UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Adrian Tiberiu Oprea, Plaintiff

v. Case No. 23-cv-141-SM Opinion No.

Warden, FCI Berlin, Defendant

O R D E R

Adrian Tiberiu Oprea (“Oprea”) is a federal prisoner

currently being held at the Federal Correctional Institution in

Berlin, New Hampshire. He petitions the court pursuant to

, 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.

The government moves to dismiss Oprea’s petition, asserting

that it fails to state any viable claims. That is true.

Nevertheless, for the reasons discussed, the government will show cause why Oprea’s motion should not be treated as a motion

for resentencing under

(c)(1).

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.”

(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.”

(d)(4)(A). This case involves the latter.

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. With the

benefit of accumulated good time credits, his anticipated “Final

Statutory Release Date” is September 10, 2024. See Sentence

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

history of disciplinary action in the past 12 months, he is a

low security inmate, he has a “minimum PATTERN recidivism risk

score,” and the BOP reports that he has not participated in any

2 known acts of violence or gang-related activity. See Response

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

None of that is in dispute.

In his petition, Oprea asserts that the BOP is improperly

preventing him from applying earned FSA time credits toward

early release to prerelease custody and/or supervision because

he is subject to an ICE detainer. See Petition (document no. 1)

at para. 13. While that was once the case, it is no longer

true. As discussed in several prior orders of this court, the

BOP was, for a time, precluding inmates subject to ICE detainers

from applying earned FSA time credits toward early release.

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 precluded prisoners subject

to ICE detainers from applying 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

CN-1, First Step Act of 2018 – Time Credits: Procedures for

Implementation of

(d)(4) (Feb. 6, 2023). 1

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

3 Consequently, otherwise qualified inmates who are subject

to ICE detainers (but not final orders of removal) are now

permitted to apply earned FSA time credits toward early release

to prerelease custody or supervised release. See, e.g., Bello-

Arias v. Warden, FCI Berlin,

,

, at

*1 (D.N.H. Apr. 21, 2023); Portocarrero Montano v. Warden, FCI

Berlin,

,

, at *1 (D.N.H. May 15,

2023). See generally

(d)(4)(E)(i).

Oprea’s problem is this: he is not “otherwise qualified” to

apply earned FSA time credits toward early release to either

prerelease custody or supervised release.

I. Oprea was not Sentenced to Supervised Release.

According to Oprea, he has earned a substantial number of

FSA time credits, 365 of which should be applied toward his

early release to supervised release. That, says Oprea, would

shorten his period of incarceration and move his anticipated

release date forward by one year, to September 23, 2023. See

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

was sentenced, this court consciously declined to impose a term

of supervision. See Transcript of Sentencing Hearing (document

no. 6-7) at 5 (“Given the likelihood of deportation following

completion of the defendant’s sentence, the Court will not

4 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).

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

supervised release, it is both logically and legally impossible

for him to apply earned FSA time credits toward early release to

supervision. After filing his 2241 petition with this court, it

appears Oprea recognized that fact and specifically noted in a

“Request for Administrative Remedy” filed with the BOP that he

is “not asking for supervised release.” Instead, he now seeks

only early release to “prerelease placement in a residential

reentry center.” See Request for Administrative Remedy

(document no. 7-2) at 1.

II. Oprea is Ineligible for Early Release to Prerelease Custody.

As noted above, Oprea is a citizen of Romania and subject

to an ICE detainer. Consequently, pursuant to BOP Program

Statement 7310.04, he is not eligible for early release to a

halfway house or Residential Reentry Center (RRC) or, as such

facilities were formerly known, a Community Corrections Center

(CCC). See BOP Program Statement 7310.04, Community Corrections

Center Utilization and Transfer Procedure, (document no. 6-5),

Section 10(f), pages 10-11 (“Inmates in the following categories

shall not ordinarily participate in CCC [Community Corrections

Center] programs: . . . (f) Inmates with unresolved pending

charges, or detainers, which will likely lead to arrest,

6 conviction, or confinement.”) (emphasis supplied). 2 See also

Moody v. Gubbiotti, No. CV 21-12004 (RMB),

, at

*7, n.6 (D.N.J. Oct. 3, 2022) (noting that although “no

statutory provision or BOP regulation precludes application of

[time credits] toward early supervised release of prisoners who

have state detainers lodged against them,” the presence of that

detainer means the petitioner is “not eligible for early release

to a residential reentry center or home confinement pursuant to

BOP Program Statement 7310.04.”) (emphasis supplied); Zavalunov

v. Fed. Bureau of Prisons, No. 3:19-CV-453,

, at

*11 (M.D. Pa. Apr. 28, 2020) (“As stated, pursuant to BOP

policy, inmates with a detainer cannot participate in the

community treatment program and thus cannot be eligible for

early release.”). Oprea does not challenge that BOP policy.

In summary, then, the presence of an ICE detainer against

Oprea is no longer an obstacle to his ability to earn time

credits under the First Step Act. That detainer does, however,

preclude him from automatically applying those time credits

2 By using the phrase “shall not ordinarily participate in CCC programs,” this provision precludes Oprea from automatically applying earned FSA time credits toward early release to prerelease custody. But, at the same time, it might permit him to petition the Warden of FCI Berlin to exercise his discretion to release Oprea early to ICE custody pursuant to his detainer. See generally

(g)(1)(D)(i)(II).

7 toward early release to prerelease custody. And, because Oprea

was not sentenced to serve a period of supervised release, he

cannot apply earned FSA time credits toward early release to

supervision.

Of course, Oprea is not without recourse. It is possible

that this court could invoke the “extraordinary and compelling”

circumstances provision of

(c)(1) and resentence

Oprea to add a period of supervised release. Doing so might

make him eligible for early release from BOP custody into the

custody of Immigration and Customs Enforcement. See, e.g.,

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)). See generally

(c)(1)(A)(i)

(authorizing the sentencing court to modify an imposed term of

imprisonment upon, among other things, a finding that it is

warranted by “extraordinary and compelling reasons”).

It would seem, however, that few courts have invoked such

authority to resolve issues presented by cases like Oprea’s –

that is, low recidivism-risk prisoners who have accumulated

8 substantial time credits under the First Step Act but who are

unable to apply them due to the absence of a supervised release

component of their sentence). Rather than acting sua sponte,

the court deems it best to first solicit the government’s views

on the matter.

Accordingly, on or before July 21, 2023, the government may

file a legal memorandum addressing the questions presented –

that is, whether the court should treat Oprea’s petition as one

for resentencing and whether the court should resentence him to

serve an additional – albeit brief – period of supervised

release so he might benefit from accumulated FSA time credits

and secure an early release from BOP custody and into the

custody of ICE.

Conclusion

Oprea’s petition, as presented, fails to describe any

viable claims. But, if the court were to treat that petition as

one for resentencing, and then resentence Oprea to serve a brief

period of supervised release he might (at least potentially) be

released early to the custody of Immigration and Customs

Enforcement for deportation proceedings. The court will await

the government’s views before proceeding any further.

9 SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

June 20, 2023

cc: Adrian Tiberiu Oprea, pro se Terry L. Ollila, Esq.

10