Lead Opinion
Judge RAGGI dissents in a separate opinion.
Elliоtt Levine, a federal prisoner at all times relevant to this action, appeals the denial of two petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Like many federal actions across the country, his applications challenge two agency actions by the Bureau of Prisons (“BOP”) that limit the placement of federal prisoners in community corrections centers (“CCCs”), commonly known as halfway houses. The first agency action, a policy implemented by the BOP in December 2002 (“December 2002 Policy”), construed two provisions of the Sentencing Act, 18 U.S.C. § 3621(b) and 18 U.S.C. § 3624(c), as curtailing the BOP’s authority to transfer inmates to CCCs (a) for a time no greater than the final ten percent of their sentences, and (b) for a period not exceeding six months. There followed a series of decisions in federal courts across the country, the majority of which rejected the BOP’s limiting interpretation. In response, in February 2005, the BOP enacted, pursuant to formal rulemaking procedures, a categorical rule (“February 2005 Rule”) that placed the same durational limits on CCC confinement. Prior to these changes, the BOP had followed a practice of, оn occasion, placing some federal prisoners in CCCs for more than the last ten percent of their sentence or for more than six months, or both.
Levine challenges both BOP actions under this court’s 28 U.S.C. § 2241 authority, thereby potentially presenting as many as five issues to this court: (1) whether Levine’s challenges to the BOP policy and regulation are now moot; (2) whether Levine’s challenges to the BOP actions are cognizable under 28 U.S.C. § 2241; (3) whether his challenges to the December 2002 Policy are justiciable in this case; (4) whether the February 2005 Rule is contrary to the BOP’s governing statutes; and (5) whether the February 2005 Rule violated the ex post facto doctrine. Levine also challenges the February 2005 Rule as arbitrary and capricious under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A).
BACKGROUND
I. Facts & Procedural History
Levine was convicted in the Southern District of New York of bank fraud in violation of 18 U.S.C. § 1344. He was sentenced on September 8, 2004 to serve fifteen months imprisonment followed by three years of supervised release. He was sent to the Federal Correctional Institution, Otisville, New York to serve his sentence.
Levine brought two petitions for a writ of habeas corpus pursuant to 28 U.S.C § 2241. In the first, filed pro se before District Judge Cote on December 9, 2004, Levine challenged the BOP’s December 2002 Policy and requested consideration for CCC placement six months prior to the
II. The Statutory and Regulatory Frametvork Governing CCC Placement
Two statutes are the basis of the BOP’s authority with respect to placement and transfers of federal prisoners.
The first is 18 U.S.C. § 3621(b). This statute governs the BOP’s authority to designate a prisoner’s place of imprisonment. It provides:
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(b).
The second relevant statute is 18 U.S.C. § 3624(c), which instructs the BOP to prepare prisoners for re-entry into the community. The applicable provisiоn states:
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. ...
18 U.S.C. § 3624(c).
Several circuit courts have chronicled the history of CCC placement policy leading up to the February 2005 Rule. See Woodall v. Federal Bureau of Prisons,
Prior to the policy change in December 2002, the BOP interpreted its governing legislation such that the agency’s general authority to designate places of imprisonment was “not restricted by § 3624(c) in designating a CCC for an inmate and [that it could] place an inmate in a CCC for more than the ‘last ten per centum of the term,’ or more than six months, if appropriate.” See U.S. Dep’t of Justice, Federal Bureau of Prisons Program Statement 7310.04 (Dec. 16, 1998). But on December 13, 2002, the Department of Justice’s Office of Legal Counsel (“OLC”), advised the BOP that this practice exceeded the agency’s authority under 18 U.S.C. §§ 3621(b) and 3624(c).
The OLC reasoned that confinement in a community corrections center did not constitute “imprisonment” within the meaning of § 3621(b). It found that that the BOP therefore lacked statutory authority to allow an offender to serve a term of imprisonment, as defined by the federal court’s sentencing order, in community confinement for any period longer than the transitional pre-release custody defined in § 3624(c). The United States Attorney General’s Office adopted this position on December 16, 2002. To comply with the Attorney General’s position, the BOP issued the December 20, 2002 policy, which, as previously described, mandated that “[p]re-release programming CCC designations are limited in duration to the last 10% of the prison sentence, not to exceed six months.”
A cavalcade of habeas petitions challenging the December 2002 Policy followed. The First and Eighth Circuits, as well as many district courts,
On August 18, 2004, the BOP, after applying its formal notice-and-comment procedures, promulgated a new rule. This rule had the effect of imposing the same durational limitations on prisoner’s CCC
(a) This subpart provides the Bureau of Prisons’ (Bureau) categorical exercise of discretion for designating inmates to community confinement. The Bureau designates inmates to community confinement only as part of pre-release custody and programming which will afford the prisoner a reasonable opportunity to adjust to and prepare for re-entry into the community.
(b) As discussed in this subpart, the term “community confinement” includes Community Corrections Centers (CCC) (also known as “halfway houses”) and home confinement.
28 C.F.R. § 570.20.
The new regulation expressly prohibits placement of prisoners in CCCs prior to the pre-release phase of imprisonment and provides:
When will the Bureau designate inmates to community confinement?
(a) The Bureau will designate inmates to community confinement only as part of pre-release custody and programming, during the last ten percent of the prison sentence being served, not to exceed six months.
(b) We may exceed these time-frames only when specific Bureau programs allow greater periods of community confinement, as provided by separate statutory authority (for example, residential substance abuse treatment program ... or shock incarceration program) ...
28 C.F.R. § 570.21.
We are the third court of appeals to decide a habeas petition challenging the February 2005 Rule. Both other circuits have struck down the Rule. See Fults v. Sanders,
DISCUSSION
I. Levine’s Habeas Challenges
Levine’s habeas petitions challenge the December 2002 Policy as well as the February 2005 Rule, and he presses both issues on appeal. We review his petitions de novo. Sash v. Zenk,
A. Mootness
Levine was released on or about November 29, 2005, and he is now serving a three-year term of supervised release. The Supreme Court has cautioned that “[t]o abandon the case at an advanced stage may prove more wasteful than frugal,” Friends of the Earth, Inc. v. Laidlaw Envtl. Services, Inc.,
Our circuit faced a similar question in Sash v. Zenk,
B. Our Jurisdiction to Hear Levine’s Challenges Pursuant to 28 U.S.C. § mi
Our jurisdiction to issue writs of habeas corpus to federal prisoners “in custody in violation of the Constitution or laws or treaties of the United States” is codified at 28 U.S.C. § 2241. See Cephas v. Nash,
The question arises, then, whether Levine’s challenge was properly labeled as a petition pursuant to 28 U.S.C. § 2241, or whether it should joe reviewed as a petition under 28 U.S.C. § 2255.
A challenge to the execution of a sentence — in contrast to the imposition of a sentence — is properly filed pursuant to § 2241. See Chambers,
The Supreme Court has indicated that “unlawful ] confine[ment] in the wrong institution” falls within the ambit of § 2241 habeas corpus relief, because it concerns the unlawful imposition of physical restraint. See Preiser v. Rodriguez,
Levine’s petition challenges the place of his imprisonment, including the differences in the manner and conditions of imprisonment (such as the degree of physical restriction and rules governing prisoners’ activities) that distinguish CCCs from other BOP penal facilities. Levine’s claim is therefore not an attack on the lawfulness of his sentence, but rather an attack on the execution of his sentence, and as such is governed by § 2241.
Levine attacks the December 2002 Policy as contrary to the statutory commands of § 3621(b) and § 3624(c) and invalid for failure to comply with the notiee-and-comment procedures of the Administrative Procedure Act, 5 U.S.C. § 553(b)-(d). He argues that it was under the December 2002 Policy that he initially was barred from early placement in a CCC. Respondent counters that the issue of the legality of the December 2002 Policy is not justiciable in this case, since, in fact, Levine was excluded by the February 2005 Rule. We agree.
Levine surrendered to federal custody for a fifteen-month sentence on October 29, 2004. Shortly after, on or about November 24, 2004 (thus prior to the effective date of the February 2005 Rule), the staff at the Otisville facility made a preliminary review of Levine’s potential eligibility for placement in a CCC, and found that he would be eligible on or after his “10% date.” This preliminary review, however, was not binding, and no final determination was made before the promulgation of the February 2005 Rule.
As a result, the issue of whether the December 2002 Policy violated statutory commands was mooted by the promulgation of the February 2005 Rule. The new rule superseded the former policy, and it was this rule that was applied to Levine. Although Levine’s CCC placement was seemingly governed by the December 2002 Policy for approximately the first 2.5 months of his sentence, Levine effectively conceded that under BOP practices as they existed before the policy change in December 2002, he would not have been eligible fоr CCC placement until May of 2005.
It follows that the alleged unlawfulness of the December 2002 Policy did not affect Levine, and therefore his claims on this issue are moot. See Princeton University v. Schmid,
D. The February 2005 Rule
The BOP’s February 2005 Rule provides that the agency “will designate inmates to community confinement only as part of pre-release custody and programming, during the last ten percent of the prison sentence being served, not to exceed six months.” 28 C.F.R. § 570.21(a). Levine argues that the rule contravenes unambiguously expressed Congressional intent that the BOP must
The familiar two-part Chevron deference analysis guides our inquiry. See Bell v. Reno,
1. The Congressional Command
a. The Statutory Language
The Sentencing Reform Act, 18 U.S.C § 3621(b), governs the BOP’s assignment of prisoners to their place of imprisonment, as well as transfers within the federal penal system. Our analysis hence begins with the plain text of this act, and “ ‘where the statutory language provides a clear answer, it ends there as well.’ ” See Raila v. United States,
The statute (given in full, supra) employs the word “shall,” and thus obliges the BOP to “designate the place of the prisoner’s imprisonment.” 18 U.S.C. § 3621(b), ¶ 1. In making this mandatory initial placement, the statute further specifies that the BOP “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 [enumerated statutory factors].” Id. (emphasis added).
Congress’s use of the language “may designate” in this provision seemingly endows the BOP with “broad discretion.” See McCarthy v. Doe,
If Congress had rested there, the BOP would have been left with unguided discretion to determine which “penal or correctional facilit[ies]” were “appropriate and suitable” for each inmate at any given time. See Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Services,
It follows from the plain grammatical construction of the statute — the order of the sentence and the comma placed before “considering” — that the BOP’s discretion to designate an inmate to a penal or correctional facility, and its determination of which facilities are “appropriate and suitable” for that inmate, must be informed by the list of five Congressional concerns. This construction is reinforced, moreover, by Congress’s instructions with respect to transfers: “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(b), ¶ 2 (emphasis added). To read the statute otherwise — i.e., to read “may designate” to render the statutory factors non-mandatory — would be to allow the discretion granted by the word “may” to eclipse the seemingly mandatory Congressional parameters for the exercise of that discretion, and render them purely hortatory. And this, two other circuit courts have (as we will also) refused to do. See Fults,
Significantly, Congress used the word “and” rather than “or” to unify its five concerns. All of the listed factors must therefore be considered. Accord Fults,
b. The Legislative History
Given the clarity of the text, we need not turn to legislative history. Such an inquiry, however, supports our reading that the five factors are in fact mandatory but nonexclusive. Accompanying § 3621(b), the Senate Judiciary Committee issued a report speaking directly to the nature of the statutory factors. See United States v. Gayle,
The question to which we must turn, therefore, is whether the agency complied with the requirements of § 3621(b) in drafting its February 2005 Rule.
The February 2005 Rule at issue in this case, published at 28 C.F.R. § 570.20 and § 570.21, was announced as a “a categorical exercise of discretion under 18 U.S.C. § 3621(b).” Community Confinement, Final Rule, 70 Fed.Reg. 1659-01 (Jan. 10, 2005) (to be codified 28 C.F.R. Part 570). As the agency explained when it proposed the rule: “Because various courts have held that the Bureau has discretion under 18 U.S.C. [§ ] 3621(b) to place offenders sentenced to a term of imprisonment in CCCs, the Bureau considers it prudent to determine how to exercise such discretion.” Community Confinement, Proposed Rule, 69 Fed.Reg. 51213 (Aug. 18, 2004) (to be codified 28 C.F.R. Part 570). The BOP decided that the agency would “designate[ ] inmates to community confinement only as part of pre-release custody and programming.... ” 28 C.F.R. § 570.20(a). And it defined this pre-release custody period as “the last ten percent of the prison sentence being served, not to exceed six months.” 28 C.F.R. § 570.21(a).
The BOP is the sole agency charged with discretion to place a convicted defendant within a particular treatment program or a particular facility. See United States v. Williams,
The issue that is contested before us is whether § 3621(b) permits the BOP to exercise its categorical rulemaking authority so as to promulgate a categorical limitation оn the period in which an inmate may be placed in a CCC. Respondent argues that such a categorical limitation is consistent with the BOP’s broad placement discretion under § 3621(b) (as found by the First and Eighth Circuits, as well as other courts, when they struck down the December 2002 Policy). Respondent relies heavily on Lopez v. Davis,
In Lopez, the Supreme Court examined a BOP rule that categorically denied early release following drug rehabilitation to a category of inmates that, under the terms of the statute, would otherwise have been eligible for such release. See
The Court also rejected the argument that the provision required the BOP to rely on case-by-case assessments. Id. at 243,
Relatedly, the rule in American Hospital, quoted by the Lopez court, validated “rulemaking to resolve certain issues of general applicability” that arise along the path to making ultimately individualized determinations. Am. Hosp.,
Moreover, in Heckler v. Campbell,
In each of these cases, the agencies did what they were statutorily empowered to do. In Lopez and American Hospital, the BOP and the NLRB had filled a statutory gap left by Congress and did so reasonably, in a way consistent with the statutory-scheme. See Lopez,
What agencies may not do, however, is edit a statute. Categorical rulemaking, like all forms of agency regulation, must be consistent with unambiguous Congressional instructions. And, an agency may not promulgate categorical rules that do not take account of the categories that are made significant by Congress. See Succar v. Ashcroft,
It is worth examining, once again and in detail, why such a categorical approach is inconsistent with § 3621. When the BOP selects among prisoners and decides which facilities are “appropriate and suitable” for a prisoner, it must do so “considering” or “having regard for” the statutory factors. The balance of the term to be served is not on this list. Nor can that consideration be reasonably inferred from any possible ambiguities in the statutory factors, or from other concerns identified in § 3621 as a whole. Thus, unlike the rule at issue in Lopez, which the Court found to be a reflection of Congressional concerns manifested in the statutory provision, the February 2005 Rule promulgated here did not track or effectuate legislative text. See Lopez,
Furthermore, of the five statutory factors that must be considered, at least three — the nature and circumstances of a prisoner’s offense, the history and characteristics of the prisoner, and any statement by the court that imposed the sentence— are specific to individual prisoners. See 18 U.S.C. § 3621(b)(1)-(4). As a result, considering these factors entails individualized decisions. And this neсessity distinguishes the present case from Lopez, in which the statutory provision at issue had no regard for the specific characteristics of individuals, other than the fact that they had completed a treatment program. See 18 U.S.C. § 3621(e)(2)(B); Lopez,
Accordingly, and like our sister circuits, we find that 28 C.F.R. § 570.21 is an improper exercise of the BOP’s rulemaking authority. Section 3621(b) establishes clear parameters for the BOP’s exercise of discretion in making prison placements and transfers. By sorting prisoners’ eligibility for one of the institutions on the “available penal or correctional facility” list only according to the portion of time served, the BOP has unlawfully excised these parameters from the statute.
CONCLUSION
We hold that in transferring an inmate to a CCC or any “available penal or correctional facility,” the BOP must consider the factors set forth in § 3621(b), without reference to 28 C.F.R. § 570.21.
For the foregoing reasons, the dismissal of Levine’s habeas challenge to the December 2002 Policy is AFFIRMED. The dismissal of Levine’s habeas challenge to the February 2005 Rule is VACATED and REMANDED for further proceedings not inconsistent with this opinion.
Notes
. Our court did not consider the December 2002 Policy before its repeal. We have, however, acknowledged the "firestorm” of legal challenges triggered by the policy and we reported one district court's observation that a sizeable majority of district courts in our circuit had found the policy invalid. See United States v. Arthur,
. The government has not challenged the labeling of Levine’s petition in the present case. It has, however, been a question of some dispute in district courts. A great number of these in our circuit have found, as we also will, that § 2241 was the appropriate code section. See, e.g., Lowy v. Apker,
. In Lopez v. Davis,
. The Seventh Circuit has reached a different conclusion, and held that habeas jurisdiction could not lie in litigation challenging the BOP's placement policies, because victory in such a case could not change the petitioner's
. This is consistent with the record before us, which indicates that under the pre-December 2002 policy, inmates would not be considered for CCC placement prior to the final 180 days of their sentence, except "with extraordinary justification.” Levine makes no claim of extraordinary justification.
. Though the construction of the statute makes these factors mandatory, we agree with Respondent that, given the general breadth of discretion afforded to the BOP, McCarthy,
. The report’s statement that the statute is not intended "to restrict or limit the Bureau in the exercise of its existing discretion” supports a reading of the list as non-exclusive. See supra note 7. The Senate report does not mention the bar against favoritism among the "specific requirements" that the BOP must consider. Nevertheless, as Respondent asserts, the plain language "there shall be no favoritism" makes this a mandatory limitation on making placements.
. By the plain language of the statute, § 3621(b) permits the BOP to designate a prisoner's "place of imprisonment,” but only to a "penal or correctional facility.” In the past, the BOP took the view (based on the
In Ehvood and Woodall, Respondent apparently abandoned the argument that CCCs are not within the category of "places of imprisonment,” and it has similarly eschewed such an argument before us. Indeed, by promulgating 28 C.F.R. § 570.21 (the February 2005 Rule) under the authority of § 3621(b), the BOP necessarily places CCCs within that category of institutions governed by the statute. See Community Confinement, Proposed Rule, 69 Fed.Reg. 51213 (Aug. 18, 2004) ("Because various courts have held that the Bureau hаs discretion under 18 U.S.C. 3621(b) to place offenders sentenced to a term of imprison-meat in CCCs, the Bureau considers it prudent to determine how to exercise such discretion.”). The situation in which we find the law is thus quite different from one in which the issue to be decided was whether CCCs qualified as a "place of imprisonment” and, thus, as an "available penal or correctional facility” under the statute.
The question before us is also importantly distinct from one in which the BOP closed CCCs entirely, with the result that they were no longer "available” within the language of the statute. The agency would of course still have to meet its obligations under § 3624(c) in some other way, i.e., to ensure, where practicable, that prisoners spend the last 10 per cent of their sentences (not to exceed six months) under transitional conditions preparing for the prisoners' community re-entry. See 18 U.S.C. § 3624(c). Apart from that restriction, we in no way suggest that the BOP must make a particular form of “reentry” facility, like a CCC, available. But the BOP has not closed CCCs, thus dropping them from the roster of available "placets] of imprisonment,” i.e., "penal or correctional facilities.” And, since they are availаble, the BOP must comply with the factors made mandatory by Congress in assigning prisoners to them.
. The BOP argues that even if we find the statute to require consideration of the enumerated factors, the agency has done so. See Community Confinement, Proposed Rule, 69 Fed.Reg. 51214 (Aug. 18, 2004) ("In deciding to limit inmates’ community confinement to the last ten percent of the prison sentence, not to exceed six months, the Bureau has carefully considered all of the statutorily-specified factors ...."); id. at 51213 ("The Bureau will continue to make a case-by-case determination of the particular prison facility (i.e., non-community-confinement facility) to which it will designate each individual inmate.”). The proposed and final rules of the contested regulations convey that the BOP considered facility resources, policy statements issued by the Sentencing Commission, and the prohibition
. Levine argues that in addition to violating the agency’s statutory authority, the BOP regulations violate the ex post facto doctrine. See U.S. CONST, art. I, § 9 (“No Bill of Attainder or ex post facto Law shall be passed.’’). Having held in Levine's favor on other grounds, we need not consider his constitutional argument. See Torres v. Walker,
In light of the foregoing, we also need not reach Levine and Amici’s APA argument that the February 2005 Rule was "arbitrary and capricious” within the meaning of 5 U.S.C. § 706(2)(A).
Dissenting Opinion
dissenting.
I respectfully dissent from the majority’s conclusion that the Bureau of Prisons (“BOP”) abused its rulemaking authority when, in 2005, it promulgated a rule (the “February 2005 Rule”) allowing the designation of inmates “to community confinement only as part of pre-release custody and programming which will afford the prisoner a reasonable opportunity to adjust to and prepare for re-entry into the community.” 28 C.F.R. § 570.20(a) (emphasis added). As part of this rule, the BOP will designate inmates to community confinement centers (“CCCs”) “only as part of pre-release custody and programming, during the last ten percent of the prison sentence being served, not to exсeed six months.” Id. § 570.21(a); see also 18 U.S.C. § 3624(c). It will “exceed these time-frames only when specific Bureau programs allow greater periods of community confinement, as provided by separate statutory authority (for example, residential substance abuse treatment program (18 U.S.C. § 3621(e)(2)(A))), or shock incarceration program (18 U.S.C. § 4046(c)).” 28 C.F.R. § 570.21(b).
Levine contends, and my colleagues in the majority agree, that this rule violates the relevant statutory authority set forth in 18 U.S.C. § 3621(b). In pertinent part, § 3621(b) provides:
The Bureau of Prisons shall designate the place of the prisoner’s imprisonment. The Bureau may designate any availablepenal or correctional facility 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.
18 U.S.C. § 3621(b). The majority concludes that the BOP’s February 2005 Rule impermissibly “edit[s]” 18 U.S.C. § 3621(b), substituting a single factor — the portion of time served — for thе five factors specified in the statute for BOP consideration when designating or transferring federal prisoners. Ante at [84-85]. I construe the rule somewhat differently, specifically, as a permissible categorical rejection of CCCs as appropriate and suitable facilities for § 3621(b) designations generally, with a limited exception only for those circumstances where Congress has identified statutory considerations pursuant to 18 U.S.C. §§ 3621(e)(2)(A), 3624(c), or 4046(c), in addition to those catalogued in § 3621(b).
As the majority appears to acknowledge, nothing in § 3621(b) requires the BOP to establish CCCs or to recognize them as appropriate and suitable correctional facilities for the service of incarcera-tory sentences. See ante at [82-83] n. 8. Nevertheless, the majority concludes that, because the BOP does employ CCCs “as part of pre-release custody and programming,” 28 C.F.R. § 570.20, it must consider CCCs in making every prisoner designation under § 3621(b). The majority reasons: “[T]he BOP has not closed CCCs, thus dropping them from the roster of available ‘place[s] of imprisonment,’ i.e., ‘penal or correctional facilities.’ And, since they are available, the BOP must comply with the factors made mandatory by Congress in assigning prisoners to them.” Ante at [83] n. 8 (quoting 18 U.S.C. § 3621(b)) (emphasis in original).
First, I do not understand that, under the February 2005 Rule, the BOP will cease considering all five § 3621(b) factors in making any inmate placement. The rule does not eliminate § 3621(b) factors from any placement consideration; rather, it eliminates a particular type of facility— CCCs — from among those to which a prisoner can be designated when only the five § 3621(b) factors inform the BOP’s placement decision.
Second, to the extent the rule does allow CCC placements within a narrow time frame — “during the last ten percent of the prison sentence being served, not to exceed six months,” 28 C.F.R. § 570.21(a)— the exception identifies no arbitrary period, but rather one in which the BOP operates under a specific congressional man
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 reasonablе 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.
18 U.S.C. § 8624(c) (emphasis added). Plainly, this statute identifies a penalogical goal — helping prisoners prepare for their reentry into the community — that, significantly, is not mentioned in § 3621(b). See generally Goldings v. Winn,
In light of this statutory scheme, the BOP might well conclude that (1) it does not generally consider CCCs appropriate and suitable facilities for the service of incarceratory sentences; nevertheless (2) these facilities, which are, after all, designed to promote community reentry, can usefully serve the § 3624(c) mandate. Pursuant to such conclusions, the BOP might, as it did here, promulgate a rule that categorically excludes CCCs from among the “available penal and correctional facilities]” to which it may designate or transfer prisoners, except when the BOP strives to meet other statutory obligations, such as the time-specific reentry mandate of § 3624(c). See generally Community Confinement, Proposed Rule, 69 Fed.Reg. 51,213, 51,214 (Aug. 18, 2004) (noting that challenged regulations were “supported by consideration of the congressional statutory policy as reflected in related statutory provisions,” and stating that “[w]hether or not Section 3624(c) precludes the Bureau from designating a prisoner to community confinement for longer than the lesser of the last ten percent of the sentence or six months, it is consistent with the congressional policy reflected in that section for the Bureau to exercise its discretion to decline to designate a prisoner to community confinement for longer than that time period”).
Third, unlike my colleagues in the majority, I think the BOP’s categorical rejection of CCCs for general § 3621(b) designations (ie., placements not involving § 3624(c) or other statutory concerns) does find support in Lopez v. Davis,
The majority attempts to distinguish Lopez by noting that § 3621(b), unlike the statute at issue in Lopez, “establishes clear parameters for the BOP’s exercise of discretion.” Ante at [87]; see Lopez v. Davis,
I do not understand the BOP selectively to have implemented the § 3621(b) factors in categorically rejecting CCCs for general prison designations. In its notice of proposed rulemaking, the BOP stated that “[i]n deciding to limit inmates’ community confinement to the last ten percent of the prison sentence, the Bureau has carefully considered all of the statutorily-specified factors.” See Community Confinement, Proposed Rule, 69 Fed.Reg. at 51,214. I would not reject this representation simply because the BOP did not discuss each § 3621(b) factor in its rule notice. Cf. United States v. Fernandez,
Unlike the majority, I do not think this conclusion is foreclosed by the fact that three of the § 3621(b) factors — the nature of and circumstances of the prisoner’s offense, the history and characteristics of the prisoner, and any statement by the court that imposed the sentence — -are “specific to individual prisoners” and, thus “considering these factors еntails individualized decisions.” Ante at [86], As previously observed, Lopez specifically concluded that, “[e]ven if a statutory scheme requires individualized determinations, the decision-maker has the authority to rely on rule-making to resolve certain issues of genéral applicability.” Lopez v. Davis,
Were I in the majority in holding this view, it would perhaps be necessary to discuss further why I consider appellant’s and amici’s other challenges unconvincing. Because I express a minority view and because the majority does not discuss these other arguments, I do not pursue these points in dissent.
. This reasoning suggests that the BOP could not categorically exclude CCCs from consideration in any designation decision, even the initial placement of prisoners convicted of murder or sentenced to terms of life imprisonment. However remote the likelihood of such an obviously inappropriate and unsuitable placement in such circumstances, today's decision appears to preclude the BOP from categorically excluding those facilities from consideration.
. Section 3621(e)(2)(B) provides that the BOP may reduce by up to one year the prison term of an inmate convicted of a nonviolent felony, if the prisoner successfully completes a substance abuse program. See 18 U.S.C. § 3621(e)(2)(B).