Elliott Levine v. Craig Apker

mаny thereby as as potentially presenting RAGGI, and Before: CALABRESI (1) whether Le- five issues to this court: MURTHA, District Judges, and Circuit challenges policy and to the BOP vine’s Judge.** (2) moot; whether Le- regulation are now are challenges to the BOP actions vine’s separate ain RAGGI dissents Judge (3) 2241; cognizable under 28 U.S.C. opinion. to the December challenges his whether CALABRESI, Judge. Circuit (4) case; in Policy justiciable Levine, at all prisoner Elliott federal February Rule is con- whether action, appeals the to this times relevant statutes; governing the BOP’s trary to for a of habeas writ petitions denial of two (5) February Rule and whether § 2241. pursuant U.S.C. corpus post the ex doctrine. Levine violated facto across the coun- many federal actions Like as challenges February 2005 Rule also challenge agency two try, applications his Admin- arbitrary capricious and under the (“BOP”) the Bureau Prisons by actions (“APA”), 5 Act U.S.C. istrative Procedure prison- of federal that limit 706(2)(A). community corrections centers

ers in halfway (“CCCs”), commonly known as BACKGROUND action, a agency policy The first houses. History I. Facts & Procedural in December by the BOP implemented in the Southern Levine was convicted (“December construed Policy”), оf bank fraud District of York New Act, 18 Sentencing provisions two He was of 18 U.S.C. violation 3624(c), and U.S.C. 8, 2004 to serve September on sentenced authority to trans- curtailing the BOP’s followed imprisonment months fifteen (a) time no for a inmates to CCCs fer He years supervised release. three percent ten of their greater than the final Institu- Federal Correctional sent (b) sentences, exceed- period for a Otisville, his sen- tion, York to serve New series of There followed a ing six months. tence. the coun- courts across in federal decisions for a writ brought petitions two rejected the Levine of which try, majority to 28 U.S.C corpus pursuant In re- of habeas limiting interpretation. BOP’s first, pro se before § 2241. In the filed February the BOP enact- sponse, Judge Cote December ed, rulemaking District proce- to formal pursuant December challenged the BOP’s (“February 2005 Levine dures, categorical rule requested consideration Rule”) Policy placed the same durational prior months placement six to these for CCC confinement. Prior limits on CCC ** Vermont, Murtha, sitting by designation. J. Garvan The Honorable Court for the District United States District (3) imprisonment, history of his sentence of end characteristics pursuant could have occurred to the BOP the prisoner; policy before In December 2002. (4) any statement the court that order, a brief the district court denied his imposed the sentence— petition grounds on the that the December (A) concerning the purposes Policy longer was no in effect and which the imprisonment sentence to govern would not the BOP’s determination warranted; was determined to be regarding Levine’s CCC placement. Le- vine, se, pro again proceeding filed a sec- (B) recommending type penal petition Judge ond habeas before District facility or correctional appropri- April petition Brieant on 2005. This ate; and February challenged Judge 2005 Rule. (5) any pertinent policy statement is- merits, petition Brieant denied by sued Sentencing Commission finding that the rule was a proper exercise 994(a)(2) pursuant to section of title categorical of rulemaking the BOP’s au- thority and did not post violate the ex facto In designating the place imprison- of doctrine. Levine appeals both denials. making ment or transfers under subsection, there shall be no favoritism II. Statutory The Regulatory given high to social or eco- Governing Frametvork CCC Place- nomic may status. The Bureau ment time, having regard for same mat- Two statutes are the basis of the BOP’s ters, direct the prisoner transfer a authority placement with respect from penal one or facility correctional prisoners. transfers of federal another.... 3621(b). first is 18 U.S.C. 3621(b). This 18 U.S.C. governs statute authority the BOP’s The second relevant statute is 18 U.S.C. designate prisoner’s place imprison- a 3624(c), which pre- instructs the BOP to provides: ment. It pare prisoners re-entry for into the com- imprisonment. Place of munity. The Bureau of applicable provision states: designate Prisons shall place shall, The Bureau of Prisons to the ex- prisoner’s imprisonment. The Bureau practicable, tent prisoner assure that a may designate any penal available serving imprisonment term of spends facility correctional that meets minimum part, reasonable to exceed six standards of health habitability es- months, of per the last 10 centum of the Bureau, tablished whether main- term to be served under conditions that tained the Federal Government will prisoner afford the op- reasonable otherwise and whether within or without portunity adjust prepare to and judicial in which рerson district prisoner’s re-entry into the commu- convicted, the Bureau deter- nity. ... suitable, mines to be appropriate and 3624(c). considering— Several circuit courts have chronicled (1) the facility resources of the con- the history of CCC policy lead- templated; ing up February to the 2005 Rule. See (2) the nature Prisons, and circumstances of Woodall v. Federal Bureau offense; Cir.2005); F.3d Goldings v. sentence, (1st Cir.2004); not to exceed prison 10% Winn, 19-21 F.3d (8th Jeter, 842, 844-45 six months.” F.3d Elwood entire Cir.2004). repeat .the than Rather petitions challeng- A of habeas cavalcade only the relevant here, note history we Policy followed. December 2002 ing the highlights. Circuits, well as Eighth The First and change in December policy to the Prior courts,1 policy con- many found the district governing interpreted its BOP 3621(b), meaning trary plain to the agency’s general such that the legislation previ- BOP they read —as had the which imprison- places discretionary au- ously give the —to 3624(c) by § “not restricted ment was place inmates CCCs thority federal [that inmate and for an designating a CCC during prison their term. See any time in a an inmate CCC it could] 26; Elwood, 386 F.3d at Goldings, 383 centum the per the ‘last ten more than 847. These courts found F.3d at months, term,’ appro- if than six or more 3624(c) affirmative, discre- imposed Justice, Federal Dep’t of priate.” See BOP, on the where obligation tionless Program Statement of Prisons to a less- to send offender practicable, 1998). (Dec. 16, But December 7310.04 facility a transitional during pe- restrictive 13, 2002, of Justice’s Of- Department the prior Goldings, riod final release. See to (“OLC”), the advised Legal Counsel fice 23; Elwood, at 846- 386 F.3d 383 F.3d agen- the practice this exceeded BOP that that the The courts further held sec- §§ authority under 18 U.S.C. cy’s doing preclude the BOP from tion did not 3624(c). Goldings, stages. the same at earlier reasoned that OLC 24; Elwood, 386 F.3d at 846-47. F.3d at did not corrections center a words, import the combined In other “imprisonment” within the constitute give the BOP discre- the statutes was to 3621(b). that §of It found that meaning a for a an inmate to CCC tion to transfer statutory au- lacked the therefore per- months or ten longer than six period to a an offender serve thority to allow sentence, oblige the but cent of his as defined the imprisonment, term of BOP, transfer in- practicable, where order, in sentencing com- court’s federal part a a reasonable to CCC for mates any period longer munity confinement percent, not to exceed six the last ten custody pre-release the transitional than months, Goldings, of his sentence. 3624(c). The States §in United defined Elwood, 28-29; 386 F.3d at 383 F.3d at adopted po- Attorney General’s Office 846-47. 16, comply 2002. To on December sition BOP, 18, 2004, ap- after August On Attorney position, General’s with pro- notice-and-comment its formal plying policy, the December BOP issued This cedures, a new rule. described, promulgated which, mandated previously as imposing the same rule had the effect des- programming CCC “[p]re-release that prisoner’s CCC limitations on the last durational in duration to ignations are limited Arthur, (2d States v. 367 F.3d United did consider the December 1. Our court not have, Cir.2004) repeal. (declining to the merits of Policy its We how- consider before ever, legal acknowledged "firestorm” of challenge petitioner's to the December challenges triggered by policy and we yet petitioner had Policy, because the reported that one district court's observation BOP, which meant surrendered majority of district courts in our a sizeable court). properly before the agency was not policy invalid. See circuit had found implemented confinements as the BOP had substance abuse program treatment ... Policy. program) in its or shock December It did so incarceration ... now, however, pursuant to the BOP’s 28 C.F.R. 570.21.

broad discretion to inmates in com- appeals We the third court of confinement, munity rejec- rather than in decide a petition habeas challenging the authority, tion of had been recom- February 2005 Rule. Both other circuits in 2002 mended OLC. The BOP have struck down the Rule. See Fults v. explicitly purpose defined of the new Sanders, (8th 442 F.3d Cir. rule as follows: 2006); Prisons, Woodall Fed. Bureau of Cir.2005). 248-49 A (a) This subpart provides the Bureau of number of district courts across the coun (Bureau) categorical Prisons’ exercise try have heard challenges regula discretion for designating inmates to tion, with variety of results. See Woo community confinement. The Bureau dall, 432 F.3d at n. 9-10 (collecting designates inmates to community con- cases). only

finement part pre-release cus- tody programming which will afford DISCUSSION prisoner opportunity reasonable adjust prepare I. re-entry to and into Levine’s Habeas Challenges community. Levine’s petitions habeas challenge the Policy December 2002 as well as the Feb- (b) As in subpart, discussed this ruary Rule, presses and he both is- “community term confinement” includes sues on appeal. petitions We review his de (CCC) Community Corrections Centers Zenk, (2d novo. 132, Sash v. 428 F.3d (also houses”) “halfway known as Cir.2005). home confinement. 28 C.F.R. 570.20. A. Mootness Levine was released on or about regulation expressly new prohibits 29, 2005, November and he is serving now prisoners of in prior CCCs a three-year supervised term of release. pre-release phase imprisonment of Supreme has Court cautioned that provides: “[t]o abandon the at an case advanced When will the Bureau inmates stage may prove more wasteful than fru to community confinement? gal,” Earth, Friends Inc. v. Laidlaw of Services, Inc., 167, 191-92, Envtl. 528 U.S. (a) The Bureau will designate inmates 693, (2000), S.Ct. 145 L.Ed.2d 610 but only part of course it has said that “if an event pre-release of custody and program- occurs while a pending case is appeal on ming, during the last percent ten of the impossible makes it for the court to prison being served, sentence not to ex- grant any effectual relief whatever ‍‌‌​​‌​​​​‌​​‌​‌​​​​​​​​‌‌‌‌​​‌​​‌​‌‌​‌‌​‌​​‌​​‌‌‍to a ceed six months. prevailing party, appeal must be dis (b) mayWe exceed these time-frames missed,” Church Scientology of of Califor only when specific programs al- States, 9, niа v. 12, United 506 U.S. greater low periods of community con- 447, (internal (1992) 121 L.Ed.2d 313 finement, provided by separate omitted). statu- quotation Though marks neither (for tory authority example, issue, party residential has raised the this case raises exists, parties, who have raised or as the what relief we of question obvious mootness, continued to if have in this case the issue grant court could district his habeas assume. prevail Levine were

claims. Hear Levine’s B. Our Jurisdiction in question a similar circuit faced

Our Challenges Pursuant to 28 U.S.C. (2d 132, Zenk, Cir. 428 F.3d Sash v. §mi 2005), petitioner had in which a habeas appellate prison from before been released jurisdiction to issue writs habeas Our challenge to a BOP his adjudication of custody “in corpus to federal under 28 The court held that regulation. or laws or violation the Constitution may ha- 2243, provide court U.S.C. is codified at States” treaties of United require,” justice “as law and beas relief Nash, v. Cephas § 2241. See 28 U.S.C. peti in the reduction which could include (2d Cir.2003). juris- This 328 F.3d supervised release. tioner’s term restricted, however, by 28 U.S.C. diction 133; Sash, v. see also DiBlasio challenges to the governs which York, 102 F.3d City New Id.; legality of a conviction sentence. Cir.1996) court (stating that federal “[a] ¶ for review (providing conditioning a discretion has broad challenges prisoner’s federal relief’); 18 judgment granting habeas imposed violation “sentence was 3583(e) (providing for modifica States, or laws United Constitution release); supervised revocation tion jurisdiction court without or that the Daniels, 993-95 Mujahid F.3d sentence, or that the sen- impose such (9th Cir.2005) (rejecting government’s au- in excess the maximum tence was challenge to a petitioner’s that a argument law, subject to or is otherwise thorized moot regulation was good time credit attack”). collateral prison, from petitioner’s release due to arises, then, Le- whether question custody” during “in he remained because as a challenge properly labeled and because vine’s supervised term release his of 2241, § pursuant 28 petition court possibility that the district joe a petition reviewed term su whether should of petitioner’s reduce the would v. § release). 2255.2 Chambers under 28 U.S.C. holding in Sash is Our pervised Cf. (2d 472, States, 475 Cir. 106 F.3d prevails If on United directly point. Levine (“It 1997) for courts to construe routine is to the district and we remand appeal regard to label- petitions without prisoner the fact that proceedings, for further court what, any, relief the determining if ing in might, because of court our the district to.”). We entitled particular petitioner length of Levine’s su modify the ruling, under 28 U.S.C. petition that a habeas “effectu find constitute pervised release would challenge vehicle proper § 2241 was the controversy thus A case or al relief.” (E.D.N.Y.2005); Franceski v. Bureau challenged 369-70 government the la- has not 2. The Prisons, present at *2-*4 case. 821703 beling petition in the 2005 WL of Levine’s of has, however, question 2005); (S.D.N.Y. of some Crowley been v. Fed. Bu Apr.8, It 453, great number of dispute Prisons, courts. A in district F.Supp.2d 455 312 reau of found, as we also have these in our circuit (S.D.N.Y.2004); Menifee, 2004 WL v. Pinto will, appropriate § code 2241 was the Dec.29, 2004); (S.D.N.Y. Gri *3 3019760 at See, Lowy Apker, WL e.g., v. 2006 section. *2 Menifee, 2004 WL 912099 maldi v. Feb.9, 2006); *1, (S.D.N.Y. 1 n. 305760 29, (S.D.N.Y. 2004). April 365, Gonzales, F.Supp.2d 367 v. Pimentel 78 prison a federal correctional cen- place as his of imprisonment for

ter rather than a CCC. sentence, service of his federal but not discussing propriety § la- challenge A to the execution of a beling). Similarly, several circuit courts imposition sentence—in contrast to the have also included location of confine- properly pursuant sentence —is filed jurisdiction. § 2241 ment within See Her- Chambers, § 2241. F.3d at 474. 861, (9th Camрbell, v. nandez 204 F.3d Execution of a sentence includes matters Cir.2000) curiam) (per (“Generally, motions parole, such as “the administration of com legality contest the of a sentence must putation prisoner’s by prison of a sentence be filed under sentencing 2255 in the officials, actions, prison disciplinary prison court, petitions while that challenge the transfers, type of detention and prison manner, location, conditions a sen- Nash, conditions.” Jiminian v. 245 F.3d tence’s execution brought pursu- must be Cir.2001) 144, (2d added); (emphasis court.”); ant 2241 in the custodial Nash, 372, see also v. Poindexter 333 F.3d Jalili, 889, United v. States 925 F.2d (2d Cir.2003); Carmona v. U.S. Bu (6th Cir.1991) (challenges place to the Prisons, 629, reau 243 F.3d imprisonment, and not to the fact of feder- Cir.2001); Chambers, 473-75; 106 F.3d at conviction, al properly brought under Thomas, Boudin v. 732 F.2d 2241); McKinna, v. Montez (2d Cir.1984). This distinction between (10th Cir.2000) (finding that the validity sentence and sentence execution is of a aspects prisoner’s petition habeas “fo- grounded in plain language of the cusing on where his sentence will be specific statute, more which does served, seems to fit better under the ru- not recognize challenges to the manner of 2241,” bric of petition analyzing carrying prisoner’s out sentence. See statute). under that Addonizio, United States 442 U.S. 186-87, 99 S.Ct. 60 L.Ed.2d 805 petition challenges Levine’s (1979). his imprisonment, including the Supreme Court has indicated that differences the manner and conditions (such wrong ] confine[ment] in of imprisonment degree as the “unlawful stitution” falls within the ambit physical restriction and rules governing relief, corpus activities) habeas prisoners’ because it concerns that distinguish CCCs the unlawful imposition of physical re from other penal facilities. Levine’s straint. See Preiser v. Rodriguez, 411 claim is therefore not an attack on the 475, 486, 1827, 93 S.Ct. sentence, 36 L.Ed.2d lawfulness of his but rather an (1974); 439 Abdul-Malik v. Hawk- on sentence, attack the execution of his cf. (2d 72, Cir.2005) (con Sawyer, 403 F.3d 73 governed and as such by § is 2241.3 The § sidering a 2241 petition habeas that Third Circuit recently has reached the challenged the BOP’s denial of pro Woodall, nunc same conclusion.4 See 432 F.3d designation tunc petitioner’s state at 242-44. Davis, 230, 236, Lopez

3. v. In 531 U.S. 121 holding the Court did not a furnish on the 714, (2001), question. 148 L.Ed.2d 635 the Su- preme petition Court considered a 4. The Seventh Circuit has reached a different challenging regulation a pursu- enacted conclusion, jurisdiction and held that habeas aspect ant to a agency’s different au- litigation could not lie in challenging the thority undеr 18 U.S.C. 3621. Jurisdiction placement policies, BOP's victory because in case, however, challenged was not in the and such a change petitioner's case could not the practices they that under BOP as Policy conceded The December 2002 C. policy change the Decem- existed before December 2002 Poli- attacks the Levine eligible he would not have been ber statutory contrary to commands cy the May for until of 2005.5 CCC 3624(c) and invalid of date, By already governed by this he was the notiee-and-com- comply with failure Therefore, February at all the 2005 Rule. of the Administrative procedures ment appeal, times relevant this Levine was 553(b)-(d). Act, He Procedure by practices preceded that governed either it under the December argues that was Policy the December Levine initially that he was barred —which Policy challenge by superseding does not the Respon- in a early placement from CCC. —or regulation. February 2005 legality that the issue the dent counters justici- Policy is not December 2002 alleged It follows that the unlawfulness since, fact, case, Levine was able this Policy of the December 2002 did not affect February Rule. by excluded We Levine, and therefore his claims on this agree. University issue are moot. See Princeton Schmid, 100, 103, 455 U.S. 102 S.Ct. custody to federal

Levine surrendered (1982) (holding 70 L.Ed.2d 855 that where for a sentence on October fifteen-month regulation superceded a new has an old after, on or about No- Shortly one, “validity regulation of the old (thus prior effective to the vember moot, lost Rule), case has its character as February staff date (internal controversy” present, quo a live facility preliminary made the Otisville omitted)); tation marks see also Wilkinson eligibility for potential review of Levine’s Skinner, CCC, he v. 671-72 Cir. placement in a and found that 1972) that eligible (holding after his “10% the amendment would be review, however, regulation challenge preliminary prison This rendered date.” moot). binding, constitutionality regulation and no final determina- of old was not promulgation ‍‌‌​​‌​​​​‌​​‌​‌​​​​​​​​‌‌‌‌​​‌​​‌​‌‌​‌‌​‌​​‌​​‌‌‍tion made before the was February D. The 2005 Rule February Rule. February The BOP’s 2005 Rule result, the issue of whether As provides agency that “will Policy violated December only inmates promul- was commands mooted custody part pre-release pro gation February 2005 Rule. The new percent last gramming, during ten superseded policy, the former rule served, being not to prison sentence applied rule to Levine. was this six months.” 28 C.F.R. exceed Although placement was Levine’s CCC 570.21(a). that the argues Levine rule seemingly governed the December unambiguously expressed contravenes approximately first 2.5 Policy for sentence, effectively Congressional intent the BOP must of his Levine months us, the custody. 5. with record before or See v. This is consistent fact Scibana, duration of Richmond 602, (7th Cir.2004) pre-December 605 387 F.3d that under the which indicates (rejecting applicability of 2241 because the policy, would be considered inmates not judge could do no more than determine ''[a] days placement prior to final 180 for CCC the the extent of Bureau’s discretion make sentence, extraordinary except "with their decisions; any substance of justification.” Levine makes no claim ex- view, issue”). not at That eventual decision is however, justification. traordinary prece in the line of tension with scope of in this circuit on the dents claims. placing prisoners, its discretion in imprison exercise to their place statutorily- so based on and must do ment, as well as transfers within feder 3621(b). By pro- §in enumerated factors system. al penal analysis Our hence be categorical governing rule mulgating a all gins act, plain with the text of this and “ placement, the BOP CCC has exceeded the statutory language provides ‘where contends; rulemaking authority, Levine its ” answer, clear it ends there as well.’ See asserts, has, ignored the statutory he States, 118, Raila v. United 355 F.3d calling analysis for individualized factors (2d Cir.2004) (quoting Hughes Co. Aircraft unlawfully agency’s curtailed the dis- Jacobson, v. 432, 438, assign cretion under 755, 142 (1999)). L.Ed.2d 881 any transfer an inmate to a CCC at time. addition, In argues he that the Rule vio- full, (given supra) statute em- lates the Ex Post Facto Clause of the “shall,” ploys obliges the word and thus Constitution. “designate BOP two-part The familiar Chevron deference prisoner’s imprisonment.” analysis guides inquiry. our See Bell v. ¶ 3621(b), In making this mandatory Reno, 86, (2d Cir.2000) F.3d (citing initial placement, speci- the statute further USA, Chevron Inc. v. Natural Res. Def. fies “may designate Council, Inc., 837,. 467 U.S. 104 S.Ct. penal available facility correctional (1984)). We, 81 L.Ed.2d 694 there that meets minimum standards health fore, first examine “whether the intent of habitability Bureau, established Congress is precise clear as to ques whether maintained the Federal Gov- (internal tion at issue.” Id. quotation ernment or otherwise and whether within omitted). marks If traditional statutory judicial or without the district in which the interpretation demonstrates clear Con person convicted, that the de- Bureau intent, gressional “that is the end of the suitable, appropriate termines to be id., matter,” because “[w]ewill defer to considering [enumerated fac- an agency’s interpretation that contra added). (emphasis Id. Congress’ tors].” venes unambiguously expressed intent,” New York Public Interest Research Congress’s language use of the “may up, Johnson, Gro Inc. v. 427 F.3d designate” in provision en seemingly (2d Cir.2005) (internal quotation dows the BOP with “broad discretion.” omitted) (alteration marks original). If, Doe, McCarthy 146 F.3d 122- instead, find we the statute to be “silent or (2d Cir.1998); Thye see also v. United ambiguous,” we move to the step second States, Cir.1997) 129-30 analysis, Chevron and evaluate “wheth (“The er Prisons agency’s has extensive answer per is based on a Bell, missible construction of in assigning the statute.” latitude prisoners to correc 218 F.3d at 90. We must defer to the tional facilities and assigning them agency’s construction of the statute “as within those they facilities once have ar long as that interpretation is reasonable.” rived.”) Moreover, the fact that the stat Id. ute differentiates between the use of “may” and “shall” in adjacent sentences

1. The Congressional Command indicates drafters’ mindfulness a. The Statutory Language significance of Lopez, those terms. See 240-41, 531 at Act, 121 Sentencing (finding Reform S.Ct. 714 18 U.S.C § 3621(b), governs the assignment BOP’s the complete text of 18 U.S.C.

81 inmate, must by for that be informed from able” authorizations § 3621 differentiates Congressional five concerns. “may” and list of selectively using by duties reinforced, moreover, “shall”). to the This construction is Particularly relevant respect by Congress’s is af- instructions with similar discretion present appeal, time, may any transferring “The Bureau at inmates. transfers: forded the BOP matters, ¶2 (“The 3621(b), having regard the same direct See time, prisoner penal of a from one regard for the the transfer may any having facility to another.” 18 matters, or correctional direct the transfer same ¶ added). 3621(b), 2 (emphasis or correctional penal U.S.C. from one prisoner i.e., another”) To the statute read read facility to otherwise — “may designate” to render the there, the BOP If had rested Congress non-mandatory be to allow factors —would unguided left with discre have been would “may” granted by the word the discretion correc “penal or tion to determine which mandatory eclipse Con- seemingly “appropriate were facilit[ies]” tional parameters for the gressional exercise any given inmate at for each suitable” discretion, purely and render them Telecommunica Nat’l Cable & time. See this, circuit hortatory. And two other Services, X v. Brand Internet tions Ass’n (as also) refused to do. courts have we will 2688, 2700, 162 967, 125 S.Ct. 545 U.S. Woodall, Fults, 1092; 442 F.3d at 432 (2005) (stating the presump L.Ed.2d 820 “ at 245. F.3d ‘left ambi Congress that when has tion implementa meant for in a statute guity word Congress used the Significantly, ... desired agency [it] tion unify its five “and” rather than “or” to courts) (rather possess than agency must concerns. All of the listed factors ambigui degree of discretion the whatever Fults, considered. Accord therefore be ” Smiley v. Citibank ty (quoting allows.’ Woodall, 1092; F.3d at 432 442 F.3d at 740-41, A., 735, Dakota), (South N. 517 U.S. 245; Willingham, Ku 431 Yin Mei v. (1996))). 1730, 135 L.Ed.2d 25 116 (D.Conn.2006); 265, Martin F.Supp.2d on the criteria But was not silent Congress F.Supp.2d Willingham, v. “appropriate in an placing prisoner (D.Conn.2006); Willingham, Evans Instead, the text facility. and suitable” (D.Conn.2006); Les 159-60 F.Supp.2d “may designate stating that the BOP WL Menifee, 05 nick v. Civ. facility ... or correctional penal available (S.D.N.Y. 2005); Oct.11, Pi *5 appro to be that the Bureau determines Gonzales, F.Supp.2d mentel v. suitable,” quickly followed priate and (E.D.N.Y.2005); Willingham, No. Baker v. govern how the instructions that further at *5-*6 3:04CV1923, WL 2276040 its perform must agency 2005). (D.Conn. After enumerat Sept.19, so The BOP must do transfer duties. factors, one places Section ing five “having regard for” a “considering” and “In on the BOP: des restriction additional list of factors. imprisonment ignating subsection, under this transfers grammatical making plain from the It follows given pris favoritism there shall be no statute —the order construction of the status.” social or economic placed high oners of and the comma before the sentence ¶ added). 3621(b), (emphasis “considering” the BOP’s discretion —that Thus, may agree, the BOP parties cor- as both penal to a an inmate pris based on determinations of not make its facility, and its determination rectional backgrounds. oners’ economic and suit- “appropriate which facilities are instructions, Subject to these the statute most enlightening legislative source of his gives the an tory the BOP transfer generally report, is a committee par facility inmate from one covered to another ticularly a report, conference committee 3621(b); § any “at time.” 18 U.S.C. see which we have identified among as the 3621(b) Goldings, F.3d at 28. Section most authoritative and reliable materials of any therefore instructs that when—at (internal legislative history.” quotation assigns prisoners “ap time—the BOP omitted)). report marks The stated that propriate places imprison suitable” and determining availability “[i]n the or suita “penal or qualify ment that as correctional bility facility selected, of the the Bureau facilities,” the agency must do so without specifically required [is] to consider such socioeconomic favoritism and must consid 3621(b) ],” [those factors as listed in and er all of the factors: ‍‌‌​​‌​​​​‌​​‌​‌​​​​​​​​‌‌‌‌​​‌​​‌​‌‌​‌‌​‌​​‌​​‌‌‍the facili enumerated factors,” that considering “[a]fter these the resources, ty nature and the circumstances may designate a of imprison offense, prisoner’s the conviction the ment or enact S.Rep. inmate transfer. characteristics, history any recommen (1983), No. 98-225 reprinted in 1984 judge, dations the sentencing any 3182, 3324-25; U.S.C.C.A.N. see also Woo pertinent policy statements issued the dall, same). (quoting F.3d at 245-46 Sentencing sum, Commission.6 In as report disavows restriction on the Circuit, found Third the “the statute discretion, BOP’s exercise rather but may place prison indicates that the BOP states that it simply “intends forth to set wishes, long er where so as it considers the appropriate factors the factors 3621.” enumerated Wоo should consider in making designa dall, (emphasis origi F.3d at 245 By “specifically tions.” Id. requiring]” Fults, nal); accord 442 F.3d at 1092. the BOP to consider listed factors be fore it makes placements expressing Legislative History b. The intent to “set forth the appropriate fac text, clarity Given the we need not considered, tors” to be the report under legislative turn to history. inqui- Such an language scores what the textual itself ry, however, supports reading our makes clear: that the enumerated factors mandatory five factors are in fact but non- mandatory.7 3621(b), Accompanying exclusive. Judiciary Senate Committee question turn, issued a re- to which we must therefore, port speaking directly to the nature of the agency complied whether the statutory factors. 3621(b) See United States v. with requirements (2d Cir.2003) (“The Gayle, 342 F.3d drafting February its 2005 Rule.8 Though 6. ports reading the construction of the statute list as non-exclusive. mandatory, makes agree supra these factors we report note The Senate does not that, Respondent given general against with among mention the bar favoritism BOP, "specific breadth of afforded to requirements" discretion that the BOP must McCarthy, they Nevertheless, 146 F.3d at need be considеr. Respondent as- States, serts, exclusive. Accord plain Cohen v. United language "there shall be no Cir.1998) (11th F.3d (interpreting mandatory favoritism" makes this a limitation giving ample making placements. "the BOP room for judgment by listing a non-exhaustive set of statute, 8. By plain language consider"). factors for the BOP to 3621(b) permits the BOP 7. The report’s prisoner's statement that the "place imprisonment,” statute is not only but "penal intended "to restrict or limit the Bureau in to a facility.” or correctional In the existing sup- (based exercise of its past, discretion” the BOP took the view on the to inmates nate[ ] to Con- Agency Give 2. Did Effect Ex- custody The BOP’s and pre-release Intent? gressional only part of ” Rulemaking Categorical 570.20(a). its ercise § programming.... C.F.R. of Authority custody pre-release this And it defined pris- in this ten February percent 2005 Rule issue as “the last period The § and case, at 28 570.20 served, C.F.R. published to six being not exceed on sentence 570.21, categori- aas “a § was announced 570.21(a). § months.” 28 C.F.R. under 18 U.S.C. of discretion cal exercise Confinement, 3621(b).” Fi- Community agency is sole The BOP (Jan. 10, Fed.Reg. 1659-01 Rule, 70 nal place to a convict with discretion charged 570). (to 2005) C.F.R. Part codified 28 be particular a treatment ed defеndant within proposed when it explained agency

As the facility. See particular a program or courts have “Because various the rule: Williams, States v. United has under the Bureau discretion held that Cir.1995) (confinement partic ato 3621(b) to offenders place [§ ] 18 U.S.C. program drug treatment is facility ular imprisonment to a term of sentenced of the Bureau the sole discretion “within it CCCs, prudent to Bureau considers Prisons”). And, agency’s authority of such discre- to exercise how determine interpret administer the relevant Confinement, Proposed Community tion.” Act not Sentencing provisions 2004) (to Rule, (Aug. Fed.Reg. Lopez this case. See 570). contested BOP Part codified 28 C.F.R. be Davis, 230, 240, 121 S.Ct. “desig- 531 U.S. agency would that decided CCCs, pru- OLC) considers it meat in a CCC did not legal opinion of the that dis- how to exercise such pur dent to determine imprisonment” "place a of constitute cretion.”). in which we find the The situation 3621(b), though that poses it conceded of in which quite one law different from is thus See Gold are correctional facilities. CCCs CCCs decided was whether the issue be Goldings, the First ings, F.3d at 25. In and, "place imprisonment” qualified as of position, finding rejected that the Circuit thus, penal or correctional an "аvailable facility” "any penal or correctional term facility” the statute. under of the statute served second sentence importantly is also question before us "place imprison to” the "give[] content closed the BOP one in which distinct from Id. language sentence. If in the first ment” they that were entirely, with the result CCCs institutions, as Re were correctional CCCs language longer "available” within no them, then the court spondent had classified still agency would of course the statute. The necessarily they were within that found 3624(c) obligations under have to meet its gov imprisonment” category "placets] ensure, i.e., way, where in some other Id. the statute. erned spend the last 10 practicable, Woodall, Respondent appar- In Ehvood (not exceed six per of their sentences cent argument are ently that CCCs abandoned the months) prepar- transitional conditions under impris- "places category of within the community re-entry. prisoners' ing for the onment,” similarly such eschewed 3624(c). has Apart from that 18 U.S.C. See restriction, Indeed, by promul- argument before us. suggest way that the no we in (the February gating 28 C.F.R. 570.21 “re- particular form of BOP must make 3621(b), Rule) CCC, facility, under available. But entry” like CCCs, necessarily dropping cate- places CCCswithin that thus BOP closed BOP has not "placets] governed by gory statute. of available institutions the roster them from Rule, i.e., Confinement, Proposed "penal correctional fa- Community imprisonment,” available, And, ("Because 2004) they Fed.Reg. (Aug. since cilities.” man- comply made with the factors has must that the Bureau courts have held various assigning prisoners to datory by Congress in discretion under imprison- them. a term of sentenced to offenders (2001) 148 L.Ed.2d 635 (upholding a cate- granted the statute BOP discretion gorical promulgated by rule the BOP pur- to period imprisonment reduce the Zenk, 3621); suant to Sash v. nonviolent offenders who satisfied a drug Cir.2006) 61, 64 (finding it appropriate program, treatment but “Congress under Supreme precedent for Court has not identified further circumstance interpret 3624, BOP to 18 in and which the Bureau grant either must other sentencing-administration reduction, similar or is forbidden to do so.” Lo- statutes); 5 (grant- pez, 242, see also U.S.C. 301 531 at U.S. Apply- S.Ct. 714. ing rulemaking authority to ing deference, executive Chevron the Court found 0.95(a)-(d) (dele- agencies), §§ 28 C.F.R. that its review was to limited the issue of gating manage BOP whether the BOP reasonably filled the prisons federal provide and statutory inmate gap. Id. (citing Chevron U.S.A. care, safety, discipline). Inc. v. Natural Resources Coun- Defense cil, Inc., 837, 842, U.S. 2778, 104 S.Ct. The issue that is contested before isus (1984)). 81 L.Ed.2d 694 permits whether the BOP to ex- categorical ercise its rulemaking authority rejected The Court also the argument promulgate so as to a categorical limitation provision required the BOP to on the in period may which an inmate be rely on case-by-case assessments. Id. at “ placed in a Respondent 243, CCC. argues that S.Ct. if ‘[E]ven a categorical such a limitation is requires consistent scheme individualized determina- with the BOP’s tions,’ broad discretion which not, this scheme does ‘the 3621(b) (as under found the First and decisionmaker has the authority rely Circuits, Eighth courts, as well as other rulemaking to resolve certain issues of they when struck down the December general applicability Congress unless Policy). Respondent relies heavily on Lo- clearly expresses an intent to withhold ” Davis, pez 531 U.S. 121 S.Ct. that authority.’ 243-44, Id. at 121 S.Ct. (2001), 148 L.Ed.2d 635 to validate 714 (quoting Am. Hosp. NLRB, Ass’n v. regulation. BOP’s 606, 612, 499 U.S. S.Ct. (1991)) (alteration L.Ed.2d 675 in original). In Lopez, the Supreme Court examined case-by-case Court found that deter- a BOP rule that categorically early denied favoritism, minations “could invite disuni- release fоllowing drug rehabilitation to a ty, and inconsistency” and the agency was category that, of inmates under the terms required may revisit “issues that be statute, would otherwise have been fairly efficiently established single in a eligible for such release. See 531 U.S. rulemaking proceeding.” Id. at 238, 121 S.Ct. 714. The statute in at issue (internal quotation S.Ct. marks omit- case, 3621(e)(2)(B), provid- ted). ed period that the custody of a prisoner convicted a nonviolent offense who com- Relatedly, the in rule Hospi American pleted a tal, substance program “may abuse be quoted by Lopez court, validated by up reduced” year by to one the BOP. “rulemaking to resolve certain issues categorical BOP’s rule implementing general applicability” that arise along the early release incentive excluded from path making ultimately individualized eligibility all inmates with certain prior determinations. Hosp., Am. 499 U.S. at convictions, as well as all inmates incarcer- 111 S.Ct. 1539 (quoted Lopez, 531 ated for violence,” “crime of 243-44, 714). as defined In that by the Lopez BOP. The case, Court found that the Court construed the National cases, the sepa- agencies In each of these did require Act not to Labor Relations regarding employee they statutorily empowered were what rate determinations cases, and undisputed bargaining Lopez Hospital, units do. In and American upheld Court the Nation- on that basis the a statutory NLRB had filled industry-wide Board’s al Labor Relation by Congress left and did so reason gap defining appropriate bargaining rules way ably, statutory- consistent with the 611-12, 111 Hosp., 499 at units. Am. U.S. 242, Lopez, 531 121 scheme. See U.S. at regulations 1539. The served S.Ct. 714; 611-12, Hosp., Am. 499 U.S. at S.Ct. did contravene statutory goals and not Heckler, 111 In the Social S.Ct. 1539. categorical intent to curtail Congressional Security Administration used the 613, at 111 S.Ct. 1539. rulemaking. Id. a factors as basis for standards that would applied proceedings. be within individual Moreover, 461 in Heckler v. Campbell, Heckler, at S.Ct. 1952. U.S. 76 L.Ed.2d S.Ct. (1983), by Lopez a cited the Court case do, may not agencies What howev con Hospital, and in American Court er, Categorical is edit a statute. rulemak jobs regulations that defined sidered ing, regulation, agency like all forms of economy in the accord available national unambiguous must be with Con consistent a of four factors enumerated ing to matrix And, gressional agency instructions. by Congress provisions of the Social may promulgate categorical not rules that Court, nevertheless, Security up Act. categories do not take account that categorical as a valid regulations held the Congress. significant by are made See au agency’s rulemaking exercise of the (1st Ashcroft, 394 Succar v. F.3d is to “resolve certain classes of thority Cir.2005) (holding Attorney that the Gen require case-by-case .... that do not sues promulgate regulation cannot a that eral 467, 103 1952. Id. at S.Ct. consideration.” category a of other categorically excludes so, opinion relied doing repeatedly In aliens, Congress eligible wise because had categorical determina on the fact that catego expressed clear intent as what regulations “not tions made were Attorney General could consider claimant” and ries unique presented to each it could eligibility and what classes “type general factual issue” that not). left the Though Congress fairly be resolved and more uniform could implement through rulemaking. large territory of discretion ly Id. at 3621(b), it not leave the BOP’s agency ing still did required S.Ct. 1952. The empow The BOP is not hearing for each duties undefined. to hold an individual claimant, selectively the instruc imрlement it “continu required was not ered but 3621(b), by picking ally relitigate” particular given by that tions issues that deems most choosing all Id. those factors generalized applicants. be could 467, 103 compelling.9 ("The ...."); id. at 51213 Bureau will argues even if we find the factors 9. The BOP case-by-case determina- require enu- continue to make statute to consideration of the (i.e., factors, particular prison facility non- agency has See tion of the merated done so. Confinement, Rule, community-confinement facility) to which it Community Proposed inmate.”). 18, 2004) ("In Fed.Reg. (Aug. deciding will each individual reg- the contested proposed and final rules of inmates’ limit sentence, convey facil- percent prison that the BOP considered ulations the last ten resources, months, ity policy statements issued has careful- to exceed six Commission, prohibition Sentencing and the ly statutorily-specified considered all of the this, And as both the Third and Eighth and holding that the BOP “may reasonably Circuits found, have is precisely what the attend” to concern). We read the contested regulations do. Fults, 442 § 3621 factors as non-exclusive, and this 1091; F.3d at Woodall, 432 F.3d at 248. certainly permits the BOP to consider the By its February Rule, the BOP has portion of time served in making place- designated a certain group of offenders as ments, but such an unlisted factor cannot categorically ineligible in a unilaterally and categorically supplant the type certain facility, and ‍‌‌​​‌​​​​‌​​‌​‌​​​​​​​​‌‌‌‌​​‌​​‌​‌‌​‌‌​‌​​‌​​‌‌‍it has drawn statutory list. eligibility lines solely on the basis of one Furthermore, criterion: How much five the prisoner’s statutory fac sen- tors tence has must been be considered, served? The regulation least holds three —the all nature who have not yet circumstances of en- prisoner’s tered pre-release the offense, phase (the of the history custody and charac lesser of the teristics final ten percent prisoner, the and any six statement months) ineligible. the court that statutory imposed mandate the sentence— on focuses specific are which eligible prisoners. for individual See 18 which facilities, but, for U.S.C. 3621(b)(1)-(4). purposes of as- As a result, consid signment CCCs, the BOP ering these answers this factors entails individualized question using one basis only: decisions. the portion And this necessity distin of time served. guishes present the case from Lopez, in which the statutory provision It is worth at examining, issue had again once and in no regard detail, for the why speсific such a categorical characteristics of approach is individuals, other inconsistent than §with the 3621. fact that they When the BOP had completed selects among prisoners treatment program. and decides See which 18 facilities are 3621(e)(2)(B); “appropriate Lopez, suitable” for U.S. at prisoner, 241-42, 121 (“The it must so do “considering” or constraints [the “having regard appellant] for” the statutory urges requiring factors. the BOP — balance of make the term to be individualized is served determinations on this list. Nor based only can on postconviction that consideration be conduct—are reasonably inferred nowhere from any be possible found in am- 3621(e)(2)(B).”). biguities in the It statutory factors, also distinguishes or from the case from Heck other ler, concerns identified in in which as a contested rule did not whole. Thus, unlike replace the rule at issue in individual determinations, and in Lopez, which the Court which found to be a challenged guidelines took into reflection of Congressional concerns account each mani- criterion identified by Con fested in the statutory provision, gress in Feb- Heckler, statute. U.S. ruary 2005 Rule promulgated here did not 103 S.Ct. 1952. Finally, it distin track or effectuate lеgislative text. guishes the case from American Hospital, Lopez, 531 U.S. at (find- S.Ct. 714 in which the Court construed the statute to ing that the BOP’s regulation reflected the require individualized only determinations fact that “the statute manifests congres- in narrow circumstances, and which the sional concern preconviction behavior,” regulations governed “certain issues of against favoritism to be its significant most account for those individualized concerns in concerns. Id. at 51214. But the BOP's asser- way insufficient to discharge —is

tion that it also considered the remaining duties, agency's given that the list required factors in promulgating its rules regarding considerations is both mandatory and inclu- CCCs—where the regulation fails to reflect or sive. REENARAGGI, dissenting. not contra- that did applicability” general Hosp., Am. command. dict the majori- I from respectfully dissent 611-12, By 111 S.Ct. ty’s conclusion that the Bureau Prisons analysis with fusing entire (“BOP”) rulemaking its abused category single into a to CCCs respect (the when, promulgated a rule length an inmate’s grounded on the Rule”) desig- allowing “February sentence, February remaining community “to nation inmates confine- each eliminated from consideration Rule custody part pre-release ment only instead, turn, statutory factors that which will afford the programming specific history. inmate’s opportunity to ad- prisoner a reasonable circuits, our sister Accordingly, and like just re-entry prepare to and into the im- 570.21 we find that C.F.R. 570.20(a) (em- 28 C.F.R. community.” rulemaking BOP’s proper exercise added). rule, phasis part As of this authority. Section establishes BOP will inmates to BOP’s exercise of for the parameters clear (“CCCs”) “only centers placements making prison discretion part pre-release custody program- prisoners’ eligi- By sorting and transfers. during percent last ten ming, the institutions on the bility for one of served, being not to ex- prison sentence list facility” penal or correctional “available 570.21(a); § Id. see ceed six months.” time according portion to the only 3624(c). § It will “exceed also 18 U.S.C. served, unlawfully excised has the BOP when Bu- only specific these time-frames from the statute.10 parameters these periods of greater allow programs reau confinement, as provided by (for example, statutory separate CONCLUSION pro- substance abuse treatment residential transferring inmate hold that We (18 3621(e)(2)(A))), § or gram shock U.S.C. cor- penal or any to a or “available CCC (18 program U.S.C. incarcеration must consider facility,” rectional 570.21(b). 4046(c)).” § § 28 C.F.R. 3621(b), §in without factors set forth contends, my colleagues in § 570.21. Levine and to 28 C.F.R. reference that this rule violates majority agree, reasons, the dismissal foregoing For the statutory authority set forth relevant challenge to the Decem- habeas of Levine’s 3621(b). pertinent part, § In in 18 U.S.C. Policy AFFIRMED. The dis- ber 2002 3621(b)provides: challenge to the habeas missal of Levine’s shall The Bureau of Prisons Rule is VACATED and February 2005 prisoner’s imprisonment. proceedings not REMANDED further may designate available The Bureau this opinion. inconsistent with ("[A] violating not reach constitutional argues court should addition 10. Levine other, reg- agency’s authority, the BOP nonconstitutional issues when there post violate the ex doctrine. upon ulations grounds which it can resolve facto CONST, I, (“No Bill of Attain- art. case.”). passed.’’). post facto Law shall be der ex light foregoing, we also need In Having other held in Levine's favor on argument that Amici’s APA Levine and reach grounds, not consider his constitu- we need "arbitrary February and 2005 Rule Walker, argument. See Torres v. tional meaning of 5 U.S.C. capricious” within the Cir.2004); United see also F.3d 706(2)(A). Leon, (2d Cir.1985) States v. penal or correctional facility that ... As the majority aрpears to acknowl- Bureau determines to be appropriate edge, nothing §in requires the suitable, considering— BOP to establish CCCs or to recognize

(1) them resources appropriate of the facility con- suitable correc- tional templated; facilities for the service of incarcera- tory (2) sentences. See ante at the nature n. [82-83] 8. circumstances of Nevertheless, the majority offense; that, concludes because the BOP does employ CCCs (3) “as the history and characteristics of part pre-release custody and program- the prisoner; ming,” 28 C.F.R. 570.20, it must consid- (4) any statement by the court that er CCCs in making every prisoner desig- imposed the sentence— nation 3621(b). under The majority (A) concerning the purposes reasons: “[T]he BOP has not closed which the sentence to imprisonment CCCs, thus dropping them from the ros- was determined to be warranted; ter of ‘place[s] available of imprisonment,’ i.e., ‘penal or correctional And, facilities.’ (B) recommending a type penal since they are available, the BOP must or correctional facility as appropri- comply with the factors made mandatory ate; and by Congress in assigning (5) any pertinent policy them.” statement Ante at is- [83] n. 8 (quoting 18 sued the Sentencing § 3621(b)) U.S.C. Commission (emphasis in original).1 pursuant 994(a)(2) section I cannot agree. of title First, I do not that, understand under 3621(b). majority February con- Rule, the BOP will cludes that the BOP’s February cease 2005 Rule considering all 3621(b) § five factors impermissibly “edit[s]” in making any U.S.C. inmate placement. The § 3621(b), substituting a single rule does not factor—the 3621(b) § eliminate factors portion of time served —for from any placement the five factors consideration; rather, specified in the statute for it BOP a particular eliminates consider- type of facility— ation when designating or CCCs—from among transferring those to which a pris- prisoners. federal oner Ante at can be designated I [84-85]. only when the five construe the 3621(b) § rule somewhat factors differently, inform the BOP’s place- specifically, as a permissible ment decision. categorical rejection of CCCs as appropriate and suit- Second, to the extent the rule does allow able facilities for § designations CCC placements within a narrow time generally, with a limited exception only for “during the last ten percent of frame — the those circumstances where Congress has prison sentеnce being served, not to ex- identified statutory considerations pursu- ceed months,” six 570.21(a)— § C.F.R. ant to 18 §§ 3621(e)(2)(A),3624(c), the exception identifies no arbitrary peri- or 4046(c), in addition to those catalogued od, but rather one in which the BOP oper- 3621(b). §in ates under a specific congressional man- 1. This reasoning suggests that the BOP could such an obviously inappropriate and unsuita- not categorically exclude CCCs from consid- placement ble in circumstances, such today's eration in designation decision, even the appears decision preclude to the BOP from initial prisoners of convicted of categorically excluding those facilities from murder or sentenced to terms of impris- life consideration. onment. However the remote likelihood of or may designate to which facilities]” that, al 3624(c) states 18 U.S.C. Title date. the BOP when except prisoners, transfer custody”: “Pre-release of purposes for obligations, statutory other meet to strives shall, ex- to the Prisons of Bureau reentry mandate time-specific such prisoner a that assure practicable, tent Community 3624(c). generally §of spends imprisonment a term serving Fed.Reg. Rule, 69 Confinement, Proposed six to exceed not part, reasonable a 2004) (noting that 51,214 (Aug. 51,213, centum per last months, “supported were regulations challenged that conditions under be served to term statuto- congressional consideration op- a reasonable prisoner afford will statutory related as reflected ry policy for prepare to adjust to portunity that stating “[w]hether provisions,” commu- re-entry into the prisoner’s 3624(c) Bureau precludes Section not this provided nity. community to prisoner a designating from pris- a to used may be subsection the lesser than longer for confinement confinement. in home oner or six sentence percent last ten added). 8624(c) (emphasis congres- with consistent months, it is penalogical a identifies statute Plainly, this for section that reflected policy sional their for prepare goal helping— its discretion exercise signifi- community that, into reentry — commu- a prisoner decline 3621(b). See §in not mentioned cantly, is time than longer nity Winn, F.3d v. Goldings generally period”). 3624(c) Cir.2004) (noting (1st in the ma- focusing colleagues my Third, unlike legislative directive aas “operates rejec- categorical to facili- the BOP’s conditions think I development jority, on the 3621(b) desig- soci- to free general adjustment CCCs inmate’s tion tate omitted)). involving (ie., not marks placements (internal quotation nations ety” concerns) however, BOP does 3624(c), 3624(c) other Pursuant Davis, goal reentry Lopez support serve find must (2001). inmate’s anof 148 L.Ed.2d part particular 121 S.Ct. during only upheld percent Court Supreme ten the last incarceratory Lopez, term: In eliminating some six exceed sentence, categorically rule prison convic- prior with certain inmates —those months. 550.58(a)(l)(vi)(B)— § tions, 28 C.F.R. see scheme, the this light In eligibility early release discretionary from (1) does that conclude might well BOP drug treat- completion successful after appropriate CCCs consider generally under program ment service for the facilities and suitable to BOP allowing the 3621(e)(2)(B).2 In (2) § sentences; nevertheless incarceratory exercising categorically a rule all, promulgate de- are, after facilities, which these that noted discretion, the Court its reentry, can promote signed about 3621(e)(2)(B), silent statute, § 3624(c) mandate. § serve usefully discre- its exercise towas BOP how conclusions, BOP to such Pursuant Davis, at U.S. Lopez v. tion. See a rule here, promulgate it did might, as in- “[b]eyond that (noting 121 S.Ct. from CCCs exсludes categorically that discretion has structing that correction- penal “available among a sub- completes successfully prisoner if the BOP 3621(e)(2)(B) provides Section program. abuse stance term prison year the by up one may reduce 3621(e)(2)(B). felony, a nonviolent convicted an inmate period reduce the of imprisonment for a established such parameters for agen- nonviolent offender who successfully com cy’s exercise of discretion, the “agency pletes drug treatment, Congress has not may not promulgate categorical rules that identified further circumstance in do not take account of the categories that which the Bureau grant either must significant made by Congress.” Ante reduction, or so”). is forbidden to do It [85], Because the majority concludes that, concluded under such circumstances, that, in promulgating the February 2005 regulation BOP “filled the statutory Rule, the BOP “selectively” implemented gap a way that was reasonable light “the instructions given by 3621(b), ... legislature’s revealed design.” Id. picking and choosing those factors that it (internal quotation omitted). marks Fur deems most compelling,” it holds the rule ther, and perhaps more relevant to this invalid. Ante at [85]. “ case, the Court observed that, ‘[e]ven if a statutory scheme requires individualized I do not understand selectively ” determinations,’ which was not the case implemented have 3621(b) factors “ Lopez, ‘the decisionmaker has the au in categorically rejecting CCCs general thority rely on rulemaking to resolve prison designations. In its notice of pro- certain issues general applicability un posed rulemaking, the BOP stated that less Congress clearly expresses an intent “[i]n deciding to limit inmates’ community ” to withhold that authority.’ Id. at 243- percent last ten 44, 121 S.Ct. (quoting American Hosp. prison sentence, the Bureau carefully has NLRB, Ass’n v. 606, 612, U.S. considered all of the statutorily-specified S.Ct. 113 L.Ed.2d (1991)); see factors.” See Community Confinement, Heckler Campbell, 467, 103 Proposed Rule, 69 Fed.Reg. 51,214. I (1983) 76 L.Ed.2d 66 (holding not reject would representation simply that an agency may rely on rulemaking to because the BOP did not discuss each “resolve certain classes of despite issues” factor in its rule notice. the fact that the statute Cf. calls for individu United Fernandez, States v. alized decisionmaking, noting that to hold (2d Cir.2006) that, (noting in context of otherwise require “would the agency con sentencing judge’s tinually to consideration relitigate issues may be 3553(a) factors, established “in the fairly and efficiently absence of in single record rulemaking evidence otherwise,” proceeding”). suggesting This reasoning this court supports the will “presume BOP’s ... that a categorically sentencing judge to conclude that certain has facilities, faithfully discharged such as duty her to con- CCCs, are generally inappropriate sider and un the statutory factors”). [sentencing] suitable 3621(b) placement, even As the majority acknowledges, the notice though they can be useful when the BOP explicitly discusses two of the statutory strives to statutory achieve goals in addi factors, facility resources policy and state- tion to specified 3621(b). those §in of ments the Sentencing Commission, as well as majority general the attempts prohibition to distinguish 3621(b) §in Lo- pez by of noting § 3621(b), that favoritism for unlike inmates of high the social or statute at issue in Lopez, economic status. “establishes clear See Community Confine- parameters for ment, the BOP’s Proposed Rule, exercise of dis- 69 Fed.Reg. 51,- at - cretion.” [87]; Ante at Davis, 214; see Lopez v. ante at [85 n. 86] 9. Like a number U.S. at 121 S.Ct. 714. It con- of district judges circuit, in this I construe that, cludes where, here, as Congress hаs the BOP’s emphasis on factors, these in 3621(b) §to addition in —falls all mandates of consideration represented itsof kght “general applicability.” of realm the de within has BOP that “the factors, to indicate conclude, itas reasonably might BOP cat discussed] factors [these that termined anof that, here, regardless did implicitly fac the other any of outweigh egorically history, and offense, prisoner’s individual toward tend 3621(b) might which §in tors characteristics, any statement personal individual an in CCC earlier factors other judge, sentencing by a 05-1306, 2005 made No. Apker, Troy v. case.” availability CCC limited the such (S.D.N.Y. June *2 at WL suitability resources, particular the also, Charbo e.g., J.); 2005) see (Lynch, mandates, the statutory to other 05-1900, CCCs 2005 WL Menifee, No. v. neau Sentencing Com- the 2005) statements policy (S.D.N.Y. Sept.28, *6 at statutory prohibition mission, the and the that C.J.) (“Even assuming (Mukasey, favoritism, to combine economic the social only two considered explicitly BOP excluding CCC rule categorical of warrant designation factors, its statutory five general consideration from conveys facilities significant’ ‘most factors those Whatever 3621(b) designations. out factors that such judgment implicit alter rule, not it does this merits considerations, stаtuto any other weighed 3621(b)’s factors five §of applicability Apker, 376 otherwise.”); v. Moss ry to designates BOP (Marre when (S.D.N.Y.2005) 416, 424 F.Supp.2d suitable, deemed facilities those 3621(b) regulates J.) (“Nothing §in ro, 3621(b) or §to pursuant generally of either each give must BOP that the weight other pursuant statute, specifically factors enumerated consider I do not Accordingly, mandates. require read to were statute if the even exercise invalid Rule an February consideration some least give at authority. rulemaking BOP’s original). factor”) (emphasis each holding this majority I in think not Were I do majority, Unlike necessary be perhaps view, fact that it would by the foreclosed conclusion appellant’s I consider why nature further discuss factors —the three unconvinc- challenges of other amici’s prisoner’s circumstances of and minority view express I Because ing. characteristics history and fense, the discuss not does majority by the court and because any statement prisoner, pursue I do arguments, “specific other these the sentence—-are imposed in dissent. and, points “consid thus these prisoners” to individual individualized entails factors ering these [86], previously As Ante

decisions.” concluded specifically

observed, Lopez requires statutory scheme aif

that, “[e]ven determinations, decision-

individualized rule- rely on has the

maker genéral issues certain to resolve

making Davis, Lopez

applicability.” (internal quotation

243-44, omitted). BOP’s identification

marks considered will be facilities those ‍‌‌​​‌​​​​‌​​‌​‌​​​​​​​​‌‌‌‌​​‌​​‌​‌‌​‌‌​‌​​‌​​‌‌‍designations ie., prison general

making — informed designations

Case Details

Case Name: Elliott Levine v. Craig Apker

Court Name: Court of Appeals for the Second Circuit

Date Published: Jul 10, 2006

Citation: 455 F.3d 71

Docket Number: Docket 05-2590 PR

Court Abbreviation: 2d Cir.