Emmanuel Bello-Arias, Petitioner v. Warden, FCI Berlin, Respondent

2023 DNH 043

• Court: District Court, D. New Hampshire
• Decided: March 25, 2023
• Docket: 23-cv-079-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Emmanuel Bello-Arias, Petitioner

v. Case No. 23-cv-079-SM Opinion No. 2023 DNH 043

Warden, FCI Berlin, Respondent

O R D E R

Emmanuel Bello-Arias 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 amend his projected

release date by one year.

When Bello-Arias filed his petition, his claims 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, Bello-Arias has received all of the relief he sought 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.

Bello-Arias is currently serving a 106-month term of

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

release. He is the subject of an Immigrations and Customs

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

of 2022. With the benefit of good time credits, his “Final

Statutory Release Date” is July 20, 2027. See Sentence

Monitoring Computation Data (document no. 6-3) at 1. He does

not dispute that calculation.

2 In addition to good time credit, Bello-Arias has also

earned a number of FSA time credits, 365 of which that may be

applied toward early transfer to supervised release. See FSA

Time Credit Assessment as of March 25, 2023 (document no. 6-4)

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, Bello-Arias’s “Projected Release Date” should be July

20, 2026 – that is, 365 days earlier than his “Final Statutory

Release Date.” But, says Bello-Arias, the BOP is refusing to

apply those FSA time credits and, therefore, his projected

release date is one year later than it should be.

According to Bello-Arias, the BOP improperly listed him as

“ineligible” to apply his earned FSA time credits toward an

early transfer to prerelease custody or supervised release

because of the presence of the ICE detainer against him. The

FSA Time Credit Assessment attached to his petition and dated

January 14, 2023 (document no. 1-1) appears to support that

claim. The government has not attempted to explain why the BOP

had been reporting that Bello-Arias was “ineligible” to apply

FSA time credits toward early release. But, it is likely

because the BOP had been operating under the mistaken impression

3 that the existence of an ICE detainer precluded an inmate from

applying earned FSA time credits toward an early release to

prerelease custody or supervised release. See U.S. Dept. of

Justice, Bureau of Prisons, Program Statement 5410.10, § 10(b)

at 13 (Nov. 11, 2022) (“While inmates with unresolved pending

charges and/or detainers may earn FTCs, if otherwise eligible,

they will be unable to apply them to prerelease custody or

release to supervision unless the charges and/or detainers are

resolved.”) (emphasis supplied) (available at

https://www.bop.gov/policy /progstat/5410_01.pdf).

That BOP policy seems to have been inconsistent with the

language of the FSA itself, which only precludes those prisoners

with “final orders of removal” from applying earned FSA time

credits toward prerelease custody or supervised release; the FSA

does not speak to prisoners who are subject only to a detainer.

See 18 U.S.C. § 3632(d)(4)(E)(i). See also Komando v. Luna, No.

22-CV-425-SE, 2023 WL 310580, at *6 (D.N.H. Jan. 13, 2023),

report and recommendation approved sub nom. Komando v. FCI

Berlin, Warden, No. 22-CV-425-SE, 2023 WL 1782034 (D.N.H. Feb.

6, 2023) (“This court, and the BOP, must give effect to the

plain language of the statute that was enacted. Potentially

removable noncitizens who are not the subject of final orders of

removal are not within the scope of subparagraph (E)(i).”).

4 Seemingly recognizing its error, on February 6, 2023, the

BOP amended its procedures for implementing the FSA. Among

other things, it removed language in the prior policy that

prohibited prisoners subject to ICE detainers from applying FSA

time credits. See U.S. Dept. of Justice, Bureau of Prisons,

Program Statement 5410.10 CN-1 at 2 (Feb. 6, 2023) (available

at: https://www.bop.gov/PublicInfo/execute/policysearch?todo=

query&series=5000). Subsequently, Bello-Arias’s Sentence

Monitoring Computation Data was recalculated. According to

documents attached to the government’s legal memorandum, Bello-

Arias is now eligible both to earn and to apply FSA time

credits. See generally Gonzalez-Garcia v. Warden, FCI Belin,

No. 23-cv-019, 2023 DNH 040 at 5 (D.N.H. April 20, 2023) (noting

that, based upon their underlying crimes of conviction, certain

inmates are not eligible to receive FSA time credits. Other

inmates are not eligible to apply FSA time credits toward

prerelease custody or supervised release.) (citing 18 U.S.C.

§§ 3632(d)(4)(D) and 3632(d)(4)(E)(i)).

In short, then, when Bello-Arias filed his petition, the

BOP had improperly determined that he was not eligible to apply

earned FSA time credits toward an early transfer to prerelease

custody or supervised release. But, since then, the BOP has

amended its policy and corrected Bello-Arias’s records. Those

5 records now correctly show that he is eligible to apply earned

FSA time credits toward early release. See FSA Time Credit

Assessment dated March 25, 2023, at 1. They also now properly

account for Bello-Arias’s earned FSA time credits and show that

his “projected release date” is July 20, 2026 (rather than July

20, 2027). See Sentence Monitoring Computation Data at 1.

Conclusion

For the foregoing reasons, it is plain that Bello-Arias has

received all the relief sought in his petition and no

intervention from this court is necessary. That petition

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

the government’s motion for summary judgment (document no. 6) is

denied as moot.

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 21, 2023

cc: Emmanuel Bello-Arias, pro se Heather A. Cherniske, Esq.