DESOUZA v. MARSHALL et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
IGOR DESOUZA, 	:
Petitioner 	:
v. 	: Case No. 3:25-cv-257-KAP
MICHAEL UNDERWOOD, WARDEN, 	:
F.C.I LORETTO, et al., 	:
Respondents
Report and Recommendation
Recommendation
Petitioner, currently an inmate at F.C.I. Loretto, filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C.§ 2241. It cobbles together two form petitions circulating at
Loretto: Desouza seeks application of Earned Time Credits to his sentence under the First
Step Act, and attacks the forfeiture of good conduct time (GCT), see 18 U.S.C.§ 3624,
ordered as a result of disciplinary proceedings at the Satellite Prison Camp at U.S.P.
Lewisburg, where petitioner was previously confined. Because not all parties have
returned consents I file this as a recommendation: Desouza is not entitled to relief on
either of his claims and I recommend that the Court deny the petition as explained below.
Report
Desouza is at Loretto because he is serving a federal sentence imposed pursuant to
his counseled plea agreement in United States v. Desouza, Case No. 1:21-cr-10346-DJC
(D.Mass. December 1, 2023), see also Defendant’s sentencing memorandum at 2023 WL
12132653 (D.Mass. November 30, 2023). The Honorable Denise J. Casper sentenced
Desouza to 120 months imprisonment followed by a 5-year term of supervised release for
distribution and possession with intent to distribute 500 grams or more of a mixture and
substance containing a detectable amount of methamphetamine, a Schedule I controlled
substance, 40 grams or more of a mixture and substance containing a detectable amount
of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide, also known as fentanyl, a
Schedule II controlled substance, and other controlled substances, in violation of 21
U.S.C.§ Sections 841(a)(1), (b)(1)(A)(viii), (b)(1)(B)(vi), and 18 U.S.C.§ 2. See Indictment
at 2021 WL 7968106 (D.Mass.).
With credit for time served and assuming no further loss of Good Conduct Time,
the Bureau of Prisons projects Desouza’s release date as August 1, 2030. Response,
Exhibit 1 (Kerr Declaration), Attachment 1.
Desouza first asserts in his habeas corpus petition that the Bureau of Prisons is
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illegally refusing to apply to his sentence a quantity of earned time credits (ETC) for
programming completed under the applicable provisions of the First Step Act of 2018,
Pub.L.No. 115-391, 132 Stat. 5208 (December 21, 2018). The First Step Act amended 18
U.S.C.§ 3621 to require the Bureau of Prisons to create or expand programs that will
reduce the risk of recidivism by persons convicted of federal offenses, and to award
eligible inmates who participate in these programs credits that can be applied toward time
in prerelease custody or supervised release.
As I stated in Rodriguez v. Peters, No. 3:24-cv-43-SLH-KAP, 2024 WL 5483303,
at *1 (W.D. Pa. June 10, 2024), report and recommendation adopted at ECF no. 15
(W.D.Pa. July 29, 2025):
Not all inmates who earn ETCs by taking recidivism-reducing programs are
eligible to have ETCs applied to their sentences. In general, to be eligible to have
ETCs applied, an inmate must adhere to certain conduct requirements. See 18 U.S.C.
§ 3624(g)(1)(B); see also 28 C.F.R.§ 523.44 (an inmate can have ETCs applied if the
inmate has “[m]aintained a minimum or low recidivism risk through his ... last two
risk and needs assessments”). Also, inmates who are nationals of other countries
and who have a final order of removal are also not eligible to have ETCs applied. 18
U.S.C.§ 3632 (d)(4)(E).
The exclusion relevant here is the provision in the FSA that makes
inmates with convictions for certain offenses deemed incompatible with
recidivism reduction ineligible to have ETCs applied. Those offenses are
listed by reference to section, subsection, or in some cases paragraph
within subsection, at 18 U.S.C. § 3632(d)(4)(D)(“A prisoner is ineligible
to receive [ETC] ... if the prisoner is serving a sentence for a conviction
under any of the following provisions of law[.]”)
(my emphasis).
Desouza’s 	offense 	of 	conviction 	is 	important 	because 	Subsection
3632(d)(4)(D)(lxvi) makes ineligible for application of ETCs an inmate serving a sentence
for conviction where the penalty is specified by 21 U.S.C.§ 841(b)(1)(A)(vi) or (B)(vi) - an
(A)(vi) offense involves 400 grams or more of a mixture or substance containing a
detectable amount of fentanyl (or 100 grams of any analogue of fentanyl) and a (B)(vi)
offense involves 40 grams or more of a mixture or substance containing a detectable
amount (or 10 grams respectively of any analogue) of fentanyl – without any requirement
that the offender be an organizer, leader, manager, or supervisor, while Subsection
3632(d)(4)(D)(lxviii) makes ineligible those serving a sentence for conviction under 21
U.S.C.§ 841(b)(1)(A) or (B) for any detectable amount of fentanyl or its analogues, but
only if the sentencing court finds the offender was an organizer, leader, manager, or
supervisor. There is no disagreement that petitioner was not sentenced as a leader or
organizer.
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Desouza more or less argues that because he received no role enhancements 18
U.S.C.§ 3632(d)(4)(D)(lxviii) is the applicable section and he is eligible to have ETCs
applied.
The text of the relevant disqualifying sections of 18 U.S.C.§ 3632(d)(4)(D) is reproduced
below:
(lxvi) Subparagraph (A)(vi) or (B)(vi) of section 401(b)(1) of the Controlled
Substances Act (21 U.S.C. 841(b)(1)) or paragraph (1)(F) or (2)(F) of section 1010(b)
of the Controlled Substances Import and Export Act (21 U.S.C. 960(b)), relating to
manufacturing, distributing, dispensing, or possessing with intent to manufacture,
distribute, or dispense, a mixture or substance containing a detectable amount of N-
phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide, or any analogue thereof.
(lxviii) Subparagraph (A) or (B) of section 401(b)(1) of the Controlled
Substances Act (21 U.S.C. 841(b)(1)) or paragraph (1) or (2) of section 1010(b) of the
Controlled Substances Import and Export Act (21 U.S.C. 960(b)), relating to
manufacturing, distributing, dispensing, or possessing with intent to manufacture,
distribute, or dispense, a controlled substance, or knowingly importing or exporting
a controlled substance, if the sentencing court finds that--
(I) the offense involved a mixture or substance containing a detectable
amount 	of 	N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] 	propanamide, 	or 	any
analogue thereof; and
(II) the offender was an organizer, leader, manager, or supervisor of others
in the offense, as determined under the guidelines promulgated by the United States
Sentencing Commission.
Judge Casper did not, in the J&C, cite 21 U.S.C.§ 841(b)(1)(B)(vi), and simply cited to 21
U.S.C.§ 841(a). But as noted above the indictment itself cited the substantive section of
the statute and the penalty provisions and it is not the case that every piece of paper in a
file must contain every applicable statutory citation. It is clear from the plea agreement
that Desouza pleaded guilty to an offense under 21 U.S.C.§ 841(b)(1)(B)(vi) involving a
quantity of fentanyl disqualifying him from application of ETCs under Subsection
3632(d)(4)(D)(lxvi). In the Plea Agreement, ECF no. 118 in United States v. Desouza, Case
No. 1:21-cr-10346-DJC (D.Mass.), Desouza agreed that the base offense level applicable
to his offense was 32, corresponding to a drug weight of 1.2 to 4 kilograms of fentanyl
under United States Sentencing Guidelines §2D1.1(c)(4). Additionally, even part of the
offense conduct described by the United States in its sentencing memorandum, ECF no.
140 at 2 in United States v. Desouza, Case No. 1:21-cr-10346-DJC (D.Mass.)(describing,
inter alia, approximately 150 grams of fentanyl pills pressed to look like oxycodone or
Percocet pills), attributes to Desouza an amount of fentanyl that makes Subsection
3632(d)(4)(D)(lxvi) the applicable subsection. That disqualifies petitioner from having
ETCs applied regardless of the presence or absence of any role enhancement.
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Desouza asserts as a second claim in this habeas corpus petition that the Bureau of
Prisons illegally forfeited 41 days GCT as a result of a disciplinary proceeding in which
petitioner was charged with possession of a hazardous tool, namely a cell phone, in
violation of disciplinary Code 108, see 28 C.F.R.§ 541.3, table 1.
According to the Bureau of Prisons, during a routine search on May 4, 2025, a
corrections officer found a cell phone in a compartment sewn into underwear stored
under the mattress in Desouza’s cubicle. This resulted in Desouza being cited in Incident
Report 4112188. After a hearing on May 12, 2025, a Disciplinary Hearing Officer found
petitioner guilty and imposed sanctions.
Desouza states that the Bureau of Prisons failed to follow “proper policy” and failed
“to present any evidence tying Petitioner to a phone.” Petition at 5. He also relates that
“he chooses not to go forward with the administrative remedy process.” Petition at 4, see
¶5. To the extent petitioner seeks to present a procedural claim under Wolff v. McDonnell,
418 U.S. 539, 563-67 (1974) or a substantive claim under Superintendent v. Hill, 472 U.S.
445, 455 (1985), the Court should summarily dismiss the petition without prejudice for
failure to exhaust administrative remedies. Petitioner’s conclusory statement that the
remedy system is inadequate does not have any weight at all. His own description of his
use of it belies any claim that his access was obstructed. The disciplinary process is
described in Bureau of Prisons Program Statement 5270.09, Inmate Discipline Program,
August 	1, 	2011, 	implementing 	28 	C.F.R.§ 	541.1-8 	(text 	available 	at
https://www.bop.gov/policy/progstat/5270_009.pdf), and it provides that appeals from
sanctions are governed by the Administrative Remedy Program at Part 542 Subpart B, 28
C.F.R.§ 542.10-19.
Under the Administrative Remedy Program an inmate must first use a form BP-8
to “present an issue of concern informally to staff, and staff shall attempt to informally
resolve the issue before an inmate submits a Request for Administrative Remedy.” 28
C.F.R.§ 542.13(a). An inmate who cannot resolve the problem informally must file “a
formal written Administrative Remedy Request, on a form BP-9, [within] 20 calendar
days following the date on which the basis for the Request occurred.” 28 C.F.R.§
542.14(a). The responding authority is the warden of the inmate's institution, who has 20
days to respond. 28 C.F.R.§ 542.18. An inmate not satisfied with the warden's response
must appeal that response. The Regional Director for the Northeast Region (NERO) is the
relevant recipient of an appeal from Lewisburg or Loretto. The appeal, on a form BP-10,
must be filed within 20 days of the warden's signed BP-9 response. 28 C.F.R.§ 542.15(a).
If the inmate is not satisfied with NERO's response, the final step is by filing a form BP-
11 to the BOP's General Counsel within 30 days of the Regional Director's response. 28
C.F.R.§ 542.18. See Ginebra-Vera v. Underwood, No. 3:23-cv-271-NBF-KAP, 2024 WL
5264829, at *2 (W.D. Pa. June 18, 2024), report and recommendation adopted 2024 WL
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5263702 (W.D. Pa. Dec. 31, 2024). The General Counsel has 40 calendar days to respond,
with a possible 20 day extension if needed. 28 C.F.R.§ 542.18.
Desouza asserts that in his challenge to his disciplinary sanction he sent a BP-10
to the Northeast Region on May 26, 2025 from Lewisburg “just after he received the DHO
report.” Petition at 3. He also claims that the unsigned undated appeal at Exhibit 9 is a
BP-11 he sent on July 25, 2025. Petition at 3. His Petition was filed about a week later
dated August 3, 2025. In other words, even ignoring the respondent’s records showing no
effort by Desouza to appeal Incident Report 411218 and accepting Desouza’s exhibit and
timeline as authentic and true, he has completely failed to exhaust any administrative
remedies. The Supreme Court has observed that requiring exhaustion is important both
for agencies and courts:
Because exhaustion requirements are designed to deal with parties who do not want
to exhaust, administrative law creates an incentive for these parties to do what they
would otherwise prefer not to do, namely, to give the agency a fair and full
opportunity to adjudicate their claims. Administrative law does this by requiring
proper exhaustion of administrative remedies, which “means using all steps that the
agency holds out, and doing so properly (so that the agency addresses the issues on
the merits).”
Woodford v. Ngo, 548 U.S. 81, 90 (2006). See also id., 548 U.S. at 92: “In practical terms,
the law of habeas, like administrative law, requires proper exhaustion[.]” At the least this
portion of the petition should be dismissed without prejudice.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice of the fourteen day
period to file written objections to this Report and Recommendation. The parties are
advised that in the absence of timely and specific objections any appeal would be severely
hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d
Cir.2017)(describing standard of appellate review when no timely and specific objections
are filed as limited to review for plain error).
DATE: December 9, 2025
Keith A. Pesto,
United States Magistrate Judge
Notice to counsel by ECF and by U.S. Mail to:
Igor Desouza Reg. No. 73148-509
F.C.I. Loretto
P.O. Box 1000
Cresson, PA 16630
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