Monday, November 07, 2011

U.S. v. Ceballos, No. 09-50502 (11-7-11) (Per curiam with Silverman, Wardlaw, and Sessions, D.J.)

The designation recommendation, and whether is can be appealed, is the subject of this appeal. After the hammer is dropped, the sentence imposed, the defendant sometimes asks the court to recommend a BOP designation. Sure, the court knows that it is BOP's call, but the recommendation is considered, and sometimes followed. Usually the judge intones that it is not binding, but recommends the institution, or region. Here, the defendant forgot to ask, and eight days later files a joint stipulation with the government to the court to revise the Judgment to state a recommendation for Southern California. On the joint stipulation, the court scrawls "denied" followed by saying it is BOP's responsibility and the defendant should ask BOP. The defendant had a 188-month sentence and his family was in Southern California. The defendant appealed this denial. The 9th held first that the court could not revise the judgment after the sentence. Second, and more important, and significantly, the 9th had no jurisdiction over the recommendation, or denial of recommendation. It is a decision for BOP, and that's that. The other circuits so agree. However, the 9th points out in footnote 2 that this decision does not deprive the court from making a non-binding recommendation.


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