USA v. Lavoris Martin

Filing

Opinion issued by court as to Appellant Lavoris F. Martin. Decision: Dismissed. Opinion type: Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-17353

Date Filed: 08/15/2017

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17353
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-20522-MGC-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAVORIS F. MARTIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 15, 2017)
Before WILSON, JORDAN and ROSENBAUM, Circuit Judges.
PER CURIAM:

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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.
Moreover, the relief requested, if granted, would violate the prohibition on federal
courts issuing non-binding advisory opinions.
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 recommended 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.” 18
U.S.C. § 3621(b)(5). Although we have not yet addressed our jurisdiction to
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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) (recommendation denied) (holding that
no jurisdiction existed to review the refusal to recommend that the BOP admit the
defendant to a drug-treatment program because such a recommendation is nonbinding); United States v. Yousef, 327 F.3d 56, 165 (2d Cir. 2003)
(recommendation issued) (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)
(recommendation issued) (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) (recommendation issued) (holding that such a
recommendation “is not an order from which [a defendant] may appeal”); United
States v. Kerr, 472 F.3d 517, 520 (8th Cir. 2006) (recommendation issued)
(holding that a 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) (recommendation denied) (holding that a recommendation to the

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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 the issue and
hold that a district court’s denial of a 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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