*2 Before LIPEZ HOWARD, and Circuit Judges, LISI,* Judge. District LIPEZ, Judge. Circuit Morris Goldings, an inmate at the Fed- eral Medical Devens, Center in Ayer, Massachusetts, brought this civil action against the Warden of Devens, FMC Winn, David and Attorney General John Ashcroft, challenging a change in policy by the Bureau (“BOP”) of Prisons that limit- ed his eligibility for placement in a com- munity (“CCC”) corrections center last ten percent of his sentence. He sought declaratory injunctive relief enjoining the defendants from applying the new pol- icy to him. The defendants moved to dis- miss the complaint for failure to state claim pursuant to Federal Rule of Civil 12(b)(6). Procedure The district court granted motion, Goldings appeal- ed.
* Of the Island, District of Rhode sitting by designation. change subject that is the of ment in policy correction centers near required by was a December sentences, this lawsuit up end of their to six Opinion from the 2002 Memorandum months, pursuant longstanding to a prac- *3 Legal of Justice Department Office addition, In tice.1 the BOP a policy had Counsel, declared unlawful which low-risk, in placing some CCCs non-violent practice placing prior BOP’s federal federal offenders who had been sentenced community in prisoners confinement periods to short imprisonment, including part serve all or of their sentences. Gold- months, periods for of more than six par- ings argues policy that the BOP’s is based ticularly sentencing if the court so recom- interpretation on an erroneous of two stat- mended. utory Sentencing of the Reform provisions § §
Act of On December about three-and- 3624(c). According interpretation, to this a-half Goldings began serving months after limit provisions these two the BOP’s dis- sentence, Legal the Office of Counsel in place prisoners cretion to to the CCCs of the Department United States of Jus- percent of the last six months or ten lesser (OLC) Deputy Attorney tice forwarded to imprisonment. Although of their terms of Larry Thompson General D. eight-page in change policy generated has a flood memorandum that characterized as “un- courts, of lawsuits in the federal district no decades-long practice lawful” the BOP’s appeals yet spoken court of has on the placing certain offenders in CCCs serve validity policy. of the BOP’s new We do stated, part all or of their sentences. It in policy so here and conclude that the new is part: contrary plain meaning of 18 U.S.C. Your office has informed us that when a 3621(b).
federal offender whom the deems [BOP] I. to be low-risk nonviolent receives imprisonment, short sentence of BOP 17, 2002, July Goldings pled guilty in On in places often that offender a communi- the United States District Court for the center, house, ty halfway corrections District of Massachusetts three counts confinement,” fraud, “community other form of of tax in violation of 18 U.S.C. 1341, 1343, §§ prison. and 1956. He rather than in Your office has was sen- im- thirty-six tenced to month term of you asked to advise has us 28, 2002, prisonment. August Goldings On authority, general upon either the rec- reported Federal Medical Center De- judge or sentencing ommendation of the vens, the facility designated otherwise, such an offender di- Prisons, by the Bureau of to commence his rectly community in at the confinement sentence. him outset of his sentence or to transfer prison from confinement Goldings custody,
When entered federal prisoners place- during the BOP considered for the course of his sentence. Goldings' complaint alleged placed periods for excess of that the BOP were in CCCs routinely majority” considered "the vast percent ten of their terms of periods inmates for in CCCs for true, accept Goldings’ We characterization as percent excess of the last ten of their sen- reviewing as we must in the dismissal of a sup- In tences. their memorandum filed in 12(b)(6). complaint pursuant to Rule Alterna- dismiss, port of their motion to the defendants Inc., Concepts, Sys. Synopsys, Inc. v. tive disagreed Goldings' but characterization (1st Cir.2004). F.3d acknowledged that at some least ly, We conclude below that the BOP has the transfer not exceed the less- (i) general no authority. such As we ex- er of the last ten ie., plain, statutory authority offender, to im- imposed sentence plement imprisonment period sentences of time in which the offender construed, must be possible, custody wherever was committed to the (ii) comport BOP, legal requirements with the six opin- months. The OLC govern the federal courts’ sentenc- ion concludes that there are no bases ing Community order. disregarding confinement the time limitations. does constitute 2 (emphasis original). Id. at in the *4 purposes order, sentencing 20, 2002, On December the Assistant general statutory BOP lacks clear au- Directors for the General Counsel and thority in confine- Programs Chief Division of the BOP is- ment an offender who has been sen- sued a memorandum that directed all tenced to a term of imprisonment. BOP implement immediately officers to practice BOP’s is therefore unlawful. procedure” “revised based on the OLC The OLC specifically Memorandum also Memorandum. In accordance with that concluded that statutory the BOP lacked directive, Warden in- Winn informed the authority to transfer inmates to CCCs for Camp mates of the FMC Devens that be- sentences, more than percent ten of their Memorandum, cause of the OLC the BOP explaining that “[t]he conferred changed procedures had its designat- 3624(c) under section prison- to transfer a ing inmates to explained CCCs. He non-prison er to a clearly site is limited to all pre-release future designations period months, ‘not to exceed six of the would be limited to the last percent ten last 10 per centum of the time to be prison inmate’s term. served,’ and see disregard- we no basis for exhausting After his administrative rem- (internal
ing this time limitation.” citation edies, Goldings, who an attorney prior was omitted). conviction, to his pro filed this action inse 16, 2002, On Deputy December At- the United States District Court for the torney adopted General the OLC Memo- District of Massachusetts. complaint His randum and forwarded it to the Director of alleged that policy under the in effect BOP, with a memorandum that direct- at the time of sentencing, his he would ed the BOP to “take all steps necessary to have eligible been for transfer ato CCC as sentencing ensure its in decisions are early as October six months before full compliance with governing law” statutory contrast, his In release date. prison and to transfer to facilities all of- under the new policy, his transfer is not fenders in residing CCCs who had more possible 7, 2005, January until when he than days remaining of their terms of only percent will have ten of his sentence imprisonment. The memorandum reiter- left to serve. The complaint alleged that ated that procedure the new BOP was incorrect as a
while BOP
statutory
does have limited
statutory
matter of
interpretation, was es-
3624(c)
in 18 U.S.C.
in
tablished
violation of the notice and
transfer an offender
prior
to a CCC
requirements
comment
of the Administra-
his release so
(APA),
as to “afford the
tive Procedure Act
and violated
opportunity
adjust
reasonable
Goldings’ rights
under the Ex Post Facto
prepare
for the
re-entry
and Due Process Clauses of the United
into the community,” there are firm re- States Constitution. Goldings sought a
strictions on such
Specifical-
transfers.
declaration that
authorizes the
halfway
Co.,
Chapelle
transfer him to a CCC or
v. Berkshire
BOP to
Ins.
Life
(1st Cir.1998).
F.3d
percent
house for more than the last ten
At issue in
sentence,
validity
if
case is the
appropriate,
his
defendants’
interpretation
and an
pre-December
policy,
3624(c),
statutory provisions
injunction enjoining the defendants from
govern the BOP’s authority to decide
limiting
eligibility
where a federal offender must serve all or
percent
the last ten
of his
CCC to
sentence
part of his
particular,
or her sentence.3 In
Memorandum.
based
OLC
we must consider whether the BOP has
The defendants moved to dismiss Gold-
authority under the statute to transfer a
ings’ complaint pursuant
to Fed.R.Civ.P.
prior
federal
to a CCC
12(b)(6);
23, 2003,
on
October
district
lesser of the
last six months or ten
court
the motion.
In a brief re-
granted
of his or her sentence.4
script,
agreed
the court stated that it
expressed by
the reasons
two other dis-
agency’s
“We review de novo an
trict courts
the District of Massachu-
construction of a statute that it adminis
cases;
in particular,
ters,
setts
similar
although subject to
prin
established
*5
court cited the conclusion that “the BOP’s
ciples
INS,
of deference.”
v.
243
Griffiths
(1st Cir.2001).
merely
policy
revised
corrected
errone- F.3d
49
If “the lan
3624(c).”
interpretation of 18
guage
ous
U.S.C.
of the statute
plain
and admits of
distinguished
The district court
two other
no
meaning”
more than one
or if the stat
in
legislative
cases decided
the district which “criti- ute’s
history “reveals an un
application
policy”
equivocal
cized
of the BOP
answer” as to the statute’s mean
ground
assign-
ing,
that those cases “involved
do
interpretation
“we
not look to the
beginning
may
given
ments to a CCC at the
of a
by
be
to the statute
the
...
gov-
agency charged
defendant’s sentence
were
[and]
with its enforcement.”
Serv.,
§ §
Inc.,
erned
18
and 3625.”
U.S.C.
Arnold v.
Parcel
136
contrast,
(1st Cir.1998)
By
(internal
“Goldings’ case ...
involves F.3d
quo
omitted);
Chevron,
transfer to a
at
end of
sen-
tation marks
see
tence,
U.S.A.,
Council,
accordingly governed by
and is
Inc. v. Natural Res. Def.
3624(c).” Hence,
Inc.,
837, 842-43,
U.S.C.
the court found
467 U.S.
104 S.Ct.
(1984) (“If
statutory
no constitutional or
violation and
II. 3624(c) A. 18 U.S.C. Our review of the district court’s granting any decision the defendants’ Rule in statutory “As case of construc- 12(b)(6) tion, motion to analysis begins ‘language dismiss is de novo. La- our with the community 2. The National Association of Criminal De- 4.The OLC Memorandum treated Board, Lawyers, centers, houses, fense Criminal Justice Act halfway confinement Against Mandatory and Families Mínimums other confinement facilities as participated argument Foundation in oral equivalent purposes of the issue in this pro plaintiff. amici on behalf of the se We apply understanding case. We here as appreciate their assistance. well. 3621(a)-(b) reproduce 3. We the text of 3624(c) appendix. in the ” Hughes may designate any statute.’ Co. The Bureau Aircraft
Jacobson, 432, 438, penal or facility 119 S.Ct. that meets U.S. (1999). 3624(c) minimum of health habit- 142 L.Ed.2d Section standards .... steps required ability forth the BOP The Bureau sets a prisoner take at the end a term of direct transfer of prisoner society. It from one or correctional to ease a back into another. provides: c) custody.—The Pre-release Bureau 3621(b). poli- Under the new shall, practica- Prisons extent cy, a the defendants take the view that ble, serving that a prisoner assure not a “place imprisonment” CCC is imprisonment spends term of a reason- 3621(b). §of purposes According to the months, able not to exceed part, six defendants, the discretion that 10 per last centum of the term to be determining affords the in a prison- served under conditions that will afford imprisonment” er’s in- does not the prisoner opportunity a reasonable in clude discretion to adjust prepare prisoner’s to and for the CCC, either at the outset or at the end re-entry community. into the The au- prisoner’s Therefore, term. the defen- provided by thority this subsection 3624(c) dants claim that alone authorizes used home CCC, limiting place- confinement. ment lesser of the last ten 3624(c). six months term of de- According U.S.C. *6 3624(c) imprisonment. fendants, § the to authorizes BOP up transfer inmates to for to ten CCCs The district court not did address percent imprisonment of their terms of but validity the interpreta defendants’ limits that to a part, “reasonable 3621(b) § tion of it because concluded that months, per not to exceed six last the provision this implicated only by was as centum of the term to be served.” signments to beginning a CCC at the of a 3624(c) § agrees Goldings contains view, prisoner’s sentence. In the court’s However, limiting he language. argues “Goldings’ ... case involves transfer to a only that the statute limits the BOP’s stat- sentence, CCC at the end of his and is utory obligation prisoner to “assure” that a accordingly governed by spends part a reasonable of the last ten 3624(c).” § disagree We with the district percent imprisonment of his term of under Goldings’ court that claim be resolved pre-release conditions. He contends that 3624(c) alone, § on the basis of without 3624(c) mandatory § the directive does considering also applicability the discretionary authority not limit the com- 3621(b) § to placements. CCC There is 3621(b), mitted to the BOP under pursu- 3621(b) language no limits to “may designate any ant which the BOP designation prison penal facility” correctional as a place of imprisonment. er’s initial ex It “may any pressly provides that atmay “[t]he [BOP] time ... direct prisoner the transfer of a any direct of a pris transfer penal from facility one to oner from one or correctional another.” provides, The latter statute added). (emphasis Thus, to another.” on part: relevant 3621(b) face, § its permits the BOP to The Bureau of designate Goldings’ Prisons shall direct to a prior transfer CCC prisoner’s term, percent the last ten prison of his unless, argue, 3624(c) as the qualified. defendants Section does not man- not apply placements does CCC at all placement date prior release, because a CCC is not a of imprison- and it requires the BOP to assure that a In avoiding argument ment.” prisoner spends part the last of his sen- defendants, the district court essentially tence pre-release under only conditions if 3624(c) limiting language used to practicable. However, qualified obli- unambiguous rewrite language of gation differs from grant of discretion. any so that “at longer time” no 3624(c), Under the BOP must ensure time,” “at means rather “only but pre-release conditions ex- the lesser of the last six months or ten cept where no such placement practica- percent of a imprison- term of ble. As the Tenth Circuit explained, has significance The ment.” of this rewriting 3624(c) operates as “a legislative di- ignored. Indeed, cannot be the defendants focusing rective on the development of do argue appeal not on the district court’s conditions facilitate an adjust- inmate’s position that Goldings’ only requires case ment to society, free whatever the institu- 3624(c). Thus, §of consideration we can- pre-release tion of confinement.” Prows v. addressing avoid relationship be- Prisons, Fed. Bureau 981 F.2d 3624(c).5 tween (10th Cir.1992).6 provision The thus re- flects Congress’s impose upon intent
By 3624(c) its plain language, § agency duty to prepare prisoners provides that the steps” BOP “shall take reentry into the community, tying without prisoners “assure” that serve reasonable the hands of administrators in part deciding last ten prison of their where placed. are to be terms “under conditions that afford is not free to disregard that duty. reasonable opportunity ad If so, just judicial prepare to and did might for the relief prisoner’s re be available. entry into the See id. at 649 community.” language (suggesting This that although imposes an obligation affirmative did not have an enforceable right *7 3624(c) to steps take to § facilitate a smooth under placement CCC, to in a he re-entry prisoners into the might outside have had a valid cause of action world. It is true that obligation is based on the placement claim that his dismissing 5. Goldings’ 3624(c); rather, complaint, § In the dis- argues he that the BOP's largely trict court reasoning relied on the regular practice transferring prisoners Judge Winn, Kennedy Lasker's order in Civ. CCCs at the mark six-month of their sen- 03-10568-MEL, No. WL proper tences was a exercise of discretion (D.Mass. 9, 2003) July (slip op.), which held § unlawfully that was curtailed corpus petitioner that a habeas was not enti- by the OLC poli- and Memorandum resultant particular tled to a prior date release to the cy change. term, percent last ten of his to which he had assigned been before the OLC Memorandum. Prows, In a case decided under the old BOP However, explained as the district court policy, prisoner sought injunction federal an Winn, F.Supp.2d Monahan v. 211 n. compelling placement halfway house (D.Mass.2003), Kennedy analysis "[t]he ... 3624(c) theory or CCC that man- 3624(c) recognized that require did not that nonprison placement dates prison- for federal anything the BOP do Kennedy until met the prior ers to their release. The Tenth Circuit marker, percent stopped and there. Left claim, rejected prisoner's holding the that to consider is whether BOP was the allowed 3624(c) prisoners does not confer on Kennedy to move into confine- right any particular enforceable 3621(b).” form of ment under Kennedy, Unlike pre-release custody. Goldings does not claim he is entitled to particular pursuant release date to the committed cus- ment ... shall be obli- of a broader a violation “constitute[d] of Prisons.... the Bureau pre-release tody some provide at least gation re-entry to successful conducive treatment (b) imprisonment. Bu- Place of —The facility community, whatever into designate shall reau of Prisons incarceration”). prisoner’s of the time, pe- agree designate any we Bureau At the same 3624(c)’smandate facility Tenth Circuit that meets nal or correctional ad prisoner’s post-release “to facilitate the of health and habit- minimum standards through the establishment justment ... by the Bureau ability established conditions unspecified pre-release appro- some Bureau determines be that the - that the broader accepts premise as a suitable, considering and priate Bureau’s concerning the statutory scheme (1) facility of the contem- the resources intact remains general plated; Thus, while Id. at 469-70. effective.” and (2) nature circumstances 3624(c) the BOP’s discre clearly limits offense; community confine to consider not tion at alternatives pre-release or other ment (3) history characteristics term, it does prison end of a prisoner; doing so earlier the BOP from prohibit not (4) im- by the court that any statement grant of discretion to a different pursuant the sentence- posed ary authority.7 (A) concerning purposes which B. 18 U.S.C. was deter- the sentence warranted; 3624(c) mined does Having determined transferring from prohibit the BOP (B) recommending type to the lesser prior to CCC appropriate; of the end of months or ten six (5) policy statement is- any pertinent terms, consider we must next prison their Sentencing by the Commission sued the BOP upon confers 994(a)(2) of title to section pursuant authority to execute such discretionary 28.... considering the begin by We transfers. time, having language of the statute: The Bureau matters, (a) for the direct custody regard same Commitment *8 penal from one or prisoner of a transfer person who has Bureau of Prisons. —A facility to another. correctional imprison- a term of been sentenced to provision’s time report eliminated the limitations. suggest that a The defendants 7. However, 27,587-88 (1990). Cong. that House Committee deliberations took 136 Rec. during place Congress of a 1990 amend- by consideration report, compiled a session of 3624(c) "supports § 3624(c) ment to conclusion § subsequent to the one that enacted 3624(c) a strict limitation on that reflects insight meaningful provides no into designate prisoners to the BOP's original legislative intent of the section’s report community confinement centers.” event, any legislative such histo- drafters. In 3624(c), "the Bureau stated that under can here, where, weight as a dif- ry carries little Community only place a Correc- an inmate in by clearly expressed legislative is ferent intent last up to months or for the tion Center for six language. plain United States the statute's sentence, whichever 10 of his or her Co., George Trucking 823 F.2d Charles that the bill that was is shorter” and noted Cir.1987). (1st 688-89 have before the at that time would House
25
Goldings
that
argues
provides
this section
to a term of imprisonment and subse-
a
grant
broad
of
to the BOP quently detained in his home was not “im-
initially
designate,
subsequently to
and
prisoned” because the BOP never assumed
transfer, a prisoner
“any
penal
available
custody of the offender
required
as
by 18
facility.”
or correctional
He further claims
3621);
U.S.C.
Koray, 515 U.S. at
cf.
that
a “penal
a CCC is
or correctional
63-65,
The defendants’ circular definition King, States v. 338 F.3d unsupported by the plain language of (7th Cir.2003) (“Under 3621(a) U.S.C. Subsection “per directs 3621(b), the BOP is authorized to sons” sentenced to house serve a term of impris ... it anywhere deems custody appro onment “to the of the Bureau of Prisons,” priate.”) (emphasis added); Prows, thereby rendering “prison them (“Under F.2d at 469 n. ers” hence “imprisoned” pur U.S.C. 3621(b). 3621(b), poses of 3621(a), §to Bureau Prisons Pursuant it is direct any not the confinement imprisonment determines whether an transfer a from impris offender is one facil time.”). ity oned but the fact to another at and nature of the That offend broad (“sentenced er’s only by sentence- to a discretion is limited require term of imprisonment”) and identity ment that the the cus abe (the BOP). todian “penal See United States v. facility” Cintron-Fernandez, (1st 356 F.3d minimum standards health and .“meet *9 Cir.2004) (holding that offender habitability.” Cintron-Fernandez, sentenced See 8. The OLC opinion "assume[d] Memorandum ar- earlier the OLC had "declined guendo center, community that a corrections draw a distinction between residential com- house, halfway community or other form of munity facilities and secure facilities with re- may 'penal confinement constitute a or cor- spect to BOP’s [to contract with the facility’ provisions rectional under of 18 private operate sector secure facilities].” 3621(b)” § U.S.C. and conceded that in an “effectively render it would because (“According to 18 U.S.C. at 346
F.3d 3624(c) words, nullity.” “[i]t In other supposed a 3621(b), the Bureau 3624(c) limits facility’ and be that simply correctional cannot true ‘penal choose a or of six facility meets enumer- in a to the shorter that the CCC placement determine of health and percent ated minimum standards or to the last months have, but habitability.”). Congress term, could true that also be and prisoner’s of not, type any particular 3621(b) at did exclude in a CCC allows facility from the correctional penal or sentence.” during prisoner’s any time authority. or transfer designation incredulity apparently reflects Defendants’ Instead, imprisonment” “place of it defined be- recognize the distinction a refusal to “any penal unambiguously, as broadly but qualified obligation imposed tween a mini- facility” that meets or correctional discretionary authority grant and a habitability. of health and 3624(c) mum standards noted, § already it. As we have in consider- Hence, question the relevant that a assure obligation limits the BOP’s under the BOP has discretion ing whether sen- part the last prisoner spends 3621(b) Goldings to CCC to transfer conditions, wheth- pre-release tence under “penal as a qualifies a CCC not It does er CCC elsewhere. id. at 346 n. 6 facility.” correctional discretionary agency’s Cfi limit the issue of deciding “the (noting without any other a CCC at place prisoner home could ever prisoner’s] whether [the sentence. during prisoner’s facility’ or correctional qualify ‘penal as a 3624(c) 3621(b) not, Therefore, § do 3621(b)”). does, If it under 18 U.S.C. ana- “authorize two suggest, as defendants that it dictates then the text statute practically but redundant lytically separate imprisonment.” qualifies as a also community con- administering systems facility is community corrections Since a 3624(c) Moreover, § directs finement.” (and, noted, clearly a corrections serving “prisoner to assure that a the BOP suggest Memorandum did the OLC a reason- spend imprisonment a term of otherwise), may place prisoners the BOP imprisonment]” part [of able term of the last six prior to the lesser there (ex- conditions, including pre-release terms of percent or ten of their months (impliedly) pressly) home detention imprisonment.9 If, par- community as both confinement. of im- insist, however, be agree, that this ties
The defendants ten of a during the last squared prisonment “cannot reading of be 3624(c) it would imprisonment, term of meaning plain to conclude that the same incongruous elementary statutory construction” rules Moreover, Indeed, history. subsequent de- recognized previously five OLC itself including "facility” facility, further correctional letion of the definition community facility, be a argument Congress in- undermines the pursuant plain distinguish residential between tended 3621(b): meaning §of fa- community and other kinds of facilities is, moreover, statutory basis in There no cilities. distinguishing between section Counsel, States Legal Office of the and secure residential facilities Justice, Statutory Authority to Department of plain language of facilities. Because for Secure the Private Sector Contract with designate BOP to section allows 1992), (Mar. 25, available Facilities "any facili- or correctional (last http://www.usdoj.gov/olc/quinlan.15.htm ty,” unwilling a limitation on we are to find 18, 2004). Aug. visited *10 legisla- designation based on may place imprisonment CCC not be a of ed circumstances as outlined 18 U.S.C. during any portion of ninety per- § the first they are not free to come go and cent of that term.. they please. as They ‘imprisoned.’”); are see also States, Iacaboni v. United The defendants also find support for F.Supp.2d 1015, (D.Mass.2003) (“In a their interpretation of in 18 modern penal system, it is the prison ráre 1791(d)(4), U.S.C. prohibits which er who is immured behind six-foot-thick provision possession or of contraband in walls days year a like some character prison and defines “prison,” for the pur- romance.”). out of a Dumas section, poses of that “a as Federal correc- tional, detention, or penal facility.” Ac- The defendants further argue that defendants, cording “[t]his definition should light be construed in of suggests that a facility’ 3563(b)(11) ‘correctional 18 U.S.C. of the Sentencing are, first, ‘penal facility’ synonymous, and, Act, Reform which authorizes courts to second, equivalent a ‘prison,’ of where sentence offenders ato term of probation, generally inmates in fine, live cells behind bars a or a term imprisonment. of They and—unlike community confinement —are argue that this section allows courts to free leave for purposes.” various require a defendant, aas condition pro do not We understand logic bation, at, to “reside or participate in the 1791(d) argument. Section explicitly program of, a community corrections facili adopts a .broad “prison” definition of ty.” 3563(b)(11). 18 U.S.C. They fur specific section, purposes of that which ther note that may CCC be correctional, includes all detention, federal authorized as a condition of a term of -just and penal de- supervised release. See 18 U.S.C. facilities— term, 3583(a). fines the “place different impris- proba Because sentence of onment,” broadly to include those to, same tion is an may alternative not be penal correctional and facilities. Nowhere imposed as, at the same sentence of 1791(d) does “penal define a or correc- imprisonment, § 3561(a)(3), 18 U.S.C. facility” tional as a in which in- because a term supervised release oc mates are confined to cells behind bars curs after a term of imprisonment, without ever being allowed leave. defendants argue that CCC cannot abe “place imprisonment.”
Indeed, the
interpretation
defendants’
§ 3621 is inconsistent with the Sentencing
Again, the
argument
defendants’
is un-
Reform Act
ordinary
and the
meaning
persuasive.
The Sentencing Reform Act
modern-day imprisonment. The BOP is
addresses the
types of
three
sentences
expressly authorized
to allow
to that
courts
impose; it does not limit
leave their
of imprisonment” for
the scope of the
desig-
periods of
limited
time to work or pursue
nate the
where an. offender sen-
community
education
“while con-
tenced to a
imprisonment
term of
must
tinuing
official
at the
detention
serve that
The fact
sentence.
that resi-
3622(c).
facility.”
dence at or participation in a program aof
condition,
This kind of controlled exposure to
the CCC
serve as.
of probation
entirely
supervised
consistent
release
some offenders
meaning of imprisonment under the stat-
does not mean that a
cannot
Moore,
Byrd
ute. See
252 F.Supp.2d
offenders,
for other
(W.D.N.C.2003) (While
inmates of based on the nature of their sentences and
“are
CCCs
able to leave under some limit-
they
subject
are
to the control of
*11
by
deten-
61, 63,
be satisfied
home
ment’ cannot
Koray, 515
at
See
U.S.
the BOP.
(detention
subject
community confinement” while
or
tion
115 S.Ct.
may be credited
reserving
question
to the control of the BOP
of wheth-
expressly
under 18
imprisonment
of
against a term
or
“penal
can
as a
qualify
er the home
ever
in the
whereas confinement
U.S.C.
may
facility” which the BOP
not
may
of
facility as a condition
bail
same
“place
imprisonment”
a
of
designate as
who are ‘detained’
“defendants
because
3621(b)).
under 18 U.S.C.
subject to the
always remain
‘sentenced’
of
defen-
our consideration
We end
Bureau”).
control of the
3621(b),
here. Under
arguments
dants’
Finally,
note that the OLC’s
we
authority to
discretionary
the BOP has
imprisonment”
interpretation
of
of
penal or correc-
designate any available
a
primarily
relied
on
as
of CCCs
exclusive
meets minimum stan-
tional
that
held that
in which courts have
line of cases
as the
habitability
of health and
dards
imprisonment
is not
in a CCC
confinement
and to
prisoner’s imprisonment,
of
term is used
5C1.1 of
United
as that
any time
such a
transfer
at
to
Guidelines,
gov
Sentencing
which
States
facility.
A
correction center
that
kinds of sentences
erns the
facility and therefore
a correctional
within
imposed by courts
offenders
imprison-
serve as a
Although
D of the
Zone
Guidelines.
C
now,
plain language
ment.
as
“When
authority,
recently joined this line of
we
its
unambiguously
of a
reveals
statute
interpretation
that “our
we cautioned
meaning is not
meaning, and the revealed
necessarily apply
does not
eccentric,
not consult other
courts need
Sentencing
Guide
provisions [of
to
statutory construction.” United
aids to
other than
5C1.1.” Cintron-Fer
lines]
(1st
Meade,
215, 219
v.
175 F.3d
States
nandez,
(explaining
n. 7
BOP’s use III. designate ap federal reasons, hold that foregoing For we See Cint propriate place the BOP to authorizes ron-Fernandez, U.S.C. at 347 n. 7 & 356 F.3d Goldings transfer to CCC “in context of (holding 346 n. 6 5C1.1, discre- ‘imprison- during prison term. the minimum half term of analysis requirements of the APA and whether its preceding concludes 10. Because the Goldings application would violate his policy on an that the BOP’s new is based 3621(b), rights the Due Process and Ex Post interpretation we do erroneous of the United States Constitu- the defen- Facto Clauses the issues of whether reach adoption policy complied with tion. dants’ *12 tionary authority is not subject temporal to the limitations of 18 (B) recommending type a of penal or 3624(c). U.S.C. We vacate the order of facility appropriate; as granting the district court the defendants’ (5)any pertinent policy statement is-
motion to dismiss and remand for further by sued the Sentencing pursu- Commission proceedings opinion. consistent with this 994(a)(2) ant to section of title 28.
So ordered. In designating place the imprison-
ment or making transfers under this sub- APPENDIX section, there shall be no given favoritism high social or economic Imprisonment 18 U.S.C. aof time, status. The Bureau hav- person convicted ing regard matters, for the same direct the (a) custody Commitment prisoner transfer of a from penal one or Bureau of person Prisons. —A who has correctional facility to another. The Bu- been sentenced to a of imprisonment term reau shall make appropriate sub- pursuant provisions to the subchapter D stance abuse treatment for prisoner each chapter shall committed be to the the Bureau has a determines treatable custody of the until Bureau Prisons condition of substance addiction or abuse. expiration of imposed, the term or until earlier satisfactory released for behavior 3624. Release of a Pris- pursuant provisions to the of section 3624. oner (b) Place of Bu- —The (c) custody. Pre-release Bureau —The reau of designate Prisons shall shall, of Prisons to the extent practicable, prisoner’s imprisonment. The Bureau assure that a prisoner serving a term of may designate any available cor- imprisonment spends a part, reasonable facility rectional that meets minimum stan- months, not to exceed six per last 10 dards of health and habitability established centum of' the term to be served under by Bureau, by whether maintained conditions that will afford the Federal Government or otherwise and reasonable adjust opportunity to and whether within judicial or without the dis- prepare for the re-entry into the convicted, trict which the person was community. authority provided by that the Bureau determines to appro- be this subsection used to - suitable, priate and considering home confinement. The Unit-
(1) the shall, resources of the ed contem- States Probation System plated; practicable, extent offer assistance to a prisoner during such custody. pre-release
(2) the nature and circumstances of the HOWARD, offense; Judge Circuit (concurring). (“BOP”) Whether the Bureau of Prisons’ (3) history and characteristics of the policy ought to be presents sustained prisoner; question. join difficult I the court’s treat- (4) any by statement the court that im- ment of this question, sepa- and I write - posed the sentence rately emphasize point is the (A) concerning purposes for which this, decisional fulcrum for Beyond me. I sentence to was deter- also include an on scope observation warranted; mined to be holding. our by force or such other coercion pure ques presented are not We Rather, against his him his limits restrains within statutory interpretation. tion *13 Third New Int’l Dictio- to decide whether BOP’s will.” Webster’s required we are (1993). CCC permissi nary the statute is a at 1137 Under BOP’s interpretation of many Reno v. Ko are free to leave reading program, prisoners of the text. See ble 2021, 50, 62, parts day 115 S.Ct. ray, 515 U.S. facilities for certain CCC (1995) in (stating Thus, that BOP’s L.Ed.2d 46 not at other times. whether but granted must be deference terpretation residing “impris- in CCCs are prisoners inter cannot bear” its determined, unless the “statute may conceivably be oned” the correct If we are unsure of pretation). in says, by one is opinion the lead whether must defer to BOP’s interpretation, we BOP, may depend on the custody the 61, 115 2021. As reading. Id. at S.Ct. involved, may argu- even type critical opinion, in the lead the explained day on the time of at which ably depend phrase the “the question is whether question is asked.11 in imprisonment”, ... as used 3621(b) history § is legislative The 3621(b), place can be read to exclude ver predecessor also not conclusive. The Community Center ment in a Correction prisoners that provided sion of (“CCC”). 2002, 26-27. Ante at Since to assigned could be or transferred CCCs. in this interpreted has the statute Congress explicitly granted to I think way. Although Id. at 19. that (and BOP) Attorney him to General via close, I that con question agree assign or transfer is, end, adequately struction facility facility” and defined “suitable supported. community “a treat to include residential “halfway A is a type common of CCC (replaced ment center.” 18 U.S.C. “provide[s] resi- house” which suitable 3621(b)); 89-176. Pub.L. dence, job programs, place- structured Tkabladze, v. No. See United States ment, inmates’ counseling, while the 0301152, 2003 22836502 at *3 WL closely are monitored.” See BOP activities 2003) (C.D.Cal. 16, May (stating that “resi (1998). Pris- Program 7310.04 Statement community center” is the dential treatment residing permit- oners at most CCCs are CCC). term for a old employment ted to leave Act of part Sentencing As Reform other activities. and certain 1984, Congress replaced 4082 with were, government urges, Id. If as the we 3621(b).12 changed provision The new the common definition of simply apply “facility” “penal term or correctional in- “imprisonment” to decide “facility” defini- CCC, facility” and deleted the the statute cludes expressly had included CCCs. can tion which ambiguous. Imprisonment would be “facility” §of defini- person either The deletion 4082’s be defined as “constraint of change existing confirming difficulty important law of deter- 12. Further meaning "impris- mining plain whether the by § that it made transferred encompasses community onment” confine- custody prisoners Attorney from the Gener- ment, addressing question, in other courts 4082, directly BOP. Under the Attor- al law, sentencing areas have offered conflict- ney custody General had of federal ing question. views on the See Iacaboni delegated authority to BOP the first but this States, F.Supp.2d 1030-35 Keohane, See Barden v. 921 F.2d instance. (D.Mass.2003) (summarizing relevant case- Cir.1990). (3d 481-82 law). tion from could suggest 1990 U.S.C.C.A.N. 6546. The report Congress intended to redefine “facility” proceeded to explain 1404 broad- exclude Taylor CCCs. See v. United ened BOP’s authority in regard: States, 575, 590, U.S. 110 S.Ct. Section 1404 restores the Bureau of (1990) 109 L.Ed.2d (stating Prisons’ previously existing authority to omission of a pre-existing definition often designate appropriate place for of- Congress rejected indicates that the defini- fenders to sentences, serve their includ- tion). ing Community Correction Centers .... The Bureau of Prisons has developed *14 hand, On the other Judiciary Senate highly programs controlled in the com- Report Committee accompanying the Sen- munity that provide effective, punitive tencing Reform strongly Act suggests oth- sanctions for certain non-violent offend- 225, S.Rep. erwise. See No. reprinted in . ers who at point some prison in their 3182, 1984 U.S.C.C.A.N. report sentence would not be appropriately in- 3621(b) emphasized was intended to carcerated in a prison traditional setting existing Indeed, “follow law.” Id. the re- .... drug New Federal and crime laws 3621(b) port expressly stated that con- and Federal sentencing guidelines have tinued discretionary BOP’s authority to resulted in highly prison diverse popu- designate a place suitable of confinement lation .... Section 1404 provides the each prisoner for and that the proposed Bureau of Prisons with necessary provision only created one require- new flexibility manage to increasingly (i.e., ment that BOP prisoners must assign diverse Federal inmate population. to facilities that meet minimum health and 1990 standards). Thus, U.S.C.C.A.N at 6546. habitability the au- Id. at. 3324-25. thors of the Thus, 1990 Crime Control Act report that, inter- indicates after the preted 3621(b) the existing version 3621(b), enactment of as BOP retained its denying BOP ability assign prison- to pre-existing authority assign to or transfer CCCs, ers to except during prisoners porT the final at any CCCs during tion of their sentence. their sentences. Section 1404 was stricken from H.R.
The subsequent
legislative history of
5269 on the floor of the
Repre-
House of
3621(b),
however, suggests
op
the exact
sentatives and did not become law. Rep-
posite interpretation. Congress reconsid
McCollum,
resentative
sponsor
part
ered
as
of the debate over
section,
amendment striking the
explained
Crime
Act of
Control
1990. The origi
that he opposed
1404because
nal version of this bill proposed amending
'the language of the
bill
it is
as
now out
grant
BOP the authority to
here before
... giv[es]
us
a whole lot
assign or
prisoners
any
transfer
“suit
more
to the Bureau .of Prisons
appropriate institution,
able and
facility or
than
really
we
ought to .... The lan-
program ....”
5269,
H.R.
Cong.
101st
guage
bill,
in
being
without
(1990).
amend-
§ 1404
According to the House
ed, would have effectively allowed the
Judiciary Committee Report accompany
... Bureau of Prisons
any
to release
5269,
H.R.
ing
law,
existing
“[T]he
length of time ...
so
Bureau of Prisons
only place
c[ould]
they would not have
day
had to serve a
inmate in a Community Correction Center
prison.
in
up
to six
months
for the last 10
percent of
sentence,
his or her
(1990).
whichever
Cong.
Rec. 27587-88
The 1990
101-681,
is
H.Rep.
shorter.”
reprinted
law,
enacted,
in
left
isolation,
drawn
but must
unchanged.
determined
prisoners
transfer
assign and
See
it is used.”
context which
from
at
some members
Presumably for
least
56,
affirmed categorical rule making
authority in a case concerning permis
sibility of another BOP regulation. Lopez Davis, 230, 243-44,
v.
531 U.S.
121 S.Ct.
(2001).
statutory requires scheme individualized
determinations ... the decisionmaker has rely rulemaking on
resolve issues of general applicabil certain
ity Congress clearly expresses unless
intent authority.” withhold that Id.
(quoting NLRB, Hosp. Am. v. Assn. 606, 612,
U.S. 111 S.Ct. 113 L.Ed.2d (1991)). required BOP “is not contin
ually to revisit ‘issues that be estab fairly lished efficiently single ”
rulemaking proceeding.’ Id. (quoting
Heckler Campbell, 458, 467, 461 U.S. (1983)).
103 S.Ct. L.Ed.2d Valley
Elvera SADALLAH View Club,
Country Inc., assignee as the *17 Sadallah,
Elvera Plaintiffs-Appellees,
CITY Hanna, OF UTICA and Edward
individually capaci- official
ty Mayor City Utica, New
York, Defendants-Appellants.
No. 03-9055. States Appeals, Court of
Second Circuit.
Argued: April 2004. Sept.
Decided: sistent subsequent promulgated rules policy, should exercise its discre- Sentencing Ante at 23. harmony Commission. But tion in with the Guidelines and thus that, BOP may decide as matter prohibit placements. sound inconsistent CCC