UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 08-cr-98-JD

Opinion No. 2011 DNH 156

Candice Emra

O R D E R

While serving a sentence for bank robbery, Candice Emra,

proceeding pro se, filed a motion asking the court to recommend

to the Bureau of Prisons that she be placed in a Residential Reentry Center (“RRC”), pursuant to 18 U.S.C. § 3621(b) and 42

U.S.C. § 17541, for up to twelve months before she is released

from custody. The court directed the government and the United

States Probation Officer to respond to Emra’s motion, which they

have done.

Emra pleaded guilty to conspiracy and bank robbery on

November 10, 2008, and was sentenced to sixty-three months of

imprisonment with three years of supervised release. Judgment

was entered on March 10, 2009. The court recommended that Emra

participate in an intensive drug education and treatment program

but made no recommendation with respect to Emra’s eventual

placement in an RRC.

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During her incarceration, Emra has completed a 500 hour drug

treatment program.1 The government represents that Emra is

incarcerated at FCI Danbury, Connecticut, and is scheduled to be

released on January 9, 2013.2 

Emra argues that she qualifies for and should be recommended

for early placement in an RRC pursuant to § 3621(b) and § 17541. 

The Probation Officer states that Emra’s case manager at FCI

Danbury explained that Emra’s conviction of a violent crime, bank

robbery, precludes her from an early RRC placement but that she

will receive residential re-entry assistance during the last six

months of her sentence. In its response, the government contends

that the court lacks authority to recommend an RRC placement,

because that is a discretionary function of the Bureau of

Prisons.

Although no jurisdictional issue was raised by the

government, the court has an independent obligation to determine

the basis of its jurisdiction to decide this matter. See Hertz

Corp. v. Friend, 130 S. Ct. 1181, 1193 (2010). As another court

has expressed, cases challenging placement by the Bureau of

1Emra states in support of her motion that she has also

completed skill developing programs while in prison.

2In her motion, Emra states that as of August 19, 2011, she

had eleven months left in her sentence.

2

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Prisons raise a “gateway issue” of jurisdiction. Putnam v. Winn,

441 F. Supp. 2d, 253, 254 (D. Mass. 2006).

To the extent Emra is seeking to correct her sentence, her

request is too late. Fed. R. Crim. P. 35. The court lacks

jurisdiction to correct a sentence after the time allowed by Rule

35. United States v. Griffin, 524 F.3d 71, 83 (1st Cir. 2008). 

Bureau of Prison placement decisions cannot be challenged

under the Administrative Procedures Act. 18 U.S.C. § 3625; see

also, e.g., Murray v. Bledsoe, --- F.3d ---, 2011 WL 2279428, at

*1, n.1 (3d Cir. June 10, 2011); Reeb v. Thomas, 636 F.3d 1224,

1227 (9th Cir. 2011).

If Emra intended to challenge her sentence by seeking a writ

of habeas corpus, this court lacks jurisdiction to consider her

request because she is incarcerated in Danbury, Connecticut. 28

U.S.C. § 2241(a) & § 2243; Rasul v. Bush, 542 U.S. 466, 478-79

(2004); Vasquez v. Reno, 233 F.3d 688, 690-91 (1st Cir. 2000);

see also United States v. Pena, 84 Fed. Appx. 118, 120 (2d Cir.

2003). The motion is not directed to her custodian and Emra’s

intent is unclear. Therefore, the court concludes it would not

be in the interests of justice to transfer the matter to a court

that would have jurisdiction. See 28 U.S.C. § 1631.

3

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Conclusion

For the foregoing reasons, the defendant’s motion (document

no. 22) is denied for lack of jurisdiction.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

September 29, 2011

cc: Michael T. McCormack, Esquire

Terry L. Ollila, Esquire

Candice Emra, pro se

4

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