Opinion
03-CV-0751A.
December 17, 2004
DECISION AND ORDER
INTRODUCTION
The petitioner, Rocco Muzzillo, has filed a petition for relief under § 28 U.S.C. § 2241 and 28 U.S.C. § 1361. Petitioner seeks an order from this Court declaring that the community confinement policy adopted by defendant Federal Bureau of Prisons ("BOP") in December 2002 is invalid and contrary to Congress's express delegation of statutory authority. For the reasons stated herein, the petition is granted.
BACKGROUND
I. Petitioner's Supervised Release ViolationOn May 7, 1997, the petitioner was sentenced by this Court to 37 months' imprisonment and 3 years' supervised release for his conviction for possession with the intent to distribute LSD in violation of 21 U.S.C. § 841(a)(1). He began serving his supervised release sentence on March 17, 2000.
On July 27, 2002, during a routine home visit, the probation officer discovered a small bag of marijuana in the petitioner's possession. On September 3, 2002, the petitioner appeared before this Court and pleaded guilty to violating the terms of his supervised release by possessing a quantity of marijuana on July 27, 2002.
On October 7, 2002, the petitioner appeared for sentencing on his supervised release violation. Pursuant to U.S.S.G. § 7B1.4, the petitioner's guideline imprisonment range was 3 to 9 months. However, because he was found in possession of a controlled substance, 18 U.S.C. § 3583(g) provided for mandatory revocation of his supervised release and the imposition of a term of imprisonment. The Court sentenced the petitioner to 4 months' imprisonment, with a recommendation that it be served at the Buffalo Halfway House. Judgment was entered on October 10, 2002. The Court ordered the petitioner to surrender for service of his sentence at the institution designated by the BOP, as notified by the United States Marshal. II. Revised BOP Policy Regarding Community Confinement
At the time of the petitioner's sentencing, the BOP had a long-standing policy of considering, and if possible accepting, judicial recommendations to place an individual in community confinement, also known as a halfway house or a community corrections center ("CCC"). It appears that the BOP initially followed that policy in this case, and permitted the petitioner to remain on bail until space was available at the Buffalo Halfway House. See Petition, at 2, and Exh. B attached thereto (letter from the Buffalo Halfway House directing the petitioner to appear for placement on January 15, 2003).
However, in December 2002, the BOP altered this long-standing policy and determined that it would no longer consider judicial recommendations to place an individual in community confinement.See Petition, Exh. D (Memorandum from Kathleen Hawk Sawyer to all Federal Judges, dated December 20, 2002). This change in policy was based upon a revised interpretation of BOP authority set forth in a memorandum composed by the Office of Legal Counsel for the Department of Justice, dated December 13, 2002 (the "OLC Memo"). The OLC Memo contained the following legal directive:
Your office has informed us that when a federal offender whom the [BOP] deems to be low-risk and nonviolent receives a short sentence of imprisonment, BOP often places that offender in a community corrections center, halfway house, or other form of "community confinement," rather than in prison. Your office has asked us to advise you whether BOP has general authority, either upon the recommendation of the sentencing judge or otherwise, to place such an offender directly in community confinement at the outset of his sentence or to transfer him from prison to community confinement during the course of his sentence.
We conclude below that BOP has no such general authority. As we explain, BOP's statutory authority to implement sentences of imprisonment must be construed, wherever possible, to comport with the legal requirements that govern the federal courts' sentencing orders. Community confinement does not constitute imprisonment for purposes of a sentencing order, and BOP lacks clear general statutory authority to place in community confinement an offender who has been sentenced to a term of imprisonment. BOP's practice is therefore unlawful.See OLC Memo, at 1 (emphasis added). In accordance with the OLC Memo, the BOP adopted a new policy, pursuant to which it refused to consider community confinement as the place of imprisonment except during the last 10 percent of a prisoner's sentence. This new BOP policy was to be "effective immediately" and applied to individuals, like the petitioner, who had been sentenced prior to adoption of the new policy. It is undisputed that this new policy "upset a decades-long policy pursuant to which the BOP operated under the assumption that it had discretion to assign federal prisoners to serve all or part of their sentences in places other than prison." United States v. Arthur, 367 F.3d 119, 120-21 (2d Cir. 2004). III. Effect of the Revised BOP Policy on the Petitioner
On January 8, 2003, the United States Marshal notified the petitioner that the BOP had designated FCI Elkton FSL-Cadre, in Elkton, Ohio, not the Buffalo Halfway House, as his place of imprisonment. The petitioner was ordered to voluntarily surrender himself on February 3, 2003.
The petitioner filed a motion for a stay of execution of his sentence pending an opportunity to be heard by this Court on the issue, which the Court granted. On February 6, 2003, the petitioner filed a motion pursuant to 28 U.S.C. § 2255, to vacate the judgment of conviction and for resentencing. On February 19, 2003, this Court heard oral argument on the motion and, ruling from the bench, denied the petitioner's § 2255 motion. The Court also denied the petitioner's motion for a stay pending appeal.
Petitioner argued in his § 2255 petition that his sentence of 4 months' imprisonment was imposed in violation of the Constitution and the laws of the United States. The Court denied the petition, finding that the petitioner's sentence was not unlawful. That is, the BOP's failure to honor this Court's recommendation as to his place of imprisonment did not somehow render his sentence illegal.
The petitioner appealed that decision to the United States Court of Appeals for the Second Circuit. The Second Circuit granted the petitioner's request for a stay pending appeal.
In the meantime, while that appeal was pending, the petitioner filed the instant petition for writ of a habeas corpus under 28 U.S.C. § 2241 and for relief under 28 U.S.C. § 1361. In contrast to his § 2255 petition, wherein the petitioner challenged the legality of his sentence, the instant petition challenges the legality of the BOP's revised policy as it applies to him. Petitioner argues that the policy is invalid because it is contrary to the express grant of statutory authority in 18 U.S.C. § 3621(b). The petitioner also argues that the policy violates the Administrative Procedures Act, 5 U.S.C. § 552, and the Ex Post Facto and Due Process Clauses of the United States Constitution. The government opposes the petition and urges this Court to uphold the BOP's revised interpretation of its statutory discretion. The government also urges this Court to dismiss the petition for failure to exhaust administrative remedies.
In June 2004, the Second Circuit dismissed the petitioner's appeal of this Court's February 13, 2004 Order denying his § 2255 petition, stating that the instant petition filed under 28 U.S.C. § 2241 was the proper vehicle for challenging the BOP's new policy.
DISCUSSION
As an initial matter, the Court notes that the petitioner is "in custody" for the purposes of § 2241 and therefore capable of seeking habeas relief. United States v. Arthur, 367 F.3d 119, 121 (2d Cir. 2004). Venue is proper in this Court. Id. See also Coombs v. Attorney General of the United States, 260 F. Supp. 2d 53, 57 (D.D.C. 2003) (sentencing judge who released the defendant on an unsupervised bond has "custody" over that defendant for purposes of habeas jurisdiction). I. Exhaustion of RemediesThe government urges the Court to dismiss the petition, arguing that the petitioner has failed to exhaust his administrative remedies under the Prison Litigation Reform Act (" PLRA"), 42 U.S.C. § 1997e. The PLRA provides:
No action shall be brought with respect to prison conditions under § 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.Id. (emphasis added). The government argues that the PLRA exhaustion requirements apply because the petitioner is challenging an issue relating to "prison conditions."
By its terms, the PLRA applies to civil actions brought by a prisoner "confined in any jail, prison, or other correctional facility." Id. Because the petitioner is not yet confined in such a facility, it would appear that he is exempt from the PLRA's exhaustion requirements. See Monahan v. Winn, 276 F. Supp. 2d 196, 204 n. 6 (D. Mass. 2003). Furthermore, the PLRA defines a "civil action with respect to prison conditions" as "any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison." See 18 U.S.C. § 3626(g)(2) (emphasis added). Thus, § 2241 habeas proceedings are excluded from the PLRA's exhaustion requirements. See Davis v. Fechtel, 150 F.3d 486, 490 (5th Cir. 1998) ("The PLRA thus does not apply to section 2241 proceedings"); Monahan, 276 F. Supp. 2d at 204 (holding that PLRA exhaustion requirement did not apply to § 2241 petition challenging BOP policy); but see Richmond v. Scibana, 387 F.3d 602 (7th Cir. 2004) (holding that § 2241 was not the appropriate vehicle to challenge the BOP's new community confinement policy, and that such a claim must be brought under the PLRA, to which exhaustion applies).
The Seventh Circuit's holding in Richmond is inconsistent with the Second Circuit's ruling in United States v. Arthur, 373 F.3d 119 (2d Cir. 2004) (holding that § 2241 is the appropriate vehicle for challenging the BOP's new policy), and therefore will not be followed.
Although the PLRA's exhaustion requirement does not apply, a § 2241 petition is subject to exhaustion. See Arthur, 367 F.3d at 123, n. 1; Carmona v. United States Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001). Unlike the exhaustion requirement of the PLRA, however, exhaustion of administrative remedies in the context of a § 2241 petition may be excused where an administrative appeal would prove futile. See Howell v. I.N.S., 72 F.3d 288, 291 (2d Cir. 1995).
Nearly every court to address the issue of exhaustion in the context of challenges to the BOP's new community confinement policy has held that exhaustion should be excused as futile.See, e.g, Loeffler v. Menifee, 326 F. Supp. 2d 454, 457 (S.D.N.Y. 2004); Colton v. Ashcroft, 299 F. Supp. 2d 681, 690 (E.D. Ky. 2004); Terry v. Menifee, No. 04 Civ. 4505, 2004 WL 2434978, at *2 (S.D.N.Y. Nov. 1, 2004); Fierro v. United States of America, No. Crim. 01-100-SLR, 2004 WL 1454398, at *3 (D. Del. June 17, 2004); Zucker v. Menifee, No. 03 Civ. 10077, 2004 WL 102779, at * 4 (S.D.N.Y. Jan. 21, 2004); Monahan, 276 F. Supp. 2d 204-05; Howard v. Ashcroft, 248 F. Supp. 2d 518, 532-34 (M.D. La. 2003).
This Court agrees with the reasoning of those district courts and holds that an administrative appeal to the BOP would be futile in this case. The OLC Memo articulated a clear and inflexible policy that was intended to be applied consistently nationwide. The policy is founded on the BOP's current view that it lacks statutory authority to designate community confinement as the initial place of imprisonment, and may place a prisoner in community confinement only during the last 10 percent of a prisoner's sentence. In light of the BOP's position that it lacks the statutory authority to grant the petitioner's request, there is little doubt that an administrative appeal would be unsuccessful. Accordingly, the petitioner's failure to exhaust his administrative remedies in this case is excused.
II. Validity of the BOP's New Community Confinement Policy
The new BOP policy is based upon a revised interpretation of its statutory authority under 18 U.S.C. § 3621(b) and § 3624(c). The BOP now asserts that it lacks statutory authority to place a prisoner in community confinement at any time, except during the last 10 percent of a prisoner's sentence, not to exceed six months. The petitioner argues that the BOP's new policy is invalid and inconsistent with the plain language of the statute.
A. Principles of Statutory Construction
When a court reviews an agency's construction of the statute which it administers, the first question, always, is whether Congress has directly spoken to the precise question at issue. "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). If, however, the statute is silent or ambiguous as to the specific issue, "the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. If the agency's construction of the statue is reasonable, then a court must defer to the agency's interpretation and "may not substitute its own construction of a statutory provision for the reasonable interpretation made by the administrator of an agency." Id. at 844; see also National R.R. Passenger Corp. v. Boston and Maine Corp., 503 U.S. 407, 417 (1992) ("If the agency interpretation is not in conflict with the plain language of the statute, deference is due.").
On the other hand, a court need not defer to an agency interpretation that is unreasonable, inconsistent with the statutory mandate, or would serve to frustrate the policy that Congress sought to implement. Fed. Election Comm. v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 32 (1981); see also Insurance Co. of North America v. U.S. Dept. of Labor, Office of Workers Compensation Programs, 969 F.2d 1400, 1404 (2d Cir. 1992), cert. denied, 507 U.S. 909 (1993) ("[I]t is well settled that, even where deference is owed, if the agency's construction of the statute is unreasonable or contrary to the statute or clear legislative intent, a court will not defer to it.").
Furthermore, when an agency alters its interpretation of a relevant statutory provision, the revised interpretation is entitled to "considerably less deference" than a position that has been consistently held over time. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 446, n. 30 (1987) (citing Watt v. Alaska, 451 U.S. 259, 273 (1981)). The Supreme Court explained in Good Samaritan Hospital v. Shalala, 508 U.S. 402 (1993):
The Secretary is not estopped from changing a view she believes to have been grounded upon a mistaken legal interpretation. Indeed, an administrative agency is not disqualified from changing its mind; and when it does, the courts still sit in review of the administrative decision and should not approach the statutory construction issue de novo and without regard to the administrative understanding of the statutes. On the other hand, the consistency of an agency's position is a factor in assessing the weight that position is due.Id. at 417 (internal citations and quotations omitted).
B. Plain Meaning of § 3621(b)
With these principles in mind, the Court now turns to the BOP's revised interpretation of its statutory authority. The BOP argues that it lacks statutory authority to place a prisoner in community confinement. The petitioner argues that this interpretation is contrary to the plain language in 18 U.S.C. § 3621(b), which provides:
The Bureau of Prisons shall designate the place of the prisoner's imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable. . . .Id. (emphasis added).
Section 3621(b) authorizes the BOP to designate " any available penal or correctional facility" as the "place of the prisoner's imprisonment." Nothing in the statute suggests that Congress intended to exclude community confinement from this broad grant of discretionary authority. Indeed, the inclusive language of the statute suggests the opposite: that " any available penal or correctional facility" includes a community corrections facility.See Webster's Third New International Dictionary, 97 (1986) (defining "any" as "one or more indiscriminately from all those of a kind"). Since a community corrections center is a kind of correctional facility, Congress's use of the phrase "any . . . penal or correctional facility" suggests that CCCs were intended to be included. For several decades, the BOP itself has subscribed to that view, and even now appears to concede that "penal or correctional facility" under § 3621(b) can include a CCC.
See Cato v. Menifee, No. 03 Civ. 5795, 2003 WL 22725524, at *5 (S.D.N.Y. Nov. 20, 2003) (noting that "the BOP [has] operated for decades on the understanding that community confinement was a form of imprisonment"); see also Op. Off. Legal Counsel, Statutory Authority to Contract With the Private Sector for Secure Facilities, dated March 25, 1992 (finding "no statutory basis in section 3621(b) for distinguishing between residential community facilities and secure facilities" because the plain language of the statute refers to "any penal or correctional facility").
See Elwood v. Jeter, 386 F.3d 842, 846 (8th Cir. 2004) ("[The BOP] agrees that a CCC is a penal or correctional facility and a place of imprisonment"); Goldings v. Winn, 383 F.3d 17, 25 (1st Cir. 2004) ("The defendants do not contend that a community correction center is not a `correctional facility.'").
However, the BOP now claims that a CCC does not qualify as a place of "imprisonment," as the term is used in the first sentence of that section. In other words, the BOP argues that the word imprisonment used in the first sentence of § 3621(b) was meant to limit the broad grant of discretionary authority set forth in the second sentence of that section. As such, the BOP argues that it lacks statutory authority to designate a CCC as the place of "imprisonment."
This interpretation contradicts the plain language of the § 3621(b). Although "imprisonment" is not defined, there is nothing in the statute that suggests it was intended to mean — as the government contends — "a conventional prison, where inmates live in cells behind bars and are not free to leave on weekends."See Government's Memorandum of Law, at 12. In fact, second sentence of § 3621(b) suggests the opposite, that the place of "imprisonment" could be " any . . . penal or correctional facility that meets the minimum standards of health or habitability. . . ."
A proper reading of § 3621 demonstrates that "imprisonment" refers not to a place, but to the fact of being "in custody" of the Bureau of Prisons. See 3621(a) (directing that a person who has been sentenced to a "term of imprisonment" shall be "committed to the custody of the Bureau of Prisons"); see also Goldings v. Winn, 383 F.3d 17, 25 (1st Cir. 2004) ("[I]t is not the place of imprisonment that determines whether an offender is imprisoned but the fact and nature of the offender's sentence . . . and the identity of the custodian. . . ."); Monahan, 276 F. Supp. 2d at 206 ("[Section 3621(a)] makes clear that it is not place, but custody, that defines imprisonment") (emphasis in original).
This interpretation of the word "imprisonment" is consistent not only with the plain meaning of the word, see Black's Law Dictionary at 757 (6th ed. 1990) (defining "imprisonment" as "[t]he detention of a person contrary to his will") but also Supreme Court precedent. In Reno v. Koray, 515 U.S. 50, 63-65 (1995), the Supreme Court held that a prisoner was not entitled to sentencing credit for time spent in community confinement while "released" on bail, but indicated that a prisoner who spent time in community confinement while "detained" by the BOP would be entitled to such sentencing credit. It is the act of being officially detained by the BOP that determines whether a prisoner is entitled to sentencing credit, not the place where he is detained. Id. See also Iacaboni v. United States, 251 F. Supp. 2d 1015, 1029 (D. Mass. 2003) (stating that "the critical litmus" for determining whether someone is imprisoned is whether the offender "`always remain[s] subject to the control of the Bureau'") (quoting Koray, 515 U.S. at 63).
When imprisonment is correctly understood, the plain meaning of the statute is clear: The BOP is charged with designating the "place of the prisoner's imprisonment" (i.e., the place where the prisoner is to be detained), and in doing so, it "may designate any available penal or correctional facility that meets the minimum standards of health and habitability. . . ." 18 U.S.C. § 3621(b). Since, as discussed, a "penal or correctional facility" can include a CCC, this Court finds that § 3621(b) authorizes the BOP to designate a CCC as a place of imprisonment. The BOP's interpretation of § 3621(b) as excluding community confinement is contrary to the plain meaning of the statute and accordingly must be rejected.
The only two circuit courts to address this issue have reached the same conclusion, along with a considerable number of district courts. See Elwood v. Jeter, 386 F.3d 842 (8th Cir. 2004) (holding that BOP's revised interpretation is contrary to the plain meaning of the statute); Goldings, 383 F.3d at 24-28 (same); Crowley v. Fed. Bureau of Prisons, 312 F. Supp. 2d 453, 462 (S.D.N.Y. 2004); Solomon v. Zenk, No. 04-CV-2214, 2004 WL 2370651 (E.D.N.Y. Oct. 22, 2004) (same); Grimaldi v. Menifee, No. 04 Civ. 1340, 2004 WL 912099 (S.D.N.Y. Apr. 29, 2004) (same);Terry, 2004 WL 2434978 at *3-6 (same); Monahan, 276 F. Supp. 2d at 205-06 (same); Estes v. Bureau of Prisons, 273 F. Supp. 2d 1301 (S.D. Ala. 2003) (same); Byrd v. Moore, 252 F. Supp. 2d 293 (W.D.N.C. 2003) (same); Iacaboni, 251 F. Supp. 2d at 1028-31; Howard, 248 F. Supp. 2d at 537-40 (same); Cato v. Menifee, No. 03 Civ. 5795, 2003 WL 22725524 (S.D.N.Y. Nov. 20, 2003) (same); United States v. Tkabladze, No. CV 0301152, 2003 WL 22836502 (C.D. Cal. May 16, 2003) (same); but see Cohn v. Fed. Bureau of Prisons, 302 F. Supp. 2d 267 (S.D.N.Y. 2004) (holding that BOP's interpretation of the statute was reasonable and entitled to deference); Adler v. Menifee, 293 F. Supp. 2d 363 (S.D.N.Y. 2003) (same); Benton v. Ashcroft, 273 F. Supp. 2d 1139 (S.D. Cal. 2003) (same); Kennedy v. Winn, No. 03 Civ. 10568, 2003 WL 23150108 (D. Mass. July 9, 2003) (same). C. Legislative History
The BOP's revised interpretation of § 3621(b) is also inconsistent with the legislative history of the statute. Section 3621(b) was originally part of 18 U.S.C. § 4082, and was redesignated as part of the Sentencing Reform Act of 1984, Chapter II of the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, Title II, 98 Stat. 1976 (1984). Section 4082 originally provided that the Attorney General was to designate a prisoner's place of confinement including "any available, suitable and appropriate institution." However, a 1965 amendment to § 4082(b) added the words "or facility" to "any available, suitable and appropriate institution." Pub.L. No. 89-176, 79 Stat. 674 (1965). "Facility" was defined to include "a residential community treatment center" (the former name for community correction centers). Id. Therefore, the 1965 amendment expressly authorized designation to a residential community treatment facility as a place of imprisonment.
In 1984, the authority to designate the place of imprisonment in § 4082(b) was moved to a separate section, § 3621(b), wherein the BOP was authorized to designate "any penal or correctional facility." Pub.L. No. 98-473, 98 Stat. 2007 (1984). Although the definition of "facility" as including a "residential community treatment center" was not moved to § 3621, the legislative history makes clear that Congress did not did not intend to narrow in any way the designation authority that previously existed under § 4082(b). See S. Rep. 98-225, at 141-142 (1983), 1984 U.S.C.C.A.N. 3812, 3324-25 (declaring that § 3621(b) was "not intend[ed] to restrict or limit the Bureau in the exercise of its existing discretion so long as the facility meets the minimum standards of health and habitability. . . .");see also McCarthy v. Doe, 146 F.3d 118, 123 n. 2 (2d Cir. 1998) (recognizing that § 3621(b) "`was not intended to change pre-existing law with respect to the authority of the Bureau [of Prisons]'") (quoting Barden v. Keohane, 921 F.2d 476, 481-82 (3d Cir. 1991)). "In short, the statutory authority to designate inmates to [community confinement] has existed since 1965, and no legislative change enacted since then has taken this authority away." Grimaldi, 2004 WL 912099, at * 5; see also Zucker, 2004 WL 102779, at *8 (finding that legislative history supports the conclusion that the BOP has authority to place prisoners in community confinement); Iacaboni, 251 F. Supp. 2d at 1025 (same).
The definition of "facility" remained in § 4082 (which section defines escapees from an "institution or facility" and provides for notice to a State regarding felons who are "confined at a facility which is a residential community treatment center"). See 18 U.S.C. § 4082(c).
D. Plain Meaning of Section 3624(c)
The BOP cites § 3624(c) in support of its revised interpretation of § 3621(b). Section 3624(c) provides:
The Bureau of Prisons shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community. The authority provided by this subsection may be used to place a prisoner in home confinement. The United States Probation System shall, to the extent practicable, offer assistance to a prisoner during such pre-release custody.
According to the BOP, § 3624(c) provides the only statutory authority to permit designation to a CCC as a place of "imprisonment," and only during the last 10 percent of the term of imprisonment, not to exceed six months.
The inconsistency in the BOP's interpretation is immediately apparent. As one district court put it, according to the BOP:
Prison, it appears, necessarily means a very specific place — with barbed wire and absolute constraints on liberty — and nothing else. This definition admits of only one exception, which the government itself cites, contradicting itself: During the final 10 percent of the term, not to exceed six months, under 18 U.S.C. § 3624(c) . . ., prison can mean community confinement, or even home detention.Monahan, 276 F. Supp. 2d at 206. In other words, the BOP claims that "imprisonment" as used in § 3621(b) does not mean a CCC, but "imprisonment" when used in § 3624(c) does. Such an interpretation runs contrary to a basic tenant of statutory construction, which requires that "identical terms within an Act bear the same meaning." Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 479 (1992).
This interpretation § 3624(c) is also inconsistent with the language in § 3621(b) which provides that the BOP may " at any time . . . direct the transfer of a prisoner from one penal or correctional facility to another." See 18 U.S.C. § 3621(b) (emphasis added). The BOP's interpretation of § 3624(c) (that it only has authority to designate a CCC during the last 10 percent of the prison term and not to exceed six months) simply cannot be reconciled with Congress's express grant of authority to transfer a prisoner from one penal or correctional facility to another " at any time."
Likewise, this interpretation seems inconsistent with Congress's delegation of authority in § 3622, which permits the BOP to "release a prisoner from . . . imprisonment for a limited period" to:
(b) participate in a training or educational program in the community while continuing in official detention at the penal or correctional facility; or
(c) work at paid employment in the community while continuing in official detention at the penal or correctional facility . . .18 U.S.C. § 3622(b) and (c). Section 3622 grants broad discretion to the BOP to release a prisoner from custody for limited periods of time. Notwithstanding this broad grant of authority, the BOP claims that Congress did not intend to give it authority to designate a CCC as the place of the prisoner's imprisonment. It simply makes no sense to suggest that Congress would grant discretion to the BOP to determine when a prisoner should be completely released from custody, albeit temporarily, and yet deny the BOP discretion to choose a CCC as among the type of facilities where the sentence could be served.
A proper reading of § 3624(c) demonstrates the provision is not a grant of discretion to place a prisoner in community confinement, as the BOP contends, but rather it imposes a qualified obligation upon the BOP to require (to the extent practicable) that the prisoner spends at least the last 10 percent of his term of imprisonment under conditions that will afford him a reasonable opportunity for adjustment and reentry into the community. By commanding that the BOP " shall," see § 3624(c), Congress is imposing an obligation, an affirmative duty, upon the BOP to prepare prisoners for their reentry into society. Goldings, 383 F.3d at 23. "[A] qualified obligation differs from a grant of discretion." Id. "The BOP is not free to disregard that duty. If it did so, judicial relief might be available." Id.
Hence, it is the BOP's obligation, and not the prisoner's designation to a CCC, that shall not exceed 6 months. See 18 U.S.C. § 3624(c).
However, "while § 3624(c) clearly limits the BOP's discretion not to consider community confinement or other pre-release alternatives at the end of the prisoner's term, it does not prohibit the BOP from doing so earlier pursuant to a different grant of discretionary authority." Id. at 24 (emphasis in original). For the reasons discussed above, the Court finds that § 3621(b) provides such discretionary authority for the BOP to consider a community confinement center, "at any time."
E. Conformity with Sentencing Guidelines
As further support for its interpretation, the BOP cites § 5C1.1 of the United States Sentencing Guidelines, and cases interpreting that provision. Guidelines § 5C1.1 distinguishes between "imprisonment" and "community confinement" and makes clear that defendants who fall within Zones C and D of the Sentencing Guidelines Table are not eligible for direct confinement in a CCC without serving at least a portion (for Zone C) or all (for Zone D) of their sentence in prison. Interpreting § 5C1.1, the Second Circuit has stated:
"Imprisonment" and "community confinement" are not synonyms. "Imprisonment" is the condition of being removed from the community and placed in prison, whereas "community confinement" is the condition of being controlled and restricted within the community.United States v. Adler, 52 F.3d 20, 21 (2d Cir. 1995).
The BOP's reliance on Guidelines § 5C1.1 is misplaced for several reasons. First, any argument that relies on a Sentencing Guidelines provision to interpret a statute is flawed at the outset. As one district court stated: "statutes trump guidelines, not vice versa." Iacaboni, 251 F. Supp. 2d at 1024. For the reasons stated above, "imprisonment" under § 3621(b) can include detention in a CCC. To the extent that the Sentencing Guidelines define "imprisonment" otherwise is of no consequence when Congress has clearly spoken on the scope of the BOP's authority.
Second, the fact that "imprisonment" and "community confinement" mean different things under Guideline § 5C1.1 does not mean the same is true of "imprisonment" as it is used in 18 U.S.C. § 3621(b). All of the cases cited by the government discuss "imprisonment" as used in the Guidelines section. None of those cases attempt to interpret "imprisonment" as it is used in § 3621(b).
Third, it should be noted that the Sentencing Guidelines were intended to curb the authority of judges, not the Bureau of Prisons. The Sentencing Commission has no authority over the Bureau of Prisons. Under § 5C1.1, judges lack the authority to dictate the place of incarceration of a defendant, except in those cases where the sentence is imposed as a condition of probation or supervised release. In all other cases, the Court can only recommend the manner or place of imprisonment. By limiting judicial discretion in this regard, § 5C1.1 serves to preserve the BOP's authority to determine the penal or correctional facility where the sentence should be served. Since the BOP is the agency charged with the statutory duty of determining the place of incarceration, it only makes sense that § 5C1.1 serves to preclude judges from usurping that authority.
In sum, the Court finds that the BOP's revised interpretation of its statutory authority is contrary to the plain meaning of 18 U.S.C. § 3621(b) and § 3624(c) and therefore invalid.
III. Other Arguments
The petitioner also argues that the BOP's policy, as applied to him, violates the Administrative Procedures Act, the Ex Post Facto Clause, and the Due Process Clause. The Court need not address these arguments in light of its holding that the BOP's policy is invalid. However, it should be noted that a considerable number of district courts have held the BOP policy invalid on one or more of those grounds.See Solomon, 2004 WL 2370651, at *2-3 (listing cases).
IV. Remedy
As a remedy, the petitioner asks this Court to direct that the BOP place him in the Buffalo Halfway House to serve his 4 months' imprisonment. As the foregoing discussion makes clear, the authority to designate the place of imprisonment rests exclusively with the BOP under § 3621(b). This Court's authority is limited only to recommending the type or location of the facility where the sentence is to be served. The BOP must consider this Court's recommendation, see 18 U.S.C. § 3621(b)(4), but need not accept it.
However, since the BOP designated the petitioner's place of incarceration (to FCI Elkton FSL-Cadre in Elkton, Ohio) based upon the erroneous assumption that it lacked authority to place him in community confinement, the Court hereby orders the BOP to reconsider its determination as to the appropriate place of the petitioner's imprisonment, without regard to its December 2002 policy. It bears emphasis that this Order is intended to restore discretion to the BOP under its pre-December 2002 policy, and does not purport to establish the petitioner's entitlement to placement in a CCC.
CONCLUSION
For the reasons set forth above, the petition is granted to the extent set forth herein, and BOP is ordered to reconsider the appropriateness of placing the petitioner in a community confinement center in light of the factors deemed appropriate by the BOP, without reference to the BOP policy promulgated in December 2002. The Clerk of Court is directed to take all steps necessary to close this case.IT IS SO ORDERED.