On Appeal from the United States District Court for the District of New Jersey (D.C. No. 05-cv-01542) District Judge: Honorable Freda L. Wolfson.
The opinion of the court was delivered by: Becker, Circuit Judge.
Before: ROTH, FUENTES, and BECKER, Circuit Judges.
Shawn James Allen Woodall, a federal prisoner, challenges recently adopted Bureau of Prison ("BOP") regulations that limit a prisoner's placement in community confinement to the lesser of ten percent of the prisoner's total sentence or six months. Woodall's appeal from the order of the District Court denying his petition for a writ of habeas corpus presents two importantquestions. First, may Woodall bring this challenge in habeas? Because we believe that Woodall's challenge goes to the execution of his sentence, we hold that habeas corpus does lie. Second, we must decide whether the new BOP regulations run afoul of the BOP's governing statute and congressional intent. We believe that they do.The governing statute at issue here, 18 U.S.C. § 3621(b), lists five factors that the BOP must consider in making placement and transfer determinations. The 2005 regulations, which categorically limit the amount of time an inmate may be placed in a Community Corrections Center ("CCC"), do not allow the BOP to consider these factors in full. We will therefore vacate the judgment of the District Court, and remand for further proceedings.
I. Facts and Procedural History
Woodall is currently incarcerated at the Federal Correctional Institution at Fort Dix, New Jersey. He was convicted of alien smuggling in the United States District Court for the Southern District of California and was sentenced on December 15, 2000, to a 37-month imprisonment to be followed by three years of supervised release. On September 30, 2002, after pleading guilty to an escape charge under 18 U.S.C. § 751, Woodall was sentenced to another six months of imprisonment to be followed by three years of supervised release. He was released on March 26, 2004, to serve the three-year term of supervised release.
On April 7, 2004, Woodall was arrested by California authorities for possession of a controlled substance. At sentencing, Woodall represented that his offense was a result of the fact that he was released by the BOP on March 26, 2004, with "no money, no identification and no assets, into a community where he had no ties whatsoever."*fn1 On September 7, 2004, the District Court for the Southern District of California revoked Woodall's supervised release for the earlier alien smuggling conviction and sentenced him to eighteen months imprisonment with no supervised release. The next day, his supervised release was revoked with respect to the escape conviction, and he was sentenced to twelve additional months in prison. The sentence imposed was below the guideline range "based on Mr. Woodall's comments as to the situation he found himself in on the streets without any money, and the fact that the government concurs that's what happened." See supra note 1.
Significantly, on February 3, 2005, the sentencing judge entered an order amending the sentencing judgment and recommending to the Bureau of Prisons that Woodall spend the last six months of his sentence in a halfway house. The Assistant United States Attorney on the case "urged" that placement. Woodall now remains in custody with a projected release date of April 3, 2006. While his sentencing judge recommended a halfway house placement for the final six-months of his sentence, Woodall was informed by the Unit Manager at Fort Dix that because of the BOP policy changes at issue in this appeal, he could be placed in a CCC for no more than 10 percent of his total sentence. Therefore, Woodall would be entitled to no more than eleven weeks of CCC placement.According to the government, Woodall will be placed in community confinement on or around January 16, 2006.
Woodall thereupon filed a habeas petition pursuant to 28 U.S.C. § 2241, arguing that the new BOP regulations impermissibly ignored the placement recommendations of his sentencing judge.*fn2 His petition was dismissed by the District Court for the District of New Jersey on July 20, 2005. The Court found that the new BOP regulations were a "permissive construction of the relevant statutes." The Court emphasized that the regulations are entitled to considerable deference and cited Lopez v. Davis, 531 U.S. 230, 243-44 (2001), in support of its decision. This appeal followed.*fn3
II. Bureau of Prison Placement Policies and the Relevant Statutory Provisions
This appeal turns on the interpretation of two statutes. Under 18 U.S.C. § 3621(b), the BOP is vested with authority to determine the location of an inmate's imprisonment. That statute not only grants the BOP placement authority, it lists factors for consideration in making placement and transfer determinations:
(b) Place of imprisonment. 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, considering--
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the sentence--
(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or
(B) recommending a type of penal or correctional facility as appropriate; and
(5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28.
In designating the place of imprisonment or making transfers under this subsection, there shall be no favoritism given to prisoners of high social or economic status. The Bureau may at any time, having regard for the same matters, direct the transfer of a prisoner from one penal or correctional facility to another.
18 U.S.C. § 3621 (emphasis added).
A more specific provision, 18 U.S.C. § 3624(c), describes the BOP's obligation to prepare prisoners for community re-entry by, inter alia, placing them in community confinement:
(c) Pre-release custody. 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.
Prior to December 2002, the BOP regularly considered prisoners for CCC placement for up to six months at the end of a sentence, regardless of the total sentence length.*fn4
"These practices were entirely routine,and were all but taken for granted by all participants: the BOP, the Probation Office, the U.S. Attorney's Office, the defense bar, and the judiciary." United States v. Serpa, 251 F. Supp. 2d 988, 990 (D. Mass. 2003) (citation omitted). However, on December 13, 2002, the Department of Justice Office of Legal Counsel ("OLC") issued a memorandum concluding that the BOP's practice of placing some prisoners in CCCs for all or significant parts of their sentences was contrary to the BOP's statutory grant of authority.
The 2002 memo concluded that the BOP did not have "general authority" under § 3621 to place an offender in community confinement from the outset of his sentence or at any time the BOP chooses. Instead, the memo reasoned that authority to transfer a prisoner to a CCC is derived solely from § 3624, and that the statute limits residence in a CCC to the lesser of 10 percent of the total sentence or six months. On December 20, 2002, the BOP followed the OLC's advice and memorialized it.
The First Circuit and the Eighth Circuit found this 2002 policy unlawful because it did not recognize the BOP's discretion to transfer an inmate to a CCC at any time, and therefore contrary to the plain meaning of § 3621. See Elwood v. Jeter, 386 F.3d 842 (8th Cir. 2004); Goldings v. Winn, 383 F.3d 17 (1st Cir. 2004). The rationale of these decisions was that the time constraints of § 3624(c) limited only the affirmative obligation of the BOP, not the agency's discretion to place a prisoner in a CCC for a longer period of time.
In response to decisions such as Elwood and Goldings, on August 18, 2004, the BOP proposed new regulations "announcing its categorical exercise of discretion for designating inmates to community confinement when serving terms of imprisonment." 69 Fed. Reg. 51,213 (Aug. 18, 2004). While acknowledging the BOP's general discretion to place an inmate at a CCC at any time, the 2005 regulations limit CCC placement to the lesser of 10 percent of a prisoner's total sentence or six months, unless special statutory circumstances apply. Id. The final rules were ...