 3480692 (11th Cir. Aug. 15, 2017), and substitute the following opinion in its

place.

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.

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 recommend 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.”

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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) (per curiam) (holding that no jurisdiction

existed to review the district court’s refusal to recommend that the BOP admit the

defendant to a drug-treatment program because such a recommendation is non-

binding and “within the sole discretion of the [BOP]”); United States v. Yousef,

327 F.3d 56, 165 (2d Cir. 2003) (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) (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)

(holding that a district court’s non-binding recommendation “is not an order from

which [a defendant] can appeal”); United States v. Kerr, 472 F.3d 517, 520 (8th

Cir. 2006) (holding that a non-binding 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) (per curiam) (holding that a recommendation

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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 this issue and

hold that a district court’s denial of a non-binding recommendation to the BOP is

not a final order subject to appellate review. Accordingly, we dismiss Martin’s

appeal for lack of jurisdiction.

DISMISSED.

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