UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 11-cr-64-1-SM Opinion No.

Adrian-Tiberiu Oprea

O R D E R

Adrian-Tiberiu Oprea is a federal prisoner currently being

held at the Federal Correctional Institution in Berlin, New

Hampshire. 1 Invoking the provisions of

(c), he

petitions the court to modify his existing sentence to add a

term of supervised release to the end of his period of

incarceration. That seemingly odd request is driven by Oprea’s

desire to benefit from certain programs created under the First

Step Act (FSA) and administered by the Bureau of Prisons (BOP).

Specifically, Oprea says he has earned a substantial number of

1 Parenthetically, the court notes that in his various appearances in this court, petitioner appears as “Adrian-Tiberiu Oprea.” The Bureau of Prisons, however, reports his name as “Oprea Adrian-Tiberiu.” See, e.g., Oprea v. Warden, FCI Berlin, No. 23-cv-141-SM, Declaration of Maury Yeakel (document no. 6- 2), para 4, n.1. In this order, the court will refer to him simply as “Oprea.” FSA time credits by successfully completing various BOP-

administered, evidence-based recidivism reduction programs.

According to Oprea, 365 of those accumulated time credits would

ordinarily be applied toward his early release to supervision.

Oprea’s problem is this: he was not originally sentenced to a

period of supervised release. In this proceeding, he seeks to

change that.

The government objects, saying Oprea’s inability to apply

earned FSA time credits does not constitute an “extraordinary

and compelling” reason to alter his sentence. See

(c)(1)(A)(i). Moreover, says the government, Oprea has

failed to demonstrate that he is not a danger to the community

or that his release would be consistent with the sentencing

factors described in

(a). The court disagrees

and, for the reasons given, Oprea’s motion seeking resentencing

under

is granted.

Background

Oprea is a citizen of Romania, currently serving a 180-

month term of imprisonment, with no term of supervision. He is

the subject of an Immigration and Customs Enforcement (“ICE”)

detainer that was lodged against him in April of 2022. He is

not, however, subject to a final order of removal.

2 With the benefit of accumulated good time credits, his

anticipated “Final Statutory Release Date” is September 10,

2024. See Oprea v. Warden, FCI Berlin, 23-cv-141-SM (“Oprea

I”), Sentence Monitoring Computation Data (document no. 6-3) at

1. Oprea has no history of disciplinary action in the past 12

months, he is a low security inmate, and the BOP reports that he

has not engaged in any known acts of violence or gang-related

activity. Additionally, the BOP itself has assessed that he

presents a minimum risk of recidivism. None of that is in

dispute. See Oprea I, Response to Request for Administrative

Remedy (document no. 7-2) at 2-3.

If Oprea had originally been sentenced to serve a term of

supervised release (as he surely would have been in the ordinary

course), he would be able to apply up to 365 of the FSA time

credits that he has earned toward his early release to

supervised release (assuming, of course, he meets other program

eligibility criteria). That, says Oprea, would shorten his

period of incarceration and move his anticipated release date

forward by one year, to September 23, 2023. See Oprea I,

Petition (document no. 1) at 7. Critically, however, when this

court sentenced Oprea it consciously declined to impose a term

of supervision because he is not a citizen of the United States

and faces likely deportation at the completion of his sentence.

3 See Transcript of Sentencing Hearing (document no. 128-2) at 33

(“Given the likelihood of deportation following completion of

the defendant’s sentence, the Court will not impose a period of

supervised release.”). Consequently, there is no term of

supervision to which Oprea might be released early.

Indeed, the FSA specifically contemplates the logical

proposition that only inmates sentenced to serve a term of

supervision may apply earned FSA time credits to secure early

release to that term of supervision. See

(g)(3) (“If the sentencing court included as a part of the

prisoner’s sentence a requirement that the prisoner be placed on

a term of supervised release after imprisonment pursuant to

section 3583, the Director of the Bureau of Prisons may transfer

the prisoner to begin any such term of supervised release at an

earlier date, not to exceed 12 months, based on the application

of time credits under section 3632.”) (emphasis supplied). See

also

(d) (“The Bureau may apply FSA Time

Credits toward early transfer to supervised release under 18

U.S.C. 3624(g) only when an eligible inmate has . . . a term of

supervised release after imprisonment included as part of his or

her sentence as imposed by the sentencing court.”) (emphasis

supplied). See generally Saleen v. Pullen, No. 3:23-CV-147

(AWT),

, at *1 (D. Conn. Apr. 12, 2023).

4 Given that Oprea was not sentenced to serve a term of

supervised release, it is impossible for him to apply earned FSA

time credits toward early release to supervision. Hence, his

apparently counterintuitive request that the court impose upon

him a new, more restrictive sentence that includes a term of

supervision.

Discussion

I. The Relevant Factors under Section 3553(a).

Section 3582 of Title 18 provides that the court may modify

an imposed term of imprisonment if, after considering the

factors set forth in

(a), it determines that

“extraordinary and compelling reasons warrant such a reduction”

and that “such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission.”

(a(c)(1)(A)(i) (emphasis supplied).

Plainly, section 3582 contemplates the situation in which

an inmate is seeking a reduction to his or her original

sentence. What makes this case unusual is that Oprea is not

seeking a reduction in his sentence – he is seeking a modest

increase to that sentence. He is not asking this court to

shorten his term of imprisonment, nor is he asking this court to

order his early release from BOP custody. Rather, he seeks the

5 imposition of a brief period of supervision so that he will

qualify for a BOP-administered program that could lead to his

early release from prison if, but only if, the BOP deems it

appropriate and consistent with governing program guidelines.

Consequently, section 3582 does not fairly contemplate the type

of request advanced by Oprea and sets forth factors that are not

entirely germane to that request. Instead, those factors

plainly contemplate the typical “compassionate release”

situation in which an inmate seeks a sentence reduction and

court-mandated early release from BOP custody. The court will,

nevertheless, consider those factors – in part, because it is

likely that the relief Oprea seeks (i.e., solely an augmentation

of his sentence) may not be permissible under

.

The factors identified in

(a) include: the

nature of the inmate’s offense and his or her history and

characteristics; the need for the sentence imposed (including

the seriousness of the underlying offense, the need for just

punishment and deterrence, the need to protect the public, and

the desire to provide the inmate with educational and vocational

training); the kinds of sentences available; the relevant

sentencing range; any pertinent policy statement issued by the

Sentencing Commission; and the need to avoid unwarranted

sentence disparities.

6 II. The Sentencing Commission’s Policy Statement.

In addition to the sentencing factors set forth in section

3553(a), the court must also consider “any pertinent policy

statements issued by the Sentencing Commission.”

(a). The currently-applicable Policy Statement under

section 1B1.13 of the Sentencing Guidelines provides that “the

court may reduce a term of imprisonment” if it determines that

“extraordinary and compelling reasons warrant the reduction” and

finds that the inmate is “not a danger to the safety of any

other person or to the community.” U.S.S.G. § 1B1.13, Policy

Statement, section 1(A) and 2. Such extraordinary and

compelling circumstances include the medical condition of the

inmate, his or her age, their family circumstances, and “other

reasons” that include “an extraordinary and compelling reason

other than, or in combination with, the reasons described

[above].” U.S.S.G. § 1B1.13, Policy Statement, Application

Notes, section 1(D). But, as the court of appeals for this

circuit has observed, that Policy Statement predates the First

Step Act and contemplates only motions to amend inmates’

sentences that are initiated by the BOP, not requests made by

inmates themselves (as are now permitted).

The short of it is that the Sentencing Commission’s current policy statement is not applicable to prisoner-initiated motions for compassionate release, and the Commission has not yet issued a policy

7 statement applicable to such motions. The policy statement referred to by the district court (that is, the current policy statement) is applicable only to compassionate-release motions brought by the BOP. We hold, therefore, that district courts — when adjudicating prisoner-initiated motions for compassionate release — have discretion, unconstrained by any policy statement currently in effect, to consider whether a prisoner’s particular reasons are sufficiently extraordinary and compelling to warrant compassionate release.

United States v. Ruvalcaba,

, 22–23 (1st Cir. 2022)

(emphasis supplied). 2 Consequently, the Court of Appeals

concluded that:

it is within the district court’s discretion, in the absence of a contrary directive in an applicable policy statement, to determine on a case-by-case basis whether such changes in law predicated on a defendant’s particular circumstances comprise an extraordinary and compelling reason and, thus, satisfy the standard for compassionate release under section 3582(c)(1)(A)(i).

Id., at 28.

III. Circumstances Warrant Granting Relief.

The reasoning underlying the government’s opposition to

Oprea’s motion is difficult to understand. The government’s

memorandum approaches Oprea’s request for relief as if he is

2 As the government notes, the Sentencing Commission has issued an amended policy statement (addressing inmate-initiated petitions for compassionate release), which will become effective in November of 2023.

8 seeking a “sentence reduction.” See Government’s Opposition

(document no. 128) at 4. As noted above, he is not.

Resentencing him to serve an additional period of supervised

release will simply make him eligible to participate in the BOP-

administered program that affords a limited number of qualifying

inmates early release to supervision; it will not guarantee

Oprea’s early release. Only if Oprea meets all of the program’s

eligibility requirements – as determined by the BOP – will he be

afforded early release. Indeed, for Oprea to qualify for early

release to supervised release, the BOP must, among other things,

determine that he poses “a minimum or low risk to recidivate

pursuant to the last reassessment of the prisoner.”

(g)(1)(D)(ii). Inmates who pose a potential danger to the

community – that is, those more likely to recidivate – are not

eligible to apply earned FSA time credits toward early release.

See

(g)(1)(D)(i) and (ii). And, of course, if

released to supervision, Oprea is likely to be deported.

Considering the factors identified in

(a)

in light of Oprea’s unique circumstances, the court concludes

that none counsels against adding a brief period of supervised

release to Oprea’s sentence. Indeed, several factors counsel in

favor of it. For example, making relief of the sort sought by

Oprea available to federal inmates who were not sentenced to a

9 term of supervision will encourage otherwise-ineligible inmates

to participate in the evidence-based recidivism reduction

programs offered by the BOP under the First Step Act. See

(a)(2)(D). That, in turn, facilitates the general

public policy goal of protecting the public from future criminal

activity. See

(a)(2)(C). Absent such relief,

one would expect that inmates without a term of supervised

relief will be less likely to participate in such programs, to

the detriment of society as a whole.

Turning next to the provisions of

, the

court concludes that Oprea’s particular circumstances combine to

form extraordinary and compelling reasons to warrant a sentence

modification. First, the government’s assertion that Oprea has

failed to demonstrate that he poses no danger to the community

is contradicted by the BOP’s own determination that Oprea poses

a “minimum” risk of recidivism, based upon its experience,

expertise, and observations. See Oprea I, Response to Request

for Administrative Remedy (document no. 7-2) at 2-3. The

government does not suggest any supportable or supported basis

for its apparent contrary opinion.

Additionally, while an inmate’s rehabilitation is not, by

itself, an extraordinary or compelling reason for purposes of

10 resentencing, it seems to be a factor, see

(t) –

though the Court of Appeals has implied, in dicta, it is not a

particularly strong factor, see, e.g., United States v.

Ruvalcaba,

(2022). So, to the extent it bears on

the court’s decision, it is worth noting that Oprea has

successfully completed numerous BOP-administered evidence-based

recidivism reduction programs, through which he has earned a

significant number of FSA time credits – all while maintaining a

clean disciplinary record.

Viewing the totality of the circumstances presented by

Oprea’s petition, the court finds that there are “extraordinary

and compelling reasons” that warrant the modification of his

sentence so that it includes a term of supervised release. See

(c). Indeed, but for Oprea’s likely

deportation, the court would have originally sentenced him to a

significant period of supervision. Absent such relief, the

goals of the First Step Act cannot be fully realized. Moreover,

nothing in the record counsels against affording Oprea the

opportunity to be considered by the BOP for early release under

First Step Act.

In light of the foregoing, the court concludes that the

relief Oprea seeks (as modified below) is both authorized and

11 appropriate. See generally United States v. Nunez-Hernandez,

No. CR 14-20(8) (MJD),

, at *1 (D. Minn. Apr. 27,

2023) (granting petitioner’s request for resentencing and

imposing one month of supervised release so petitioner might

obtain early release from BOP custody into the custody of ICE,

pursuant to

(g)(3)).

Conclusion

Based upon the record before the court, it appears that

Oprea has faithfully participated in (and completed) numerous

BOP-administered, evidence-based recidivism reduction programs

under the First Step Act and accumulated a significant number of

FSA time credits. He has also earned (and is projected to

continuing earning) a significant number of good time credits.

He has no history of discipline over the last 12 months; he has

not participated in any gang-related activity or known acts of

violence while incarcerated; he is a “low security” inmate; he

has maintained a “minimum PATTERN recidivism score” under BOP

testing; and he has served a significant portion of his 15-year

sentence. Granting the relief he seeks is entirely consistent

with, and advances the goals of, the First Step Act.

Accordingly, pursuant to

(c)(1), the court

concludes that resentencing Oprea to serve an additional period

12 of supervised release at the end of his term of imprisonment is

warranted. His motion is granted (document no. 125).

Oprea’s sentence shall be modified to reduce the period of

incarceration by one month and to impose a period of supervised

release of one year, subject to the standard and mandatory

conditions imposed by this court. See

. See

also United States v. Nienadov,

(S.D. Texas June

21, 2013)(reducing petitioner’s incarcerative sentence by one

month and adding a one-year period of supervised release so that

he might benefit from the provisions of the First Step Act). An

amended judgment shall be entered on the docket.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

October 20, 2023

cc: Adrian Tiberiu Oprea, pro se Heather A. Cherniske, Esq. U.S. Probation U.S. Marshal

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