Reese v. Warden, FCI Sandstone

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Gordon David Reese,
Petitioner,
v.
Warden, FCI Sandstone,1
Respondent.
Case No. 24-cv-4341 (LMP/DLM)
REPORT AND
RECOMMENDATION
This matter is before the Court on pro se Petitioner Gordon Reese’s Petition for writ
of habeas corpus under 28 U.S.C. § 2241. (Doc 1.) The case has been referred to the
undersigned United States Magistrate Judge for a Report and Recommendation pursuant
to 28 U.S.C. § 636 and District of Minnesota Local Rule 72.1. The Petition comes before
the Court for review under Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts.2 For the reasons explained below, the Court recommends that Mr.
Reese’s Petition be denied, and this action be dismissed without prejudice.
1When Mr. Reese filed his Petition, he was incarcerated at the Federal Correctional
Institution in Sandstone, Minnesota (“FCI Sandstone”). (Doc. 9 ¶ 2.) But while his Petition
was pending, Mr. Reese was transferred from FCI Sandstone to Federal Correctional
Institution Thomson (“FCI Thomson”). (See Docs. 12, 17; see also Find an Inmate,
https://www.bop.gov/inmateloc/ [https://perma.cc/FP9X-53YN] (last visited November 4,
2025).
2 Although Mr. Reese does not bring his habeas Petition pursuant to 28 U.S.C. § 2254, the
Court may apply the Rules Governing Section 2254 Cases to his Petition per 28 U.S.C.
§ 2254 Rule 1(b).
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BACKGROUND
On December 2, 2024, Mr. Reese filed his Petition challenging a determination by
the Bureau of Prisons (“BOP”) that he is ineligible to earn First Step Act (“FSA”) time
credits (“FTCs”) based on a sentence he received for violating 18 U.S.C. § 924(c)(1). (See
generally Doc. 1.) The BOP determined that Mr. Reese was not only ineligible to earn
FTCs during the term of his sentence based on his § 924(c) conviction, but also for
unrelated sentences that were otherwise FTC eligible, save for the BOP aggregating the
several sentences and treating them as one.
In 2006, Mr. Reese was convicted of Conspiracy to Distribute or Possess with Intent
to Distribute in Excess of 5 Grams of Methamphetamine, in violation of 21 U.S.C §§ 846
and 841(a)(1), (b)(1)(B) (Count 1); Possession with Intent to Distribute in Excess of 5
Grams of Methamphetamine, in violation of 21 U.S.C § 841(a)(1), (b)(1)(B) (Count 2);
Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18
U.S.C. § 924(c)(1) (Count 3); Armed Career Criminal in Possession of a Firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1) (Count 4); and Assault Resulting in
Bodily Injury, in violation of 18 U.S.C § 113(a)(4) (Count 5). (Docs. 9 ¶ 3 (citing United
States v. Gordon David Reese, Case No. 05-cr-269 (JNE/RLE) (D. Minn.); 9-1 at 1-8).) He
was originally sentenced to 303 months on Counts 1, 2, and 4 to be served concurrently, 6
months on Count 5 to be served concurrently, and 60 months on Count 3 to be served
consecutively, for a total sentence of 363 months. (Docs. 9 ¶ 4; 9-1 at 2.) He was later
resentenced to 120 months on Count 4. (Docs. 9 ¶ 4; 9-3.) Mr. Reese is expected to be
released in 2031 via good conduct release. (Docs. 9 ¶ 5; 9-2 at 4.)
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FSA Time Credits
Under the FSA, people incarcerated in federal prison who complete recidivism
reduction programs are eligible to earn FTCs to be applied to early transfer to prerelease
custody or supervised release. 18 U.S.C § 3632(d)(4). That said, prisoners are ineligible to
earn FTCs if they are “serving a sentence for a conviction” of certain crimes, including a
conviction under 18 U.S.C. § 924(c), “relating to unlawful possession or use of a firearm
during and in relation to any crime of violence or drug trafficking crime.” 18 U.S.C
§ 3632(d)(4)(D)(xxii).
Mr. Reese’s Petition Challenging the BOP’s Implementation of the FSA
The BOP determined that because Mr. Reese’s term of imprisonment for his § 924(c)
conviction has been aggregated with his other terms of imprisonment for his drug
convictions, he is ineligible to earn FTCs under 18 U.S.C. § 3632(d)(4)(D)(xxii) for his
entire aggregated term of imprisonment. (Docs. 9 ¶ 7; 9-4.) Mr. Reese challenges the BOP’s
determination in the first instance but alternatively argues that he should be eligible to earn
FTCs “with respect to his drug sentence.” (Doc. 1 at 8.) Respondent argues that Mr. Reese’s
Petition should be denied because the BOP has properly determined that he is ineligible to
earn FTCs for the entire aggregated sentence because of his disqualifying § 924(c)
conviction, and federal law requires the BOP to administratively aggregate this sentence
with Mr. Reese’s (otherwise eligible) sentences for his drug convictions.
ANALYSIS
The writ of habeas corpus is a procedure available to prisoners to create government
accountability for unlawful detention. See Peyton v. Rowe, 391 U.S. 54, 58 (1968); Ex parte
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McCardle, 73 U.S. (6 Wall.) 318, 325-26 (1867). Through habeas, prisoners may petition
a court to require their “jailer to justify the[ir] detention under the law.” Jorgensen v.
Birkholz, No. 20-cv-2349 (NEB/DTS), 2021 WL 3476709, at *5 (D. Minn. Feb. 18, 2021)
(quoting Peyton, 391 U.S. at 58), R. & R. adopted, 2021 WL 2935641 (D. Minn. July 13,
2021), appeal dismissed, No. 21-2786, 2021 WL 6808428, at *1 (8th Cir. Sept. 27, 2021).
Under 28 U.S.C. § 2241—a habeas statute for prisoners in federal custody—federal courts
have the jurisdiction to determine whether a prisoner’s custody violates federal law. 28
U.S.C. § 2241(c)(3). Additionally, courts construe pro se petitions liberally. See Frey v.
Schuetzle, 78 F.3d 359, 361 (8th Cir. 1996).
Mr. Reese argues that even though people serving sentences for convictions under
§ 924(c) are ineligible to earn FTCs, he should be permitted to earn FTCs based on his
other FTC-eligible convictions, and the BOP’s aggregation of all his terms of imprisonment
into one FTC-ineligible sentence “runs afoul” of statutory interpretation. (Doc. 3 at 3.) He
also argues that the BOP’s interpretation of the FSA violates the Fifth Amendment Due
Process clause and the Ex Post Facto clause.
The Court addresses each argument in turn, starting with the suggestion that
statutory interpretation principles compel the BOP to find Mr. Reese eligible to earn FTCs
for his entire sentence, or at least for the portion of his sentence he is serving for his drug
offenses. Here, the Eighth Circuit has spoken directly and consistently, albeit in
unpublished opinions: under 18 U.S.C. § 3584, multiple prison terms ordered to run
consecutively or concurrently are treated as a single aggregate sentence. See Clinkenbeard
v. Murdock, No. 24-3127, 2025 WL 926451, at *1 (8th Cir. Mar. 27, 2025); Tyler v. Garrett,
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No. 24-1147, 2024 WL 5205501, at *1 (8th Cir. Dec. 24, 2024); see also 18 U.S.C. §
3584(c) (“[m]ultiple terms of imprisonment ordered to run consecutively or concurrently
shall be treated for administrative purposes as a single, aggregate term of imprisonment.”)).
As a result, “[w]hen a prisoner is convicted of at least one disqualifying offense under the
FSA, the BOP is to regard the prisoner as ineligible to earn FSA time credits, even if the
prisoner was also convicted of other offenses that, taken alone, would not be disqualifying.”
Calles Corrales v. Eischen, No. 25-cv-01987 (LMP/ECW), 2025 WL 1799809, at *2 (D.
Minn. May 12, 2025), R. & R. adopted, 2025 WL 1797732 (D. Minn. June 30, 2025) (citing
Hill v. King, No. 23-cv-1365 (KMM/JFD), 2025 WL 1020604, at *6
(D. Minn. Apr. 7, 2025)). As such, the Court concludes that Mr. Reese’s sentence cannot
be divided into eligible and ineligible segments for FTC-eligibility purposes, and he is
therefore ineligible to earn FTCs for the entire length of his sentence.
Mr. Reese next argues that the BOP’s interpretation of the FSA violates the Fifth
Amendment Due Process clause and the Ex Post Facto clause. According to Mr. Reese, the
BOP’s interpretation of § 3632(d)(4)(D)(xxii)—and the determination that his sentence for
his § 924(c) conviction is ineligible to earn FTCs—violates his Fifth Amendment right to
due process. But there is no constitutionally protected liberty interest in the opportunity to
earn FTCs, so losing the opportunity to earn FTCs does not result in a violation of Mr.
Reese’s due process rights. See Fiorito v. Fikes, No. 22-cv-0749 (PJS/TNL), 2022 WL
16699472, at *6 (D. Minn. Nov. 3, 2022) (“because the opportunity to earn FTCs is not a
protected liberty interest, [Petitioner] was not entitled to due process before he lost that
opportunity”), aff’d, No. 23-1006, 2023 WL 4841966 (8th Cir. July 28, 2023); Gant v.
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King, No. 23-cv-1766 (NEB/ECW), 2023 WL 6910771, at *3 (D. Minn. Oct. 19, 2023);
Purdy v. LeJeune, 2023 WL 4561334, 13 at *15 (D. Minn. July 17, 2023), R. & R. adopted,
2023 WL 5039748 (D. Minn. Aug. 8, 2023); Jun v. Eischen, 2023 WL 5917739, at *8 (D.
Minn. June 30, 2023), R. & R. adopted, 2023 WL 5899128 (D. Minn. Sep. 11, 2023).
Mr. Reese also asserts that the FSA violates the Ex Post Facto clause because
§ 3632(d)(4)(D)(xxii) disqualifies his administratively aggregated sentence from earning
FTCs. But this argument fails too. “To fall within the ex post facto prohibition, a law must
be retrospective—that is, it must apply to events occurring before its enactment—and it
must disadvantage the offender affected by it by altering the definition of criminal conduct
or increasing the punishment for the crime.” United States v. Ellingburg, 113 F.4th 839,
841 (8th Cir. 2024), cert. granted, 145 S. Ct. 1899, 221 L. Ed. 2d 645 (2025) (quotations
and citations omitted). The FSA does not apply retroactively, nor did the FSA alter
§ 924(c)’s definition of criminal conduct or increase Mr. Reese’s punishment for his
§ 924(c) conviction. Mr. Reese will not serve any more time in prison than he would have
served in the absence of the FSA. Nor did the FSA make unlawful anything that had once
been lawful. The FSA simply makes some prisoners eligible for earlier release—a benefit,
not a punishment. For these reasons, the Court concludes that § 3632(d)(4)(D)(xxii) is
neither retroactive nor a punishment and therefore does not violate the Ex Post Facto
Clause. Mr. Reese’s habeas petition should therefore be denied in its entirety.
Having addressed the merits of Mr. Reese’s arguments, the Court now turns to the
question of whether an evidentiary hearing is necessary. An evidentiary hearing is
appropriate only when material facts are disputed. Ruiz v. Norris, 71 F.3d 1404, 1406 (8th
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Cir. 1995). An evidentiary hearing is not required when a conclusion can be reached on the
issue with the undisputed facts. United States v. Winters, 411 F.3d 967, 973 (8th Cir. 2005).
This matter can be resolved based on the record and thus the Court finds no evidentiary
hearing is necessary.
RECOMMENDATION
Based on the above, and on all the files, records, and proceedings in this case, IT IS
RECOMMENDED that:
1. Petitioner David Reese’s Petition for writ of habeas corpus under 28 U.S.C. § 2241
(Doc. 1) be DENIED; and
2. This action be DISMISSED WITHOUT PREJUDICE.
Date: November 10, 2025 s/Douglas L. Micko
DOUGLAS L. MICKO
United States Magistrate Judge
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals. Under Local Rule 72.2(b)(1), “a party may file and serve specific written
objections to a magistrate judge’s proposed findings and recommendations within 14 days
after being served with a copy” of the Report and Recommendation.
A party may respond to those objections within 14 days after being served a copy of the
objections. See Local Rule 72.2(b)(2). All objections and responses must comply with the
word or line limits set forth in Local Rule 72.2(c).
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