United States District Court, S.D. Texas, Galveston Division
C HANKS, JR. UNITED STATES DISTRICT JUDGE
Adolio Rivera is a federal prisoner who pled guilty in this
Court to one count of possession with intent to distribute
more than 500 grams of a mixture or substance containing a
detectable amount of cocaine (Dkt. 87)The
undersigned judge sentenced Rivera to a 60-month prison term
to be followed by a 4-year term of supervised release (Dkt.
87 at pp. 2-3). The case is currently on direct appeal.
See Fifth Circuit Docket Number 17-40336. Rivera was
represented by a retained attorney during the trial court
proceedings and is represented on appeal by the Federal
Public Defender's Office.
has, despite still having counsel, filed a pro se
"petition to correct presentence report" in support
of which he cites no rule or statute; in the alternative, Rivera
has also styled the filing as a motion under 28 U.S.C. §
2255 (Dkt. 114). In the filing, Rivera claims that the
Presentence Investigation Report ("PSR") in his
case understated ' All docket entry numbers refer to the
docket in the criminal matter the extent of his recent drug
and alcohol abuse and that as a result of that understatement
he is ineligible for the Residential Drug Abuse Program
("RDAP") offered by the Federal Bureau of Prisons
(Dkt. 114 at pp. 3-6). Rivera's trial counsel did not
lodge such an objection to the PSR, and during sentencing
neither Rivera nor his trial counsel ever mentioned either
Rivera's desire to enroll in RDAP or any inaccuracies in
the portion of the PSR discussing substance abuse. Before the
Fifth Circuit, Rivera's appellate counsel has only
challenged the sufficiency of the factual basis supporting
Rivera's guilty plea.
criminal defendant does not have the right to hybrid
representation (meaning representation partly by counsel and
partly by himself). United States v. Daniels, 572
F.2d 535, 540 (5th Cir. 1978). "[U]nless an
attorney's actions effectively deny the defendant his
sixth amendment right to the assistance of counsel, the
defendant is bound by his attorney's decisions during
trial." Id. There is no indication that
Rivera's lawyers have effectively denied Rivera's
Sixth Amendment right to the assistance of counsel- and they
certainly have not denied that right by opting not to press
the issue of RDAP eligibility. Even if he completes RDAP,
Rivera will not be assured of, and will not have a
Constitutionally protected liberty interest in, a sentence
reduction; the determination of whether to reduce the
sentence of an inmate who has completed RDAP is left to the
discretion of the Bureau of Prisons. Gallegos-Hemandez v.
United States, 688 F.3d 190, 195 (5th Cir. 2012);
Richardson v. Joslin, 501 F.3d 415, 419-20 (5th Cir.
2007); see also Giraldo v. Laughlin, 516
Fed.App'x 404, 405 (5th Cir. 2013) ("Prison
officials enjoy broad discretion to deny sentence reductions
even to inmates who have completed a treatment
program.") (quotation marks omitted). And Rivera
received a mandatory minimum sentence in this case. Whatever
the extent of Rivera's drug abuse, his lawyers have not
denied him the right to effective counsel if they have
decided not to risk an increase in a mandatory minimum
sentence by painting him as a drug addict in hopes of
qualifying him for a treatment program that, even if
completed, might not bring a sentence reduction.
short, the Court will not rule on this motion under the
present circumstances. Rivera's direct appeal, in which
he is represented by the Federal Public Defender's
Office, is still pending. Appellate counsel was appointed at
his request after his retained trial attorney withdrew (Dkt.
84 and Dkt. 89), and there is no sign that he has been
effectively denied the right to counsel. Rivera cannot both
have a lawyer and represent himself. See Daniels,
572 F.2d at 540. Moreover, given that Rivera has never
mentioned RDAP until now, the Court is particularly wary of
considering this pro se motion because, as other
district courts have noted, defendants who do not qualify for
RDAP but hope to use the program to reduce their sentences
have a strong incentive to claim after sentencing that their
PSRs understated the extent of their substance abuse
problems. See, e.g., United States v. Nguyen, No.
CR-07-4068, 2009 WL 1783500, at *1 n. 1 (N.D. la. June 19,
2009) ("The court is aware of the drug treatment program
available at the facility in which the defendant is
incarcerated, and the strong incentive-a potential reduction
in sentence-for a defendant to attempt to gain admission into
the program."); Christian v. Willis, No.
Civ-14-4020, 2014 WL 3697991, at *1 (D.S.D. July 23, 2014)
("It is normal for sentencing purposes for a Defendant
to want to make the best showing possible. Such a showing can
be contrary to what is later necessary to qualify for RDAP
and its accompanying benefits."); Spencer v. United
States, No. 16-CV-440, 2016 WL 2865996, at *3 (S.D. 111.
May 17, 2016) ("If Section 2241 could be routinely used
to amend a PSR, then a defendant could minimize her drug and
alcohol dependence at sentencing in the hope of receiving a
more favorable sentence or prison placement, only to alter
the PSR at a later date in order to try to secure a RDAP
on the foregoing, the Court ORDERS as
1. Rivera's pro se "petition to correct
pre-sentence report" (Dkt. 114) is
DENIED without prejudice to refiling through
counsel. While Rivera is represented by counsel, he must
proceed through counsel.
2. Civil Docket 3.17-CV-388 is CLOSED.
Clerk shall provide a copy of this order to Rivera and his
appellate counsel in criminal matter 3:15-CR-14-1.
All docket entry number refer to
the docket in the criminal matter.
The motion is perhaps best
construed as being brought under Federal Rule of Criminal
Procedure 36, which allows the district court to correct
errors in the record that are clerical in nature or that
arise from oversight or omission. The Court expresses no
opinion on the issue ...