DLD-208 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-2243 ___________

UNITED STATES OF AMERICA

v.

BRIAN A. PERRI, Appellant ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 2-15-cr-00486-001) District Judge: Honorable Michael M. Baylson ____________________________________

Submitted on Appellee’s Motion for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 August 31, 2023

Before: JORDAN, CHUNG, and SCIRICA, Circuit Judges

(Opinion filed: September 12, 2023)

_________

OPINION* _________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Brian Perri appeals pro se from the District Court’s order denying his motion for

reduction of sentence. The Government has filed a motion for summary affirmance and

to be relieved of its obligation to file a brief. We grant the Government’s motion and will

summarily affirm the District Court’s judgment.

In 2016, appellant Brian Perri pleaded guilty to transporting child pornography

and possession of the same in violation of

(a)(1), (a)(4)(B). The

District Court sentenced him to 10 years’ imprisonment, followed by 15 years of

supervised release. Perri is currently incarcerated at Federal Correctional Institution –

Fort Dix in New Jersey and is scheduled for release in March 2025.

In March 2023, Perri filed a motion ostensibly under Federal Rule of Criminal

Procedure 35(b), (Rule 35(b)), arguing that he had earned good-time credits by

completing recidivism programs and was thus eligible for placement in a residential

reentry center (RRC). The Government opposed the motion, arguing that Rule 35 was

inapplicable and that insofar as Perri’s filing arose under

, the District

Court lacked jurisdiction to consider it. The District Court dismissed Perri’s motion for

lack of jurisdiction. Perri appealed.1

1 We have jurisdiction under

. We may take summary action if “no substantial question is presented” in the appeal, 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6, and may affirm on any basis supported by the record, see Murray v. Bledsoe,

(3d Cir. 2011) (per curiam). 2 We agree with the District Court’s disposition and conclude that, regardless of

how Perri’s filing is construed, he is not entitled to relief. Despite its label, Perri’s filing

was not properly brought under Rule 35(b). See Lewis v. Att’y Gen.,

, 722

n.20 (3d Cir. 1989) (pro se filings are judged based on substance rather than label or

form). Rule 35(b) motions are made by the Government, only, and the Government so

moves when the defendant has provided substantial assistance during an investigation.

See Fed. R. Crim. P. 35(b)(1)-(2). Neither circumstance applies here. It was Perri – not

the Government – who filed the motion and the motion had nothing to do with assistance

provided during the investigation. Accordingly, Perri’s motion did not set forth a basis

for relief under Rule 35(b).

To the extent that Perri’s filing sought relief under § 2241, see Woodall v. Bureau

of Prisons,

(3d Cir. 2005), we agree that the Eastern District of

Pennsylvania lacked jurisdiction to consider it. A § 2241 petition must be filed in the

district where an inmate is currently incarcerated which, for Perri, is the District of New

Jersey. See Argueta Anariba v. Dir. Hudson Cnty. Corr. Ctr.,

(3d Cir.

2021).

And, in any event, Perri’s claim for relief lacks merit. Although inmates can

receive good-time credits by completing recidivism programs, Perri is ineligible for such

credits because he was convicted of child pornography offenses. See

(d)(4)(A)(i), (D)(xlii). To the extent that Perri’s filing was a motion for

3 compassionate release, see

(c)(1)(A)(i), see also C.A. No. 5 at 4,

dismissal was still proper, because Perri pointed to no extraordinary and compelling

circumstances warranting release.2 See United States v. Andrews,

(3d Cir. 2021) (“The duration of a lawfully imposed sentence does not create an

extraordinary or compelling circumstance.”).

Finally, Perri argues that the District Court erred in declining to recommend that

the Bureau of Prisons (BOP) place him in the RRC for a twelve-month time-period. See

C.A. No. 5 at 4; see also ECF No. 136 at 4. The BOP is vested with exclusive authority

to determine the location of an inmate’s imprisonment. See

(b). Under

the Second Chance Act, the BOP director is permitted (but not required) to place an

inmate in a community correctional facility during the final twelve months of his

sentence. See

(c)(1). We cannot fault the District Court for declining to

issue a recommendation about incarceration decisions that lie with the BOP.

Accordingly, we will affirm.

2 Perri previously filed two motions for compassionate release, both of which were denied. Perri did not appeal from the denial of the first motion, and we affirmed the denial of the second motion. See C.A. No. 21-2870. 4