Ryan Bonneau v. Josias Salazar

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 7, 2020
• Docket: 19-35274
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 7 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RYAN FRANK BONNEAU, No. 19-35274

Petitioner-Appellant, D.C. No. 3:18-cv-00810-MO

v. MEMORANDUM* JOSIAS SALAZAR, Warden,

Respondent-Appellee.

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding

Argued and Submitted March 2, 2020 Portland, Oregon

Before: WOLLMAN,** FERNANDEZ, and PAEZ, Circuit Judges.

Ryan Frank Bonneau pleaded guilty to one count of aggravated identity

theft, in violation of 18 U.S.C. § 1028A. The district court imposed the statutory

mandatory minimum sentence of 24 months’ imprisonment, ordering Bonneau to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Roger L. Wollman, United States Circuit Judge for the U.S. Court of Appeals for the Eighth Circuit, sitting by designation. serve 14 months in prison and 10 months in home confinement. The Bureau of

Prisons (BOP) placed Bonneau in home confinement for only the last two months

of his sentence. Bonneau is now serving a one-year term of supervised release,

having been released from home confinement on May 28, 2019. Bonneau appeals

from the denial of his successive habeas petition, which challenged the BOP’s

administration of his sentence.

As an initial matter, we reject the government’s argument that this appeal is

moot. Bonneau remains in custody while serving his term of supervised release.

“The possibility that the sentencing court would use its discretion to reduce a term

of supervised release under 18 U.S.C. § 3583(e)(2) [is] enough to prevent the

petition from being moot.” Mujahid v. Daniels, 413 F.3d 991, 995 (9th Cir. 2005)

(internal quotation marks and citation omitted).

Bonneau argues that he is entitled to habeas relief because he was not placed

in home confinement for the last 10 months of his sentence, as ordered by the

district court. Congress, however, has imposed upon the BOP the duty to

“designate the place of the prisoner’s imprisonment,” 18 U.S.C. § 3621(b), and has

authorized it to “place a prisoner in home confinement for the shorter of 10 percent

of the term of imprisonment of that prisoner or 6 months,” id. § 3624(c)(2). As we

said in an earlier disposition in this case, “Notwithstanding the district court’s

2 19-35274 intention to split his sentence as the judge indicated, federal law forbids the BOP

from placing Bonneau in home confinement for more than 2.4 months.” Bonneau

v. Salazar, 754 F. App’x 624, 624 (9th Cir. 2019) (per curiam) (memorandum

disposition affirming the denial of Bonneau’s motion for a preliminary injunction).

We continue to view the district court’s order as addressing placement.

Because placement is within the BOP’s province—not the district

court’s—we reject Bonneau’s argument that the BOP was required to seek judicial

review before placing Bonneau in prison for more than 14 months. We conclude

that the BOP did not amend the district court’s judgment in administering

Bonneau’s 24-month sentence, but rather complied with its statutory placement

duty and heeded the statutory limitation on its home-confinement authority. See 18

U.S.C. § 3621(b); id. § 3624(c)(2); cf. id. § 3621(b) (“Any order . . . 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

Bureau under this section to determine or change the place of imprisonment of that

person.”); United States v. Ceballos, 671 F.3d 852, 855 (9th Cir. 2011) (per

curiam) (“Authority to determine place of confinement resides in the executive

branch of government and is delegated to the Bureau of Prisons.” (quoting United

States v. Dragna, 746 F.2d 457, 458 (9th Cir. 1984) (per curiam) (citations

3 19-35274 omitted))). Given these statutory commands and limitations, the doctrines of

waiver and estoppel do not apply in the circumstances of this case.

Finally, Bonneau was not entitled to appointed counsel before the BOP or in

these habeas proceedings. See Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir.

1958); cf. United States v. Martinson, 809 F.2d 1364, 1370 (9th Cir. 1987).

AFFIRMED.

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