The opinion of the court was delivered by: TELESCA
Petitioner, Andrew Gissendanner, petitions this Court for a writ of mandamus compelling the respondent, Frederick Menifee (Warden of FPC Allenwood), to consider the petitioner for the opportunity to participate in the Intensive Confinement Center ("ICC") program offered by the Bureau of Prisons ("BOP").
On May 18, 1994, pursuant to a plea agreement, petitioner pled guilty to two offenses: (1) possession of cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B), as well as (2) engaging in monetary transactions in property derived from specified unlawful activity, in violation of 18 U.S.C. § 1957(a). Pursuant to the Sentencing Guidelines (§ 2D1.1(b)(1)), Mr. Gissendanner received a two-level increase of his base-level offense for the specific offense characteristic of possession of a firearm. Apparently, a search of his residence had uncovered several weapons, including two (2) sawed-off shotguns.
The government moved this Court for a 5K1.1 downward departure based on Mr. Gissendanner's substantial cooperation with the government. On June 21, 1995, this Court granted the government's motion and sentenced Mr. Gissendanner to the agreed-upon minimum term of incarceration, fifty-four months, as well as four years of supervised release. At the time of sentencing, the Court strongly recommended that Mr. Gissendanner be placed in a facility as close to Rochester as possible and that the BOP consider him for the ICC program when he became eligible for transfer to it.
Mr. Gissendanner is currently serving his sentence at FPC Allenwood. He requested the BOP to allow him to participate in the ICC program, but his request has been denied. The BOP (in a letter to the Court, dated March 20, 1997), explains that Mr. Gissendanner is not eligible for the ICC program, pursuant to BOP policy, because his offense is designated as a "crime of violence" due to the multiple weapons seized from his residence as part of his overall offense behavior. The BOP policy, however, does not preclude Mr. Gissendanner's placement in a minimum security Federal Prison Camp, but that program does not involve any community-based placement or sentence reduction (the major advantages of the ICC program).
The Mandamus Act, 28 U.S.C. § 1361, vests district courts with original jurisdiction over "any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff."
The Second Circuit has held that a writ of mandamus may issue only when there is: "(1) a clear right in the plaintiff to the relief sought; (2) a plainly defined and preemptory duty on the defendant's part to do the act in question; and (3) lack of another available, adequate remedy." Billiteri v. United States Bd. of Parole, 541 F.2d 938, 946 (2d Cir. 1976).
Although this Court has jurisdiction over petitioner's mandamus request, he has failed to satisfy any of the prerequisites set forth in Billiteri.
I. Petitioner Has No "Clear Right" to Participate in ICC and BOP Has No Duty to Provide the Petitioner the Opportunity to Participate
Petitioner claims that denial of the opportunity to participate in the ICC program violates BOP Policy Statement No. 5390.07, the ICC program authorizing statute (28 U.S.C. § 4046), and the due process clause. However, none of these sources provide the plaintiff with any "clear right" to be considered for or to participate in the ICC program, nor do they impose any duty on the BOP to give him the opportunity to participate.
The Legislature has granted exclusive authority to the Attorney General (and the BOP) to designate the place of confinement for federal prisoners. 18 U.S.C. § 3621; 18 U.S.C. § 4082. The BOP has "sole discretion" to determine the facility and the treatment programs, if any, in which a federal ...