Azael Lopez Astaiza, Petitioner v. Warden, FCI Berlin, Respondent

2023 DNH 048

• Court: District Court, D. New Hampshire
• Decided: April 28, 2023
• Docket: 23-cv-127-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Azael Lopez Astaiza, Petitioner

v. Case No. 23-cv-127-SM Opinion No. 2023 DNH 048

Warden, FCI Berlin, Respondent

O R D E R

Azael Lopez Astaiza is a federal prisoner currently being

held at the Federal Correctional Institution in Berlin, New

Hampshire. He brings a petition pursuant to 28 U.S.C. § 2241

saying the Bureau of Prisons (“BOP”) has improperly classified

him as “ineligible” to apply time credits he has earned under

the First Step Act and, therefore, incorrectly calculated his

projected release date. He seeks an order directing the BOP to

properly account for those time credits and to amend his

projected release date by one year.

When Lopez Astaiza filed his petition, his claim had merit.

But, shortly thereafter, the BOP properly credited him with

earned FSA time credits and advanced his projected release date

by one year (the maximum permitted). Accordingly, Lopez Astaiza has received all of the relief to which he is entitled and his

petition is now moot.

Discussion

There are two ways by which inmates serving federally-

imposed sentences may reduce the amount of time they must serve

in prison. Those serving a term of imprisonment greater than

one year may earn “good time” credits for “exemplary compliance

with institutional disciplinary regulations.” 18 U.S.C. §

3624(b)(1). Inmates may also earn “time credits” under the

First Step Act for the successful completion of “evidence-based

recidivism reduction programming or productive activities.” 18

U.S.C. § 3632(d)(4)(A). This case involves the latter.

Lopez Astaiza is currently serving a 108-month term of

imprisonment, to be followed by a five-year term of supervised

release. He is the subject of an Immigration and Customs

Enforcement (“ICE”) detainer that was lodged against him in

March of 2020. With the benefit of good time credits, his

“Final Statutory Release Date” is August 29, 2025. See Sentence

Monitoring Computation Data (document no. 6-3) at 1. None of

that is in dispute.

2 In addition to good time credit, Lopez Astaiza has also

earned a substantial number of FSA time credits, 365 of which

may be applied toward early transfer to supervised release. See

FSA Time Credit Assessment as of March 25, 2023 (document no. 5-

4) at 1. See also 18 U.S.C.A. § 3624(g)(3) (providing that the

BOP may apply no more than 12 months of earned FSA time credits

to advance an inmate’s date of transfer to supervised release).

So, factoring in both his good time credits and his FSA time

credits, Lopez Astaiza’s “Projected Release Date” should be

August 29, 2024 - that is, 365 days earlier than his “Final

Statutory Release Date.” But, says Lopez Astaiza, the BOP is

refusing to apply those FSA time credits and, therefore, his

projected release is off by one year.

Lopez Astaiza was, for a time, correct. But, on February

6, 2023, the BOP amended its procedures for implementing the

First Step Act. Among other things, it removed language from

the prior policy that prohibited prisoners subject to ICE

detainers from applying FSA time credits toward an early

transfer to prerelease custody or supervised release. See U.S.

Dept. of Justice, Bureau of Prisons, Program Statement 5410.10

CN-1 at 2 (Feb. 6, 2023). 1 Consequently, inmates like Lopez

1 Available at: https://www.bop.gov/PublicInfo/execute/ policysearch?todo=query&series=5000).

3 Astaiza who are subject to ICE detainers (but not final orders

of removal) are now permitted to apply FSA time credits toward

prerelease custody or supervised release. See generally 18

U.S.C. § 3632(d)(4)(E)(i).

Following that change in policy, the BOP recalculated Lopez

Astaiza’s Sentence Monitoring Computation Data. The BOP’s

records now accurately show that he is eligible both to earn and

to apply earned FSA time credits toward early release. See FSA

Time Credit Assessment dated March 25, 2023, at 1.

Additionally, the BOP has applied the maximum number of FSA time

credits (365) to calculate his “Projected Release Date” of

August 29, 2024 (rather than August 29, 2025). See Sentence

Monitoring Computation Data at 1. The relief sought in Lopez

Astaiza’s petition has, then, been granted in full.

Parenthetically, the court notes that to the extent Lopez

Astaiza moves the court to order the BOP to immediately release

him from custody (it is not clear), he is not entitled to such

relief. Prisoners can only apply FSA time credits toward

prerelease custody or early transfer to supervised release once

they have “earned time credits . . . in an amount that is equal

to the remainder of the prisoner’s imposed term of

imprisonment.” 18 U.S.C. § 3624(g)(1)(A). See also 28 C.F.R.

4 § 523.44(b). In other words, eligible inmates can accumulate

FSA time credits throughout their incarceration, but they may

only apply those accumulated time credits once they are

sufficient in number to meet or exceed the time remaining on the

inmate’s imposed term of imprisonment. See generally Rengifo-

Valencia v. Warden, FCI Berlin, No. 23-CV-082-SM, 2023 WL

3020871, at *1 (D.N.H. Apr. 20, 2023).

Here, Lopez Astaiza filed his petition on February 15,

2023. As of that date, he still had 926 days remaining until

his statutory release date of August 29, 2025. As of March 25,

2023, he had accumulated a total of 735 FSA time credits (370

for application toward prerelease custody/home confinement and

365 for application toward supervised release). While BOP

records show that he remains eligible to earn FSA time credits,

he has not acquired sufficient credits (and his statutory

release date is not sufficiently close in time) to be able to

apply those credits toward prerelease custody or early transfer

to supervised release.

Conclusion

For the foregoing reasons, as well as those set forth in

the government’s legal memorandum, it is plain that Lopez

Astaiza has received all the relief sought to which he is

5 entitled and there is no longer any case or controversy. His

petition (document no. 1) is, therefore, dismissed as moot. The

government’s motion to dismiss (document no. 5) is granted.

The Clerk of Court shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

April 28, 2023

cc: Azael Lopez Astaiza, pro se Raphael Katz, Esq.